6. REPLYOFTIIEGOVERNMENTO SFETHIOPIAANDLIBERIA
CHAFTBR 1
STATEMENT OF THE CASE
A. This Reply is respectfully submitted to the Court by the
Governments of Ethiopia and Liberia (hereinafter sometimes
referred to as "Applicants") pursuant to an Order of the Court
dated 20 January 1964, following upon submission to the Court
by the Governnient of the Republic of South Africa (hereinafter
sometimes referred to as "Respondent") of its Cozmter-Memorial.
B. In their Memorials, submitted to the Court pursuant to an
Order dûted 13 January 1961, Applicants have summarized the
subject of the dispute between Applicants and Re~pondent,~ and
the said dispute continues to exist.
C. In its Judfment of 21 December 1962 in respect of the Prelimi-
nary Objections, the Court declared, inter alia, "If the object of
Article 7 of the Mandate is the submission to the Court of disputes
relating to the interpretation or the application of the Mandate, it
naturally follows that no Application based on Article 7 could be
accepted unless the said Mandate, of which Article 7 is a part, is in
force. .." 2 "The unanirnous holding of the Court in 1950 on the
survival and continuing effect of Article 7 of the Mandate, continues
to reflect the Court's opinion to-day. . .. "3 "The validity of
Article 7, in the Court's view, was not affected by the dissolution of
the Leaguc, jusj as the Mandate nsa whole is still iltforce for thc
reasons stated a.hove."'
Notwithstanding the Opinion of the Court, Respondent persists
in its rejection of Applicants' contention that the Mandate is still
in force and that Respondent continues to have duties thereunder.'
It remains obvious that the dispute between Applicants and Res-
pondent has not been, and cannot be, settled by negotiation and,
indeed, that Respondent also disputes the Judgment of the Court.
D. In its aforesaid Judgment of 21 Decevnber 1962 the Court held
that Applicants
"... have a legalright or interest in the observanceby the Manda-
tory of its ol~ligationsboth toward the inhabitants of the Mandated
Territory, and toward the League of Xations and its Members."
1 1,p. 32.
1.CJi,Judgme>~otf sr Dccemberrg6a. p. 333 (hereinaiter referredto as "Judg-
ment").
' Id.. P. 334.
'II, pp.1-2.andipassim.ded.)
6 Judgmenl,p. 3.13. REPLY OF ETHIOPIA AND LIBERIA 221
Applicants' right and interest in Respondent's observance of its
Mandate obligations thus being of a legal character, it follows that
such right and interest is judicially determinable. The issues re-
maining for adjudication upon the merits of the dispute accordingly
involve juridical interpretation of the terms of Respondent's
obligations and their application to facts which, in essence, are
undisputed. CHAPTER II
HISTl3Ri' OF THE I3ISPUTE SINCE 1960
Iii their Me?norinls, subinittecl to th? Court in April 1961,
Applicaiits have set out the history of the hlaildate for South West
Africa from its origins througl! the 19130Session of the Unitcd
Nations General Assembly.' During that Session, the General
Asscmbly adopted liesolution 1565 (SV), iii which the Assembly
fouud that Kespondent had "failed and refused to carry out its
obligations under the Mandate," and concluded that the dispute
which has arisen between Applicants and Respondent "has not been
and cannot he riettled by negotintion."'
The history of relevant events since the adoption of the foregoing
Resolution, including Applicants' efforts, through the agency and
forum of theUnited Nations, to settle their dispute withRespondent,
makes clear th:it the General Assembly's foregoing finding and
conclusion remain valid.
(1) 1961
During the resumed 15th Session of the General Assembly. in
March 1961. the Assembly without dissent adopted Resolution
1593 (XV), app1:alingto United Nations mernberç having "particri-
larly close and continuous rckitioiis" with Respondent to exert tlieir
influence to cnsure that Respondent would adjust its conduct to
its obligations and give effect to previous rcsolutions of the Assem-
hl-2'
No results having been achieved, the Assembly, in April 1961,
adopted Resolution 1596 (SV).' The Asseinbly, without dissent,
noted "\\rith grave concern the continuing deterioration in the situa-
tion in South \t'est Africaresulting from the continued application,
in violation of the letter and spirit of the Mandate, of tyrannical
policies and practices, such as apartheid. .. ." It decided, according-
ly, to cal1the attention of the Security Council to the situation in
South \Vest Africa, "wbich. if allo\vedto continue, willin the General
Assembly's view endanger international peace and security. ..
' 1.PP. 33-85.
G.A. Res. 156:; (XV), 18 Deceinber 1960. G.i\.O.K. 15th Sess., Supp.Xo. 16
at 31-32 (AI4684).(The fulltext of the Resolution is set out 1, pp. 84-85.)
C.A. Res. 1593 (XV), 16March 1961, G.A.O.R. 15th Sess..Supp. No. 16 A at
7 (A14684iAdd. 1).
* C.A. Kes. 1595 (XV). 7 April 1961. G.A.O.R. 15th Sess.. Supp.Xo. 16 11 at
7 (AlqG84iAdd. 1).
' Id., para. 7.This dccisioii wacarried outby cornmunicatian from the Secre-
tary-Genera o the President ofthe Security Council (Sl.4787(izApril ,961). REPLY OF ETHIOPIA AND LIBERIA 223
The Assembly "rejected" Respondent's refusal to CO-operate with
the United Nations in the implementation of the General Assem-
bly's resolutions concernirig South West Africa and requested the
Committee on South West Africa to discharge the tasks entrusted
to it "with the CO-operatioriof the Government of the Union of South
Africa if such CO-operation is available, and without it if riecessary."'
Respondent's denial of permission to the Comniittee to visit the
Tcrritory in order to investigate the situation prevailing tlicre
(a task whicli the General Assembly had invited the Conimittec
to undertake2) compelled the Comniittee to conrluct its inquiries
outside the Mandated Territory itself.
The Committee submitf.ed a special report on its investig a tive
mission,' in wliich the Conimittee fonnd, inter alia:
".. . Soutli Africa is th,: only State in the world today to practice
racism as an official policy, not only withiri its boundaries but
throughout the Mandated Territory of South West Africa. This
form of racial segregation and discrimination, known as afiautlteid,
has been repeatedly condemned by the United Nations, by world
public opinion, and by al1those who appeared before the Committee
during its visit to Africa.
"This policy is the mcistpervasivï feature of tlie administration of
the Mandated Territory and extends to al1 aspects of life of the
Native population. . . ." ''
The Comniittee's conclu::ions, particularly relevant to the issues in
dispute between Applicaiits and Respondent, are:
I. "The South African Government has froni the beginnirig
made plain its determination to annex the Mandated Territory
entrusted to its care forthe benefit of the Native inhabitants,and kas
engaged unilaterally in ;rprogressive integration and incorporation
of the Mandated Territory into South Africa, without a proper
consultation of the inhibitants of the Territory and without the
consent of the United Xations.. ..
z. "The Committee has found no indication that tlie Soiith
African Govcrnment intends to change its policies and practices
in the Mandated Territory and it is convinced that the continued
administration of South West Africa by the South African Govern-
ment will prevent the political, economic, social and ediicational
development of the vasi majority of the population for whom the
Mandate was designed." 5
The General Assembly, by Resolution 1702 (XVI) of 19 Decem-
ber 1961,~ noted with appi-oval the foregoingspecial report of the
Id.,para. 5.
G.A. Res. 1568 (XV). 18 Dccember 1960, G.A.O.R. 15th Scss.Supp. No. 16
at 33 (Al4684
' G.A.O.R. 16th Sess.,S.W.A. Comm., Supp. Xo. zzA (AlqgzG).
' Id..0.20.
Id..pp. zr-zz.
G.A.O.R. 16th Sess., Supl>Plo.17 at 39 (A/groo).(TlieResolutionwas adop-
ted by a vote ofgo ta r (1'ortug.il) wifourabstentions.)224 SOUTH WEST AFRICA
Committee ou South West Africa, and also noted, "with increased
disquiet, the progressive deterioration of tlie situation in South
M'estAfrica as a result of the ruthless intensification of the policy of
apartheid. .. ."
The Assembly established a United Nations Special Committee
for SouthWest Africa, charged, inter alia, with the task of achieving
as an objective:
"The repe:il of ail laws or regulations confining the indigenons
inhabitants in reservesand denying them al1freedomof movement,
expression and association, and of al1 other laws and regulations
ze'hices1ablishan.dmaintain theinfolerablesystem of apartheid. ..." '
The Assemh1:y.requested the Special Committee to visit the
Territory and iirged Respondent "to CO-operate fully with the
Special Committee and with the United Nations" in executing the
Resolution.
The Assemhly decided to cal1the Resolution to the attention of
the United Nations Securitv Council. "in tlie lig-t of paAagra-.i
7 of Resolution 1596 (x\').'"
Three additional resolutions concerning South West Africa were
ado~ted hv the General Assemblv on 10 December 1a61. al1without
dissent, a<testing to the pervasi;e and deep conceri;with which the
memhership of the United Nations, including Applicants, viewed
Respondent's failure to observe its obligations under the Mandate.
The first of tlicse, Resolution 1703 (XVI),' noted "with deepest
disappointment and regret" the policy alid inethod pursued by
Respondent in i.tsadministration of the Territory and called upon it
immediately to iiesist from further acts of force designed to suppress
political movcments or enforce apartheid in South West Africa, to
refrain from prosecution of Africans on political grounds, and to
ensure the free exercise of political rights-for al1 sections of the
population.
The second, '<esolution 1704 (X\rI),4 dissolved the Committee on
South West Africa. inasmuch as its functions were assumed hv- the
United Nations ~Gcial Committee on South West Africa.
The third, Resolution 1705 (XVI),I estahlished a special edu-
cational and training program for indigenous inhabitants of South
West Africa. It invited the United Nations Specialized Agcncies to
offer assistance, facilities and resources to South West Africa and
iiivited member states to make scholarships available. The Assemhly
thus recognized the inadequate standards, facilities and objectives
Id.. para. z(d)(Italics added: the italiciclausewas added to the draft
of the Reçolution by amendment introducedby the United States.)
Supra, p.222, footnote4.
'G.A. Res. 1703 (XVI), 19 December 1961. G.A.O.R. 16th Sess.. SuppKo. 17
at'C.A.jRes.)1704 (XVI),i19Decernbert1961,G.A.O.R. 16th Sess.. Supp.Xu. ii
at 41 (Algroo); (adopted unanimously).
G.A. Res. 1705 (XVI),~g Decernber 1961,G.A.O.R. 16th Sess., Supp.No. 17
at qi (Ajgioo): (adopted unanirnously). REPLY OF ETHIOPIA AND LIBERIA
225
with respect ta the education of the indigenous inhabitants of the
Territory.
During the discussion of the question of South West Africa in the
Fourth Committee of the: General Assembly, Respondent's then
Foreign hlinister, Mr. E:ric H. Louw, declared Respondent's
intention to invite three past Presidents of the General Assembly.
in their personal capacities, to visit the Mandated Territory "to see
for theniselves whether there exists any threat to international
peace and security, or whether there is any truth in the allegations
relating to military terrorization, the existence of an explosive
situation and planned extermination."'
The General Assembly, however, did not favour such a procedure,
nor even an alternative orneadvanced by certain members (though
without comment or comrnitmeiit on Respondent's part) whereby
tlie three past President:; would have been nominated by the
President of the Assembly in consultation rvith Respondent, and
with wider terms of refererice than those suggested by Respondent,
as quoted above.
(2) 1962
Reference has been made to the establishment, by the 16th
Session,General Assembly, of theUnited Nations Special Committee
for South West Africa and to the tasks entrusted to such Special
Committee.z
Certain events taking place thereafter, notably the circumstances
attending a nine-day visit to the Territory by the Chairman and
Vice-Chairnian of the Special Committee, generated confusion and
controversy whicli are wholly immaterial to the issues in dispute
between Applicants and liespondent in the present Proceedings.
Respondent, in commenting upon the aforesaid Resolution 1702
(XVI), relies upon a joint communiqué, allegedly issued at the
conclusion of the visit, as demonstrating "that the factual assump-
tions on which the said resolution of the General Assembly was
based, were entirely fallacious ..." and that "no probative value
can attach to purported ~tatements or conclusions of fact in the
reports and resolutions ... ."l
The actual circumstancessurrounding thebrief visit (theitinerary
of which was fixed by Respondent); the preparation of the "joint
communiqué" at the conclusion thereof; the acrimonious, though
temporary, misunderstanding between the Chairman and I7ice-
Chairman as to both occu.rrence and substance; and the ultimate
It is to be noted that, eforthe concern expressed by the General Assernbly
that the present situation "if alli~wïd to continue, will, in the General Assernbly's
view endanger international peace and security(Resolution 1596(XV), (supra.
p. 222))the above-quoted characterization of the "allegations" regardiTer-he
ritory was that of the former Foreign Winister himself, rather tlian that of the
General Assembly.
G.A. Res.1702 (XVI) (SU$I(Ipi223, footnote6).
' II, p. 4.226 SOUTH WEST AFRICA
understanding between them, embodied in a jointly-signed Report
to the Special Committee, are al1 fully set forth in a Report of the
SpecialCommittee itself,' and, as Respondent concedes, "to canvass
them fully woulcl be a lengthy process which could serve no purpose
in these pro~eedings."~
What is of relevant, and indeed decisive, significance are their
jointly-approved conclusions, based upon "what they saw and heard
during their visrt to the Mandated Territory,"hnd in particular
their joint conclusion:
"Tliat the administration of the Mandated Territory hy the
South African Government has been and continues to he pervaded
by the rigora'usapplication of apartheid in al1aspects of life of the
African population, resulting not only in their being racially segre-
gated and dijcriminated against and in their being deprived of al1
basic human rights and fundamental freedoms, but also in tlie
complete suksordination of their paramount interests to those of a
small minori1:yof Europeans." '
The Special Committee, in its own Rep~rt,~ submitted to the
GeneralAssembly on 14 September 1962, pointed the obvious moral
to be learned fsom the confusion and controversy attending the
'
visit of its Chairman and Vice-Chairman. The special Committee
thonght it "obvious" that
"... it will be difficult, if not impossible, to secure tlie complete
implementation of the General Assembly's resolution unless and
until a United Nations presence can be established in rhe Mandated
Territory by the granting to the Special Coinmittee or other organs
or sub-organ:; and the specialized agencies of the United Nations of
ample freedom to enter and leave the Mandated Te~ritory."~
On the basis (ofits own evaluation of available information and
evidence, notably including Respondent's avowed legislative and
administrative practices and policies, the Special Committee con-
cluded :
"The situation in tlie Mandated Territory has continued to he
dominated by the policy of apartheid which has been intensified
and made more systematic in recent years. Under this discrimina-
tory ~olicv, certain inadequate areas are reserved as the homelands
of t1.viiiJicci~utis~~UIL~O JSII.ISI~thoje :lreiti,tlic ioiintryiiicg.ir<lrd
.1î htcloi.gi-~tu tlie \i'li;t- p-pul~tiun ;iiit111,prcjcncc of indigziious
G.A.O.R. 17th Sess..Sp. S.W.A. Comm. Supp. No. 12 (A/~zIz)
2--,=. .,.
A/~zIz. p. 7 (faotnoteI of this page, supra).
' Ibid. IC should he noted that nothing in the record of their visit, including
relevant correspondence and statements set forth in ezteiisoin the cited Report,
at pp. 17-23,or in the alleged "joint communiqué" issued at the end of their visit,
is in any way inconsistent with, or in derogation of. tlie conclusion in their joint
report. quoted abore.
Id.. p.rg.
Ibid.The Spscial Committee's coiiclusion coniirms the necessity. more
fully discussed helow (pp.239.240,525.539) for eKective Unitod Nations supervision
over tlie Mandate a; an essential feature of the Mandate institution. REPLY OF ETHIOPIA A'ID LIBERIA 227
inhabitants is consideredto be temporary and as not giving grounds
for political or related rights. The entry of indigenous inhabitants
into the area outside the reserves, in particular into urban areas,
and their continued residencethere, are regulated by n pass system.
In towii, they live in segregated to\inships and locations and,
except for a fïw miiior :~ctivitiesin those townships or locütions,
have no economicpossibilitiesother than wagelabour." 1
The Report of tlic Special Committee was the subjcct of twenty-
four meetings of the Fousth Cornmittee of the General Assembly,
during which petitioners were heard, communications relating to
South \Vest Africa were considered, full debate on the question
took place, and a draft Resolution was considered and adopted
without di~sent.~
The General Assembly condeinned "the continued refusal of the
Government of South Africa to co-operate with the United Nations
in the iniplementation of Resolution 1702 (XVI)) as well as other
resolutions concerning South \Vest Africa."' The Assembly assigned
the tasks of the United Nations Committee for South West Africa
tothecornmittee ofSeventeen,sand requested thesecretary-General '
to appoint a United Nations Technical Assistance Representative for
SouthWest Africa, as well :as"to take al1necessary stepsto establish
an effective United Nations presence in South West Afri~a."~
The General Assembly urged Respondeiit to refrain from "action
involving the forcible removal of indigenous inhahitants from their
homes or their confinement in any particular location," and from
"using the Territory of South West Africa as a base for the accumu-
lation, for interna1 or external purposes, of arms or armcd force^."^
The General Assembly during the 17th Session adopted two other
resolutions relating to South West Africa: Resolution 1806 (XVII),8
dissolving the United Nations Special Committee for South \Vest
Africa and Resolution 1504(XVII),' drawing attention of petitioners
to the report of the Special Committee for South West Africa,lo as
well as to Resolutioiis adoptcd by the Assembly at its 17th Session.
-
' Id., p. 13.
G.A. Res. 1805 (XVII). 14Decernbçr 1962, G.A.O.R. 17th Sess.. Supp. No. 17 at
33 (A15217).
1 Subro. o.22q. footnote 6.
~o8tnoCe 2 ufthis page. supra.
the Declaration on the Granting of Independence to ColonialCountriesaPeoples."
established 27 Novernber 1961 hy the Assembly in Resolution 1654 (XVl), C.A.
O.R. i6thSess.. Supp.So. 17at 65 (A/groo). The Cornmittee, of ahich Ethiopia is
a rnernber, nas çubsequently enlarged to tiventy-four.and is hereinafter accar-
dingly referred to as the "Cornmittee of Twenty-Four."
Res. 1805 (XVII), paras. 5-6 (footnot2 of thk page. supra).
Id., para. 7.
G.A. Res. 1806 (XVII). 14 Deceinber 1962.G.A.O.R. 17th Sess.. Supp.No. '7
at 39 (A15-7).
C.A. Res. 1804(XVII). rq Dccember 1962,G.A.O.X. 17th Sess..Slipp. No. 17
at 33iAl5217).
'OA/~ZIZ (su~I~, p.226,footnote 1).228 SOUTH WEST AFRICA
(3)1963
Pursuant to the General Assembly's request, ' the Secrctary-
Gencral sought Respondent's views concerning the appointment of a
United Xations Resident Representative for Technical Assistance
in South West Africa. Respondent expressed its unwillingness to
agree to the appointnient of such a Repre~entative.~
Respondent also declined an invitation of the Committee of
Twenty-Four to attend Comtnittee sessions nt which the question
of South West Africa was to be con~idercd.~l~ollowing numerous
meetings in April-May 1963, at urhich evideiice was received and
testinioiiy taken. the Comiiiittee adopted a Resolution on IO May
1963,' in which the Committee, inter alia, rcgretted that tlie Res-
pondent had "takcti no steps to implement tlie resolutions of the
Genernl Assembly on South \Vcst Africa," niid tliat in particular, it
"refiised to allo\v a United Nations Techiiical Assistance Resident
Representative to be stntioned in the Territory"; deplored Respon-
dent's refusal to CO-operatewith the Committec; noted "with deep
colzcevibthe continued detcrioration of thc situation in South West
Africa as a result of the intensification of the policy of apartheid,
which lins been the subjcct of general disapproval"; and considered
"with regret" that Respondent "ha consciously and deliberately
failed to discharge its international obligations iii the adininistratioii
of South West Africa."s
In its Resolutioti, the Coininittce recomnicticlcclthat "the Geiicral
Asseinbly consider any attenipt to aiines the Territory of South
West Africa by :South Africa as an act of aggression," ancl that the
Assembly "take a11necessary stcps to establish an effective United
Nations prcsence in South West Africa with n view to achicving the
objectives of Resolntion 1702 (XVI). ... "6
The Committee decided also "to draw the attention ofthesecurity
Council to the critical situation in South West Africa, the continu-
ation of which constitutes a serions threat to international peace
and security."
The Report of the Coniiiiittee, including the text of the foregoing
Resolution, was submittcd to the General Assembly at its 18th
Session, and wa:; also transmitted to the Security Council.'
' G.A.Res. 1805(XVII) (footnote 2 of page227,supra).
Summary of th<:pertinent correspondence is contained in a Report of the Com-
mittee of Twenty-Four (A/5446/Add. 21(26 July 1963).
' Id.,p.14.
' Id.. p71.
of the following States: Australia, Bulgaria, Cambodia. Chile, Denmark. Ethiopia,
India. Iran. Iraq, [taly. Ivory Coast, Madagascar, Mali. I'oland. Sierra Leone,
Syria. Tanganyika. Tunisia. U.S.S.R.. United Kingdom, United States of Americu.
Uruguay. Venezuekr and Yugoslavia.
Footnote 4 of this page. supra.
' Letter of Transmittal (U.N. Doc. S/jj?j) (1963). REPLY OF ETHIOPIA AND LIBERIA 229
Thereafter, the General Assembly, at its 18th Session, approved
the Report of the Comrnittee of Twenty-Four, "particularly its con-
clusions and recomrnendations,"' affirmed the decision of the
Committee to draw 1-0the attention of the Security Council the
"present critical situation in South West Africa," and requested the
Committee to continue it!; efforts with a view to dis char gin^: the
- -
tasks previoiisly assigned to it.
The General Assemblv s~-ilarlv reaii,sted .he Sewetarv-General
to continue his efforts'with a view to achieving the objectives
stated in operative provisions of Assembly Resolution 1805 (XVII),Z
O
and to report to the General Assembly immediately after receiving
a reply to his invitation 110 Respondent to inform of its decisioii
regarding these provisions of Resolution 1805.~
Pursuant to the Assembly's request, the Secretary-General
advised the General Assembly that Respondent's attitude remained
unchanged.'
Tlie General Assembly thereupon adopted a Res~lution,~ con-
demning Respondent "for its refusal to CO-operatewith the United
Nations. ..and for its non-compliance with the General Assembly
resoliitions with regard to South West Africa." In the same Resolu-
tion, the GeneraI Assembly requested the Security Council "to
consider the critical situation prevailing in South West Africa."
The foregoing Resolutii~n was transmitted by the Secretary-
Geiieral to the President of the Seciirity Council on IO January
1964.6
During its 18th Session, the General Asscmhly adopted two
additional Resolutions concerning South West Africa. One of these
conceriied petitions;' the other provided for continuation of the
United Nations Special Training Prograrii for South West Africans8
The liesolution also invited States to consider providing for secon-
dary cducation and vocational training in tlieir offersof scholarships
and to give sympathetic consideration to requests by the Secretary-
General for places in secoridary, vocational and technical training
schools. The Resolution further requested al1 BIeniber States,
1 G.A. Res. ,899 (XVIII). 13 November 1963. G.A.O.R. 18th Sess., Supp. Xo.
-< -- T- ,~~."<~<,
Suplo.p. 227. footnotez.Thesaproviçions(Res1 o8l0uXoYnIl). paraj.and6)
related to the appointment ofa United Nations Resident Representative for Tech-
nical Assistance in South\\'estAfrica. and to ~rocedures to eçtablish an effective
United Nations presence in South ~&t ~frica:
C.A. Res. 1Sgg (XVIII). para. j(a). (b) and(c)(footnoteI of this page,supra).
G.A. 18th Sess.. Report of S.G. (AIj634).
' G.A. Res. 1g7q 1XVIIII. .7 I>ecember 19. .G.A.O.II. 18th Sess ..SUP.. Xo.
15 nt ji (~15~1>): '
Letter from S. G. (S15515) (1.964).
' C.A. Res. ~goo (XVIII), 13 Igovernber ,963, G.A.O.R. 18th Sess., Supp. No.
15aaC.A. Res. 190, (XVIII), 13Yovember 1963. G.A.O.R. 18th Sess., Supp. No.
15 at 48 (A15j15). (Theprogram had been provided for originally in Resolution
1705 (XVI) (supra, p. 224, footnote j).)230 SOUTH WEST AFRICA
particularly Respondent, to facilitate the travel of South West
African studcnts.'
CONCLUSION
Applicants reaffirm the Summary of the History and Background
of the Dispute. set out in their ~l/iemorials,pp. 95-97. They respect-
fully submit that the record of events recounted above leaves no
roorn for doubt that persevering effort on the part of the United
Nations, by its responsible organs and agencies, in and through
which Applicant; have sought to settle their dispute with Respon-
dent relating to the interpretation and the application of the
provisions of the Mandate, have been unavailing. Submission of
the dispute to this Honourable Court in terms of Article 7 of the
Mandate, accordingly, rernains Applicants' sole and indispensable
recourse and source of relief.
Xespondent's educatianal policies and prograrnsin the Teareconsiderediii
detail below, p361fl. CHAPTER III
THE NATURE OF THE MANDATE
Applicants' dispute with Respondent relating to the interpre-
tation and application of the second paragraph of Article 2 of the
Mandate has at its core sharply divergent concepts concerning the
nature and essential principles of the Mandate System itself. Such
divergence, indeed, has lai11at the heart of the controversy between
Respondeut and the United Nations itself, in which and through
the agency of which, Applicants have vainly sought to settle the
dispute by negotiation.
As this Honourable Court stated in its Judgpnetzt O/21 Decetnber
1962 in respect of the Preliminary Objections:
".. .it should be poirited out that behind the present dispute
thereisanother and similardisagreementon points oflaw and fact-
a similar conflictof legal viewsand interests-between the l<espon-
holding identical views with the Applicants, on the othcr hand.ns,
But though the dispute in the United Xations and the one now
heforethe Court may beregarded as tiirodifferentdisputes, the ques-
tions at issue are identical."
As will be seen upon inore detailed examination of the views
expressed by the Permanent Mandates Commission and its kIem-
bers, such a divergence of view between Respondent and agencies
of the organized international community, to which Respondent
has been and is accountal~le, has characterized its administration
of the Mandate since its iriception.
The divergence between the approach, or understanding, of
Applicants and Respondent concerning the nature and essential
principles of the Mandate is illuminated by the respective positions
taken by them on certain key issues. One of the most important of
these concerns their contrasting attitudes toward the nature and
consequence of the "compromise embodied in Article 22 of tlie
Covenant [oftheLeague of Nations]," to use Respondent's phra~e.~
In their Mentorials, Applicants allege,3 and here reaffirrn, that
"upon the dissolution of tlie League of Nations the Union did not
conceal its desire to annex the Territory." Respondent's policies and
Judg>nmt.p. 345.
II.p.13.
'1, p35.232 SOUTH WEST AFRICA
actions designed to effectuate annexation or incorporation of the
Territory are ana.lyzed more fully below.1
Respondent cliaracterizes as an "ovcr-simplification, tending
towards a wrong impre~sion,"~ Applicants' contention that
"... The Mandate System, as ultimately given expression in Article
22 of the Coienant of the League of Nations and in the several
Blandate Agreements, representéd a victory for the opponents of
the principle of annexation."
To the contrary, Respondent contends
". . .the Mandate for South West Africa gave effect to a compromise
arrangement wliich involved, inter alia, that C Mandates were, in
tlieir practical effect, not far reinoved from annexation." '
In support of its interpretation of the nature of the Mandate,
Respondent approvingly cites several commentators who, Respon-
dent avers, "spol<e of the relationship between the Union and South
West Africa as being, in effect, close to anne~ation."~
Consistentlv with its view of the Mandate "as beine in effect. ~ ~
cloie to aiiiicxatiiiii,"I<e~~~i~iideirictpcnts in teriils Iarg~ly identical
il th il 1.1 rliir Objectio>is 6 it, si,iiteritioii tli:it
Article 22 of the Covenant
"set forth the agreed idealistic objectives of the System, agreed
methods whereby it would be put into operation and agreed featiires
which would he incorporated therein." 7
Furthermore:
". . . [Vhe opening paragraphs of Article 22 conceming a 'sacred
trust' and 'tutelage', must be regarded as being descriptive of the
idealisticor/>:<manitariao nbjectivesinvolved in the Mandate System,
and . . . the reference to 'hlandatories on behalf of the League' is
to be under:tood as affording a bro:id indication of the method
wliereby thoje objectives would be sought to be attained. It is,
therefore,to the more detailed provision in Article 22 for 'securities
for the perfoi-manceof this trust' tliat regard must be had in order
to deterniint: the juridical content of the Mandate System as
envisaged by the signatories to the Covenant."
'Infra. p.572.
11,p. 15.
' 1, P. 33.
' II, P. 95.
' Id., p. 15. Thc significance of the statement of one such "comnieiitator,"
&Ir. Ormsby-Gore. ivhile a Member of the l'ermanent Mandates Commission.
quoted in the Coidnfer-Mernorial. II,p. 14, must be appraised against the
Commission's unbroken record of opposition to efforts on Respondent's part.
ritory. Seeinfra.pp.l575-576.nex, incorporateor assert sovereignty over. the Ter-
1,PP. 300-301.
' II, p. rog.
Id., P.104. REPLY OF ETHlOPIA ASD LIBERIA 233
Applicants submit, on the other hand, that the "sacred trust"
and "tutelage" principle, in itself, must be regarded as a statement
of legal obligation, cmbodying jnridical content. The enforcement
of the "sacred trust." moreover, became a responsibility "laid
upon the League as an organized international community." '
The Court's view is amply supported by the origins and history
of the Mandates System.
Prior to the establishment of the Mandates System, the fate of
indigenous peoples in certain areas of Afnca and Asia was considered
to be the sole and unaccountable responsibility of the Pomers
controiling them. As a matter of international law, their well-being
and future were, for the most part, in the hands of such Powers.
Virtuaily the only restraints upon the control by such Powers
were moral considerations. With the creation of the Mandates
System, the well-being and future of indigenous peoples were,
however, declared to be, in the words of the Covenant, "a sacred
trust of civilization."
These words were not lightly formulated. They were incorporated
into the Covenant only after sharp disagreement bctween the
parties over the settlemciit of the colonial issue. It \vas clearly
understood by al1 concerned that what was involved was the
adoption, with respect to the treatment of indigenous peoples in
certain areas of Africa and Asia, of a principle entirely different
from that in effectuntil 1:hen.The new principle was that, as a
matter of international law, the well-being and social progress of
such peoples would be th(: responsibility of the "organized inter-
national community," insured by legal, rathcr than by solely
moral, considerations.
Although the term "sacrcd trust of civilization" obvioilsly im-
ports a high inoral principle, it was intended to have Iegal çignifi-
cance as well. Had it been otherwise, indeed, the Powers resisting
establishment of the Manda.tesSystem would not have had difficulty
with the term. What the:? objccted to was, of course, precisely
its acceptance as a legalprinciple, inasmuch as inost of the Powers
concerned already were committed, of their own accord, to the
observance of moral 9rini:iples in dealing with peoples not yet
able to govern themselves.
It is not necessary here to trace in detail efforts made toward the
end of the nineteenth century by the more enlightened European
Powers to bring the restraint of moral principle to colonial ad-
ministration. The history of the period \rith respect thereto has
been meUsummarized in a study of the MandatesSystem published
by the Secretariat of the League of Rations in 1945.~ 1Tie study
makes plain that only moral commitments, and nothing more,
Jt~dgment,p. 329.
The MandalesSysLem:Origin-Pri>iciplessApp2i Ica(Ligu~ ofNations
Pub. 1945.v1.A.1.).=34 SOUTH WEST AFRICA
wereacccptable to the European Powers involved until the creation
of the Maiidates System.
The most signilicant actions takcn during that period by European
Powers with a -view to improving the condition of indigenous
peoples were the General Act of the Conference of Berlin of
26 February 1885 and the General Act of the Conference of
Brussels of 2 July 1890. The Secretariat study referred to above
examines the undertakings in these Acts concerning the weU-being
of the peoples iiivolved, and concludes that they were not legal
obligations but irather "in the nature of aspirations, of generous
statements of intention, of a declaration or acknowledgment of
moral obligation:;." 1
After considering other matters of relevance, the study makes
an assessment of the position of indigenous peoples from the
standpoint of iriternational law on the eve of the First World
\Var. Using to this end a quotation from an "authoritative writer,"
the study makej clear that, at the time, the international com-
munity of nations considered itself "bound only by moralprinciples
resulting from Christian and humanitarian sentiments." The study
goes on to state that such "moral principles" were, in the case
of territories brought within the System, "trattsformedinto firinci-
files of inlernatio~calLaw" by the institutioii of the Mandates
Systcm.
Certain Poweirs concerned in the settlement of colonial issues
came to the Peace Conference prepared to do no more than make .
formal acknowl<:dgement of the humanitarian ideal prevalent in
the post-World War 1 period. As one authority has stated, it
appeared
".. .that dl those who based their demands on justice alone were
to begivenmereI~D-servicie n the formofsomekindofhumanitarian
resolzion, aswas'thecustomof the international conferences ofthe
pre-warperiod." 3
Thus, the French Plan of Procedzcrefor the Peace Conference
contemplated that the Great Powers should settle among themselves
al1 the issues involved. including the colonial issues. When that
was done, it \vould be time enough for the Conference, as the French
Plan put it, to "place itself as has sometiiues been done in the
past under the :invocation of some of the great principles leading
to justice, morals and liberty ...." '
Consistently viith this approach, the French hfinister for Colonies,
M. Simon, durin: a session of the Council of Ten, opposed the Man-
dates System in favour of outright annexation of former German
colonies, assertiiig as a justification that higher principles already
The nfnndnles Syrtcop.cil.
Id.,pp. 12-13(Italics added.)
' Margalith. ThInte~nalionol Mandatij (rgp).
' Baker.Woodraw Wilson and World SelllcmenVol. III. p.63 (1923). REPLY 017 ETHIOPIA AND LIBERIA 235
guided his nation, and that al1 the Great Powers worthy of the
name "considered their colonies as bvards entrusted to them by
the world." '
The United States, on the other hand, strenuously supported
the principle of international legal accountability. Thus, at a session
of the CouncilofTen immediately prior tothe one addressed by the
French Minister of Colonies, President Wilson, referring to the
Mandates System, proclaimed that:
"The fundamental idea would be that the world was acting as
trristeethrorrgha mandatory. . . ."
The principle ofvesting a legalresponsibilityin theorganized inter-
- ~ ~ ~ ~ - ~munitv. nevei-theless. was not solelv of American ori-
gin. It owed much G'its developméntto British tf~ou~ht.As early as
1916,P. H. Kerr (later LordLothian), theneditor ofthe Round Table,
and later secretary to Priine Minister Lloyd George, analyzed the
prohlems which might be expected to arise aftertheWarin defining
the relations between "advanced" and "backwards" peoples,
and concluded that "the mling people ought to govern the de-
pendency as trzisteesfor al1mankind." '
During the same year, another British authonty, examining
proposals for the solution of the colonial issue, concluded that
". . . what it seemsmost desirable to aim at is the reposingofun-
distributed local authority in whatever government may be the
trustee of sovereign power, witli responsibility for observance of
principles laid down enjarceablethroughappeal to the court of the
Leagzre." '
In 1918. another British authority expressed the view that if
a mandatory Power failed to comply with its obligations under
a mandate, it should stand to be charged before a permanent
commission at the instance of any other State, on the ground of
"violating her trust." He suggested further that if an ad hoc
"court of enquiry" were thereafter to find against the mandatory
Pomer, and that Power refused to obey the verdict of the court,
"her trust would be invalidated." '
The principle of legal responsibility was concurrently being
developed in the United States. Thus the celebrated "Cobb-
Lippman-House Mernoranduni" of 29 October 1918, which played
[19191 Forcip Relalionr ofIheUgiiled StaleVol. 1 (Paris Peace Conference),
P. 761 (1942): -
The Council of Ten included two representatives from each of thfiveprincipal
allied and associated powers.
Id.,p. 741.(Italics added.)
Grant,rInlrodirciion IthetSfudy of Inlcrttafio>zal Relalip. 179m(igi6).(Italics
' Olivier, Thc Lcague of Nafians and PrimiliveP~opIcs 13 (Leagueof Nations
Pub. Series (1918)). (Italics added.)
5 Curtis. "\Yindawsof Freedoni," inRound Tuble 27-28 (Decernber 1918).236 SOUTH WEST AFRICA
a significant role in the development of Article 22 of the Covenant,
stated:
"It would lseemas if the principle involved . ..is that a colonial
poweracts nc.tasownerofits colonies,but as trustee for the natives
and for the interests of the society of nations . .. that the peace
conference may, therefore, write a code of colonial condzictbinding
rrpon[all]colimialpowers." '
Expressions of many such riews, both in Britain and the United
States, were seriously weighed by the Governments of both Powers.
Thus, on 28 November 1918, the Imperial War Cabinet met to
discuss the possibility of a mandates scheme. It was generally
agreed that "riandatory occupation did not involve anything
of the nature of condominium or international administration
but administration by a single power on certain general lines
laid down by the League of Xations." There would also be the
"right of appeal from the mandatory power to the League of
Nations on the part of anyone ~vhoconsidered himself iii treated
or claimed that rhe conditions set dom by the Leaguc of Nations
were not being fulfilled."
In a conversation with Colonel House on 29 October 1918,
a short time before a meeting of the Imperial War Cabinet, Lloyd
George had indicated his hope that the United States could serve
as "trustee" for thc German East African colonies. '
On IO Decembcr 1918 President Wilson spoke to members of
the "Inquiry," a.group set up under the direction of Colonel House
to provide view; and suggestions regarding the settlement of thc
colonial issue. The President expressed the view that the German
colonies should be declared the commoii property of the Leagiie
of Nations and be administered by small Powers "as trustees." '
Inan earlierconversation with the British Arnbassador to \Vashing-
ton, the President was reported to have said that:
". . . while he Iiad little faith in international administration for
the German coloniesand was absolutely opposedto their restoration
to Germany, he favored administration by single States 'in trust'.
'In trust for wliom,' Wiseman asked. 'Well for the League of
Nations, for instance'Wilsonreplied." 5
Confirmation of the fact that the word "trust" was not used,
as Respondent contends. as merely "descriptive of the idealistic
(Italics added.)gn Relnfionr of fhe United Stafcs, 1.lSupp. r, p. 407 (rg3j).
Lloyd GeorgeT.he Truth nboi'tfhPcace Treafics. Vo1,p. 118 (1938).
[1919] Foreigw Relations of thc Unit~dStates. 1o(Paris Peace Conference).
p. 407(1942); Tillnian. Anglo-American Relations al lhe Paris Peoce Conference of
1919 87 (1961).
* Tillrnan, opcilsupra. footnot3 of this page. 61; Miller.TheDraffing ofthe
Covan~nf,Vol. 1,pp. 41-44 (1928).
Tillman, op. cit. supra footnote 3 of ihis page, p. 87 (conversation of 16 October
1918, in Papa15 of Sir JVilliar~rIViscritnn).(Italie added.) REPLY OF ETHIOPIA AND LlBERIA
237
or humanitarian objectivss involved iii the Mandate System" '
may be found, inter alia, in the coinment by a noted American
scholar on colonial questioiis, cited by Respondent asan authority
in anothcr contc~t,~ to the effect that, if
". . . siich backward regionsare cntrusted by international inandate
to one State, there should he embodied in the deed of trustmost
rigid safeguards both to protect the native population from es-
ploitatioii and also to ensure tliat tlie interests of other foreign
States arc not injured eithor positively or negatively."'
By the tiinc of the Peace Confercnce, accordingly, thcrc ivas
wide 'support for the priiiciple that the organized international
comniunity should be a legal party in interest to the disposition
of the colonial issue. A sunimary of lactors relevaiit to a settlemcnt
of the issue is set forth in the study of the Mandates Systcm by the
Secretariat of the League of Nations in 1945, referred to above.
The study concludes that the proposal for a Ilandatcs System
was satisfactory. inasmuch as it was "calculated to safcguard
the interests both of the nativcs and of those countrics which
had asserted special clainis, and irl addition, the interests oj the
international conlacz&?titi yn geileral." ' Aiid, as. the saine study
makes cxplicitly clear, the Ilandatcs System "transformcd into
priiiciples of international la\\." what had hitherto bccn accepted
in the international comniunity solely as "inoral principlcs" iii
respect of thc administration of colonial possessions.
As has bcen pointed out, acceptance of thc principlc of leg:il
responsibility ancl legal interest on the part of the organized iiiter-
national community did riot coinc easily to the Powers coiicerncd
with the colonial issue, including 12cspondent. That certain of
them, again including Respondent, would have preferrcd outright
annexation stands uiirefuted in the record herein. Indeed, Rcs-
pondeiit describes its relalionship with the Temtory "as being,
in effect, close to annexation."
Respondent seeks to support such a contention on the basis,
iltter alia, of its assertion that only by such a "concession" was it
"induced" to accept the Mandate at aii.Thc apparent implications
are either (a) that the Mandate was ttirust upon it and acccpted
reluctantly; or (b) that, but for tlie so-called "co~npromisc,"
Respondent would have annexed the 'ïerritory outright. Neither
implication derives any sullport from the record herein, and botli
are untenable.
The record shows, on the other hand, that the "sacrcd trust"
' II, p. roq.
Id., pIO.
' Beer. African Questions nthe Paris Pcoce Confcren~e424-zj (19~3). (Italics
~dded.!
Xations I'ub. 1945. v1.A.1.). (Italics added.)pplic~~tion 17-18 (Leaguc of
Id.o. 17. 23s SOUTH WEST AFRICA
and "tutelage pi:inciple," provided for in Article 22 of the Covenant
and detailed in the Mandate, comprised obligations of a legal
nature, in accorclance with the expressed objective of the organized
international cornmuriity to afford legal protection ta the weU-being
and social progress of the inhabitants of mandatcd territories, as
a "sacred trust of civilization."
Respondent's contention that the Maiidatc was "iiot far removed
from annexation" and \vas "in effcct close to annes:ltioii" is, indeed,
refuted by Rcspondent itself, in anotlier context in the Cozmter-
Menrorial. Therc:, Respondent contends that international accoun-
tability wasso essential a feature of the htandatcs System that if, as
Respondent alleges, provisions governing such acconntability have
lapsed. the whole Mandate must be deemed to have lapsed. In order
to demonstrate the essentiality of international supervision,
Respondent argues:
"As regards history, it seems clear tliat the various proposais
which preceded the Mandate System as actually agreed upon, al1
effectwas to begiven hy someformor another ofanneinler~zutionalizatio~t
of the goverilment or administration of the coloniesand territories
in question. . . .
"The notion of 'hlandatories on behalf of the League'was there-
fore integrally cornbined with the notion of 'tntelage', aspart and
parcel of thr: 'bcst method' of giviiig practical effect to the basic
principle ofthe sacred trust." 1
The "no annesations" principle underlyiiig the Mandates Systeiri,
conceded by Respondent, is a negative form of expressing the
affirmative obji:ctive of developing the ~l'laridates,as rapidly as
possible, toward sovereignty of their own.
The history of the Mandates System confirms thc fundamental
im~ortance attached to the conce~t of self-dctcrmination and self-
government.
Thus. at the meeting of the Impcrial War Cabinet of zo Novem-
ber 1919 ,t was generally agreed that Mandates shonld continue
only "until sni:h time as the inhabitants of the country them-
selves were fit f'orself-government." In The Leagueof Nations-A
Practical Sz~gge!:tioitG,eneral Smuts endorsed the principle of "No
annexations, arrd the self-determination of nations." 3
The second I'aris draft of President Wilson explicitly provided:
"The abject of al1 such tntelary oversight and administration on
the part of the League ofXations shall be ta build up in as short a
timeaspossibleont ofthe peopleorterritory under itsguardianship a
political unit whichcan take charge of its own affairs,determine its
own connections, and choose its own policies." '
II, pp. 169-170(.Italiçs in original.)
Lloyd George, The nufh about fhePence TveofiVol.1, p. 118(1938).
' hliller. cil.irrpra,p. 236.footnoq,Vol. II. p27. REPLY OF ETHIOPIA AND LIBERIA 239
'
The provision conteinplated by Wilson also provided rhat the
League could at any time release the peoples or territories from tute-
lage and consent to their being set up as independent units. '
In the Council of Ten on 27 January ~grg, President Wilson
affirmed that :
". . .where people and tcrritories wereundeveloped, [the niaridatory
power should] assure tlieir development so tliat, when the tiiiie
came, their own interests, as they saw them miglit qualify tliem to
express a wisli as to their ultimate relations .. .." 2
111the same session of the Council of Ten, Wilson continiied:
"The fundamental idea would be that the world \vas acting :IS
trustee tlirough a ~nand.itory, and would be in charge of the whole
administration until the dny wlicrithe truc wishes of the inhabitants
could be açcertained." 3
Paragraph (1) of Article 22 refers explicitly tu "peoples not yet
able to stand by themselves."'
The word "yet" was included in the Haiikcy-Latham draft
of 28 January 1919. When the draft was presented to the Commis-
sion for the drafting of the Covenant on 8 February 1919, "yet" had
been deleted. The drafting committee of the Commission, appoiiited
on 3 February 1g19, did not re-incorporate the word, although its
report recommended other changes in the draft of Article 22 (then
Article 17). In its report of 13 Febmary 1919, however, the draf-
ting committee recommentled the re-insertion of the ~vord "yet."
The Commissioii accepted this recommendation without debatc, '
and it remained in the final text.
On 17 May 1919 Wilson surnmarized for the Council of Four
his concept of the Mandates Systcm. He stated. ilrterdia:
"The whole theory of mandates is not the theory of permaiieiit
subordination. It is the theory of development, of putting upon
the mandatory the dutji of assisting in the developmcnt of the
countryuridermandate, inorderthat itmay helirought to a capacity
for self government and :self-dependencewliich for tlie time beirig it
has not reached. and that therefore the countries under mandate
xi: c;~n~Iidatcssu to in!., tofi111rnernbersliip in the kitnilol ri:itions.
Itliiiiktlitrthis ii:1verv im~,ortaiit fund~riieiit;iliil<;of tlie \i.holt
mandatory conception."0
Such insistence upon the objectives of self-determination and
self-government is cruciaiiy relevant to the necessity for inter-
1Miller, op. cip..104.
2[Ig~g] Fomign Relations of.LhrUnited States, Vol. I(ParisPeace Conference).
P.'7Ibid.9431.
(Italics added.)
'For the evolution of the draft withrespect to the incorporation of the word
"yet", see:Miller,op.cil. ruprp. 236, footnote4: Vol. 1p. iog;Vol. II. pp.274,
283, 306.328.
[~g~g] Foreign Relationsofthi: U,rited States. Vol. V (PPeace Conference),240 SOUTH WEST riERlCA
national accountability, as loiig as Respondent asserts rights and
powers over tlii: Tcrritory. Respondent had dcmanded outright
annexatioii; thti framers of the Mandates System rejected its
claim. Far frorn iiiabing a "coiicession," the rcsult of which \vas
to vest in Respondcnt rights "iiot far removed frorn arinexation,"
as Respondent contcnds, ' or "the day-to-day excrcise of the at-
tribiites of sovcreignty," the authors of the Mandates Systcm
wislied to assure thc speediest prncticable progrcss of thc inha-
bitaiits of the 'Territory toward their own self-governinent and
sovcreignty.
The function exercised by "the I.eague as an organized inter-
national community" in assuriiig accomplishmcnt of this ohjcc-
tivc was not a qr~icl~YO quo for the undertaking by Respondcnt
to exercise duties under the Afandate, as is implicit in Respondent's
argumeiit that it consented memly "to rcpxt and account to a
specific suparuisory body, constituted under the provisions of a
particular international c3nv?ntion." ' Such a construction of thc
Mandatc distorts the significance of ils charactcr as a treaty or
convention, whi.le nt the same tiiiie ignoring its significance as
a "ncw intzrna.tiona1 institution, the primary, overriding piir-
pose of which i:j to prornote the 'well-being and devclopment' of
the people of tlic territory uiider 3Taiidate." 5
The inhabitrrntswcre the benchciaries of the Maiidate, not Kcs-
pondent or the Lcaguc of Xations. Responderit was to serve as
trlistcc, or tutor, under a mantlatc."The Leagiic \vas to serve as
thc thcn existeiit political organ of the interiiational commiiiiity,
guartling the public interest of that community.
The corisens~ralcharacter of thc Mandate does not dimiiiish
its essence as an iiistitution. Respondent agrecd to undertake thc
obligations inhercnt in the institiition, and was undcr no constraint
or compulsion to ncccpt the Mandate if it rejected its essential
attributes.
Applicants perceive in Respondent's central contentions fatal
inconsistencies :
First, Respondent argues that its rights under the Mandate have
survived even if its obligation of accountability has lapsed.
Secundly, Resl)oiident argues that its obligation of accounta-
bility is so miich of the essencc of the Mandatc that, if such
obligation has lapsed, the wholc Mandate has collapsed with it.
î'hirdly, Respondent argues that the rights of the inhabitants,
including that of self-determination, are subject to its urirevie\\r-
able discretion, \\.hile, at the samc time, it claims to be vested with
' IIP. 95.
IV,p.69.
Juilgnzent, p.329.
' Judgrtterp.329.siioriginal.)
Seediscussio atpp.529.53%i>tfra. REPLY 01: ETHIOPIA AND LIBERIA
241
powers equivalent to annexation of or sovereignty over the Ter-
ritory.
Such a series of mutually incompatible principles strikes at the
heart of the Mandate's objective of self-determination and self-
~overnment.
-
This objective appears cleaily from officia1 and scholarly dis-
cussion of the subject from the year 1919 oriward. Examples follow:
r. "... The whole theory of mandate isnot the theory of permanent
subordination. It is the theory of development, of putting upon
the inandatory the duty of assistinginthe development of the coun-
try under mandate, in order that it niay be brought to a capacity
for self-government and self dependence which forthe time being it
has not reached, and that therefore the countries under mandate
are candidates, so to Say,for full membersliip inthefamily ofnations.
1 tliink that is a very important fundnmental idea of the whole
maiidatory conception." '
z. ". .. The vital priiiciples are: the principle of nationality in-
vol\-ing the ideas of political freedoin and equality; the principle
of autonomy, which is the principle of nationality extendcd to
peoples ?tot yet capable of complete independent statehood; the
principle of political decentralisation. which will prevent the power-
fui nationalitv from swûllowing the wcak xutonoinv as has so often
Üartlv in view of the admLnistrative ineuuenence-of the leaeue at
ihe 6eginning, is the coricession that, subiect to the authoriïy and
control of the league, whick I ?r&ea ~tbe real and effective,suitable
Po\vers may be appointed to act as mandatories of the league in the
more backward peoples and areas. That contpromisewill, I Iiope,
prove to be only a temporary expedi~nt."~
3. "Dans l'esprit des rédacteurs du l'acte [de Versailles] il s'agit
Pour la puissance mandataire plus d'une mission civilisatrice accélé-
rant l'évolution socialedes peuples que d'une simple gestion ad-
ministrative." '
4. "Si l'on envisage cette tache dans l'esprit où elle est définie
dans l'art. 22, la voie du mandataire est tout aplanie et le sort du
territoire qui est actuellement une colonie est assuré: ce territoire
deviendra peut-être en siln temps un Etat indépendant et, dèslors,
il jouera lerôle, considérable ou non, qui lui est dévoludans l'en-
semble des Etats." '
5. "... [The Mandates System] has dso introduced into colonial
administration a defined objective, namely, the gradua1 preparation
' Speech by President Wilson,quoted in[~grg] Foreign Relations of the United
Stafes, Vol.V(Paris Peace Confemnce), p. 700 (r946).
Smuts, The L~ogue O/Naliorrs. A PraclicaZSuggesti97-28 (igrS).
'M~aurice Besson,in L'Afrique Francaise 1(1921).
' H. C.G. J. van der Manderein 54 Bullefidc Io SocidtéBelge d'Etuddrd'Ex-
pansion 369 (1926).242 SOUTH WEST AFRICA
of dependent peoples for the independent management of their own
affairsand for their ultimate mowth into statehood. It is unthink-
able that a I;lrgepart of the Gpulation of the world should remain
in permanent subjection to a section of the other part, merely
because their colour is different or their political experience is at
present infeiior. The Mandate system points the road to their
ultimate em:incipatioii, and so rapid is the development of some
races tliat liîve habitually heen regarded as 'backivard' that this
goal may in hnany cases be reached sooner than some of us think." '
6. "[The Ma.ndated Territory of New Guinea] is to be controlled
as if it were, contrary to the fact, an integral portion of the Com-
monwealth [of Australia]; but its development is to be not towards,
but away from, absorption by the Commonwealth."
7. "... [The Mandates System] was essentially temporary in
character. The assumption was that it would come to an end when
the various territories rvere able to 'stand by themselves."''
8. "... Underlying Article 22 was the assumption of independent
national sovereignty for mandates." '
g. "The hlandates Commission coiisistently upheld the theory
of ultimate independent sovereignty. It made no attempt to mini-
mize the effect of the vague words of the Covenant in reference to
the ultimate destinv of 'B'and 'C'mandates. It assumed that sover-
ci611iiidcpendeiice.~nd iiot increl'self-go\~criiin ci~itanon i.,'
w1.iiiitcndetlhy rlie Co\,~.n:iii.." '
IO. "Again, the phrase 'peoples iiot yet able to stand by them-
selves' is usid. It follows from this and from the very conception
of tutelage that this mission is not, in principle, intended to hero-
longed indefinitely, but only nntil the peoples under tutelage are
capable of nianaging their own affairs."
B. NATURE OF THE MANDAT ES VIEWED BY THIS HONOURABLE
COURT
Respondent':. premise that the Mandate was "close to anneu-
ation" under1ie:s Respondent's contention that its rights and claims
to the Territory would remain intact even if, as Respondent
contends, the hlandate has "lapsed as a ~hole."~ Such a contention,
it is true, is not advanced with explicit candour, but it is an inescap-
able consequeiice of Respondent's assertion of freedom from
accountability without relinquishment of right or title.
' A. D. McSair in hisPrefaceto Bentwich.The Marrdafes Sysfemvi (1930).
Evatt, J. in Jollev.Moinka (High Courtof Australia1933). Annual Digest
and Reports of Puiilic InletnalionalCases (~933-3.1C)ae 17.p. 48.
' H. D. Hall.Mondatrs, Dependencies and Triistccrhip(194s).
' Id., p. 80.
' Id., pSr.
Tliehlnndalcr Syste: Origin-Principler-Applic a3tionagueof Nations
Pub. ,945. VIA. r.).
' II,Chap. V. REPLY OF ETHIOPIA AND LIBERIA 243
Respondent's position in this matter not only contrasts with
Applicants' understanding of the nature of Respondent'svoluntary
assumption of the Mandate obligations.' It also is in conflict with
repeated holdings of this Hononrable Court.
Clear expression has been given by the Court to the nature and
central principles of the Mandates System. In its Jt~dgment of 21
December 1962 in respect of the Preliminary Objections, the Court
said :
"The essential principles of the klandates System consist chiefly
in the recognition of certain rights of the peoples of the under-
developed territories; the establishment of a regime of tutelage for
each of such peoples to be exerciscd by an advanced nation as a
'Mandatory' 'on behalf of the League of Nations'; and the recogni-
tion of a 'sacred trust of civilization' laid upon the League as an
organized international community and upon its Member States.
This svstem is dedicated to the avowed obiect of ~romotine the
\rcll-I>~irand de\,eloprnent of thc pcoplea cu~ccriiedRiid isforïified
by setting iip safeguards for tlie protection of tlieir riglitj.
"Thcse f~atiircs arc iiihcreiiiritlir.\lniidates Svstcni as coiicei\.ed
hy its authors and as entrusted to the respective organs of the
League and the Member States for application. The rights of the
Mundatorv in relation Lo the mandated territorv and the inhabitants
1i.iuelli~~r~rort>r<l.~>r11tdol~li~~t/i~0 1[v/IL.lrirtC/alor),I?I~tlreyart,
so 10speilk,mm 1001sfiit,eriIoe>>tib/10/alpl ils obli~uridns.'l'lief~ct
is that eacli .\l;iildate uiider tli~.\Inn<latr.sSysteni coiiatitunew a
intçrn:itioiial iiistitiition. the prirn3ry. overriding purpose of \i.tiicti
is to promotc 'the ireIl-beins and rle\,elopment' of the ~euuleof the
terrifory under hlandate." T . .
The italicized language reflects an earlier holding of the Court,
in its Advisory Opiicion oi Ir July 1950, quoted with approval in
the Jz~dgment of 21 Decemhev1962:
" The authority which the Union Governmciit cxercisesover the
Territory is based on tlie Mandate. If the Mandate lapsed, as the
Union Government contends, the latter's authority would equally
have lapsed. To retain the nghts denved from the Mandate and to
deny the obligations thereunder could not be justified." '
Respondent has not sought to explain, either in its Preliminary
Objections or in the Oral Proceedings thereon, any basis for its
disclaimer of international accountability while at the same time
' Respondent seekçto support its construction of the "compromise" in Article
22 of the Covenvnt aç "being ineifect close to annexntion" hy averring that hy
this means "Respondent was induced to agree to the Mandate System" (II, p15).
It is truc that Respondent. Aur;traliaand New Zealand "strongly pressed their
cases for incorporation" of the former German colonies in question. including
South West Africa. It does not at al1 follow that the alternative to the filandates
System would have beenannexation or incorporation; such a conjectural re-
cons.lu%menf.op. 329. (Italics added.)ed with profit.
' 1.C.J. Refiorls 195P.133; quoted in Judgmcni, p333.244 SOUTH WEST AFRlCA
inaiiitaining rights of administration and possession over the Terri-
tory. In its Couftter-Mernorial , espondent adverts to the matter,
but refrains frorn an attempt to show eithcr how such a result
could be "justified," or on what grounds, or pursuant to what
construction of iIie Mandate, Respondent Iiopes to "exclude the
obligations connectcd with the Mandate." without at tlie saine time
excluding "its very essence."
Respondent conccdes that its contention concerning the lapse of
tlie Mandate, "h.~s,on occasions in the past, resulted iii the raising
of the further questions whether, in such event, Respondcnt would
have to rely on ;Lbasis other tban the Mandate as such for a right
or title to administer the Territory of South West Africa and if so,
what that basis rvould be."'
The only "occ:~sionin the past" referrcd to by Respondeiit is thc
abovc-quoted ruling of the Court in its Advisory Opinion of II Jady
1950. Another "occasion," unnoted by Respondent, is the explicit
holding of the Ccwt in its Judgw~eno tj21 L)ecentb:r1962, also quoted
abo~e.~
Respondent's unilateral conception of its righr and title to the
Territory, as well as its disregard of the Court's views concerning the
nature of the Mandate itself, is revealed by the manner of Respon-
dent's disposition of such questions, which it concedes have arisen
"on occasions in the past." Respondent confines itself to the
corninent that
"Such questioiis do not, however, faIl to be considereà for the
purposes of the prescnt case. ..." '
To this curt dismissal of questions to which the Court lias attached
solemn and decisive weight, Resporident adds a similarly terse
coinment :
". .. Respondeiit does not claim, but on the contrary, expressly
disclaims, that its right of administration is based oii continued
existence of the Mandate."
Applicants respectfully submit that, to the contrary, there is no
basis whatever, other than the Mandate itself, for the continued
exercise by Respondent of rights of administration, or of any other
right, title orinterest in or to the Territory.
Respondent's conception of the nature of the Mandate similarly
gives rise to, an(i shapes. Respondent's interpretation of the second
~araera~h of Article z in a sense sharply in conflict with that of
AppGccants. - ?
liespondent construes the aforesaid provision as not embodying
obligations of a legal nature, but as indicating merely "the objective
'11, p. 173.
Supra, p.220
3II, p174. I<EPLY OF ETHIOPIA AND LIBERIA
245
to be pursued by the Manclatory, or the spirit with which heshozildbe
irnbzled,in exercising his power of administration and legislation."'
Froni this point of depzrrture, Respondent concludes:
"It followsconsequeritiallythat the particular methods whereby
tl~ispurposewassought to be attained, wereleft to the discretionof
the Rlandatory." 2
Applicants demonstrate more fully bclow3the legally normative
nature of Respondent's iobligations toward the inhabitants of
the Territory in terms of the second paragraph of Article z. The
preçent reference to Respondent's characterization of that provision
is relevant as showing the wide divergence between Respondent's
conception of principles hisic to the Mandates System, and that of
the Applicants.
As the History of the Dispute in the United Nations4makes clear,
Applicants' understanding uizd evaluation of thenature of the Mandate
and of its essential$riraciplescorvespontjstothat of the United Nations,
in and through the agency of which Applicants have sought to make
known their views concerning the issues in dispute and to settle
their dispute with Respondent by means of negotiation in and
through the diplomatic agcncy oi the United Nations.
As the lllenzorials mako clear,5 and as is more fully set forth
below, passim, the League of Nations, primarily through the
Permanent Mandates Coniinission,actively developed and expound-
ed its understanding and 1:valuation of the nature of the Mandate
and of its essential principles.
In view of the importance attaching in the Alandates System to
international supervision and accountability (which Respondent
both concedes and con tend^),^as weil as the undoubted competence
and integrity of the members of the Permanent Mandates Coni-
mission, their views concerning the nature and purposes of the
Mandates System traditionally have been accorded great weight
and are, indeed, frequently cited by Respondent in its Coz~izter-
fllernorial. The views of the Commission assume even greater signi-
ficance in the light of their consistent development throughout the
nineteen years of the Commission's existence, a development
which, though interruptecl by the war years, was revived with
noteworthy continuity and carried on with equal consistency by the
United Nations, its organs and agencies, dealing with the Mandates
and with cognate issues.
It is, accordingly, pertinent to consider thenature of the Mandates
System as viewed by the Permanent Mandates Commission.
1 II. p. 387. (Italics added.)
Infra, pp.476-519.
* 1. pp. 43-85. Reply. supra. pp. zzz-230
'1, pp. 37-40.
6Supra, p.238; II, pprGg8.246 SOUTH WEST AFRICA
The views of the Permanent Mandates Commission and its
members conceriiing the nature and essential principles of the
Mandates Svsteni are entitled to grea" weieht. -or reasons alreadv
set forth.'
Although the development of the concept of legal responsibility
of governing powers to promote the well-being of subject peoples
had led to acceptance of treaties or other international instruments
in particular cases2prior to the Covenant of the League of N t' a ions,
the Mandates System initiatcd a new phase in the development of
the concept: thefstablishment ofinternationalsupervisory authority
both administrative and judicial, to assure the observance of the
legal obligations of States administering peoples "not yet able to
stand by them~elves."~
Tlie essence of the international supervisory jurisdiction thus
established was isubmissionby the Mandatory to the supervision of
the League of Nations and the ultimate control of the Permanent
Court of International Justice to assure observance of the Mandator-
ies'procedural obligations vis-&vis the League and the substantive
responsibilities which they had undertaken toward the peoples of
the mandated territories.
The Permanent Mandates Commission was diligent in defining
and upholding the basic nature and principles of the Mandate for
South West Africa.
The Commission, urhichwas operative during the years 1920-1939,
was establislied pursuant to the provisions of paragraph g of Article
22 of the Coveiia.nt: "A permanent Commissionshall be constituted
to receive and examine the annual reports of the Mandatories and
to advise the Couticil on al1matters relating to the observance of
the mandates."
I. Compositionand Characterof theConzmission
a. The Compositionof theCommission
The Commission'sorganization and procedures were governed by
a Constitution and Rules approved by the Council of the League of
Nations. The Commission, composed of nine (later ten, then eleven)
members, norm:dly held two sessionsa year, when the annual reports
of the Alandatories to the Council of the League were discussed and
euamined. The Commissionwas assisted in its work by the presence
of an accredited representative of the Mandatory, who was available
to answer questions put by inembers of the Commission and to
'Supra. p.245.
Examples are theBerlinAct of1885 and the Brussels Act ,890.
' Covenant oftt.e League ofNations. Artic22. para.1, thetext ofwhich is
setforthin1.p.îa>. REPLY OF ETHIOPIA AND LIBERIA 247
amplify or correct statements in the reports. The Commission
formulated detailed questionnaires covering al1phases of adniinis-
tration, to be used aç guides by the Alandatory Powers in the pre-
paration of their annual reports. In addition to such reports, the
Commission had at its disposal a variety of documentation, officia1
and otherwise, collected by the Mandates Section of the League
Secretariat. Finally, petitions setting forth grievances of the
inhabitants of the Mandated Territories were received and evaluated
by the Commission.
The members of the Cornmission were chosen primarily for their
expertise in matters of colonial affairs.Many of them had already
distinguished themselves as colonial administrators. They were,
above all, endowed with practicality and experience. Some, as for
example Sir Frederick Lugard and M. Van Rees, enjoyed high
repute as writers and schi~larson colonial administration and the
Mandates System.
With the exception of the Japanese member, al1of the Conimis-
sioners were Europeans. As originally established, the Commission
consistecl of nationals of Belgium, the British Empire, France,
Italy, Japan,Nethedands, Portugal, Spain, and Sweden. Except that
a national of Norway replaced the Swedish member in 1928,
members were in every case replaced by nationals of the same
country. In addition, a !;wiss national and a German national
were appointed as Comriiissioners in 1924 and 1927, respectively.
Thus, at one time or another; nationals of Belgium, the British
Empire, France, Italy, Japan, Netherlands Portugal, Spain,
Sureden. Norway, Switzerland, and Gerniany servcd as memhers of
the Conimission.
b. The Character of the Commission
The Commission may he descrihed as in essence a quasi-judicial,
quasi-administrative orgari, analogous to similar bodies familiar
to many municipal systems, the function of which is the inter-
pretation and application of provisions of a legislative nature, within
a constitutional framework.
That the Permanent Mandates Commission was regarded, by
itself, as well as by the Coiincil of the League, in this light appears
clear from the Records of its Proceedings.
In the Commission's First Session, M. Rappard, then Director
of the Secretanat, stated that the League Council "hâd wished,
moreover, that each member of the Commission should be freed
from any obligation to its own government, so that he could sit,
not as a representative of any particular Government, but as an
entirely impartial judge."'
P.M.C.Min..rstSess.p.6.(Italics added.)248 SOUTH WEST AFRICA
During the Fiith Session of the Commission, the Chairman de-
clared :
"... The raison d'êtreof the Commission was to recall ta govern-
ments tlie necessity for ohserving tlie principles of the mandate,
principles which it must safeguard sa as to prevent any suspicion
its task." 'o the manner in which the mandatory Power esecuted
In its officia1 report to the Council of the League during the
Eighth Scssion, the Commission observed that
"the task of U:eCommission is one of supervision and of CO-operation.
It is ils dirty, wheit carefully examining the reportsof the nzandatory
Powers, 10 determine howfur the pririciples of theCovenantand of the
Mandates /muebeentruly applied in theadministration of the differenl
territories."
Duriiig the firial session of the Commission, the Chairman suin-
marized the character of the Commission, in discussing the duty
of the Commission to consider a British White Paper on Palestine:
"lt iiiiglibc i~~ked-:it tlic prcseiit iii<,<:ti,10Juill~t,10 do [sol
\vu rncrrly roknock ni ;,ilopviidoor. but rhequcstiuii lisclhecn raiscil
: I r \\li.:tli~ilicC~iiiiiiisiioii \cas obli~cd tu<l:ivto ci\< ira
opinion on tlie question whcther the \Vhite Paper w& in keeping
with the mandate. The Chairman personally thought that was a
duty the Coinmission could not escape. It was indisputably what
was expected of it. It might have to give its opinion on other points
as \\~ll, but certainly on that one. ï'o use an expression freqt~ently
heardat ils meetings,theCommission,as the'guardianof themandate,'
iuas lt~lfillingone of ils esseiztialfsilctions by doing so. He would go
further and :Sayit was its duty to do so. If it failed to carry out
that duty, it would he abdicating and riiiiiing any authority it
might possesj.
"Wouldit i~e said that it was rtotqiralifiedto interpret the mn~idates?
But it had done nothing elsesirtcethe very beginning of ils existence.
It had done that forthe Palestine mandatc itsclf, for the Tangan-
yika, Ruand:%-Urundiand Soutli-\\'est African mandates; and were
not the observations which it had submitted to the Council as the
resnlt of its examination of the various annual reports based on its
conception of the provisions of the mandates? Xeither the Council
nor the mandator$ Powers had ever suggested that in doing so it
had esceeded its duties or its competence." 3
The Commission often applied the principles of the mandates to
situations and proposals, rendering a judgment accordingly. Such
a quasi-judicial function was exercised, for example, in respect of
the question wliether the British White Paper was in conformity
with the Mandate for Palestine;whether the South African Colour-
Bar Act was in conformity with the Mandate for South \Vest
'P.M.C. alin..5ih Sess..p. 18.
P.bI.C.Min., 8th Sess.,p. zw. (Italicsadded.)
'P.hI.C. &lin., 36tSers..p. 207.(Italicsadded.) REPLY OF ETHIOPIA AND LIBERIA 249
Africa; whether a plan for "closer association" between Tanganyika
and the neighbouring East African colonies \vas permissible under
the Mandate for Tanganyika. Rlany other specific instancesdirectly
relating to South \frest Africa are referred to in appropriatecontexts
in tliis Reply.
The Commission was mindful that its diity \vas not the rendering
of fiolitical decisions. It exercised itsauthorityas a body of indepen-
dent experts, andit is common cause herein that the indepeiidence
and coiiipetence of its members gave great wcight and authority
to its judgments.
When a question arose ;isto revision of the Commission's ques-
tionnaire, Respondent, along with other Mandatones, demiirred.
Lord Lugard responded for the Commission.
"Several of the Mandatories ... have very definitely declared
that in their opinion sucli detailed questions ought not to he asked.
They are described as inquisitorial and as dealing with matters
quite outside our proper functions. They are, however, merely a
reproduction of those which have been asked oraliy. The objection
of the Mandatories is not therefore to the 'list' as such but to the
whole method and procedure of the Permanent Mandates Commis-
sion, and$his was made more clear in their speeches. . ..
"It would seem to be the view of the mmdatory powers that the
Permanent Mandates Commission sliould confine itself to seeing
that no gross and general maladininistration is taking place, and
that questions should he asked only regarding matters on which the
Permanent Mandates Commission has cnuse for doubts. But it is by
açking general questions that causes for douht emerge. If the l'er-
manent Mandates Commission is to discharge only functions of the
perfunctory nature indicated, it would hardly seem worth while
for men who have many otlier demands on their time to devote
themselves to the work. The SozcthAfrican delegatecomplainedthat
the action of the Permanent Mandates Commission 'constitzlfedan
investi:alion of the polii:y of the Mandatory in its own cozlntry'.
Is not that preciselyils function?1
In the same statement, Lord Lugard made clear the Commission's
policy of avoiding political judgments, in pointing to the fact that
the Commission criticized laws and practices of Mandatones, even
if similar laws and practices were applied by the Mandatories within
their own domestic jurisdic:tion.
The quasi-judicial, non-political charncter of the Commission is,
accordingly, beyond dispute.
z. Legal Basis of Resfiondent's Obligations
The Commission, as has been pointed ont, considered itself a
quasi-judicial, non-political body, the function of which was to
apply standards of a legal nature to specific policies and acts. The
1 P.hl.C. Min.. 11Sess..pp.106-67.(Italicadded.) SOUTH WEST AFRICA
250
Mandate institution embodied a system of a legal nature, with legal
obligations, and susceptible of legal interpretation and application.
il clear and concise illustration of its view in this respect may
be founcl in the Commission's discussion of Togoland, under
French Rlandate: "The Chairntan recalled that the mandate was the
constitz~tiorzal awof the territories under mandate, operatingunderthe
9eculiar circumstance that it had arisen out O/ an international
Convention."'
In the course cifthe Commission's review of Palestine, "the Chair-
man declined tci find any opposition between the 'spirit' of the
Covenant and the terms of the mandate. He saw no contradiction
between those two texts, which for seventeen years had constituted
the Lawtliat the Commission had applied to the case of Pal~stine."~
Similarly, during consideration by the Commission of the question
whether "closer association" between Tanganyika and neighbouring
British colonies could be justified under Article IO of the Mandate
for Tanganyika:
"M. Kapp~rd pointed out that, though the mandates might be
compared to international agreements,they were. at the same time,
the enforcen~entof the principles laid down in Article 22 of the
Covenant. fl there was a very definite coniradictionbetweenthese
principles,w.hichrcjereconstitstiorcal.and theirapplicationwhichwas
legislaiiveirznatzdre,it might well be asked what was the validity
of such agreemeiits. hl. Rap~ard did not think that the Commission
had reached this point. A solution shouid be sought in the following
direction: the text of the mandates should be interpreted in the
light of theprinciples which they should carry out. If, according to
one interpretation, there appeared to be a contradiction with
Article 22, it was the interpretation which was at fauit. The only
interpretatioii which was permissible was one not contra- to the
principles of that article."'
Mr. Kastl reaffirmed hl. Rappard's statement.'
As noted above, the Commission considered its task to be one of
"supervision and of CO-operation." In discharging its latter function,
the Commission was at pains not to express its judgment harshly, in
deference to the recognized difficulty confronted by Mandatories
in the effective discharge of their obligationS.The Commission often
expressed the hope tliat it could discharge its own functions in a
spirit of collab~3ration. rather than dictation. In the face of this
approach to it!; task, al1 the more significance emerges from the
frequent occasions upon which the Commission felt constrained to
express criticisrii of Respondent, sometimes in blunt and reproach-
ful terms. Instances are set out in appropriate context in other
sections of this Reply.
P.M.C. Min., 34thSess.p. rjo.(Italics ndded.)
P.M.C. Min.. 36thSess.. p206.(Italics added.)
' P.M.C. Min.. 15tSess..p. rio.
' P.M.C. Min., '5tSess..p.204. REPLY OF ETHIOPIA AXD LIBERIA 251
.As "guardian of the Mandate," the Commission examined
reports of the Mandatories, annually for nineteen years. In the
course of such examination the Commission addressed questions
to accredited representatives of the Mandatories. From time to
time, the Commission was also called upon by the League Council
for expert advice.
As a consequence of the Commission's functions of supervision,
there evolvedperennially what may be described as a "concrete con-
tent" of Mandates, the substance and form of which are embo-
died in the Commission's minutes. This "concrete content" is
reflected in pronouncements of general principles, such as the com-
pilation of "General Conditions which must be fulfilled hefore the
Mandate Regime can be brought to an End in Respect of a Country
placed under that Regime." '
More frequently, the substantive contcxt of a broadly stated
obligation of a Mandatory was developed through continuous
application of general cnteria to concrete factual situations.
11sclearly appears from the record of its Proceedings, the Com-
iiiission performed a quasi-judicial function of elaboration, distilla-
tion and specification of the broadly phrased "constitutional"
principles of thc Covenant and the Mandate. Explaiiation of the
fact that the Commission found little difficulty in accomplishing
this task, no douht is to bc l'oundin the admitted competence of the
Commission itself and in the widely accepted understanding of the
nature of the obligations vested in the Mandatory by the legal
instruments of the System. The major sources from which the Com-
niission derived its explicit formulations are described more fully
below.
3. Pzirposes and Objectives O/the Mandate
In arriving at its judgments concerning the Mandatory's duties.
the Commission proceeded from identifiable purposes and objectives
of the Mandates System as a whole.
Thus, both the Commisc;ion and the League Council endorsed
the view that Mandates, including that for South West Africa, wcre
for an indefinite duration, their goal in each case being self-govern-
ment, even though the "B" and "C" Mandate Instruments con-
tained no explicit provisioii to this effect. Excerpts from the Com-
mission's minutes are illustrative.
a. "The victorious Powers having agreed at the close of the war
on the two Wilsonian principles on which the Peace Treaties werc
to be based-the pnnciple of the non-annexation of conquered
temtones and the pnnciple of self-determination-the question
arose whether those principles could satisfactorily be applied in
their entirety toal1the 1:erritorieswhich were no longer under the
sovereignty of the States that had formerly governed them. It was
felt that the second principle clearly could not operate in certain
P.M.C. Min.. 20tSesç.p.228.252 SOUTH WEST AFRICA
territories, because they were inhabited by peoples who at that
time were incapable of self-determination, or, in other words, of
hauing regardto the temporary incapacity of these peoplestem,10assume
the responsibility of independence,requiredthat theapplication of the
principle shold besuspended but should by no means 6e cancelled." '
(Ar . an Rees.)
b. "The territories placed under mandate not being independent,
for before the Treaties of Peace they belonged either to Turkey or
to Germany, the aim O/ the mandate was 10bring those terriloriesto
theconditioiznecessaryfor conipleteindepenilence.This they did not
possess and were not yet capable of possessing, i.e. the? wereinca-
pable of self-i:ouer#zment...
". .. Unfortunately, neither Article zz of the Covenant nor the
texts of the mandates have defined either the other general or
special conditions of the termination of the mandate orthe procedure
required for this purpose. We shall therefore have to deduce them
by interpreting the different provisions governing the mandate sys-
tem.
"It has sometimes been urged that the i3and C mandates were
definitive, thus confusinga particularsituation with a legal principle.
"Al1 tlie ninitdatesare eqziallyof lintited duration, for al1are based
on Article 2:?of the Couenaiit,whose spirit was determincd by the
fifth and tvielfth of President Wilson's points. The system \vas
createdAblata catisaccssitcfectzrs." (Count de Penha Garcia.) them-
selves.
Addressing jliimself to a resolution of the Legislative Assernhly
of South \Vest Africa (composed solely of "\\'hites") advocating the
incorporation of South 1~'est Africa as a fifth province of South
Africa "subject to the provisions of the saitl Mandate," a Mernber
of the Commission concluded:
c.".. . According to wliat the Commissionlearned ...with regard
to the Legislative Assembly's resolution, the territory would be ad-
ministered as a fifth proviiice of the Union 'subject to the provisions
of the said mandate'. That was precisely where confusion might
arise. A place could doubtless be found in the administration of any
territory, wen a sovereign territory, for the provisions of the
mandate-namely, those on the protection of labour, freedom of
conscience. the welfare of the natives, protection against slavery,
alcoholism and dangerous drngs, etc. It would be possible to main-
tain them in the fifth province, but, not\vithstanding, the mandate
would beuiolntedsolelyby the establishmentof the prouince.Theman-
date was not made up solely of a whole group of protective
provisions, Ilut, hy making these provisions the hasis of a sui generis
status for the territory and its inhabitants, it constituted a new
institution setup under Article 22ofthe Covenant asan historic com-
promise between extremely complicated inter est^."^ (hl.Palacios.)
P.M.C. Min.. 20th Sess..200.6(Italics added, and in original.)
P.M.C. Miii.. 26th Sesp..164. (Itnlies added.) KEPLY OF ETHIOPIA AND LIBERIA 253
The Coniiiiission never expressed a doubt that the obligations
embodied in the Mandate niust be interpreted so as to give effect to
the purposes and objectives underlying not only the terms of the
instrument itself, but of Article22 of the Covenant, as well. Despite
the absence froni the Mandate instrument of explicit prohibition of
incorporation, sucli incorporation was nevertlielcss held to be
zcltvavires, in tlie light of Article22 of the Covenant.
Considering the expenditure of the territory's funds for native
education, taking into account the total funds available, the
Commission examined the nfandatory's duties in the light of the
underlying objectives of the Mandates System:
d. "An analysis of the expenditure on educatioii would show tliat
about ten times more moiieywasspent onwliitethaiionnativeeduca-
tion; as,inoreover, there were about ten times less whites tlian na-
tives in the territory, the average ainount spent on the education
of a wliite childwas 100 times more than that spent on a native
child.M. Rappard felt bi~und,however, to point out that the maii-
date had been established for tlie benefit of 'peoplesnot yet able
to stand by themselvesurider tlie strenuous conditioiisofthe modern
world' (Article 22 of the Covenant. para. 1). That being so, the
policy of the Administration seenzedto M. Rnppanl to be a little
dificult to recoiccilewilh the termsof theCouenan(2ndof themiiizdate.
and blacks lzadconzeinto coiztactin territoriescqtrallyi~chabitahhy
hothraces, the blacks hadgoneto the luall.The maizdatesystcnzrepre-
senteda kkid of protestagainstthe contiicrcatiozf this stateof afairs.
In view of the fact that the territory of South West Africa was the
only one of the R and Cmandatcd territories in which there was aii
appreciable population of white farmers, it seemedespecially neces-
sary to safeguard the intarests of the natives, particularly from the
point of view of education." '(M.Rappard.)
4. Coizclzcsions
It is beyond dispute that, throiighout its life, the Commission
developed and interpreted 1c:galprinciples, based upon the Mandate
instrument and the Covenant. and applied such legal principles to
specific situations.
The Commission's unaniniity on this matter is iioteworthy. The
Conimission, as a quasi-judicial body, gave expression to objectively
dctcrmined conclusions of a legal nature, thus developing a body of
practice and doctrine which furnish the basis, inter alia, for juclicial
determination concerning the scope and nature of Respondent's
legal obligations under the terms of the Mandate for South West
Africa.
The illustrative examples cited above reveal the Commission's
insistence upon maintaining intact the central purpose of the
' P.M.C.Dlin.18th Sçss.p. 136.(Italics added.)254 SOUTH WEST AFRICA
Mandate, which was the establishment of Kespondent's fiduciary
responsibility. Any suggestion that such a purpose could be sub-
verted by anne-uation or incorporation of the Mandated Territory
is clearly inconsistent with the views expressed by the Commission.
Equally unacceptable is a suggestion that Rcspondent's obligations
toward the inhabitants of the Territory are not subject to lcgal
norrns or standards, but are governed only hy Respondent's
discretion, free of international supervision and accountability.
It is indeed difficult to perceive a distinction betiveen such a state
of affairs and outright annexation or incorporation. CHAPTER IV
RESPONDENT'S VIOLATIONS OF ITS OBLIGATIONS
TOWARI) THE INHAUIT.4NTS OF THE TERRITORY
A. THE I~ELE\'ANS TUBIIISSIONS
Applicants' Subinissions 3 and 4, to which this Chapter IV of the
Reply is addressed, are reprocluced for the convenience of the
Court.' Respondent has misconstrued these Subrnissions in several
important respects, one consequence of which, discussed more
fully infra, pp. 260-262, is Respondent's presentation to tlie
Court of voluininous details of doubtful relevance to the central
issues herein.
I. Respondent erroneoiisly asserts, and constmes the Sub-
missions accordingly, that Applicants' contentions with respect to
Respondent's violations,
,,
... amount, on analysis, toa chargethat Respondentlias esercised
its 'full power of administration and legislation'under Article 2
of the hlandate in bad faith. .. ." 2
Respondent's misinterpretation of the import of the Submissions
reflecti its fallacious &sumotions regardhg the nature of the
Mandate and of the charac:ter o~- -~.-ondent's duties tliereunder.'
That this is a valid explanation of iiespondent's misconstruction
of Submissions 3 and 4 will be readily apparent from the syuogism,
false in its parts and in toto, on the basis of wliich Respondent
' Text in 1. p. 197: "3.The Union. in the respects set forth in Chapter V of
this Memorial and summarized iri Pzragruphs 189and igo thereof, haç practiced
apartheid,i.c.,has distinguished as to race, color, nationalor tribal origin in
establishing the rights and dutic3 of the inhabitantof the Territory;that such
practice is in violation of its obligations as stated in A2of the Yandate and
Article 22 of the Covenant of the Leagueof Nations; and that the Union has the
duty forthwith tocease the practice of apartheid in theTerritory;
"4. The Union, by virtue of the economic. political. social and educational pol-
icies applied within the Territory, which are described in detvil in Chapter V of
this illemarial and summarized at 1'sr:~graph igothercof, has failed to promote
to the utmost the material and mor:il ivell-being and social progress of the inhabi-
tants of the Territory; that its failure tosooiç in violation of its obligations as
stated in the second paragraph oiArticle 2 of the Mandate and Article 22 of the
Covenant; and that the Union has the duty forthwith to cease its violations as
aloresaid and to take al1 practicable action to fulfil its duties under such Articles."
' II. p. 2.To the same effect. Respondent states elsewhere that Applicants'
"case alleged against Respondent ... is one of had faith in the exercise of its
powers. ..." (II. p. 395.)
' Respondent's contcntiuiis regardirig tlie nature of tlie Mandate are appraised
at pp. 476-519 ,afra.256 SOUTH WEST AAFKlCA
presents its case ;andadduces its evidence ulth respect to Applicants'
Submissions :
(1) "...The particular methods whereby this purpose (i.e., effectua-
tion of Article z of the hlandate) was sought to hc attained, were
left to the di:;cretion 01the Mandatory." '
(2) ". ..[T]o establish a breach of this Article, it woiild be necessary
to prove that a particular exercise of Respondent's legislative or
administrative powers was not directed in good faith towards
such purpose."
ï'herelore: (3) "Whatever the Court may think 01tlic nierits of a
particular legislative or administrative act, practice or policy, if it
was devised and perlormcd or practised in the exercise of the Man-
datory's discretion with the boita fide intention of benefiting the
inhabitaiits of the 'ïerritory, it would not constitute a violation of
Article 2 of 1:heMandate." '
As has been l~ointed out earlier,' there is at best a tenuous distinc-
tion between a contention that the administration of the Mandate is
"left to the discretion of the Mandatory," free of international
supervision and accountabilityj and a contention that the Mandate
created a relntionship between Respoiident andthe Territory "close
to anne~ation."~
Applicaiits' S-uhinissioiis 3 and 4 are, on the contrary, bnsed upon
the conclusion, ainply supported in the Memorials,' that:
".. . Ry law and by practice, the Union has followed a systematic
course of positive action which inhibits the well-being, prevents the
social progress and thwarts the development of the overwhelmiii~
majority of the people of South West Africa. III pursuit of this
system:ltic course of action, and as a pervasive feature of it, tlic
Union has installed and maintained the policy aiid practice of
apartheid.
"Under apartheid, the status, riglits, duties, opportunities and
hurdeiis of the population are determined and allotted arbitrarily
on the basis of race, colour and tribe, in a pattern which ignores the
needs and capacities of the groups and individuals affected, and
suhordinate:; the interests and rights of the great majority of the
people to the preferences of a minority. Since this section of the
Memorial is concernedwifh the recordof tact, it deals with apartheid
as a fact and not as a word. It deals with apartheid in practice, as it
II, p. 387.
Id., p. 390.
' Id.... -.2.
* Supra, pp. 231-233,237-241.
As Respondent explicitly insists in its Counter-Mcmorial. II, p. i64:
"Reçpandent's obligations to report and account to. and suhmit to the super-
vision of. the Council of the League of Nations. lapsed upon dissoloftheLeague
and have +rotbeen qeplaced by obligations to subm10ilie strperoirion ofrrny organof
tionUis diçcusseaiidrdisproved at pp.520-552,rinfra." (Italicsadded.) This conten-
II. p. 389.
Chapter V, passim. KEPLY OF ETHIOPlA AND LlBERlA 257
actually is and as it actuallyhas beenin the life of th8fieopleof the
Territory,and notas a theoreticalabstructio~~ ..." '
Applicants' characterizations of Respondent's policies and
objectives by terms such as "deliberately," "knowingly." and the
like, clearly are inteiided as inferences and conclusions reasonably
flowing from Respondent's course of conduct, which is set forth
cxplicitly and fully in the IMemo~ials.~ Such characterizations reflect
a universally accepted axioni th;rt, in the absence of evidence to the
contrary, the predictable consequences of conduct are presumed to
be intended. Respondent demonstrates its awareness of the true
significance of Applicants' characterizations of its conduct, by
itself equating "systematic" with "deliberate,"' both of whicli
terms are used by Applic:lnts interchangeably.
Respondent's contention that its dispute withApplicants regarding
the performance of its obligations under Article z of the Mandate
hinges on the issue of Rcspondent's "good or bad faitli," ratlicr
than upon an objective evaluation of its coriduct, is advanced by
Respondeut in the teeth of the Applications and the Memorials, as
wellas of Applicants' formiilations of their arguments, evidence aiid
Submissions. Such a contention, likewise, is incompatible with the
Findings and Resolutions of the United Nations and its organs and
agencies, in and through which Applicants have continuously made
clear the nature of their dispute with the Respoiident.
Applicants' Submissions 3and 4 accordingly are hereby reaffirmed
in the sense stated and iritendcd therein, viz., that Resporiderit's
policies and practices, as set forth in Chapter V of the Memorials
and in this Chapter IV of the Reply, characterized and described
by the terms "apartheid" or "separate development," have violated,
and do violate, Respondent's obligations toward the inhabitantsof
the Territory in terms of Article z, paragraph z, of the Mandate.
2. Respondent furthermore miscontrues Submissions 3 and 4 as
excluding certain groups or individuals in the Territory designated,
in the parlance of apartheid, as "Coloureds" or p bas ter^."^ Such iin-
warranted misinterpretation of the Submissions is purported to be
based upon Applicants' references to "Natives" (alwaysin quotation
marks) in the Legal Conclusions, and elseahere, in Chapter V of the
Memorial~.~
In their formulation of the policy of apartheid, Applicants ex-
plicitly state that the Mernorials
' 1,p. 108.(Italics added.)
Id., ChnpteV. Itwilbenoted that suchinferencetypicvlly appeain thMerno-
via15in Summuries and Conclusions. folloiving in ecase a specificatian of Kes-
pondent's policies and practices of which cornplismade. See. c.g.:pp. 108,
109, 117,130,143.152, 160. 161and 166.
' II.p. 393.
' Id. .p. 382-383.
' In ~articular, paras. 189-,.pp. 161-166.~5s SOUTH WEST AFRICA
"... deal witliapartheidinpractice,asit actually isandasit actuaiiy
has been in the lifeof th peopleof theTerrilory,and not as a theo-
retical abstraction." '
The phrase "people of the Territory" was deliberately and literally
intended to mean what is says.
Submissions 3 and 4 themselves similarly describe and compre-
hend "the inhabitants of the Territory," without qualification or
re~triction.~
The straiiied construction sought to be attached by Respondent
to the Submission, relying upon Applicants' numerous explicit
refereiices to "N:ltives," also ignores a fundamental basis of Appli-
cants' cornplaini: of Respondent's violation of Article 2 of the
Mandate, viz. t.at the policy and practice of afiartheid, as defined
in the Mernorials.3is inits veryriatureandobjectiverep tutheant
Mandate.
Any interpretation of the Submissions which excluded any
irihabitant of the Territory from the scope of the Submissions
would, in itself, reflcct an unacceptable assumption concerning the
inevitable consequences of the policy with regard to al1the inhabi-
tants. As is demonstrated iii the Memorials, and reaffirmed in this
Keply, the policy of apartheid is injurious to the genuine interests
and welfare of the ewtirepopulation, includiiig those whose beiiefit
and privilege ara purportcd to be served thcrcby.
That Respondent was not iii fact misled by Applicants' empliasis
on "Natives" (:i group of individuals which, as categorized by
Respondent. coinprises the overwhelming majority of the Terri-
tory4) appears clearly from the Counter-Memorialitself.
Thus Respondent ùescribes one of thc "duties referred to by
Applicants." to which "regard is to be had in administering the
Mandate,"s as :ceking to promote the "political advanccmeiit of
[theinhabitants i~fthe Territory] through rights of ~uffrage."~
Similarly, Respondent describes "Applicants' duty No. 5," as
involving "equal rights and opportunities for [membersof thepopu-
lation of the Territory] in respect of home and residence, and their
just and non-discriminatory treatment."'
Applicants ht:reby reaffirm that Submissions 3 and 4 do not
'1,p. 108.(Italiis added.)
'Id.. p. 197.
'Supra, pp.25G-257.
' Respondent's population estimates, 1960 census, II. p. 401:
"Whites" .... 73,467
"Coloureds" .. 23,963
"Asiatics"... ......2
c native^... .28.575
' Id., p. 398. (Italics adde(The italicired phraçe is Respondent'oivn for-
mulation of App1ic;ints' contention.)
' 16id.(Italics added.(The itÿlicired phrase is Respondent's own foriiiulalion
ofApplicants' contention.) REPLY CIE ETHIOPIA AND LIBERIA 259
exclude, and may not reasonably be interpreted as excluding from
their ambit any inhabitants whatevcr of the Territory.'
3. A third misconstruction by Respondent of Submissions 3 and
4 consists in its unwarranted assumption that these Submissions
merelv reauest the Court to adiudrre,andudeclare concernin~ alle- u
@ions of'fact.
Thus, Respondent avers that "it does not understand the
auotations from reports of orzans of the United Nations in Cha~ter
ÎI of the ~emoriak to constirute in effect further complaints made
by Applicants." From this. Respondent concludes, erroneously,
that the purpose sought to be served by Applicants in referring to
United Nations reports was "to seek to establish the existence of a
dispute between the parties, and no inore." Respondent contends,
moreover, that findings and recommendations embodied in United
Nations reports and resolutions "are of no relevance whatsoever to
this Court's judicial function. ... "2
Respondent's contention overlooks the fact that the Submissions
request the Court to adjudge and dcclare that the policies and
practices of which Applicants complain, are, as a matter of law, in
violation of Respondent's obligations as stated in Article z of the
Mandate.
Responderit's argument that the findings, conclusions and
recominendations embodied in reports and resolutions of the
United Nations has no relevance to the Court's judicial function
carries to the extreme I<espondent's rejection of international
supervision and accountability. It likewise ignores the point of the
Court's comment, in its Jzrrlginen tf21 December 1962. that "thongh
the dispute in the United Nations and the one now before the Court
may be regarded as two different disputes, the questions at issue ' are
identi~al."~
Applicants respectfully submit that the reports and resolutions
of the United Nations and its agencies and organs, in and through
which Applicants have sought to settle their dispute with Respon-
dent, are highly relevant to the Court's judicial function in ad-
judging the legality of Respondent's administration of the Territory,
and are entitled to great uieight and respect as authority thereon.
' In the liglit of hpplicants' explicit interprand reafhrmation of the mean-
ing of theirown Submisçions. it is respectfully submitted that amendment thereof
is unneceîsary and unwarranted.
II, p. 3. Despite this contentbm. Respondent does not forbear from a sweeping
indictment of the accuracy and reliability of United Nations reSuch impeach-
ment might have appeared less ungcnerous hud Respondent over the years relented
from its obdurate denial ofaccessof United Nations cornmittees and agencies to
the Territory. The sole exception. thofthe ill-stand,962visit tothe Territory
of the Chairman and Vice-Chairman of the Special Cammittee for South West
Africa(discussed at pp225-226.supro), as is show by the circumstances attending
the vieit and its altermathstandsas theexception which proves the rule.
' Judgmatrl. p. 345.260 SOUTH WEST AFRICA
B. RESPONDENT'P SOLICY WITH RESPECT TO THE INHABITANT SF
THE TERRITORY
I. Introductory Coinmenl
Notwithstanding the voluniinous detail with which the Cozlnler-
filernorial is encumbered,' the decisively relevant facts coiicerning
Applicants' Submissions 3 and 42are uiidisputed.
It is possible, rievertheless, that the central issue, viz., the charac-
ter and consequences of the policy of apartheid, or "separate devel-
opment" (in Res~~ondent'spresently preferred usage) may be lost to
sight in a haze of irrelevant particulars. Accordingly, attention is
respectfully drawn to the doubtful relevance of much material
which is includetl, as well as the undoubted relevance of much that
is oniitted, from the Cozmter-hlemorial.
Respondent's policy. described as apartheid, with respect to the
inhabitants of the Territory, is explicitly defined in the Mettzovials.'
Applicants contend, in ternis of their Siibmissions, that such a policy
which Respondent implements through practices fully describecl
in the dlentorial.;, Chapter V,' and in this Reply, violates Respon-
dent's obligations under Article 2, paragraph z, of the Mandate.
The measiires by whicli the policy of apartheid is applied in prac-
lice are consisterit with the objectives of the policy and they confirin
its character. It the policy, as Applicaiits strenuously urge, is
objectionable, urisound and illegalin terms of the Mandate, measures
admittedly adopted for its implementation likewise must, ex
hypothesi, be objectionable, unsound and illegal.
The inescapable logic and simplicity of this propositionconfronts
Applicants with a dilemma in respect of the most judicious and
responsible manner of dealing in this Reply with the excessively
voluminous mas$ of data and details in the Counter-Mernorial,The
dilemma referred to above arises in the following respects:
a. Asis pointcd out herei~~,s ~o much of the evidence as is adduced
by Respondent for the purpose of denionstrating its "good faith,"
or that it is "actuated by an intention.. . other than one to
promote the interests of the inhabitants,"%vould be immaterial
even if it did-as it dos not-tend to show such "good faith," or
the absence of such "intention."
If the policy of apartheid is unacceptable, a "good" intention to
' Respondent, api:lycharacterizing theCounter-Memoriolas "anextremely lengthy
document". II, pz. attributes its "bulk." in part. to "pressure (id.p. 3).
It is respectfully submitted that the time-limits hxed by the Court for submission
of'R1,P.197.t's plaadings herein have been generously adequate.
Id., p. 108ansee pp.256-257supra.
' 1, PP104 8.
' SU~VOp.p. 255-257.
' 11,p. 390 REPLY OF ETHIOPIA AND LIBERIA 261
apply a "bad" policy would he a contradiction in terms and, in any
event, irrelevant.
b. Similarly, much of the evidence adduced by Respondent
appears to be directed at .the aim of persuading the Court that the
considerations by which Respondent conceives and shapes the policy
of afiartheid,are so multifarious, cornplex, "political," and "techni-
cal" in nature, that the Court cannot-r in the exercise of a
sound discretion, should iiot-undertake a judicial determination
on the merits of the dispute regarding the application and inter-
pretation ofArticle 2,paragraph 2, of the Nandate. Thus, Respondent
asserts :
"No legal criteria can be used in such adjudication.The decision
can only be based on !;ocial,ethnological, economic and political
considerations." '
Applicants, in consideration of the importance of the issues
involved in these Proceedings, earnestly have sought in their
Reply to meet fully and adequately Respondent's contentions and
evidencein support thereof, without, at thesame time, encumbering
the already voluminous pleadings with a point-by-point refutation
of evidence adduced byRespondent on the basisof falseassumptions
concerning the nature of its obli~at-ons or their le~al-v id .iciable
characterr
Applicaiits analyse belciw2 the normative and objective legal
standards governing the interpretation and application of Article 2,
paragraph 2, of the Mandate, as to which the Court has held Appli-
cants have an interest of a legal nature.3
Although argument on the merits of the issues in dispute is
deferred for subsequent consideration,' it is relevant here to cite
several illustrations showing that, on any reasonable assumption
concerning the nature of Respondent's obligations under the Man-
date, rnuch of the evidence adduced in the Counter-Mernorialis
irrelevant to the issues in dispute and, conversely, that evidence
of importance is omitted. Three illuminating examples foiiow:
1. The lengthy history a.nd ethnology of the Territory may be
taken as suhstantially accurate for the present purpose.6 It is
indisputable that in the Territory there do exist groups differing in
language, custom and economy. This is tme of many other of the
world's societies as well, wiiich are typically cornposed of groups of
individuals differing in one or more of these respects.
Respondent, however, stops short of an attempt to justify its
official policy of fostering such differences, through practices fully
' II, p. 391. (Italics added.)
Infrapp. 4768.
'Judgmenf p. 343.
Infra. pp. 362-475.
IIpp. 311-380.
Somc errorsin dctail are bripfly analysed458.464,ixf~n.262 SOUTH WEST AFRlCA
described in the Mernorials and in this Reply.' Yet it is precisely
this aspect, inter alia, of Respondent's conduct toward the inhabi-
tants of the Territory upon which Applicants ground Submissions 3
and 4.
z. Another illustration is the irrelevance of much of Respondent's
"background" evidence showing that in an early period the majority
of the Territory's inhabitants lived on subsistence economies, were
pastoral nomads, or were ~reliterate.~ In Applicants' submission,
bowever, a highly relevant question is Respondent's maintenance,
up to the present, of a subsistence economy in the Reserves. No
evidence isadducedbyRespondent tojustify its policyin this respect.
3. The third illustration concerns that aspect of the policy of
separate developinent which involves creation of so-called "Bantus-
tans," "Homelands," or "Reserves."' This policy presupposes,
inter alia, a system of migratory labour, in which men whosehomes
are in such areas spend long periods of labour in distant urban
centres or on farms in so-called "White areas."
It is self-evident from the history of human Society that no
group or community has survived which was not based upon the
family and that no stable, civilized community can be built upon a
system which deliberately separates men from their families during
substantial periods of their working lives. That such a result is an
inevitable consequence of the territorial separation
of groups and
the exclusion of "non-Whites" from any secure tenurein the "White
areas" is not denied by Respondent. Respondent, nevertheless,
regards this implicit result of its admitted policies as so irrelevant
to the central issue as to warrant no discussion whatever, among the
voluminous details with which the Counter-Mernoria ls concerned:
2. Respondent'sPolicy: Decisive and UndispaitedFacts
The decisively relevant facts concerning Respondent's policies
and objectives, ielied upon by Applicants in support of their Sub-
missions5with regard to Article 2,paragraph z, of the Mandate, are
undisputed. The doctrine of apartheid or, in the phrase of Respon-
dent's currently preferred usage, "separate development,"~merges
' ' Memoviolr, Chapter V. parsim, and infra. pp. 362-475.
See. e.gII, PP. 316.319.324-3253 ,29-3303.35-3363 ,38-339and 346.
' alore fully analysed at pp. 312-32,fra.
' Respondent's silence is al1 the more surprising in the light of the widespread
criticism of precisel:y this aspect of its separate development policy. as more fully
shown at pp. 284-21125,8-289and 467-468 infra.
' Suhmissions 3 and4. 1,p. 197:seep. 255,supt'u.
As is pointcd ciut 1, p. 108,Applicants deal with opnrlhei"as a fact and
not as a word ... as it actually iç and as it actually has been in the life of the
peopleof the Territ,>ry,and notas a theoretical abstraction." The Court's attention
none whose status. rights, duties. opportunioreburdens arefixedand allocatedxcludes
on the basiof race. colour or tribe. 1,p. 161.para. 189and this Reply. supra.
PP. 257-259.) REPLY OF ETHIOPIA AND LIBERIA 263
from Respondent's own formulations of that policy, as set out in
excerpts dralvn below froln the Counter-Mentorial. passim, as well
as froin public stateinents of Respondent's highest officials. Res-
pondent's measures for implementation of its policy are analysed in
detail in the Memorials, Chapter V and in this Reply, infra. The
existence and nature of such measures, like Respondent's policy
itself, are undisputed as facts, although Applicants take sharp issue
with the inferences which Respondent seeks to draw from its ad-
mitted policy and measures of implementation thereof, as well as
with the legal consequenccs Respondent seeks to impute to them.
Before turning to Respondent's formulations of its policy, it is
relevant to note that phrases such as "apartheid," "separate devel-
opment," or the like, are 11otused by Respondent as words of art.
To the contrary, such phrases, in Respondent's usage, have highly
flexible connotations.
Thus, Respondent explains its current preference against use of
the term "apartheid", as follows:
"By its protagonists in South African politics, the word was
used as a name for whai may be termed an earlierstageof molution
of thepolicy of separatedevelopment.. .." '
In contrast to the above-quoted explanation, Rcspondent
cites n declaration of "General Guidiug Principles" issued by one of
the outstanding such "protagonists," Dr. D. F. Malan, former
Prime Rlinister, in which Dr. Malan urges, inter alia, that:
"The policy O/ wr cwntry shouldenvisage total apartheid as the
ultimategoalof a nation<zplrocessof separatedevelopment."
It is submitted that if "apartheid" is definable as an earlier stage
in the evolution of the policy of "separate development," while, at
the sarne time, it is regarded asthe ultimate goal of that policy, the
terms fairly may be said to be interchangeable.'
It is relevant also to note that in the Cozrnter-MernorialKespon-
dent draws attention to th(: connection between its policy in South
Africa and its policy in South West Africa in general, and with
particular emphasis upon events in the Transkei.
Chapter VI1ofVolume IV of the Coztnter-Mernorialconsistslargely
of an exposition and defence of Respondent's policy in South Africa.
Thus, Respondent asserts that, in formulating its "policies and
practices" for South West Africa
". . . Respondent was frequently influencedby experience gained
in South Africa itself inregard to comparable problems and poli-
cies... ."*
II, p. 46,. (Italics added.)
Id.. pp. 463-464. (Itainoriginal.)
3 Reference already hasbeen inade, p. 256,supra, to Applicantç' usage of the
term "aparlheid"in the Memorinf"as a fact and naas a word". II, p. ro8:also
id.p. 161.)
'II, p. 457; and passim, pp.8.61264 SOUTH WEST AFRICA
Further, Respondent States that :
"Having regard to the specific problem of the future of South
West Africa and its peoples, as outlined earlier in this Chapter,
Respondent cm by way of solution seeno alternative to an approach
involving similar objectives and principles to those of the South
African polic:? of separate development, in the respects set out in
the preceding paragraphs." '
Again, Respondent comments:
"In the preceding brief summary, Respondent has given some
indication of measures which have been taken in the Republic of
South Africa The success achieved with them has suggested that
future developments in South West Africa should take a similar
course, althongh the unique nature of local conditions would
naturaily require differences in the methods and tempo of applica-
tion. .. ."
III selecting the following examples of Respondent's self-formu-
lated policy of apartheid, Applicants have endeavoured to avoid
quotation out of context or other distortion ofRespondent's intended
signification.
a. Prime Minister Verwoerd. 1963:
"Reduced to its simplest fonn the problem is nothing else tlian
this: We waiit to keep South Africa White.. . 'Keeping it White'
can only mean one thing, naniely Whitedomination, not 'leadership,'
not 'guidanci:,'but 'control,' 'supremacy.' If we are agreed that it is
the desire ot the people that the White man should be able to
continue to protect himself by retaining \Tr1iitedomination .. .we
Say that it c;in be achieved by separate development."
b. Prime &finister Verwoerd (1950) t.en Respondent's Minister
of Native Affairs:
" 'The supporters of the present Govemment say very clearly .: .
that they uill not he prepared to sacrifice white supremacy in
South Africa. But when we do say that, we also Say something else
which is always left out when people talk about this policy. This is
what we say :
" 'Just as we want supremacy in our areas, so we are prepared to
grant the saine supremacy to the Rantu in his area. We don't want
for ourselves what we are not prepared to cede to others. ..." '" '
~ ~ ~ ~
1 Id.. p472. Ami seefootnotes 2 and 3. p.314. infra.
2 Ibid.
R.of S.A., Hottscof Arsembly, Parl. Deb.. 2nd Parl., 2nd Sess.(weekly ed..
1963). Col. 242.
* Grobler,Africa's Destiny89 (1958). (Quoted in II, p. 464.) The foregoing. as
well as similar statements by Respondent's officiais çoncerning its objectives in
South Africa. are n:levant in al1significant respects to SouWest Africa as well.
Sec Respondent's reference to "a certain rneasure of inter-action between policies
in South Africa and in South West Africa" as rnakingnecessary "some brief reference
to certain specihc apects of policies in South Africa." p.I46r.) REPLY 01; ETHIOPIA AND LIBERIA
265
c. Prime Minister Verwoerd, 1961 :
" 'We prefer each of Ourpopulation groups to be controlled and
governed hy themsel've!;,as nations are. Then they can CO-operate
as in a Commonwealth or in an economic association of nations
where necessary. ...
" 'South Africa will proceed in al1honesty and fairness to seek-
albeit by necessity through a process of gradualness-peace,
prospenty and justice for al1 hy following the mode1 of nations
which in this modern world means political independencecoupled
with economic interdependence. ' '
d. Prime Minister Verwoerd, 1951:
" 'Now a Senator wants to know whether the series of self-
governing areas would be sovereign. The answer is ohvious. It stands
to reason that White South Africa must remain their guardian.
We are.spending al1the money on these developments. How could
small scattered States arise? The areas wiü be economically depend-
ent on the Union. It sta.nds to reason tbat when we talk about the
that we intend by that to cut large slices out of South Africa andn
tum them into independent States.' "
e. Extracts from an address by Respondent's Prime Minister in
1962 are quoted in the Cozmter-Mernorial. II, pp. 467-468. These
have been the subject of commentsby the highly respected Director
of the Institute of Race Relations, Afr.Philip Afason. These excerpts,
together with Mr. Atason's published comments thereon, are set out
in Annex I ta this Reply, ],p. 328,334-335, infra, and are incorpora-
ted herein by reference.
f. Prime Minister Verwoerd, when Respondent's Minister of
Native Affairs:
"[Ilt is of no avail for [the African] . . . to receive a training which
ha as its aim absorption in the European community while he
cannot and will not be absorbed there. Until now he has been
subjected to a school system which drew him away from his own
community, and practicdly misled him by showing him the green
pasturesof theEuropeanbut still did not allowhim tograiethere." '
"It isthe policy ofmy Department that education should have its
roots entirely in the native areas and in the native environment and
native community. There Bantu education must be able to give
itself complete expression and there it will have to perform its real
service. The Bantu must be guided to serve his own community in
al1 respects. There is no place for him in the European community
abouetheleuelof certainjorms of labour.Within his own community
however al1doors are open." '
(Quoted insII,p. 466.) (Italics in original.)Fat Paper gr, April 1961, p. 14.
' U. Of S.A.. Parl. Deb., Senata, rotParl.,4thSitting (weekly ed., 1951). Cols.
2893-2894.
' U. ofS.A., Pnrl. Deb.. Semifa. 11th Parl., 2nd Sitting, (iveekly ed.1954).
Col. 2619. (Italics added.)
' Id.. Cols. 2618-2619. (Itâlics added.)266 SOUTH WEST AFRICA
g. Cozuzter-~Memorial,II, p. 475:
Kespondent, in its brief reference to the problem of the "Police
Zone," or"\Vhite area" (comprising over 70 percent of the Temtory
and disposing of its major developed economic resources) concedes
that the "Native reserves" therein are "not nearly adequate" to
serve as homelands in which each group can develop to proper
self-realization. liespondent's explanation is as foUows:
"The reserves were, indeed, not planned for such a purpose,
in uiewof thecontemblationthat emblovmentwozcldbeofferedtoa laree
nu,ntdr ;/ tirenzr.>)tb;r/ rkesegror;ps'in the econom)' ojrlie1:'trrope;n
.o.trl.iliun.'III, fiictor. togctlier with hisroric<ilrçssoiis pcrt~iniiig
to treaties and agreements with s~ecific cornmunities. IareelG
account for the fa; that the reserve; are not consolidated ho%;-
lands for each group. but scattered units for localized sections of the
groups concerned. ~arl~ attention to the makiig of revised and
adequate provision in this regard is therefore an important step
in the irnplenientation of the policy of separate development." '
h. Counter-Mcmorial, In, pp. 528-530:
"(b) It is Respondent's belief that the interests of the European
and Native groups can best be served, and tbat peaceful co-existence
their separate development, the goal aimed at beingh providea fsituation
whcre the Bntu groups will have self-government and, eventually,
full independence in their own liomelands, and -where economic
relations betweenthese homelands and the White areas will be such
.r, rudni,irrrId J p~srlrutiu/cçonomrct~ilenlt.pe~idenci.
'lii t1.i:pr.>icsiuf .,,l\fnnicni<;ntroiv:irili tliis go:il. iiieasurcs Ii;i\.u
been and arc: constantly bcing taken to develop the Bantu areas,
and it is Respondent's belief thût the Bantu themselves should play
an active part in this development. In this process of development
Res~ondent. through its De~artments of Bantu Administration
andA~antu ducati ion employs aiid trains Bantu who can contribute
to the development of their areas and to the advancement of their
"(c) 11 ICI of !VII~C IIspondent rnust, nriddoes, take cognizanse,
is t1i:itlicrc has. tlirou~hout Sourli Africû's2 Iiistory, 11ecnsoci;il
scparation b<it\v(~eitihe \Vliite and Bantu groups; rliat the menibers
of-each group prefer to associate with mekbeis of their own group;
and that ceitain kinds of close contact between members of the
two groups, particularly in the more intimate spheres, tend to
create friction.
"(d) The :iforementioned factors, accentuated in all probability
iii the case of the European group by the fact that they have for a
long time occupied a position of guardianship and leadership over
the Bantu groups, also in the economic field, have limited relation-
-- ships between Eiiropeans and Bantu largely to those of tutors and
'(Italics added.)
The omission of reference here to South West Africv underscores the extent
to which Respondent's policieç in the Mmdated Territory are essentially projec-
tionsof its policies in the Republic. REPLY 01: ETHIOPIA AND LIBERIA 267
employers, on the one hand, and pupils and employees, onthe other.
and have, furthermore, as at the present stages of development
of the res~ective arouDs. resulted in the factual situation that manv
~uropeani, iiialrprObability the vas1majority, are no1prepared io
senie in positions whme Uantu are filacedin a position of authoritv
"(e) A further important facet of the afore-mentioned factors is
that a Bantu who qualifies himself for a profession in which he will,
because of the stage of advancement if his own group, have tc
depend for his livelihood on the services of European employees.
or on European patronage, runs a grave risk of total frcrstration.
"(II l'he iii:ittcrs rcfcrred to in sub-parngraplis (c),,dl and (ci
;il>oveare sociulfihenunrenr i.~IC/exisl tas/ucls, inJependenr1)O/ an;,
gozcrnrnentalpolrcy, It~islatioi~or adtrrrnrslratrvprlrcrices-ni iiiJçcd
thev manifest themsdves. to a ereater or lessèr extent. in mixed
or I>luralcommunities th;oughoÜt the world. ~e~ending upon the
exact circumstances of :rparticular situation, the phenomena may
partake of the nature of -group preferences, group self-Protection,
group assertiveness, groiip conceptions of differences in social and
cultural level, or some1:imessimply group prejudices. Whatever
tlieir exact nature or causes, and whatmerthe moralrightsor wrongs
pertaiiiing 10themin particcclarsituations, therecan beno denial that
suchgroup rcaclionsexisl as facts of whichdue cognizancemicslnceds
be taken by any realistic government.
"(g) In more recent times policies have been devised in various
parts of the world with the specihc ideal, to which Respondent
wholeheartedly subscribf:~,of eradicating, avoiding or reducing to
a minimum al1undesirable aspects and manifestations of such group
reactions. such as unfair discrimination, domination of one group
by another, and the like. The problem does not lie with the ideal,
but with practical means of achieving it in the diverse conditions
existing in various plural communities: and frequentlyan important
aspect of the problein is to find a just and proper balance
between legitimate but competing or conflicting aspirations of
various groups. Whereas policiesaiming at a solution of the problem
are in some countries proceeding in the direction of attempts at
forced integration, witli or without qualifications, Respondent
is, for reasons explained earlier, fuUy convinced that such policies
cannot possibly achieve a just and fair solution either in South
Africa or in South West Africa, and that a solution is to be sought
on the basis of separate development as set out inter alia in sub-
paragraph (b) above.
"(h) An important motivating factor in regard to this policy has
always been the advantage which it involves for educated and more
advanced members of th,: Bantu groups, in that they can step into
higher grades of employrnent specially intendedfor them in filanned
and posilirieprogrammes fov advancementoftheirownpeofiles-vis-à-uis
the large measure of friction, negation and frustration that must
and 428.000b"Natives." thatthe popiilaofthe Territory comprise73,400"Whites"268 SOUTH WEST AERICA
inevitablv anse for them. inde~endentlv of anv Govemment ~olicv
or legisl&ion, from attew&5ta si free competitionwith members'oftie
Whitefio~ulationproufiin thehirher'strata01the economic,socialand
profesiio~allife of thai group.
"As a counter-part to the factor just mentioned, the policy of
separate development takes due co~nizance of the fact tliat its
ap'pliL.;itionil;ai prcsi:rit pasing thrGgli n stage of tr~nsition. and
aims ar doin(: so \vit11:Iminimuiii of gruup friction and rlic i1eg:~tii.e
conjeuuciicei tlint coiild resulr tlicrçfroiii. l'hc tr:iii3iiiofrom the
carlie; genre, mentioned in sub-paragraph (d) above, of White
gunrdianship and leadershipin ewerysphere of a partially integrated
econmnvto eoualitv of o~~ortunitv for members of the non-White
groups'in the'form'of ~eadérshiipnlargely separated,thouglbmutually
interdefiendev;te,conomiesO/their own~rotrfis.With a view especially
to seciiring the maximum support irom al1 the groups for this
transition, Hespondent has found it best, as a matter of practical
policy, to respectthe unwillingness of membersof the White grou? to
serve in positions of subservienceto members of the Bantu groups,
but at the jame time to create compensatory opportunities for
Iiigheremployment of members ofthelast-mentionedgroups through
acceleration, as far as practicable, of the development of their own
homelands and economies.
"(i) A realistic approach to the problems ofthe transitional stage
is. in Resvoiident's view. to train Bantu for occuvations and pro-
fessions \;hich, at the pksent stage of developments, offer them
avenues of employment and future advancement, and to avoid
creating a situilion where Banttr qualify for professions in which
they will finfithemselvesdependenton White patronage,whichmighl
not be forthcoming,or in wliich either Respondent or other potential
employerswill not beableto make use of Lheirseniicesin a fieldwhere
they will, of necessity,have to beplacedin positions of azrthorityove*
Ettropeanerrployeesor assistants."'
3. Analysis O/ Respondent's Policy
a. General Considerations
Analysis of Respondent's policy with respect to the inhabitants
of the Territory appropriately may take as its point of departure
Respondent's aissertion that
"The policy of separatedeuelopmentis no1based on a conceptof
scrperiorityGY inferiority, butmerely on thefact of peoplebeingdiffa-
ent."
The above-quoted statement paraphrases a comment of Res-
pondent's Prime Minister, Dr. Verwoerd, in 1961:
8,,. . . The Government's policy is not based upon people being
infenor but being different. . . .'"3
' Italics added.
11,p. 471.(Italics in original.)
' Id., p.47'. REPLY 017 ETHIOPIA AND LIBERIA
269
To the saine effect, the Counter-Memorial quotes Respondent's
Minister of Bantu Administration and Development, Mr. de \Vet
Nel, as follows :
" 'Thetraditional approach has al\vaysbeeiia policyofrecognizing
the equal status . . . of the Bantu, a policy of differentiation . . . but
diferentiatioîzwithm6tinferiority. ..'" '
The "fact of people being;different" is a commonplace statcrnent,
admitting of an infinite variety of interpretations. As an evplanation
of Respondent's policy toward the inhabitants of the Territory
under Mandate-the statenient is, in itself, ambiguous and meaning-
less.
If it is intended to suggest a political, sociological, economic or
legal justification for Respondent's policy of apartheid, or separate
development, the statemciit begs the central question in dispute
with respect to Respondent's obligations under Article 2 of the
Mandate and Article 22 of the Covenant of the League of Nations.
Applicants' Submissions 3 and 42are grounded upon the prcmise
that allotment to the inhabitants of the Territory of status, rights,
duties, opportunities and hurdens on the basis of race, colour or
tribe, doesnot promote their wdl-being anil social progress.' This is
but another way of saying that Respondent is obliged, in terms of
the Mandate, to accord to the inhabitants of the Territory legal
"equality of status," as individual persons.
As is clear from the record herein and, indeed, as is axiomatic to
liespondent's cause, the contrary preinise underlies Respondent's
policy: the status, rights, duties, ofifiorlzinities and burdens 01 the
inhabitants of the ïerritory are allotted solely on the basis of their
quality and clzaracteras membersof "groz6ps."ratherthan as individzr-
als?
Thus, Kespondent char;icterizes as "basic aspects of tlic policy
of separate development":
"... acknowledgment of the just claims niid moral rights of each
groupto advancement. . ."; and
"... an end result ob\.iating al1 domination of groups by one
another." 6
In a Memorandurn entitleil "Decisions by the Government on the
Recommendations of the Commission of Enquiry into South West
Africa Affairs," ' Respondent expressed acceptance of "the main
'11,p. 197.lics added.)
' Id.. 1)108.
' See. in particular. the addres; of Respondent's l'rime hlinister, excerpted in
II, pp. 467.468.
' Id., p. 466. (Italics added.)
Id.. p. 467. (Italics added.)
' Presented by Respondent's Prime hlinister to the South African Parliament
on 29 April 1964; approved I>ya rcsolution of the HouseofAssembly on 8 May
under letter of Respondent's Agent to the Registrar of the Court 28tMay 1964,
hereinafter referred to as "Mcmovondum").270 SOUTH WEST AFRICA
features" of the Odendaal Commission Report.' "as [being] an
indication of the general course to he adopted in the next phase
of the deve1opmi:nt of South LVestAfrica and of the promotion of the
well-being and progress of its inhabitants."
More specificaily, Kespondent announced its desire
". . . to stale clearly .. . that its generd attitude ... involves
agreement with the Commission'sfindingthat the objective of self-
determination forthe various population groups will, in the circum-
stances prevailing iii the Territory. not be promoted by the estab-
lishment of a single multiracial central authority in which the
whole population could potentially be represeiited, but in which
some groups \vould in fact domiiiate others.. . . The Government
also endorse:;the viewthat it shouldbe the aim, :isfaras practicable,
to develop, for each population group its own Homeland, in which
it can attain self-determination and self-realization." '
One of the "inain features" of the Odendaal Cominission Report
conceriis the rationale of a policy pursuant to which the status,
fights, duties, opportunities and hurdens of inhabitants of the
rerritory are olliciaUy allotted upon the basis of the "populatioii
group" to ushicheach inhabitant belongs, or iii which he is classified.
The arguments and findings of the Odendaal Commission in this
regard, accordingly, are instmctive as showing the premises whicli
underlic Resporident's policy of apartheid, or separate development,
and which accoiiiit for the striiigerit and pervasive application of
that policy in al1 aspects of the lives of the inhabitants.
Thc Comn~ission forrnulated its approach as follows, inter ulia:
"The moral and economic principles of a modern econoinic
system are different from those of traditional groups where the
groirfiand not the ifidiuidualis the focalpoint. The modern economic
system and the traditional system are therefore not comparable or
readily recoiicilable. Their problems are different, their hunian
values and inotivations are different." '
The Commission stated further:
". . . Wherc, owing to fundamental differences in socio-cultural
orientation, stages of general development and etkzic classification,
the different:esbetween the groups concerned are of so profoi~nda
nuttrrethat lhey cannot be wiped out, a policy of integration is un-
redistic, unsound and undesirable, and cannot but result in continua1
social discrimination, discontent and frustration, friction and
'Report O/the Conintission of E~rpuiryin10South ii'cst AfrAffairs,R.P. No.
121rg64 (hereinaftcr referred tas "Odend~l Commission Rcporl"].
2 fiIemorn>tdu>n, ec. B., par5.(IV.p. 202.)
pondent announced its intention to defer certain recomniendations of the Commis-
sion forthe creation of "homelands." on the ground, inter dia, that such recom-
mendations are "afiected by considerations pertaining to the pending case."
(Mcmornndum. Sec. E..para.21 (id.. p. 213).)
' Odrndanl Comlnission Report, para. 1431. p. 427. KEPLY Oli ETHlOPlA AND LIBERlrl
27r
violence-a climate in which no socio-econoniic progresscari Lie
expected to take place. Under such conditioiis the social cost iii
vantages. In the circumstances il is thereforedesirable to accept the
position as ilis and no&toput idenlisnibeforerealism." '
The Commission added, further:
"In a territory like South West Africa, where there are gror,l>s
that differ fundanientally/rom one another, a policy of socio-cultrrral
separatenessand economicinterdependence is thereforethe only one
which can ensure the maximum freedomof action and self-realiza-
tion to the greatest nurnber of inhabitants at the same time. . . .
In the light of the above, therefore, it is essential to regard tlic
various popiilation groups in South West Africa as independent in
certain respectsand asdependeiit developingunits iiiotherre~pects."~
As is more fully shown bt:lo~,~ governmental policies based upon
assumptions such as these, niz., that "differences between the groups
concerned are of so profound a nature that they cannot be wiped
out," and that it is "desirable to accept the position as it is," as
a basis for the allotment 1.0individuals of status, rights and du-
ties, are incompatible with thc ovcr\vhclniing wcight of authority
in the political and social sciences. Such a premise of govcrn-
mentalaction, andthe policy of afiartheid by which it is effectuated,
are furthermore repugnant to the geiieraliy accepted political and
moral standards of the international community, ' as well as viola-
tive of norms, as accepted by international custom and as re-
flected in the geiicral principles of law uiiiversally recognized by
civilized nations. 5
Such assumptions and their iinplemciitation, inoreover, arc
neither factuaUy valid nor logicdy tenable. Siich "differeiices"
as may be inherent in "ethiiic classification" are in no \vay rele-
vant to, nor can they properly be advanced to justify, denial of
equality of opportunity based upon individual merit or capacity,
or denial of equality before the law, or of fundamental rights and
freedoms.
As pointed about above, "liespondent neither explains nor justi-
fies its policy of fostering such "differences" by legislative fiut and
administrative practice, by which it aggravates the "social dis-
crimination, (liscontent and frustration, friction and violencc,''
which the Odendaal Cominission asserts results from what it
terms a "policy of integration." ' A policy of fostering such "dif-
' Id.. para. 1434. p. 427. (Italics added.)
Id.,para. 1436. pp. 427-29. (Italics added.)
' Infra, pp.302-312.
' See infrn. pp. zgj-302.
' Sçeeinfra.pp. 476-519.
Supra, pp.26,-262.
clcarly from Respondent'ç own formiilations to the same effect, in strikingly
siinilar termSec, c.g.III. p. 529; quotcd supra, 266-268. 272 SOUTH WEST AFRICA
ferences" is, indeed, calculated to assure not only that they "can-
not be wiped ou!," but that they may explode into uncontrollable
violence or disaster. '
The Odendaal Commission's view that it is "desirable to accej~t
the position as it is and not to put idealism before realism,"
strikes a note sliarply dissonant with that implicit in the "sacred
trust of civilization" pursuant to which Respondent undcrtook
to promotc "to the utinost" the well-being and social progress
of the inhabitants of the Territory.
The thorougligoing manner in \\,hich Respondent has given
effect to such "realism" will be examined in more detail in con-
nection with the application of apartheid to the various aspccts
of life in the Territory: the rigid policy of educational apartheid,
of economic apartheid, of political apartheid, * and of the discrimi-
natory policies and measures by which Respondent regulates and
restricts securiti of the Derson. r.ehus of residcnce and freedom of
movemcnt. "
As wiil be shown, Respondent's policy and practice with respect
to each of these aspects of life, is directed toward the primary end
of assuring an adequate "Native" labour supply in theTerritory,
particularly in its "Whitc" Police Zone (comprising more than
seventy per cent of the Serritory), subject always to the condition
that, in the words of Respondent's Prime Minister,
"There is no place for him [i.e.,"the Hantu"] in the European
community above the level of certain forms of labour." '
The policy of educational apartheid deprives the "non-\\'hite"
inhabitant of the Territory of incentives or opportunities for
progress, coiisigning hiin cither to stringently limited possibilitics
of advancenient in the "European commiiiiity," or in unviable
teserves with a mere subsistence economy.
Economic apartheid denies "non-White" inhabitants basic rights
of organization and freedom of association. It condemns them to
limited opportuiiities of employment or advancement, on the
mound that :
The increasingly repressive legvl and other memures by which Kespondent
endeavors "to acccpt the position aitk" are noted in Annex 1. infra.P. 328.at
333-334. . .-
The Commission, characterired by Respondent as "experts of exceptional
standing" (II,,.476) here manifests an approach identical withthat of Respondent's
contention that "vrhatever the moral rights or wrongs" inay be. "groupreactiona
exist as facts of which due cognizance muçt ~eeds be taken by any realistic
government." (III, p529.)
Infra,p. 362.
' Infra,p. 404.
Infra.p. 439.
Infro.6. q58.
' Li.of S.A.. Pnrl.Deb.. Senale, ilth Parl.. 2nd Sitting (weekly ed., ,954).
Col. 2619 (when alioisterof Native Mairs). REPLY 01s ETHIOPIA AND LIBERIA =73
". .. many Europeans, in al1probability the vast majority, are not
prepared to serve in positions where Bantu are placed in a position
of authority over them." 1
Political apartheid fosters and aggravates just such "differences"
as Respondent asserts justify its policy of separate development.
Ilenial of suffrage and restriction of "non-Whites" to the most
limitcd forms of participation in govemment, at any level, inhibit
their social progress and tli~r~arttheir development toward genuine
self-determination.
The "sacred trust" and Respondent's undertaking to promote
to theutmost the well-being and social progress of the vast majority
of the inhabitants of the Territory are thus made subject to thc
prejudices and attitudes cif a small miuority among tbem. This,
in Appiicants' submission, is impermissible in terms of Article 2,
paragraph z of the Mandate.
Such a predicate of policy, moreover, is whoiiy incompatible
with Respondent's professed objective of promoting
". . . the advancement of peoplesto a stage wherethey couldiiideed
'stand by themselves'-econoiiiically, educationallyand socially as
well as politically-as ;r pre-rcqnisite to a mature political act
of self-determination."
To that end, Respondent projects the development of viable
"homelands,"
". .. to he controlled and governed by themselves, as nations are,"
:riid which
". . . cati CO-operateas in a Commonwealtli or in an economic
association of nations rvherc neccssary .. ."3
.Accomplishment of such an objective clearly demands a course
of action based upon a prernise precisely contrary to that adopted
by Respondent. Educational and other opportunities would he
afforded to individuals at all levcls and skiiis, rather than within
limits responsive to, or dictated by, the prejudices and attitudes
of a srnail minonty of the total population of the Territory. '
In no other way could such "homelands," even apart from their
inherent inconsistency nith the requirements of modem Society,
III, p. 528
Id., P459.
' Instead, Respoiideiit proceeon;the premise that it is more "realis...to66.
avoid creating a situation where Bantu qualifforprofessions in which thcy \\.il1
find themselves dependent on \Vhite patronagc, which might not be forthcoming,
or in which either Respondcnt or other potential emplogers aiIl not be able to
inake useoftheir services in a field where they wiU, of necessity. have to be placed
in positions of authority over European employeeç or assistants." (III, p. 530.)
(Italics added.) lnhcrent capacit~ to "qirulifyn is thus conceded; the limitation is
based solely upon membership ina "group."274 SOUTH WEST AFRlCA
be endowed with the prerequisites of true social progress, "to the
utmost," and on a constantly ascending scale.
Respondent h;is misconceived its mission; it has construed its
duty to "proinote to the utmost" as being lirnitcd by, and subject
to, the attitudes of a favoured and dominant minority.
Furthermore, the repressive and discriminatory l~olicies by
\$!hich"non-White" inhabitants of the Territory are denied legal
equality with the "\%'hite"minority, in respect of rights of security,
residence and movement are applied by Respondent so as to ef-
fectuate its policy of assuring that, wlien necded forlabour inthe
"European" community, the presence of "non-Whites" is permitted
and eiicouraged: when no longer required, "influx control" and
"pass" laws could facilitatc their eviction as "redundant." ' Such
restrictions and conditions, which may be applied impersonally
to any "Native," whether uiiiversity graduate or unskiiiedlabourer,
deny to the affected individual such human freedoms and funda-
mental rights as those of maintaining a normal family life. thus
striking at the iudimeiitary pre-condition of any stable, civilized
community.
In sum, under apartheid, the accident of birth iniposes a man-
datory life sentence to discrimination, repression and humiliation.
It is, accordinç:ly, in violation of Respondent's obligation, as
stated iri Article z,paragaph 2, of the Mandate, to proinote to the
utmost the weU-being and social progress of the inhabitants. The
policy of aparthzid, moreover, is repngnant to the objectives and
requirements of -4rticle22 of the Covenant of the League of Nations.
Respondent's premise that thestatus, rights,duties,opportunities
and burdens of each inhabitant of the Territory are to be deter-
mined and allotted on the basis of his membersliip in a "group,"
rather than as an individual human being, proceeds from and
perpetuates a major distortion of the intention of Article 22 of the
Covenaiit of the League of Nations and Article z of the Mandate.
Article 22, paragraph I, of the Covenant embodies the principle
of a "sacred trust" for the well-being and development of certain
areas "inhabited by peofiles sot yet ableto stalid by themselues. .. ."
Article 22, paraigaph 6, perraiuiiig to "C" Mandates-including
the Territory of South West Africa-refers ta "the safeguards
above mentioned in the interests of the indigenous popzilation.'"
Respondent's policy of afiartheid, allotting to individuals rights
and burdens upon the basis of their niembership in a "gronp,"
implicitly interprets and applies Article zz, paragraph 1, to mean
that each and every individual member of a designated "group" is,
by that fact alone, "not yet able to stand by himself."
Ascription ofsuch asignificance to the quoted phrase is a mani-
' Inf~a, p465
Infra, pp284-!?85.288-289, 467-470
Quoted in 1p. 200.(Italics added.) REPLY OP ETHIOPIA AND LIBERIA
275
fest absurdity, yet the inherent nature and effect of Respon-
dent's policies are consistent with no other possible interpretation.
As the histol of the Mandates Systein established in the Cove-
nant of the League c1earl:yreveals, ' the "sacred trust" has as its
~bjective the promotion of the well-being and social progress of
the "peoples," that is to Say, of the individual inhabitants com-
prising the population.
This objective also is manifest from the very nature of the rights
protected; thus "freedom #ofconscience" and "the free exercise of al1
forms of ~orship"~ necessarily appertain to the individual as
such, although of course such rights are comrnonly exercised
through collective activity.
Respondent's policy. antl its underlying premises, thus distort
and corrupt the meaniiig of the terni "peoples," as used in Article
22 of the Covenant of the League, and "inhabitants," as used in
Article z of the hlandati:, by interpreting these words to mean
"groups" of peoples, or irihabitants. as classified by liespondent.
The supreme fallacy iiuplicit in sucli ;i misinterpretation is that,
although rights, duties, opportunities and burdens can nominally
be allotted on the basis of individual membership in a "group,"
the actual, direct, daily and life-long consequences of such a policy
are, of course, visited upon and endored by the human beings
comprising a "group," as indiuiduals.
It is precisely this inesc:lpable coiiscquence of its policy tliat
marks the fallacious and self-contradictory nature of Respondent's
professioii that the policy of aparthid, or separate development.
is "not baçed on people being inferior but being different. .. ." '
The necessary and direct consequence of allotting rights and burdens
by treating "groups" difeerently is the treatment of at least some
individuals in some "groups" as inferior.
The fallacy is reflected iii Respoiident's own inconsistent formu-
lations of its policy. Thus, in wliat is described in the Cozrnter-
Memorial as an "historic acldress" by Respondent's Prime Minister,
the following explanations are juxtaposed:
"We prefer each of our population groups to be controlled and
governed by themselves. as nations are. .. ."
On the otlier hand:
"\frherc is the evil iii . . . the fact that in the transition stage the
guardian must needs keepthe ward in hand and teach him and guide
him and checkhim wherenecessary?Thisisseparate development." *
Respondent's interpretation of its obligations under the Mandate,
1,pp.34-37; supra. pp.231-232 aninfra.pp.536-546.
Mandate. Article 5.
'PQuotedEid.. p466. (Italicr added.)np.I47r. REPLY OF ETHIOPIA AND LIBERIA 277
"Natives," or "Asiatics," 1 thus assuring that each inhabitant of
the Territory, whatever his individual character, quality or poten-
tial, is assigned to a "group," membership in which determines his
status, rights, duties, opportunities and burdens.
b. Relevant Ezidence
That Respondent's policy and practice of apartheid fail to
promote the well-being and social progress of the inhabitants of the
Territory is shown, in particular, by:
I. Judgments of qualified persons with first-hand knowledge
of South Africa and South West Africa (infra,pp. 277-293);
2. Official views of C,overnments in al1 parts of the \r.orld,
expressed, inter alia,throiigh the United Nations (infra, pp. 74-83) ;
as well as through findings and resolutions of the United Nations
itself (supra, pp. 222-230, infra, pp. 502-503) :
3. Overwhelming weight of contemporary authority in the polit-
ical and social sciences (infra, pp. 302-312); and
4. History and chatacter of the system of "Homelands," or
"territorial apartheid " (infra,pp. 312-326).
I. JUDGMElVTS OFQUALIFIED PERSONS WITH FIRST-
HAND KNOWLECIGE OF SOUTH AFRICA AND
SOUTH WEST AFRICA
In support of its contention that much "abuse directed at its
policy of separate development ... has arisen from bvrong or
inadeqiiate factual information or assumption~,"~ Respondent cites,
inter alia, the views of a former member of the South African
Parliament, who is quotetl as saying:
"Mostpeopleoverseas werestill under the impressionthat the policy
of separate developmeritwas aimed at keeping the Bantu down.
They did not realizethat the policywasaimedat upliftingthem."
Respondent's use of the foregoing quotation is an example of
its often-asserted contention that only persons with "first-haiid
knowledge" ' of the situation in South or South West Africa are
capable of understanding it fuily and appraising it fairly.
Applicants, accordingly, present a fairly selected cross-section of
evaluations of apartheid by persons (A) whoseauthority is considered
by Respondent of sufficient weight ta merit auotation in the
Cowrter-Meniorial, assertedly in support of Respondent's views
(infra,pp. 278-280).and (B) who,by reason ofSouth Africanorigin or
1,p. 109(Italics added.)
' 11;~. .$Ë3.'
3 Ibid.(Itslicç added.)
' This graund,itrlalin.was advanced by Respundent in rejecting the reguest
of the llnited Nations Se~retar~General thatiiCroup of Experts, established
pursuant toa Security Council raisolution,viçit South Africa. (S.C.O.R.. Report of
S.G. at 3 (SIs658) (1964).)27S SOUTH WEST AFRICA
long residence ttiere, indubitably possess "first-hand knowledge of
the situation" tliere, as well as in South West Africa (infra,
pp. 280-293).
(A) VIEWS OF AUTHORITIES CITED BY RESPONDENT
(1) Lord Hai1c:y.l former member, Permanent Mandates Com-
mission:
". ..Dr. hlalan. who became Prime Minister in 1948 as leader of
the reconstitiited Nationalist Party, emphasized that apartheid was
not a new policy; it was only the policy of separatism expressed in
terms which ex~erience had shown to be better ada~ted to the
actual facts of tde situation as it now stood. 'Total territhasepari
tion', he said in 1~50,'isimpracticable under present cucumstances
. ..where our whole econokic structure is t&a large extent based
on Sative lal~our.'(House of AssemblyDebates, Vol. 71, Col. 4142.)
Thcre was, he repeated in 1953.no difference in meaning between
'segregation' and apartheid. They differed only in the fact that the
objective of scparation would now be pursued by a Nationalist
Party which was, unlike the United Party in previous Parliaments.
as possible, at any rate in the political and social sphere.dly
"The policy of apartheid was thus to be compreliensive, and it
involved racial separation in the electoral as well as in every other
sphere. .. .
"The doctirine of se~aratism has still to face tlie crucial auestion
whether the economy'of a modern industrializcd State wilf permit
the maintenance of a crude form of differentiation against a maior
part of the nianpower on which it is dependent. ... -
"'The greater industrial areas are in fact engaged in an active
process of economic integration between the races. This process is
dictated by the inescapable needs of industry for a constant supply
of labour. It is becoming yearly more imperative that such labour
be more de~endable. more ex~ericnced, more adiusted to ttie
tinbits of ;iho<lern intliistri31 iociet).. 1" coiisequc~ce tlierc i:i
fuiidament:il qu:irrel I>zt\r.ecnthe natur:il integration of urban life
and ttic iinkiistorical cfiort to im~ose "disintceration" won the
vi"In no cciuntry south of the Sahara is there any such stark
insistence oii the principle of differentiation as in the Union of
South Africa. Almost everywhere, as will subsequently be seen,
there are sigrisof the closingof the gap which onceseemed to separate
African institutions and usa.,s from those ~revailin- in the Western
world; almo!;tevery\i,here ttiere are in con;equencc signj of changes
in the coricelxions tield about the pnnciplcs ivhiclishotild determine
tlie fiiturc relations ofthe I<urone;inarid non-1-iironenncomrniinities.
"Nowhere has the concept Of separatism as Leld in the Union
been illustrated more clearly than in the lengthy debate on the
-.
'Cited as an authority by Respondent in II, ainter oliopp. 388. 435.4.10
(quoted by Respandent with approval); id.. p. 487 (quoted with disapproval). REPLY OF ETHIOPIA AND LIBERIA
279
Report of the important Commission on the Socio-Economic
Debelopment of thé Bantu (the Tomlinson Commission) in 1956.
[From time to time Europeans who have settled in other territories
have shown an inclination to look to South Africa for countenance
in their effort to maintain policies based on separatist ideas, while
to those who look forward to a greater measure of integration, the
régime ofthe Union h;is become a natural target for attack. But
there is here something more than a contrast of philosophies. Both
sides realize that the essence of the matter lies in the fact that the
doctriiie of aporllreid implies that the European community niust
continuc to 1101< i1position of control over ilie non-Eiiropenn coin-
muni1iL.s It i.;;ictuall\, oii tl~;I>ICijjuc, ;iiid riut Lec:iiiseUI:in\.
argument about the maintenance of a Europein pattern of civiliza-
tion, that the two schools of thought tend to range thcmselves so
decisivel~ iii op~osite camps.1'
"i3ut ihc maiter niust be cic\ved with a due senic of proportiun.
The circunistances in .whicti a rcginic of \\'tiitc ci\~iliz:~tionw.u
cstablislicd in South Aliica and tlic vrcat dijuariti. in the social and
economic development of the Euroiean an2 ant t u ade it inevi-
table that some measureof differentiation should become a recog-
nized feature of public policy. The difficulty does not lie there.
It lies in the assumption lhat discrimination is not marelyan act of
expediency but a Lawof nalnre. Its most refractory aspect is the
inability of the European to admit that there can ever exist within
the social and poiitical structure of the Union any place for the
African who lias passed oiitside the traditional life of his own group.
"The effects of insistence on the segregationist doctrine are not
entirely one-sided. It has been accompanied by a more realistic
appreciation by Europeans of the needs of Africans in the sphere
which policy assigns to them. That is to he seen in the greatly
increased provision madi: forAfrican education, for the development
of medical facilities. and for the im~rovement of amiculture in the
S:itivc Kesc.rvc:<\.'ery I:irgcsums of iiionc),:ire nosr beiiig protidtcd
for the impro\.enient of .\frican housing in ttie iirb~n :irc;i1311the
rec,.iit deciîiontriiiinro\.c tlic statiis of Cliiefsor to batli~ iiisti-
tutions of Local ~obernment on Tribal Councils rather than on
electoral bodies belongs to a different category. It is an atlempt to
divert the attenlion of the African from institutions of a patfernwhich
is fauor<redby Europeans.and in whichhemightdesiretohavea share.
The change of policy embodied in this decision has been made at a
time when in most of the British and French denendencies the
African is being given increasing access to institutions of a European
pattern. The forces of traditionalism arc still strone in Africa, and
it is possible that the change may have attraction: for some part
of the African populatioii in the Union; it is not iikely to appeal to
the growing body of more progressive Africans or to the great mass
of those who now live in urhan conditions. For them it can have
An African Sume.? 163.04. ri (3ded.. 1957)(Brackets added: the bracketed
portion is quoted in II: 487. "by Way of contrasy' with earlier citviews of
"impartial observen," rdp. 485280 SOUTH WEST AFRICA
little or no meaning, and it is to this class that African Society now
looks for its leaders."'
(2) Prof. Gwendolen Carter,= Professor of Political Science,
Smith Coilege (1J.S.A.):
". .. Where is South Africa going? Of all the four answers being
offered to its racial situation, it is theionalist one which is being
implemented most vigorously. Under the spur of Mr. Strijdom and
Dr. Verwoer(1,efforts are being made to force as rigorous a separa-
tion as possible between Europeans and non-Europeans in every
segment of life. So drastic and harsh arethe provisions under which
separation niay. be forced-e.g.. in the iiniversities and in the
churches (seep. III and p. 117)-that even certain Nationalists have
become worried at the doctrinaire rigidity of the conceptions under
which regulations are drafted. To the fully dedicated Nationalist,
however, the program must be complete in every aspect. ...
"In this perspective, Nationalist apartheid becomes largely re-
strictive. In other words, the emphasis is mainly on its negative
aspect, i.e..tn,muintaining the European areas of the Union under
theerclusiueconlrolofwhite SouthAfricans, rather than the positive
one of promoting a distinctive life for the Bantu. This is the more
so because the Nationalists owe their foremost allegiancc to their
own Afrikaner folk, who feel most acutely amongst the Europeans
the competilion of the Africans. It is not surprising, therefore, that
apart from the limited amount which the), are doing to develop
the Reserveij, theNationalists are concernedprimarily wilh protecting
the privilegerl osztbonof white farmers and white laborersT . hus the
inevitable ten ency in the future, as in the past, will be to underline
and intensify traditional discrimination against non-Euyopeans,
despite the fact that an increasing number of them are living in
the so-callecl European areas.
"If European South Africans wereliving in the kind ofcommunity
in which thi:y picture themselves, i.e., a self-contained white com-
munity wrestling with the problems of a huge non-European popu-
l~ ~ ~ ~ ~ ~er than in a multi-racial societv in a multi-racial world,
they iniRli!;riIlbe able to estnblida subiL.hiInnce which rellected
\rithin the boiindnries ofthe Union tlie historic relationship betwcen
a dominant white minority and subject peoples of color. .. ."
(B) VIEWSOF !<OUTH AFRICANS WITH "FIRST-HANDKNOWLEDGE"
OF RESPONDEXT P'S LICIES
(1) "White" South Africans'
(a) Scholarly Authorities
(i) Dr. C. W. de Kiewiet, eclucated in South Africa, Professor of
'Hailey.op. cil.. supp. 279, footnoteI,atp. 434. (Italics added.)
Cited by Respmdent as an authority,II,pp.45,.455.
The Politics01Inegiialily 416-17(1958). (Italics added.)
'Solely for illuitrative purpopersons quoted bclow are arrnngcd according
ta Respondent's classificatiofso-culled "population group(see1,p. reg). REPLY OF ETHIOPIA AND LIBERIA 281
History in the State University of Iowa and in Corne11University
(U.S.A.); President, Rochester University (U.S.A.):
"In its various forms apartheidis a transfer of the responsibilities
of the living world to ;rdream world of solved problems. It is the
substitution of awishful simplicity for a real complexity. The basic
premise of apartheid is that the natives can seek no remedies and
gain no citizenship witliin white society, but only within their own
segregated society .. .. There is no awareness in the architects of
apartheidthat out of fai:t and fancythey have ingeniously contrived
a mental toy, operating outside history and economics. They do
indeed invoke economi<:and political principles, but they are the
principles of a non-existent world, so that their scholarship becomes
spurious and their logic a deception. ...
". .. In the concrete language of economics and politics a$arlheid
is actuaily a system in ~vhichthe power of the state is used to main-
tain the economic and political supremacy ofthe white community
over a population of approximately ten million Africans. Indians
and coloured men. The segregation laws are an embargo upoii the
development of tlie non-European population. . . ." '
(ii) Professor Edgar H. Brookes, formerly Senator, representing
"Africans" of Sata1 and Zululand, and Principal, Adams College,
Natal; Professor of Po1itic:il Science, University of Natal; curreiitly
Professor of History, Utiiversity of California (U.S.A.):
". ..This is the evil in pipe-dreams of apartheidwhich cannot stand
the tests of a map, a balance-sheet, or an honest election with al1the
facts laid before the peciple.We enable ourselves to remain hopeful
because we think that the Africans will accept 'heartlands' which
have no adequate boundaries in any map, will be satisfied with a
'self-government' in those 'heartlands' which is ill-defined and in-
complete, uill be content to remain under the control of a Union
in whose ultimate and sovereign decisions they will have no share.
We remain hopeful, difficult though it may be, when we have no
real plan at al1 to deal with the Coloured people. the Indialis, or
'heartlands'.r..."s2i~ho can never be accommodated in the
(iii) Professor D. V. Cowen, formerly Professor of Comparative
Law in the University of Cape Town ; since 1961 Professor, Univer-
sity of Chicago (U.S.A.):
"The story is a long and shaming one, but it can he shortly told:
it is thestory ofobsession witli tlie fetish of race, and with the heresy
that in South Africa differences in skin-colour mean differences iii
culture which cannot be reconciled in one common society. It is the
story of denial by whites to non-whites of th< liberty which whites
deem essential to the fulness of theirown lives: it is the repudiation
of an equal claim for al1human beings to fife,libertyand the pursuit
The Analamy of South A/riçn$t Alisery 47-49(1956).
"South Africaand the Wider Africn,igro-1960.2 ''Race Relnlionr Jolrntal.
So. r. p. 8 (January-hlurch igGo). 282 SOUTH WEST AFRICA
of happiness; and ultimately, the utter hetrayal of the Christian
concept ofthe brotherhood of mari." '
(iv) Dr. RIonica Wilson, Professor of Social Antliropology,
University of Czpe Town (South Africa):
"The God-given opportunity in South Africa, and OUI real achieve-
ment, lies in the close co-operation of Black and \mite, not in
isolation aiid partition. That co-operation has in fact heen closer
here than ariywhere else in Africa; we have a long tradition of
common schools and open universities; of participation in municipal
and pro\~inci:dcouncils, and of voting on a common roll. This sort
of equal co-operation and not the timid withdrawal into a Iaage~,
is the growing point in the South Afncan tradition.
"The idea that colour should be the basis for compulsory separa-
tion or legal differentiation between people must be totaily rejected,
and thereforc also the principle of Reserves."
(v) G. V. Doxey, formerly senior lecturer in Commerce and
Applied Ecorioniics, University of Witwatersrand:
"Even if we could disregard the presence, in the so-called white
areas, of the Coloured people, the Indians and the urban Africans,
and thus visiialize the nltimate ideal of a racially partitioned South
Afnca-as do some imaginative upholders of aeartheid-in reality
it is now apparent thnt apartheid has achieved little else than the
creation of a vicious circle of restriction, frustration and fear, with
an ever-widening cleavage betiveen white and non-white South
Africans, and has made more, not less remote the attainment of a
peacefulsolution ofthe South African dilemma.
"It would seem that this state of affairs will continue so longuas
tlic \.:ist nin!orit). of \vliit~.SVIIIII:\fricitns of both 1;iiigiingcgroiips
nrc unable to \,isunlizï Iife in n niiilti-rnci:il .uciet!., injpircd by the
çoniinriiiity ipj~roacli. \ritlio:itthe s:une tinie tliinking in term>
of the <lisiiitcgr;itiriitli~tsocict!. :riid tlie incititahle <lestruction
of \i.eîtern ci\.iliznti"n'
(vi) Professor S. Herbert Frankel, a South African; now Professor
of Colonial Economic Affairs, Oxford:
". ..A revision [is needed] of the present trend of economic legisla-
tion whichmakes political iss$resof whnt are, in reality, functional
econoniicrel,ztiwzshi$s; becarrseof unwaranted. and, indeed, highly
dangerm~sf,r:arsof their normalfunctioning.These fears have caused
the European population of Soutli Africa to take upon itself a vast
range of impossible and useless tasks. The rapidly expanding popu-
lation of Soiith Afnca is to-day dependent for its livelihood on the
increasingly complex tasks of a highly industrialized economy.
But no indiistrial society can long afford to permit the minutiae
' Liberty EguolityF,ratcrrity--TadT ohe Alfred and Winifred Hoernlé Me-
mori"The Principle of hlaintaining the Reserres for the African." Race Rrlolions
Journal . o.1. pp.8-9(January-March 196%).
' The Indurtrial ColozBar inSouth A(rico200 (1961). REPLY 01: ETHIOPIA AND LIBERIA 283
of its economic arrangements to be strangled by irrelevant political
regulation or debate.
"It should be the fundamental aim of such a revision of obstruc-
tive laws to ensure to evervone. irres~ective of race. colour or creed.
the freedom to pursue théaffirs he'desires to conduct in so far a;
they are not the affairs of others. This freedom implies the richt of
eveiyone to make decisions in regard ta the acquisition and Üseof
property, the acquisitiori and exercise ofskiil, the place of residence
and nature of occupation, the allocation of resources, the right to
invest, and the right to develop his assets and personality wvithout
let or hindrance as to tirne or place."l
(vii) Dr. L. M. Thompson, formerly Professor of History, Uiii-
versity of Cape Town; since 1961, Professor of History, University
of California (U.S.A.) (commenting on "heresies" which pervade
South African political life) :
"... The first is the wilful failure to cherish the bridges that used
to exist and to construct new bridges between the people of South
Africa. This failure has caused a decline of confidence among the
non-Whites in the motives of the White people in general and the
Afrikaner Nationaljsts in particnlar. The policy of an insulated
nation dominating a Iiierarchy of other nations within a single
State would be dangerons at any time, and is simply not viable in
the world as it is today. If one believes that the cohesion and power
of one's own tribe is the greatest good, it does not follow that the
members of the other tribes can be persuaded, or even coerced into
the same belief. Indeed?nos& South Africans havenow asseù beyond
the stace of meretribal loynlty; and ironically enouglitttsseemsto be
partictdlarly&rueof mosl non-WhiteSoutli Africans.
"The second of oiir Iieresies is that of mistaking words for reali-
ties.. .This illness lias reached an advanced stage in South Africa,
where politics are deterinined by a whole series of verbal images.
Stneotypes about our fellow-countrymenprompt us to forge1that an
Afrikann or an African. an Indian or a Colozcreùman, is first and
foremost n human bein,~lihe ourselves. And apartheid has becorne
perhaps the most potent image in the modem world-the obsession
of an entire party and goveminent.
"Linked with the sernantic heresy .. . is the Utopian heresy.
To evade moral respon~ibility for the unpleasant realities of the
position in which one.finds oneself, one constructs an ideal order
of things in one's mind and assures oneself that it wiii some how.
some day, be conjured into existence. Then having obtained control
of the machinery of the State, one tries to implant this ideal in the
minds of al1the other inhabitants, and cries 'Trenson!' if they will
not agree. ..."
(b) IPeligioztsLeaders
(i) Archbishop de Blank (Anglican) :
' "The Tyranny of Economic I'aternalism in Af"ca: A Study of FrontieMen-
taiity." supplement to Opiima. 49 (December ,960).(Italics added.)
"Fifty Years of Union." 27 RaceR~lalionJsournalNo. z, 66-67 (April-June
1960). (Italics added.)284 SOUTH WEST AFRICA
".. .[Hlow iar and ho!!, fast are you supposed ta go when you are
running away frorn sin and seeking ta do Gad's wiü? We cannot
South Africa today, but we can see toit that we do not camouflage
it by such high-sounding names as separate development or terri-
tonal homel;mds." '
(ii) Dr. B. B. Keet, former professor of Theology, Seminary of
the Nederduitse: Gereformeerde Kerk, University of Stellenbosch:
".. .Apartheidwith its slogan ('separate but equal') fails precisely
at this point because it does not deal with the Non-Europeans on a
just and equitable basis. Territorially there can be no just partition
and politically there are no equal rights. ..
"Apartheid claims that its policy is the only one calculated to
preserve white civilization in South Africa. The contrary is true:
there can be no hope for White South Africa if black nationalism
is to be cotnbated by forcefiil measures. And it cannot be denied
tliat, in the case of those Non-Europeans who are capable of forming
a responsible judgment, the implementation of apartheid can only
be effectedby the employment of force."
(iii) Dr. Hugo du Plessis, Gereformeerde Kerk, Theologian at
Potchefstroom L'niversity for Christian Higher Education:
"Apartheid leads to the mortification of humanity and to oppres-
sion. This is the accusation of theoutside world and for this reason
it will not tolerate afzrtheid.
"The outside wor d will not approve of the fact that more than
hall of the non-white population in South Africa has virtually no
political and civil rights, that their economic progressisheld back by
the colour bar and that tlieir freedom of movement is restricted."
(iv) In 1960 the World Council of Churches arranged consulta-
tions with leaders of the eight South African churches which were
then members of the Council: Anglican, Methodist, Presbyterian,
Bantu Presbyterian, Congregational, the N.G.K. of the Cape
Province, the N.G.K. of the Transvaal and the Hervormde Kerk of
South Africa. The resulting Report (of which each paragraph had
been approved by at least 80 per cent of the delegates) stated,
inter alia :
'!II. We cal1 attention once again ta the disintegrating effects
of migrant labour on African life. No stableSocietyis possible unless
the cardinal importance of family life is recognized, and, from the
Christian standpoint, it is imperative that the integrity of the family
be safeguarded. . . .
"13. The present system of job reservation must give way to a
more equit:ible system of labour which safeguards the interest of
al1concerned. ...
' XII1 Afriça LiigasNo. j,p. 81(December 1963).
The Elhicsof Apartheid rq, 18-19(1957).
"The New Eia and Christian Calline Rerardine the Bantu in South Africa."
published by the authors. n.d. [i96o]. REPLY OF ETHIOPIA AXD LIBERIA 285
"15. It u our conviction that the nght to own land wherever he
is domiciled, and to participate in the government of his country,
is part of the dignity of the adult man, and for this reason a policy
which permanently deniss to non-white people the right of collabo-
ration in the government of the country of which they are citizens
cannot be justified. . . .'
(c) Jurists
(i) Dr. H. A. Fagan, Retired Cliief Justice, Supreme Court of
Soutli Africa:
". .. The latest move has been to pass a law eliminating Uantu
representation in Parliament and, as a compensatory gesture, to
grant the Bantu extended powers of self-rule in the Keserves, with
promises of furtlier extension in the future. Opinions differ as to
whether this really means an improvement in the administratioii
of the Reserves. For the point with which 1am now dealing, how-
ever, that is of little relevance. In regions where Bantu live in tribal
isolation it is a matter oI natural development that powers of self-
administration should be increased as rapidly and as far as the
people concerned show the ability to exercise tliem without detri-
ment to themselves or 1.0 the safety and well-being of the State
to wliich they belong. But that does not touch the real problem:
the aàjustment of inter-racial contacts and of interests common to
different racial groups. This problem does iiot lie in the Reserves
where the population is homogeneoiis, but outside them wherc it is
not. . . ."
(ii ) .D. Schreiner, formi:rly Judge, Appellate Division, Appeal
Court:
". . . The members of the non-White groups are most unlikely
ever to be satisfied with having separate group loyalties built up
on their behalf by White politicians and oficials, while as indivi-
duals they are left at a disadvantage in respect of opportunities
to learn, to gain a livelihood, to own propcrty and generally to
play a full part in the life of their country. . . .
"... The apartheid policy must be judged to be unrealistic,
and it ought accordingly to be abandoned." 3
And also (cornrnenting on the Transkei election):
"'From the point of view of real, legal power, which rests solely
on the control and exercise of the parliamentary franchise, the
ballot papers in a Bantustan election might as effectively be dropped
into a well as into a ballot box.
"'No system whereby al1real power is to be retained, as a matter
of law, in the hands of the Whites, can succeed or endure. Nor can
' Hewson (ed.), CottesIoe Consultatiorr; The Reof lhe Consultatio>among
South African Member Churchesof Iha iVorld CouticO/ Churches 7-14, Decernber
19*0OL~IRespons~biIityAnnD~SCUSS~U.oIISocdhAfrica'sRacioi Probbmr 4, ((960.)
' Rcnlistn in Race Relations207(i962).286 SOUTH WEST AFRICA
any system that aims at disguising such retention. Everyone çon-
cemed is too wide-awake today to be put off with a sham.' "
(iii) Albert van de Sandt Centlivres, Retired Chief Justice.
Supreme Court of South Africa:
"'l'liepolicy reccntly endorscd by Parli;iiiicnt[aparlhcid in univer-
sity edusation] isoiit of tuile titith mo(lerritiincsand it isan ;iiiacliro-
niini wliiclicannot last. The sooiier n.c wake 01)to the fact tliat ir.e
arc living in tlic katter half of the 20th century and not iiia bygone
WC! the b~tter it wiiihc for :di of usiltiiis countri. and for tiic reDu-
tation of thij country abroad."
(d) Politic Lealdevs
(i) Donald Alolteno, Q.C., representative of Africans iti the
House of Assetnbly from 1937 to 1948 (commenting on the "Pro-
motion of Bantii Self-Governinent Act"):
"The present goveriiment is seeking ta jiistify its policy on the
basis tliat it is aiming at eveutual African autonomy in tlic African
areas.
"The cvidance isoverwhelming that not only are there iioseparate
African areas capable of accommodating the whole, or even a sub-
stantialmajority, of the African populatioii, but that at no concciv-
able future time can there ever be such areas. Desoitc this hard
fnct.tlitgo\criiiiicnt is ~>~irsiiigipolit).\rIiicli<leiiicsto tlic iii;ijor-
itv of oiir p<<)vle;uiy rc~~ics~iit;it~o~tlic I'~~rli:iiitwhicli m:ik~s
~---~aws ijheiebv tiiev arc eovcmed
,Xo peoplewo;thy if the lame will voluiitarily submit to perpetual
domitiation bv others. Lenst of al1will Our African oeople do so at
this time u~l;cn African nationalism is nd\~anciugAfr~mstreugth
ta strength throughout the African continent. In the light of this
~oii~idcritiontlic goveriinicnt's polit!. is not 1iiiiiijii~t.i~iprt:~~i\~~~
;tiid foolisli, biit it is also cstreiiicl\~ iI:iiigeroiistn the fiiturc pc;ici:
and u.rlfarc of ;IIIthe peoplcs of Soutli Afrii;~."'
(ii)Dr. Bernard Friedman, former member of Parliament; in
1955, resigned from the United Party ta join the Progressive Party:
". . . The fact remains that South Africa isthe only country that
cnshrines racial discrimination in its statute book and gives it the
force of law. In seeking to enforce a policy of racial discrimination
by the coercive power of the state, we are marching against the
whole trend of human progress and condemning ourselves to a
dangerous isolation. In a state of isolation we can scarcely survive,
and we certainly cannot prosper. Sooner or later. we shall have
to put oursi:lves on the side of progress by accepting a fundamental
change in our racial policies. Only by renouncing racial discrimi-
As quoted in TheStar, Johanlesborg weltly edition 18 January 1964, p.7.
2 Thomas RcnjcmirzDavie: The First T. B. Davie Memorid Lecture Delivered
in the Universitof Cape Town, on 7 May 1959.p. 7 (1961).
' The Betrnyal O/A'elit.cRefirescnfati 15n(1959). REPLY OI"ETHIOPIA AXD LIBERIA 287
nation can we restore South Africa to the Society of civiiized na-
tions."'
(iii) J. 1).du P. Basson, former Nationalist Party Alember for
Namib, South West Africa (commenting on the "Promotion of Bantu
Self-Government Bill," in Parliament, 1959):
"... As fat as we can see, therefore, this Parliament wiil contiiiue
to exercise full and final and absolute control over everything and
everyone in the Bantu areas. 1do not think it is fair, as long as the
Union Parliament remains the effective political legislative body
controlling the Bantu ai-eas,and as long as the separation of poli-
tical power which is envisaged by the Government is as yet far
from a rcality, that the Natives should be rleprived of the small
share wliich they have irithis I'arlianient.. .."
(e) Az6thors
(i) Alan Paton, author of Cry the Beloved Cotcntry and otlier
works (coinmenting on the "Group Areas Act") :
"The Act has purported to aiin at racial harmony, but in lact
it has done immeasurahle harm to race relations. One might for-
give fear, but it is hard to forgive those evil companions that ex-
ploit it, avarice, cruelty, and Iiypocrisy.
"Lastly, the Act is based on tlie evil doctrine that tlie end jus-
tifies themeans. It supposes tliat a commoii good can be bought nt
tlie cost of individual harm. It supposes that one can preserve civi-
carry out the Divine Will cven when disobeying the Divine Com-m
mandmerits.
"1 could wish that my pen were able enough to convince the
white people of South Africa tliat it is they who are being destroyed
by the Group Areas Act, that 1 could \wite such words as would
make the very paper catch fire, to burn them aurake to the cruelty
that is being done in their name." 3
(ii) Stanley Uys, journalist and essayist, Afrikaner by birth
(commenting oti "Bantustan" or "Homeland" objective, of
Respondent's policy of "separate development," for South West
Africa and in South Africa):
". .. The fiaw in the Bantustan programme is that it puts a brake
on the process of detrib;ilisatioii, urbanisation and westernisation
of the indigenous Africans-n process which has heen the condition
of man's adbance in civilisation. By congregating Afncans in the
reserves, instead of absorbing them into the modern economy,
with its advantages of education, welfare services and skilled jobs,
it seeks to ossify the whole system of trihalism.
' "South Africa and thCommonwealth, "oohing Oufwards:Three SouihAlricon
Vicwpoints 7(1961).
W. ofS.A.,Pari. Deb., Housc of Assembly12th Parl., 2nSitting(weeklyed..
1959).Col. 6174.
'The People WePf 44 (r958).Italicin original.)288 SOUTH WEST AERICA
"A iardinhl featurc of the Bd~itustans is tliat Dr. \'er\vocrd
rigidly pruliitits tlic entry uito tliem of pri\.;itc \vliite capital. 'TIicy
are iiece~.i~ril~idei>endcntfierelorc.onGo\~ernment aid aiidself-Iiclo.
Their deve1oi;me;t is th& retarded. not accelerated, and it is dif-
ficult to see the whole Bantustan scheme as anything more than a
systcmatisation of the migratory labour system. In the Bantustans
the Africans wiU have tlieir homelands aiid tbeir political title-
deeds. But they will have to look outside these uiiderdeveloped
reserves for their livelihood." '
(iii) Patrick van lieiisburgh, fariner member, South African
Foreign Service:
"Finally, let us look to the future of Afrikaner policy. The
'Bantustan' i>olicyof 'giving the Natives areas in which they can
develop along their own lines' has been hailed witli much fanfare
by the Afrikmers. What is the truth?
"It is my own view that these reserve areas have been planned
as nothing more than reservoirs of cheap Black labour for farms in
White areas. The siting of industries on the borders of the reserves
is designed to attract Africans away from the cities. An upper ceiling
has been placed on the political and economic developmeut of the
African in the 'Bantustans,' and both are rigidly controlled by the
Government. Africans will in this way be set apart, but their labour
will be retained for the benefitof the White economy, and not in
cornfielitionrvith il in dual (or multiple) economies with different
wage and price structures."
(iv) Colin Legurn, South African journalist and author:
"One out of three of the Kepublic's II million Africans no longer
has tlie legal right to live anywherc in the country. Where these
people may live is a decision for bureaucrats.
"\\'el1 ovcr ~oo,ooo people have already been forcibly removed
fromonearca to another, or from the towns to the stagnant, work-
less native reserves. Another 500,000 are under notice of removal.
And by the time the process of creating Bantustans is complete,
well over five million people will have been uprooted under the
plans already announccd. .. ."
And also:
"Here [Cape Town], as in al1urban areas, no African is aliowed
to live with his wife and familv unless thev oreviouslv 'normallv
resided' togcther. Newly-marrieds, for exam6le:cannot live togethër
unless both qualifv for residence. Married men, deprived of their
wives and familie< are housed in 'bachelors' auartérs.-ere.t " red
slahs of barracks. . ..
"Wives are allowed to visit their husbands without a permit for
'only 72 hoiirs at a time. After that they need a special-permit to
stav. Most of tbem travel hundreds of miles from the reserves to
"The C-ldenIlmb." The Speciator. London,3 January1964.
"Teuring a CountryApîrt." The Obserurr,London..)28 April 1963 REPLY OP ETHIOPIA AXD LIBERIA
289
enjoy this privilege. Of course the men can always go to them-if
they have the money and the time to travel. One of the reasons
accepted for granting a permit for a wife to visit her husband for
more than 72 hours is if she wffihesto conceivc. The request for
'a conception period' niust be argued before a white bureancrat.
1 have seen it happen." '
(2) South African "Natives"
(a) Albert John Luthuli: teacher, Ada~ns College, Natal; Chief,
African Community, Umvoti, Natal; President-General. African
National Congress; awarded Nobel Peace Prize, 1960
(Acceptance Address, Oc.lo,Norway) :
"There is a paradox in the fact that Africa qualifies for such an
Award in its age of turmoil and revolution. How great isthe paradox
and how much greater the honour that an Award in support of peace
and the brotherhood of man should come to one who is a citizen
of a country where the brotlierhood of man is an illegal doctrine.
"Outlawed, banned, censured, proscribed and prohibited; where
to work, talk or campaign for the realization in fact and deed of the
brotherhood of man is hazardous, punished with banishment or
confinement without tri,il or imprisonment; where effective demo-
cratic channels to peaceful settlement of the race problem have
ncver existed these 300 years, and where white minority power
rests on the most heavily armed and equipped inilitary machine in
Africa.
"This is South Aftica." 2
Also :
"If there is a law in any country in the whole world whicli makes
it a crime in many instances for hiishand and wife to live together,
which separates eighteen-year-olds from their parents, 1 have yet
to learn of it. But the pass does so in the Union of South Africa.
"Each year half a million of my people are arrested under the
pass laws. Government Annual Reports tell of this tragic story.
But statistics can tell only half the tale. The pliysical act of arrest
and detention with the consequence of a broken home, a lost job,
a loss of earnings, is only part of this grim picture. The deep humi-
liation felt by a hlack man, whether he be a labourer, an advocate,
a nurse, a teacher or a professor or even a minister of religion
when, over and over agaiii, he hears the shout, 'Kaffir,where is your
pass-Kafir waar's jo pass'? fillsin the rest of this grim picture. . . .
". .. The authorities are busy trying to send city workers back
to the Reserves to swell the ranks of the unemployed. At the same
time the provisions of the Land Husbandry Act are squeezing people
off the land in the Reserves and impeUingthem towards the cities.
The vast circular tour of people with empty bellies is already under
way. 1am not predicting. 1 am commenting on a situation which is
1 "The Roots of Violence," The Obrerver.London, 5 May1963.
2 Callan. Albert John Luthuli and the South Afrisnn Race Con57-58 (~962).zgO SOUTH WEST AFRICA
worsenine dailv. now. to-dav. This is the Bantustan solution to
overty the Keserves. One;an see how useful, in time, wiil be the
R~inister'srieht to prevent an" visitors from comine in-to see how
we are thrisng. -
"The whole scheme is one vast exploitation stunt. It creates a
new class of workless workers, and in the same breath we are told
that the Government will henceforth absolve itself from financing
African servi-es from the central treasury. 'Do it yourself!' we are
told. Do what? And for whom?" '
(b) Professor Z. K. Rlatthews, LL.B.: Principal, Adams College,
Natal, 1925-193:;; Professor, Native Law and Administration, Uni-
versity College of Fort Hare, 1947-1960; NA., Yale University
(U.S.A.) ; Visiting Professor, Union Theological Seminary (U.S.A.),
1952-1953:
". .. To the extent that apartheidmeans a rigid separation between
institutions--political, economic and social-itof lis not only imprac-
morally indefensible, as it is imposed particularly upon the non- is
them about the solution of their problems. . . .nsultation with
called upon ïo pay for the luxury of the policy of apartheid.e are. ."
Also:
". .. It isa peculiarly South African form of academic selfishness
that the sar~e man who is oreoared to eo and studv in one of the
great open universities of thékorld and?o rub shoujders and minds
there with teachers and students drawn from ail racial groups
should, wheii he returns to his country, forswear the broadening
expenences lie lias had and work for the shutting up of university
kraals-kraals for the English-speaking, kraals for the Afrikaans-
speaking, kr:ials for the Bantu-speakiug, kraals for coloureds and
kraals for Asians. Nothing is more contrary to university tradition
and practice than this kraal mentality which has been forced upon
us ail by our all-wise legislatorj."f
(c) Ezekiel Mphahlele, author and Director, African Programme
of the Congress for Cultural Freedom (in exile) :
"Three things emerge from the segregationist policies of the white
Government which prevent the non-white from becoming either a
stable peasaiit or a stable urban worker, and creates in him a baunt-
ing sense of insecurity. First, the South African white has come to
accept a double Stream of cultural life, which the Afncan hates
because lie knows that he can never be independent even in the
'Luthdi. Ld Afy PeopIeGo: An Autobiography 245, 202,respectively (1962).
' Africon Awakeizingandothe U>iiverritier: The Third T.Daviehlernorial Lec-
ture Delivered in l:heUniversityof Cape Town. on 15 August 1961.p. 2 (1961). REPLY 01iETHIOPIA AND LIBERIA 291
dream-state the white man says he can make for the black man.
Second, cultural development is seriously hampered inan unsettled
black community and cari only reach pygmy stature among the
privileged and sheltered white community. Third, traditional cul-
ture, much of which the missionary destroyed, has come to be as-
sociated by the Negro with an inferior political status and ethnic
grouping which wiil dest.roy al1the work that has been done by the
educated Negro to unify aU the tribes. Just as the pnmary and
lndians and whites separately, so is the syllabus for Afncan crafts
meant for Africans onlv and therefore hiehlv susoect. . ..
"In spite of these setbacks, a proletarian cultuie is in the making.
To this the average white man is completely blind. . .."'
(d) Nelson Mandela: son of a Transkei ch'ief; attorney; im-
prisoned, 1962, for five years upon conviction of incitement to
strike and leaving the Repiiblic without permission:
(Statement to Court during triai):
"Your Worship. 1 woilld Say that the whole life of any thinking
African in this country drives him continuously to a conflict pecu-
liar to this countrv. The law as it is amlied. the law as it has been
developed over a iong period of histor;: and'especially the law as it
which, in our vie\< is iGmoral. unjust and iiitolerable.Our con-
sciences dictate that we must protest against it, that we must
oppose it and that we miist attempt to alter it. . . .
"Governmentviolencecondo only onetliingand that is to breedcoun-
terviolence.Wehavewarncdre eatedly thattheGovernment.byresorting
continually to violence,ail1 i'..d, zn thzs country, counter-uiolence
amongst the people. till ultimalely,iflhere is no dawning of sanity
on the part pf the Governmest, altimately the dispute between Ihe
Gover?~mena tnd my people will finish up 6y being settled in violence
and by force.Already thereare i+dicationsin this country that people,
my people, Africans. are tnrning to deliberateacts of ÿiolenceand of
force against theGovernm,:nt,in orderto persuade theGovernment,in
thatoil understands. . .his Government shows, byits own behaviour,
"1 hate the practice of race discrimination, and in doing so, in
my hatred, 1 am sustained by the fact that the overwhelming
majority of mankind hates it equally. 1 hate the systematic in-
culcation of children witli colour prejudice and 1 am sustaiiied in
tbat hatred by the fact that the overwhelming majority of man-
kind, here and abroad, art: with me in that. I hate the racial arro-
gance which decrees that the good things of life shall be retained as
the exclusive right of a minority of the population, and which
reduces the majority of the population to a subservience and inferi-
ority, and maintains theni as voteless chattels to work where they
ar"Nothing that this Court can do to me will change in any way
that hatred in me, which can only be removed by the removal of
' The Afhcnn Image 33-34 (1962). SOUTH WEST AFRICA
292
the injustice and the inhumaiiity which 1 have sought to remove
from the political, social and economic life of this country. . .." '
(3) South African "Coloureds"
(a) George J. Goldiiig: Principal of a "Coloured" School, Cape
Town; I'resident, Coloured Peoples' National Union:
". . . In short, the Coloured group has reaclied the stage where it
expects, and demands, to be given every opportunity to enjoy to
the full the ricliest blessings of a democratic Christian Western
civilization. And what does it receive? Iiistead of receiving the
bread for wliich it asks, therc arc flung i~iits face the Stones of
oppressive kgislation, unfair discriminatioii and political segre-
gation. Now that the Coloured people are in sight of the century-
mark in the exercise of their political rights, they are being treated
like the vanquished in a long-drawn-out battle. .. ." "
(b) R. E. vari der Ross: Principal, Bottswood Training Collcge
for Coloured Teachers; Ph.D., Uiiiversity of Cape Town (commen-
ting on the proclamatioil of "Group Areas" in the Cape peniiisiila) :
"The first thing which strikes one about the proclamation is
its extreme clrrogance. Here, at a stroke of the pen, a huge portion
ofthe land, the entire mountain area, the fertile valleys . .. al1tliis
and more is declared 'White'. .. . We raise our hands in horror at
the incipient blasphemy in an act where men take unto them-
selves power to apportion the gifts of God so as to suit their own
political ends. . . . 1 should place a conservative estimate at about
30,000 Coloured people who have to move. .. ."
(c) M.D. Areridsc, mcmher, Council for Colourcd Affairs (Govern-
nient-appointed) :
".. . Job Iteservatioii niay be politically cxpedient, but it is
claims to follow the tenets of Christian civilization.society tliat
"Job Reservation is intended to preserve the White man's mono-
poly of political and economic power. . . ." '
(4) South African "Asiatics"
(a) P. S. Joshi, writer, who lias left South Africa:
"South Afnca loudly claims to have a long, rich experiynce of
African adrninistration. but, summed up, it is expressed in two
words: Colour Bar. Its political talent is enshnned in the introduc-
tion of racial discrimination in the whole social fabric of the coun-
try.. .."
'Thc Obreru~rL, ondon,18 Novernber 1962. (Italicinoriginal.)
The Colourcd Man Spenks 3 (1952).
3,,Coloured Vieivpoint." CapeTims, Cape Town.zjFebruary 1961,p. IO.
'Contacl. 19April 1963.p. I.
' Unrest in SoullAfrica vii(rgg8). REPLY OF ETHIOPIA AND LIBERIA
293
(b) Yusuf Cachalia, formerly Secretary, South African Indian
Congress :
"Under the Nationalists the policy of segregation has been taken
to its logicalconclusion.Nolongerisit to be applied in half-measures,
for such application would fail to achieve the aims of apartheid.
.. .The Indian people . . .must be isolated in ghettoes, their wealth
destroyed, properties confiscated and means of livelihood taken
away . . . The Group Areas Act is capable of bringing about these
changes and as such is the pivot of apartheid. ..." '
(c) Dr. S. Cooppan, economist:
"'Going for a holiday, putting a son into school or university,
renting or buying a honie, getting a licence for a shop or a job, in-
heriting property or travelling by bus or train-al1 these ordinary
things which are taken in their stride by Whites are never so simple
for the Indian or non-White. Someof these things are, to-day, even
impossible of execution." 2
The Court's attention is respectfully drawn to additional author-
ities, cited in Annex II, page 593,infra.
2. VIEW:? OF WVERNMENTS
Applicants have referred 3 to Respondent's submissioii that
Reports and Resolutions of the United Nations and its organs
"contain political findings and recommendations" and accordingly,
"are of no relevance whatsoever to this Court's judicial func-
tion ...." '
In the same context, Respondent asserts tliat
"In so far as such reports and resolutions contain purported
statements or conclusions of fact, they might conceivably have
been of some assistance to the Court and the parties if it had been
possible to place reliance on them for reasonable accuracy." '
Respondent thus denies the relevance of findings and recom-
mendations of the "orgaiiized body,"5 in and through which
Applicants have sought to settle their dispute with Respondent
through processes of "diplomacy by conference or parliamentary
diplomacy." Such a contention would nppear to be unworthy of
elaborate refutation.
In the light of the con!;istent findings and recommendations.
reflecting views of the preponderant majority governments,
' "The Ghetto Act." Ajricn Seouth,Vol. II. No. r (October-Decembn 1957).
P. 39.
Contact6 February 1960, p. 5.
' SUPVL ~.,259.
' IIp. 3.
' Ibid.ant. p.346. REPLY OF ETHIOPIA AND LIBERIA 295
On the basis of the foregoing considerations, inter alia, Respon-
dent continues:
".. . The present proceedings against Respondent are to be seen
as part of this political campaign ' designed to bring South West
Africa (and eventually 1.heRepubiic of South Afnca itself) into line
with the new governmi:ntal systems established in other parts of
Africa,and to achievefor the Territory majority mle by the Native
population-as an overriding objective to which al1other aspects
and implications are to he suhordinated."
Respondent concludes, with a sweepingly declaratory judgment:
"It will be apparent t'romthe facts set out in the previous para-
graphs, that the Applicants in the present caseare in substance only
nominal parties to the proceedings, the real parties being the in-
dependent AfricanStates, and that the main purpose of this action
is to secure poiitical independence for the Temtory."
Applicants do not consider compatible with the dignity of this
HonourableCourt,or with thegravity of the issuesin disputein these
Proceedings, to reply to irrcsponsible and unwarranted comments
of snch a nature. The Coiirt itself has dcclared, what the record
herein rnakes inescapably clear, that
"... behind the presenl:dispute there is another and similar dis-
agreement on points of law and fact-a similar conflict of legai
views and interests-between the Respondent on the one hand,
and the otherMembers O!the United Nations holdingidenticalviews
with the Afifilicants.on the other hand." 4
The attribution bv Respondent to such other hlembers of the
United Nati~ns-com~risiiig the vast majority of the whole-of
views and convictions so weak, indecisive or vacillating as to be
deemed the product of "pressures" or "political action" on the
part of other Governrnents is nnworthy of serions reply.
In view of Respondent's misinterpretations and misconceptions
of the actual views and attitudes of other Governments, however,
the following examples-selected from innumerable similar state-
ments by Member States throughout the years-are relevant:
a. United States
Thelate President John 1;. Kennedy (Address to United N t' a Ions
General Asseinbly, 1963) :
1 I.E.the "demand for nccelerated political progresr." supra, p. 234, footnote 6.
2 II, p. 446. Respondent thereupon quotes resolutions adopted by the Second
Conference oflndependent Afric:in States. Addis Ababa. June 1960.and by the
"Summit Conference," Addis Ababa, May rg63. as well as statements by the
President and the Secretary of StoftLiberia, stressing, inter alio, the îttainment
of3iId., p. 448.or trusteeahip for South West Africa. id.. pp. 447-449.
' Judgmcnt.p. 345.(Italics added.)
5 Whatever these undefined and tendentious terms may be taken to signify.296 SOUTH WEST AFRICA
".. .\\'e are opposed to apartheidand al1forms of human oppres-
drive out white Africans. Our concern is the right of al1 men to
equal protection under the law-aiid since human rights are indi-
visible, this body cannot stand aside when those rights are abused
or neglected I>yany Member State." '
b. United States
Ambassador Adlai Steveiison, United States Representative to
the United Nations:
"We ali suffer from the disease of discrimination in various forms,
but at least inost of us recognize the disease for what it is: a dis-
fipring blight. The whole part is that, in many countries, govern-
ment policies are dedicated to rooting out this dread syndrome of
prejudice ami discrimination, while in South Africa we see the
anachroiiistic spectacle of the Government of a great people which
persistsin seeingthediseaseas theremedy,prescribin~for themalady
of racismthe bittertoxic of apartheid."
c. United States
Ambassador Sidney R. l'ates, United States Representative to
the Fourth Committee of the General Assembly:
"By extending the apartheid laws to South West Africa the man-
datory power is, intlie view of my Govemment, clearlydelinquent
in ils obligationsto theinternationalcommunityand 10thepopulation
of South West Africa. These obligations are set forth explicitly in
Article 2 of the mandate mhich States that South Africa 'shall
promote to the utmost the material and moral well-being and the
socialprogress of the iiihabitants of the territor),.'
"Mr. Cliairman, %y Delegation believes nootnlythatthereis neither
legal?&oprolitical basisfor theapartheidlaws in SouthAfrica; there
is also no moral basis for such laws anywhere in the world, let alone
in a territor!? such as South West Africa which has a clear inter-
Africa asc'asacred tmst of civilization.'e govemment of South
"My Delegation believes, further, in the right of the people of
South West Africa to self-determination as promptly as the expres-
sion ma). be freely and responsibly exercised. We would he strongly
opposed to ariy division of the territory of SouthWest Africawithout
the freelv ea:pressed consent of its oeoule. We would be stronalv
opposed-to the annexation hy any itatè of al1or any part of Eh;
temtory without such consent.
''Ilr. Cliairman, my Delegation is encouraged that there are voices
ofwhite peoplestill in South Africacallingforarestorationof reasons
[sic]. In thic connection, it was refreshing and reassuring to my
Delegation tctread a recent article whichappeared in the publication,
"FoN~," a !SouthAfrican periodical, whichurged the application of
G.A.O.R. ~8th 'Sess.,1209th meeting 31 (A/Pv.~mq).
S.C.O.R.18th ).cariopnd meeting 31 (S/PV.IOS~)(Italics added.) REPLY OF ETHIOPIA AND LIBERIA 297
reasonand realismhy the peopleof SouthAfrica tothe racialsituation.
"The author of this article reminded the white South Africans
tliat they, in fact. are the only actors in this looming tragedy
who may have some ability to avert the onset of violence. In
this South African article, the author suggests the foilowing steps
hy white South Africans:
'Primarily they can hold fast to the principles of western civili-
zation. They can denoulzceal every apportunity Ihephilosophy, the
policy and theadniinistriztiveprnctices O/aparlheid.They can oppose
jt and frustrate it by al1legal means. Tliey can hegin their crusade
on hehalf of human rights in our country. Theirs is the most worth-
while crusade of all-a crusade against unnecrssary dying.' " '
d. United Kingdont
Prime Minister Rlacmil1a.n:
".. .AU kiiids of discrimination, not onlv racial but ~olitical.
religious and cultural, in orte forrn or aiiother Iia\.c t~ee~i;ind are
still practised, oltcii a;isur\,i\~alof long tradition; hiit the funda-
nient31 difference het\vi.cii ours and tlic Suuth .4fric:in i)liilosovhv
is that are are trying to escape from these inherited practices.'~G
are trying, with varyi~ig degrecs of success but always with a
single ptirpose, to move away from this concept in any form. What
stiocked the Confi:rence was that the policy of the present South
African Governmcnt appeared to set up what we would regard as
an iinhappy practice, inherited from the past, perhaps, as a philo-
sophy of action for the future.
"This philosophy seemed altogether remote from and. indeed
abhorrent to the ideals towards whicli maiikind is struggling in
this century, in the free ~vorldnt any rate, and perhaps, who knows,
sooncr or later behind the Iron Curtain. It was not therefore because
al1of us are withotit sin that we felt so strongly. It was hecause this
npnrtheidtheory transposes what we regard as a wrong into a right.
1 ao not question the sincerity with which these views are held hy
many people in South Africa. or their very deep conviction that
theirs is the right course in the interests of al1 races; but me in
Rritni~ihaveneverbeenin doubtthat this is a wrongcourse."
Mr. Patrick Wall, Member of the United Kingdom Parliament;
Sumrn.,y Minutes of Address to the Fourth Committee:
. . .[F]or over forty years, whatever the material progress that
might have heen made, the South African Govemment had de-
prived the indigenous inhabitants of the Territory of their basic
human rights. His Govemment's position was qiiite clear: it could
' Statement in the Faiirth Comrnittec,30 October 1963 (A/C.4/S.R. 1461).
(Italics ndded.)
Address to the Housc of Cornmons. zz March 196,. (British Information
Services Release No. T.ii of23 hfarch 1961.) (Italics added.)~9~ SOUTH WEST AFRlCA
not accept a system which set men on different levels because or
colour, or which enabled the men of one race to have complete
power over the men of another by denying them the rights that
should be theirs. Apartheid was morally abominable, intellectually
grotesqcceand spiritually indefensi6le. Thns, the Government of
South Africa was snfficiently to be blamed for the existence in
South West Africa of a situation in which the rights of the individ-
ual were set at nought unless his skin was of the right colour." '
f. United Kingdom
Hon. Peter Srnithers, M.P.; Address to the Fourth Committee:
opposed topleIZnartheid or to racial discrimination wherever they
were practisei they considered them to be reprehensible moraily
and calamitous politically. The equality of men beforethe law was a
fniidamental principle upon which the demonacy of Britain rested.
The United Kingdom did not believe that societies could thrive,
or nations command the universal loyalty which gives them life,
unless they gave full recognition to that principle. There should
be no doubt in the minds of the Committee on that point. The
Government of the United Kingdom mas opposed to the policy of
aaartheidwlxreverit miehtbe Iound.The actions of the United Kine- ~,
dom <Iclrg;iti>iiiitlir kitte; of [.;ic]tlic Fourth Cornmittee were :dl
taken !i.ittliat conviction firrnly in mind. and with ttit intention
oftakin~ tho~.esti;vs\r~liiciver<: ost likelv to beiiefittlie irihnhit:ints
of the Territory [ÔfSouth West Africa]. '
"The United Kingdom was frequently called upon to use its
influence with the South African Government to persuade it to
abandon its racial policies, and was sometimes reproached for not
having done so. He submitted that by its policies in Africa and
elsewhere thi: United Kingdom had done far more than any other
Power to throw the practice of apartheid into isolation. He could
not sec by what right any delegation reproached a country whose
Prime Minister had deIiveredin the South Afrtcan Parliament itsel/
a categuricd rejectionof thedoctrineof apartheid."
g. France
Ambassador Bérard:
"Racial discrimination and segregation have always been utterly
foreign to the French way of thinking and to the policy which my
country has followed in the past and continues to follow today.
For centuries the idea of equality between men, to whatever group
or nationality they belong, in whatever clime they were bom,
whatever their religion or race, has inspired French philosophy,
which is basi:d on reason and universality. Our thinkers and writers
have developed and disseminated this doctrine. It was France
' G.A.O.R. 17th Sess.. 4th Comm. 332 (A/C.+!SR.i380).
G.A.O.R. 15th Sesî.. 4th Comm. 83 (AIC.41SR. Iri3). (Italics added.) REFLY OP ETHlOPlA AND LIBERIA 299
which 6rst solemnly yroclaimed tlie principle of equality, made it
the basis of its institutions and established it as ae of govern-
ment.. ..
"Al1France's action in the African continent is iuspired by these
principles. They have ~uided the evolution of the States of the
life. . It fakes ite stand equally firmlyagainst any kind of racialism
on the African ciintini:nt, whether white or black, agninst the
exclusion of anvone from the life of a ~olitical communitv for
racial reasons,&inst any limitation or hiAdrance to any pe&on's
activities. It proclaims that the hope of peace and of a better future
depends on the ever closer CO-operationandintegration ofthe various
human races in a world which is shrinking every year."'
"It is the Nonvegian view that this legislative trend is deplor-
able and indeed indefensible. This repressive legislation is in itself
a clear and unmistakable proof that the policy of apartheid is
inhuman by its very nature since it requires such inhuman measures
ta ensure its implementation. We Norwegians still have fresh in
our memory similar efforts to re ress human rights and elementary
freedoms which were to be the Aaw'n of a dark miUenium of Nazi
to the persistence of tlie United Nations in the Second World
War. ...
"... The Govemment deems it revolting that the South African
authorities continuously sharpen the apartheidlaws and their exe-
cution in spite of the urgent appeals from the United Nations
that they abandon this policy. The new addition of the so-caUed
anti-sabotace laws ~ves reason to fear that the authorities in South
Africa are io detethined to continue their policy of racial discrim-
ination and segregation that they will not hesitate to employ
pure police-statë methocls."
". . . [The Irish] delegation viewed 'apartheid' and aii racial dis-
crimination as a violation of natural law and therefore an intrin-
sically evil thing. Al1 human beings possessed certain fundamen-
in attempting to interfere with, or suppress, those rights wereeid'
guilty of a perversion of natural law. As practiseinSouthAfrica,
thal euil was total. The rion-white population of South Africa suf-
fered not from a partial repression of freedom but an absolute
one, attempting to contra1 every movement of their daily lives and
ensuring their political captivity and economic servitude. Alore-
over, the system was not temporary but was designed to be per-
' S.C.O.R.. 15th year, 854th meeti2-3a(SIPV.854).
S.C.O.R.. 18th year, 1055th meeting at 6-7 (sIPv.1055)300 SOUTH WEST AFRICA
manent and enduring Thus, the United Xations, dedicated to the
establishment of perfect racial equality between al1 peoples, was
confronted b:,, a powerful sovereign nation obstinately dedicated
to complete racial inequality.
"The unan:!mousrepugnanceof !he ciuilized world to 'apartheid', '
as reflectedin theCornmittee/rom year to year, was in itself a condem-
nation of the inherentunwholesomenessof 'apariheid'.The situation
it created waj a cause for sorrow and apprehension, sorrow at the
deprivations juffered by the non-whites in South Africa and ap-
prehension for the rulers of South Africa themselves. who must
inevitably be contaminated and corrupted by the operation of
that cruel system. It wûs a tragic irony of the times that the morn-
ing of independence for the peoples of Africa should be overcast
by the shadon of 'apartheid.' " '
j. Pola?zd
"Racialism was a venomous and contagious disease. Its gains in
one country affected ail humanity. Conversely, any achievement
in the struggle against prejudice and discrimination set an example
for al1 mankind. Therein lay the international significance of the
South African situation. Poland wa3 particularly sensitive to the
daneers of racial ~reiudice. for it had learned the lessonof the ulti-
mate consequencês of the doctrine of racial superiority in a hard
school. There could he no doubt as to the ultimate fate of apartheid,
like any other reactionary tendency which went against the major
trends of history, it was bound to lose."
". . .[A]Alparthsidpersisted as a cancer on the body politic of the
Africnn continent and indeed of the world."
"The policy of apartheid was not only an affront to human dig.
nity and a gross violation of the Charter but also, based as it was
on an ill-conceived notion of the superiority of one race over another,
a direct nega.tion of the self-evident truth that al1men were equal
before God. Under the high sounding slogan of 'separate develop-
ment' lay the iniquitous policy of the imposition of white supre-
macy over the vast majority of the South African population-a
policy which was intended solely to preserve, consolidate and pe:
petuate the dominant position of the white minority vis-à-vis
the African people." 4
m. Greece
"In discussing matters of such fundamental human importance,
there was no need to invoke the provisions of the Charter, for the
'GA O R.. 16th S<-+s.Specinl roi. <:oiiiinnt $3 (.\ SPC SK.?75) (Itnliciadded.1
<;.A O.K. !,th ;c<i 5pc:inl 1'>1 C3miii. ;,t4) (.\ SI'C SR 331').
'<; A OR. iStli Sc.,.,Slwc~a~~-ol (.-~~~~~ ~ ~-- \~ ,~~ .,-~~-<o\
' G.A.O.R. 17th :jess.. SpeciîlPol. Comm. at 49 (AISPCISR.jj6). I~EFLY OP ETHIOPIA AND LIBERIA 301
Charter was traiisceiided by the unwritten law recognizing the
fundamental rights ancl freedoms of al1 nien, the origin of which
was lost in the mists of time. For threc thousand years Greece had
fought in defence of freedom, and it was continuing that fight to-
day side by side witli a people of the same national origin arid the
same civilization, wliicli was struggling to free itself froin foreign
domination. liaithful to the traditions, prificiples ad ideuls il had
always upheld, Grcecemjishedto make un appeal to the Gouernmeut
of the Union of South Africa and to warn il of the dire conseyuences
to which its racial policy ??zighllead."'
"Tlic case agaiiist ap~rrtheidis prccisely that it docs not prornote
liannony and peacô. On the contrary, it constitutesaconstant source
of conîlict and violence. The Sharpeville incident iii 1960 should
have made this perfectly clear. So long as South Africa persists in
enforcing the apartheid programme, greater tragedies inay yet
take place." 2
o. Mexico
".. . [South Africa is] hamperirig the material and moral well-
bein~of the inhabitants of the Territorv and im~edina their normal
devdopment towards independence hi the prac'tice Of racial segre-
gation in al1 aspects of social life and by denying them their fun-
&mental righti and frecdoms. . .
"In particular, Soiitli Africa kas bccii guilty of tlie following
practices, which arc in direct conflict with the obligations imposed
by the Mandate: it allows only perçons of European origin the right
to vote and to be electeil to the main legislative bodies of the Ter-
ntory; it maintaiils an odious system of racial segregation in edu-
cation; it establishes segregated residential areas based on race,
colour and national or tribal ongin; it denies the right to join trade
unions to any person who is a 'member of any Xative race or tribe
of Afnca'; it denies non.Europeans the entry to a large number of
professions . .. its legisl.ition qualifies some of the workers in the
Territory as 'servants' and their employers as 'masters.' 'l'lie'serv-
ants' are subjected to corporal puiiisliment for any breach of
their labour contract: the Native inhabitants are forced to live in
s~ecific urban areas: the Native inliabitants are subiected to a
6omplicated system of passes governing their moveménts in the
Temtory, which is contrary to human dignity. . .."
' G.A.O.R. rjth Sess.Specinl 1'01.Cornm.at20 (A/SPC/SR.ôg). (Itÿlics added.)
3 G.A.O.R. 16th Sess.. 4th Conm. atggS (A/C.4/507).j3).302 SOUTH WEST AFRICA
p. The Netherlands
". . . [The Netherlands Representative stated] that his Delegation
had consistently condemned bath the policy and practice of racial
discriminatioii. Without denying the complexity of the problems
facing the white minority in South Africa, the Netherlands consid-
ered that apartheid not only failed to afford any solution to those
problems, bu? must inevitably lead ta disastrous consequences.
"As the situation in South Airica had deteriorated, the Nether-
lands had become ever louder in its condemnation of the racial
policies carried out by the South African Government. Now it
could hardly find words strong enough to express its abhorrence
of apartheid. . .."'
q. Pakistan
"Pakistaii':j condemnation of apartheid had a wider and a stron-
ger basis than the South Afncan Govemment's maltreatment of
people of Indo-Pakistan origin. Pakistan was an Islamic State and
the Islamic iileology stood for equality, freedom and social justice.
It completel:{ rejected the concept of racial superiority. Racial
discrimination was, therefore, alien and repugnant ta Islam and
its followers."
Also:
"The Union of South Africa has emharked upon a course of na-
tional policy whicli has resulted in bloodshed in the past and which
unfolds for the future a prospect of unending strife and violence.
Its structure of 'apartheid' is based on a colonial concept of racial
siipremacy." '
3. THE WEIGHTOFCONTEMPORARYSCIENTIFIC AUTHORITY
Respondent's formulations of its policy of afiartheid,or separate
development, aire based, inter alia, upon explicit and implicit
assumptions concerning patterns of human behaviour, and asserted
limits upon the ability of public authorities to influence or affect
such behaviour. These assumptions, stated for the most part in the
form of generaiizations, appear clearly, for example, inRespondent's
rationale of its policy on Education in the Territory.'
Respondent's underlying premises are, in effect, that historical
circumstances have created a situation in which members of
different "groups" 9refer ta "associate with members of their
own group"; that "rnany Europeans, in al1 probability the vast
majority, are ncit9refiared ta serve in positions where Bantu are
placed in a position of authority over them"; that these are "social
phenomena whii:h exist as facts, indefiendentlyof any governmental
' G.A.O.R. 17thIiessSpecial Pol. Comm. at 38 (A/SPC/SR.334).
G.A.O.R. 17thSess.Special Pol. Comm. at22(AISPCISR.3jr).
' S.C.O.R. 15th year852ndmeeting at 30 (S/PV.85?).
' III, pp. 528-530; quoted pp. 266-268. supro. REPLY OF ETHIOPIA AND LIBERIA 303
policy, legislation or administrative practices"; andthat "whatever
the moral rights or wrongs pertaining to theni in particular situ-
ations, there can be no denial that such group reactions exist as
tacts of which due cognizance must needs be taken by any realistic
gouernment."'
On the basis of such assumptions and generalizations, Respondent
accordingly concludes that efforts on its part to seek guarantees of
equality of access of al1individuals to employment,equaleducational
opportunities, equal residence rights and the like, would hring
about refusa1 of white persons to continue to operate the economy,
with the result that Respondent would he compelled to reinstate
differential opportunities at a later stage and this, in turn, would have
the consequence of creating a sense of "frustration" and unhappiness
among "non-white groups" greater thaii they feel under the present
system, under which they are "sheltered" from the unattainable.2
Such contentions are repeated throughout the Counter-Memorial.
Discussing the limitation of certain posts to "Europeans" in the
mining industry, Respondent argues:
',The reasons uiiderlying the above provisions flow from the tra-
ditional relationship between the Europeans and Native population
groups of the Territory. In the history of the Territory there has
at al1 times been social separation between these groups, and ex-
perience has shown that members of eacli group prefer to associate
with members of their clwngroup, and that certain kiuds of con-
tact between members of these groups tend tu create friction. Tiiese
factors are accentiiated by the fact that the members of the Euro-
pean group have traditionally occupied a position of guardianship
in respect of theindigenous groups, and that in the economic field
the relationship between Europeans and Natives has generally been
li"In this factual situation, most Europeans would refuse to serve
in positions whereNatives might be placed in authority over them.
Although very few, if aiiy, Natives in the Temtory would at pres-
ent be able to hold any of the posts mentioned in the aforegoing
paragraph, Respondent was nevertheless obligedto take cognizance
of the factual situation, and for the considerations aforestated, to
adoptmasures whichwouldpreventNatives employed in European-
owned mining enterprisesffrombeing appointed to technical andre-
sfonsibleposts in whichthey wouldezerciseauthorityover European
CO-employees. '"
Respondent argues further, in discussing restrictions on employ-
ment opportunities in railways and harbours:
"... On the one Iiand there was the danger of estrangement of
members of the White group from fields of employment which
required their services. On the other hand there was the prospect
1Ibid. p,ssim.(Italics added.)
2Id. ,. 528.para.(e)P. 530. paraii)P. 531.Para.in).
III, p. 55. (Italics added.)3O4 SOUTH WEST AFRICA
that iiimaiiy avenues non-Europeans would find progress almost
completely barred-through snperior qualifications, ability or ex-
perience oii the part of White competitors, or through prejudicinl
reaction on the.part of employers,or through a combiiiation of these
-whereby th-y wonld increasingly experience disillustonment and
frustratioii. Goodwilland goodrelations acrossgroup and racial bor-
der~would sufer immeasurubly." '
Respoiident, accordingly, coiicludes:
". . . Disp1aci:ment of European employees in graded posts by Na-
tive employees, on Native trains, would, as the hlinister saw it.
and as mnaltersfheitsfood,have caused grave dissatisfaction amongst
European employees and the public."
Respondent l~ersists in the therne that it is hclpless to act other
than as it presently does, if it wishes to act responsibly. Thus, in
discusçiiig right~ of residence, Respondent asserts:
". .. When F:espondent assumed the Mandate, it was consequently
only logicalto reserve, as far as practicable, to the vanous groups
areas in which their members could live, to the exclusion of members
of other groi~ps."
In justifyiiig its maiiiteiiance of a system of segregated educa-
tional facilities, Respondent declares:
"Respondcnt was virlually compelledto adopt the course afore-
stated by th,: facts of the situation as it found them on taking over
control of South West Africa; and such course in turn regulated
tlie application of funds in providing eduçatioiial facilities for the
different population groups. Any other approach hased, for esample,
on the supposition that al1groups should at al1 points of time be
treated equally in the allocation of funds-also in the educational
field-would have bcen comfiletelyartificialin the circumstaiices of
the ter rit or!^ 4 ."
Respondcnt further justifies the absence of a systeni of compul-
sory education for non-whites in South West Africa by arguing:
". . . In the light of its experience, the Administration bas no doubt
tliat any syijtem of compulsory education, unless it can be intro-
duced with the consent of tlie Native group concerned and with
full appreciation on its part of what it will entail, will ineuitably
lead to dissatisfaction and probably also destroy much of the good
work that lias been done in tlie past." '
Summarizing its assertioii that members of different racial
groups prefer !jeparate einployment, that "Europeans" are not
prepared to serge in positions subordinate to "Bantu," and hence
III,p.65. (Italics added.)
Id.. p. 67. (Italics added.)
' Id.,p.383. (Italics added.)
J Id.. p393. (Italics added.]306 SOUTH WEST AFRIGA
opportunities and hurdens are allotted on the basis of group, race
or colour, necessarily implies not only that soine "groups" are
inferior, but that individual members thereof are "permanently
and irremediably inferior." '
Whatever may be the intended significance of Respondent's
ahove-quoted statement, the overwhelming weight of authority
in the sciences of hiology, psychology. sociology and anthropology
arme that no scientific evidence suu~orts an assumption that
gr&ps or races differ innately. .A
ProfessorPhilip V. Tobias, President of tlie Institutefor the Study
of Man and Head of the Deuartment of Anatoiiiv, .n.versitv of tlie
Witwatersrand, declares:
"Racially discriminatory practices make certain assumptions
about race, sometimes overtly, sometimes tacitly and sometimes
couched untler new names, suc11as cultural differences. These
include:
"(i) the asumption that races are pure and distinct entities;
"(ii) the aisurnption that al1 members of a race look alike and
think and act alike; basic to this one is the idea that how one be-
haves depenils on one's genes;
"(iii) the assumption that some races are better than others, some
indeed falling right outside the magic circle of love and brother-
hood, not being worthy of one's finest feelings because they are
inferiorbeings."
Dr. Tobias concludes:
"Scienceprovides no evidencethal any singleoneof thenssvmptioss
underlyingSoirthAfrica's racial legislalionis j~slified."~
The Court's attention is respectfully drawn to additional authori-
ties, cited in Aiinex 12, page 590, infra.
(B) KESPOXDE~YT COSNTENTION OF INEVITABLE "FRUSTATION"
IF ALL INHABITANTS OF THE TERRITOR Y RE ACCORDED EQUAL
OPPORTUNITY
The basic fallacy of Respondent's contention, captioned ahove,
consists, in the scientifically demonstrahle fact that the greatest
"frustration" is caused by denial of equal opportunity inherent in
the policy of afiartheid itself.
"The pattern of community practices is the fountainhead of
prejudice: of prejudiced behavior and of prejudiced attitudes.
"The growing chiid learns his social behavior primarily by fol-
lowing the inodes and models of behavior around him. Indeed, he
has little choice...
'PhilipIlason.in Annex r,p.33g. infra.
Thc Menning ofRace 22 (196,)(Italics added.)
' Supra, pp. 267-268,70-273. REPLY 01; ETHIOPIA AND LIBERIA 307
"These are the socialsituations, i.et.he overt sets of reiationships
with which the child is surrounded. He does not have to be told
that Xegroes are 'inferior,' or what his relationships to them are
supposed to be. These are apparent." 1
The classic study of 1. 1). MacCrone, Professor of Psychology at
Witwatersrand University, applies the foregoing principle to
South Africa:
". .. [W]e find that [the] present economic, political and social
structure [of South Africa] invariably tends to lay upon the black
the stigma of inferiority. From early cliildhood the white man is
accustomed to look do\i.n upon the black as a member of the ser-
vant class, as one who ilefinitely occupies an inferior status in the
social system. . . . The result of such a system is, of course, unavoid-
able. The white child growing up in such a community inevitably
tends to regard the black as a menial by nature, as an inferior to
be looked down upon with feelings of superiority and contempt."'
Dr. Robert MacIver, Columbia University (U.S.A.), has observed
that :
"Under aU conditions the discrimination of group against group
is detrimental to the well-being of the community. Those who are
discriminated against are balked in their socialimpulses, are preven-
ted from developing their capacities, become warped or frustrated,
secretly or openly nurse ;ispirit of animosity against the dominant
group."
Sirnilarly, Dr. Kenneth Clark argues:
". .. [Tlhe evideiice from social-science research, from general
observations, from clinical material, and from theoretical analyses
consistently indicates tliat the personality pattern of minority-
groiip individuals isinfluenced by the fact of their minority status'"
The Unitecl States Supreme Court has unanimously expressed
the sarne view:
"Ta separate [childreri in grade and high schools] from others
of similar age and qualifications solely because of their race gene-
rates a feeling of inferiority as ta their status in the community
that may affect their hearts and minds in a way unlikely ever to
be undone." 5
(C) ~IESPOKDENT 'SNTENTION THAT AS A "REALISTIC GOVERN-
MENT" IT hIUST SUPPOllT EXISTING "CROUP REACTIONS"
Respondent's contention, captioned above, is refuted by the
ovenvhelming weight of scientific authority. Its basic failacy
' Raab and Lipset" ,The l'rejiidiced Societyin Raab (ed.) American Race
R~lnlionsTodoy 48-49(1962).
Race Afliludes in SouAfrica261(1937).
The Web of Governmenl428(15847).
' Browndv.Board ofuEducnlion, 347U.S. 483.494(1954).
Supra, pp. 269-27330~ SOUTH WEST AFRICA
consists in its disregard of the fact that, inasmuch as attitudes of
*,eiudice. discrimination and fear are eenerated bv individuals
through their social structure and procGses, such attitudes like-
wise can be modified through the social structure and processes
and, in particul;rr, through governmental action.
Respondent's obligation under the Mandate to "promote to the
utmost the matei-ial and moral well-being and the social progress of
the inhabitants of the territory" is, and has been, within its capacify
of accomp1ishmi:nt. because its failure to discharge its obligation
in this regard has heen systematic and deliberate.
The following scientific reasons and authorities establish the
fallacy of Respondent's contention, as summarized above.
In tlie first phce, inany prejudiced persons will not discriminate
in a non-discriminatory situation. As J. 1)eaii and A. Rosen observe:
"\Vithin \vide limits, prejudiced persons will acccpt and partici-
pate in a ttioroughly mixed and integrated setting if integrated
patterns are established and accepted as appropriate by other
participants in that situation." '
G. Saenger, discussitig the likelihood of a prejudiced or a demo-
cratic reaction to proposals for desegregation, concludes that much
". . . depends not only upon the relative strength of the conflict-
ing desires, but also iipon the social pressures exerted upon the
prejudiced and the situation in which the conîiict occurs. The
desire to coriform with prevailing public opinion is foreniost in his
mind."
Racial or group attitudes are not decisive indicators as to how
people will act in a racial or group situation. The social demands
of such a situation, particularly when enforced by authority, are
effective determiuants of individual action.)
A clear definition of law and policy by governinental authorities
can facilitate a change in behaviour.' Most individuals in a Society
prefer to obey the law, even if they disapprove of beliaviour required
of them.
". . . Most people will obey legislation that is properly enforced
and will terid to bring their ideas into consistent relationship to
their obedient action." 5
' A Afanual ofInlergroup Relations 59-60(rg6j)T .hey offcr evidence drawn
from the study of two citiiithe Southwestern United States for this proposition.
The custom in bol11citieswas normally to have segregated facilitics in theatres.
When. for various reasons of convenience. the seatinwari integrated, therwas
no dernonstrahle ri?luctance of anyone to attend these theatres.
The Social Psydology ofPvejudicczqo(~953).
nalional Social Scicnce Bullelin No. 3, p.432 (~958).es of America."40 Inler-
' Williams and Ryan, Sckoolr in Transitio247 (1959).
' Siichinan, el (il., DesegregatiSonte ProPosilionsand HesenrchSuggestions
37(1958). REPLY OF ETHIOPIA AND LIBERIA 3O9
Authorities agree that enforcement of legislation can be a deci-
sive means of overcoming discriminatory behaviour and reducing
conflicts between groups.
Dr. G. Saenger States:
"While enforced legislation does not sufficeto erase discrimina-
tion completely, itappears to be one of the most successful tech-
niques for the acceleration ofprogress, even though there is reason
to believe that none of the existing laws are used to the fullestex-
tent possible."'
Similarly, M. TuminZ and R. M. Williams, Jr.3 comment on the
positive role legislation and law enforcement can play in changing
behaviour and reducing racial conflict.
A Memorandum submitted by the Secretary-General of the Uni-
ted Nations in 1949 summ:rrizes the reasons why legal action serves
to reduce the incidence of discrimination or other manifestations
of prejudice or fear:
"(a) It fosters the ccinviction that discrimination is wrong by
fixing standards which are respected by the great majority of
people.
"(b) People who have little respect for the law are nevertheless
afraid of the consequeiices of uulawful conduct; they therefore
obey the law in order to avoid its penalties.
"(c) In both cases and whatever the motive, the resulting daily
behaviour tends to create socialcustoms which are in harmony with
the law; these customs constitute a powerful collective force.
"(d) The law can also Iielp repair the Iiarm produced by unlaw-
ful conduct, in so far as it can provide indemnities and reparation
for the person wronged." '
Respondent's assertion that it is in the grip of social "facts," '
implies that legislation can only follow a change in public opinion,
and that attempts to anticipate or modify public opinion are
"unrealistic," or even dangerous. Such an assumption is similarly
rejected by modern social science.
Dr. Gordon Allport, Professor of Psychology at Harvard Univer-
sity, speaking of race relations in the United States, notes:
". . . While it is true that iinless a fairly large percentage of the
people are in favor of a law it will not work. yet it is false to Say
that folkways must always take precedence over stateways. It
waç the Jim Crowlaws in the south that in large part crealedfolk-
' The Social Psycholagy of Prejlidicc 271(1953).
Tumin, Desegregalion; Resist<incs~ndReadiners 168(1958).
Williams.Redulion of I~itergroicpTensions, (1947).
UnitedSations,Main Types iindCai'rer of Discrimina43(~1CN.4lSub.zlqa/
Rev.1) (19.19).
'Supra, pp.267-271.310 SOUTH WEST AFRICA
ways. Similarly, we have seen that FEPC legislation quickly cre-
ates new folkways in a factory or department store. Within a few
weeks, Negoes, Mexicans,or Jews are accepted as a matter of course
in occupations where for decades they had been excluded." 1
hl.Tumin similarly argues:
"It is true that many persons in the South donotseemtofeelvery
different about Negro- and Negro rights than did their ancestors
two or three generations ago. It is equaiiy tme that many of them
hehave very differently in these matters thaii did their anceston. In
short, social action has been modified and cultural patterns have
been revised without any conzmensurafe and corresponding modifi-
cation and wvision of the basic feelings involved."
K. Clark also argues that one need not change men's hearts
(attitudes) before one can change their social behavi~ur.~
hI. Deutsch concludes, to the same effect:
"There isstrong evidence .. . that the social catalyst of change is
a felt need Io adhere to the law of the land. Particularly is this
true in the niiddle classes and in the community power centers." '
In a study devoted to the effectiveness of a New York State law
prohibiting discrimination, M. Berger demonstrated that the law
has reduced discrimination in employment and concludes:
"Tlius we have seen the efficacyof law in controlling the behavior
of perçons who acquire prejudice asthey acquire other social values
from the group to which they belong, and the behavior of those
ahose prejndice is more deeply rooted in personality disorders."
H. Potter, reviewing similar legislation in Ontario, Canada,
dating from 1944 .oncludes that the atmosphere created by the
legislation has had a positive influence:
"The wind of change has blown through business offices, banks
and stores, as aell as through parliamentary chambers. In Mon-
treal, for instance, ali five of the English department stores employ
coloured men and women in a variety of occupations."
R. A. Kelly, discussing government action as an insiniment of
fostering integration of the Maoris in New Zealand, States:
"The great advances made hy the Maori in the post-war period
have sprung from the legislation of the few years from 1935, and
from the Maori Social and Economic Advancement Act of 1945.
Government, from being a passive instrument that had removed
' The iVnlure I'rejei«dqTo-Tr (rggq).
Dasegregofion: Rcsistaand Rcoditrca22 (ig58).
"Desegregation: An Appraisal of the Evidence,"9Journal O/ Social Isrurs
' (rg53).
71-72"Some Penpeotives on Desegregation Research," Thc Rofclhc Social Scicn-
ce'iEqurilily by S1r:186e(rgy).um 5 (1958).
"Negroes in Canada," 3 Race 54(Novernber 1g6i). REPLY OF ETHIOPIA AND LIBERIA 311
disabilities, changes in the next decade to an active promoter of
racial integration in New Zealand andof the economic and social
progress of the hlaori people." '
Even where explicitlegislationis not specially enacted, the willing-
ness of authorities to deal swiftly and strongly with instances of
disorder provoked by senti~nents of racial prejudice can be effective,
as the reactions of the Government of the United Kingdom to the
Nottingham disturbances in 1958 clearly show. The Earl of Lucan
commented in the House of Lords on why the disturbances were
so quickly forgotten:
"1 believe the reason why they were forgotten so soon was that
after the first two ontbreaks nothing further happened; and the
fact that they did not recur is due to a number of factors, one of
whichwas the fact that the lawwas very quickly and firmly asserted.
"Another factor was that declarations were made immediately
by a number of public figures, some Ministers and meinbers of the
Opposition; and the Press almost nnanimously condemned the
outbreaks."
But the Earl of Lucan called nonetheless for legislation on the
following grounds:
"Not the least of the advantages of legislation is tbat it gives
support to those of gooil will who otherwise rnight find it difficult
to stand up against local opinion." '
It innst be concluded that Respondent, by refusing to act against
racial discrimination, has encouraged and abetted it. By official
action Respondent could iiot merely have reduced discriminatory
behaviour; it could have reduced the attitudes of prejudice that
Iay behind the behaviour. All competent authorities agree with
W. Maslow that "legislation is edncative." ' Or, as A. Rose has
stated:
"A significant amount of evidence has become available to in-
dicate that the attitude of prejudice, or at least the practice of
discrimination, can be !jubstantially reduced by authoritative or-
der."
Or, as C. R. Nixon states, concerning the United States:
". . . Where law is not enforced, the law is ineffective: but where
law enforcement procedures are firm. then the law can have an
important effect on existing attitudes."
Iralion No.2,tp.32of(19Gz). Equality."24 New Zcaland Journal O/ Public Adminir-
212 H.L. Deb.(5th sec.) 684(1958).
3 Id..o. 681
' "Prejudice. Discrimination.and the Law." 275 Annalsaf thtA~nericanA6ademy
of Pulilical and Socia~..~ ..--i-,7\-,.1).
' "The Influenco ef Legislationon T'rejudice." in Rose (ed.), Rnçe, P~cjudicc
and Diswirninntion 5a6 ,i--i,.
"Law. Race ~éiations. and Social Chance-in the United States." 22 Rorc
Relations Jouvnol. Ko. r.p. II (1955). SOUTH WEST AFRICA
312
Inaction, or, indeed, negative action in this regard on the part
of Respondent has in consequence hindered the weU-being and
thwarted the social progress of the inhabitants of the Territory.
"When discrimination is eliminated, prejudice ... tends to
lessen." '
It follows that acts of discrimination are, as the United States
Suprerne Court noted as early as 1879, in respect of exclusion of
Negroes froin jury-duty, "a stimulant to that race prejudice."
4. HIST0R:U'AND CHARACTER OF THE SYSTEM OF
"HOMELANDS"OR "TERRITORIAL APARTHEID"
Respondent's formulation of the premises underlying the policy
of "separate developrnent" have been set out in this Keply,' and,
for the Court's convenience, may be snmmed up here, again in
Respondent's own words:
"The only remaining alternative is therefore that of 'liveand let
live',4 a policy which seeks to remove the competition and con-
flictsof interest which lead to a stmggle forsupremacy in an attemp-
ted process of integration, and which seeks to bring about free,self-
governingcmmunities which can CO-operatewith one another as
the nations cf the world do in matters of mutual economicand other
interest."
Respondent a.vers further:
". .. Respondent proposes in this regard to apply expmiencegained
inthe same direction in South AJrica, and to guide the groufisto-
wards an applicationof measures whereby an evolution willbe pos-
sible from traditional systeins to others moresuitedto theconditions
of themodernworld". "
The "experience gained in the same direction in South Africa,"
to which Respondent refers in this context, is a system comprising
"three types of Bantu authorities, viz., Tribal, Regional and
Territorial Autliorities." ' Respondent asserts that
"The acceptance of Rantu Authorities by the indigenous popula-
tion groups and the development potential of this system has been
strikingly illustrated by events in the Transkei." 8
' Allport, The Nzlurcof Prsjudice 472 (~ggq).
' Vide: Strauder v. West Virginia. rooU.S. 303at 308 (1879); cited in hlaslow,
"Prejudice. Discrirnination. and the Law," 275 Atinalrof the American Acadsmy
of Politicaortd Soi:ial Scien12 (1951).
3 -.. - ,nr. . .... . .
' II, p. 460. defines this phrase as synonymouî with "separate development."
' Id.. p. 473. (Italicç added.)
' Id., p.478.. (1t;ilics added.)
va.. p. 479. RBPLY OF ETHIOPIA AND LIBERIA 313
Respondent sets forth in the Coz~nter-Memoriailts version of the
origins and characteristics of the "self-governing" Transkei, the first
of Respondent's projected series of "Bantustans" or "Homelands."'
By way of underscoring the relevance to these proceedings of
its policy in South Africa, Respondent States:
"Although these systems have not been introduced in South
West Africa, a similar development, adapted to the peculiar cir-
cumstances of the Territory, is to be expected."
With this expectation in view, Respondent appointed a Commis-
sion of Enquiry into Soiith West Africa Affairs (the Odendaal
Commission), the objectives, composition and terms of reference
of which are set out in the Counter-Memorial.' The Report of the
Comniission,released 27 January 1964, has been publiclycirculated
and has been added by R.espondent to the documentation of the
instant Proceedings.4
In its Report, the Coinmission recommended, inter alia, the
partition of the Territory iiito ten separate "homelands," a "Colour-
ed" rural irrigation area, and a "White ares."=
Respondent's Prime Minister presented to the Parliament, on
29 April 1964, the Memorandum fi anriouncing. inter alia, "The
Government's Attitude Concerning the Future Course of Uevelop-
ment" of the Territory. 7
By this Memorandzlmthe Government endorsed "the view that it
should be the aim, as far as practicable, to develop for each popu-
lation group its owii Homeland. . ." In addition, the Government
'II, pp. 478-481. It is noteworthy that Respondent has announced that it is
not planning, at this stage. to grant powers of self-government in any additional
South African area. (R. of S. A.. Porl. Dcb.. Housa of Asscmbly. 2nd Parl.. 2nd
Sess. (weeklyed.. 1963). Col.851s).
II. p. 481. Respondeiit therir quotesa comment hy its Prime Minister that
if "UN askç us to do the same for the various communities in South West that we
are doing for the communities in the Republic. 1 shall be only toa glad." 1R. of
S. A..Parl. Deb.. House ofAsscmlily,2nd Parl.. 1st Sess. (weeklyed..1962).Col.92.)
' II. PP.476-477.
' Communications from Respoiident's Agent to the Registrar of the Court, dated
12 February 1964, 25 hlareh 196.1and 28 AIay 1964 (the last such communication
transmitting for filing theSupcbment Io th8 Counler-ilfernoriawhich formally
introduced the Odendaal Commis:;ion Report and the Memorandt'm thereon to the
record of these Proceedings as relevant documents; see p. 269,footnate 7, supra).
' Odendoal Comnzission Reporl, pp. 81-109. A sumrnary of the Commission's
recommendations in this regard is contained ina Working I'aper prepared by the
United Nations Secretariat. 8 April 1964 (A/AC.rog/L.roS). Relevant extracts
thereof are reproduced for the cortvenience of the Court in Annex2. p. 341. infra.
See p. 269, footnote 7. supra.
' Me#norandum, sec. B (IV, p202).
Memoranduin. para.21 (id.. p213).3I4 SOUTH \VEST AFRICA
annonnced its decisions with respect to measures of implementation
which "should be executed immediately and on a large scale." ' The
basic assumptioiis underlying certain of such decisions, together
with Respondenl.'~ express agreement with the Odendaal Comrnis-
sion's findings 011 homel land^,"^ reaffirm Respondent's policy of
applying in the Territory "experience gained in the same direction
in South Africa." This isconsistent with its averment in the Coui~-
ter-Menzorial that
"Respondent has for some time now been convinced that cir-
cumstances in South West Africa have also developed to a stage
where accelerated and CO-ordinatedapplication of the constructive
aspects of a suitably adapted policy of separate development has
becomepossible and highly desirable." '
Respondent. while correctly asserting that the "policies and
practices in South Africa are not in thernselves matters for adju-
dication," nonetheless submits that it may
".. . by way of illustration, be instructive to have brief regard to
certain aspects of what lias been done and accornplishedin South
Africa, in pursuance of a policy of separate development, indepen-
dently of any international engagement."
Respondent tbereupon sets forth its version of "what has been
done and accomplished" in the Republic. '
Applicants concur, although for contrary reasons, in Respondent's
avowal of the "instmctive" character of its "homeland" policy in
South Africa with respect to the issues here in dispute involving
administration of the Mandate in the Territory. Applicants deny the
validity of Kes~tondent's suhmission that
". . . the deuelopmentpotential of this system has been strikingly
illustrated by events in the Transkei." 8
Applicants rejpectfully submit that, to the contrary, the "events
in the Transkei," cited by Respondent as the mode1 for the future
-
Mcmornndu>n, :secC. (id., IV, pp. zoj-ziilanguage quoted, aip. 203). For a
discussion of such measures of implementation.see Annex ro.p. 589, infra;such
discussion is incorporated herein by reference.
Mcmora*tdum,para. 21(IV, p.213).
' 11,P. 474.
' Id..p.476.
' Id....4~..
Id., pp 477-480.
' The recommendationî of the Odendaal Commission, accepted hy Respondent
footnoten2),make clear that the "development to be expected" in the Territory270,
(supra. p.313, footnote 2)is, indeed. "similar"tothat in South Africa itself.
II, p. 479. (Italics added.) REPLY OF ETHlOPIA AND LIRERIA
315
development of South LVest Africa, as well as of South Africa,
demonstrate conclusively rhat the premise of the "Homeland" poli-
cy is illusory and that its promise is deceptive. Measured against
Respondent's obligation to promote the well-being and social pro-
gress of the inhabitants of the Territord the policy falls cnielly and
deceptively short of achieving its proclaimed objective in human
terms, and violates the objectively determinahle legal norms
governing Respondent's obligations under Article z of the Mandate,
as demonstrated below.'
:lppl~c;iiits den1bzlo\\.with thcorigir1s:ind character of the systcm
of "HoincInn<li." or "tcrriiorinl afiartlieid." on the ùasis of c~n~i~ ~ - -
ations applicable equally to the Territori and to South frica a.
As has been pointed outpzexplanations of the objectives of the
"Homeland" policy have been formulated by Respondent in
inherently ambiguous and mutudy inconsistent terms.
Thus, Respondent. speaking through its Prime Minister, has .
proclaimed the aim of fostering "Homelands,"
'<,... following the mode1of the nations, which in this modem
world means political independencecoupled with economicinterde-
pendence.' "3
On other occasions, however, Respondent has candidly avowed an
objective inconsistent witli the foregoing. Thus, Respondent. again
speaking through its Prime Minister, has conceded:
"Now a Senator wants to know whether the serieçofself-govern-
ing areas would be sorereign. The answer is obvious. It stands
to reason that White South Africa must remain their guardians.
We are spending al1the money on these developments. Howcould
smallscattered Statesarise?. ..It stands to reasonthat when we talk
about the Natives' rights of self-government in those areas we
cannot mean by that to cut large slices out of South Africa and
tum them into independent States."'
Again, during an indeterminate, ancl probably permanent,
"transition stage," Respondent describes its objective, with respect
to the inhabitants of the î'erritory, as well as of South Africa, as
that of serving as "guardian," in order to
Annexes 1-4, pp. 328-361ixjra.
Supra. p275,
' IIp.466. (Italics in original.)
South Africa (quated p265nsupr,~.)e XIinister in the Senate of the Republic of316 SOUTH WEST AFRICA
". .. keep the ward in hand and teach him and guide him and
check him where necessary." '
That the "transition stage" is indeterminate is conceded by
Respondent. The possibility of its long duration, or even perma-
nence, is made clear, inter alia, by statements such as that of
Respondent's Prime hfinister in 1958:
"Territorial apartheid is the ideal ... to aim at ... the ideal
must be total separation in every sphere, but, everyone realizes
that to-day it is impracticable. .. .Such a thing cannot be at-
tained withiii a space of a few years, or even for a long tirneto
corne."
In explicit reference to the Mandated Territory, Respondent
describes its "general policy" there as one
"in wliich it seeks to elcourage the various population groups to
develop culturally and otlienvise in separate areasin accort-
ance with tf:e preferences shown by the groups thernseluesin this
regard." '
The foregoing quotation from the Cozcnter-Mernorial embodies,
so far asApplicants have noted, the most explicitly candid admission
bv Res~ondent: of its obiective to "encoura~re"-se~arateness
among the "groups."
The fostering of such differences, "culturally and othenvise,"
under the "orc.tective shelter" of the Tribal Chief is thus. in
~es~orident'; conception of its obligations under the Mandatesthe
suitable method of promoting ta the utmost the well-being and
social progress of the inhabitants of the Territory who, in this way,
are to be segregated into "homelands," "to be controlled and
governed by themselves, as nations are."
Respondent's Prime Minister, in 1956 Minister of Native Affairs,
Respondent's l'rime hfinister (1961). II, p. 466. (Italics added.)
U. 6fS.A.. Parl. Deb., HouscofAsscmbly. 2nd Parl., 1st Sitting (weekly ed..
1958). Col. 3805. (Italics addAddressing the House of Assembly the following
year, Respondent'rPrime Minister further stated: "And if it should happen that
of lhosefuture fimewill have to consider in what further wav their relatianshiris
must héreorganized." (U. O/S.A.. Parl. Deb.. Housc of ~ssembly, 12th Parl.. 2nd
Sitting (weekly ed.. 1959). Col. 62.) (Italics added.)
' III, p. 174. (Italics added.) The significance of Respondreference to the
"preferencesshow~i by the groups themselveis to beappraised in the light of its
failure and refusal to consult ivith the inhabior permit them a voice or vote
in the making of decisions afiecting them (discusçed infra, pp. 320-326).
' Respondent's1Prime hlinister (1959). quoted approvingly in II. p. 466. REPLY OF ETHIOPIA AND LIBERIA 3I7
is quoted in the Counter-Mernorial as describing Respondent's
"basic policy and its qualifications" as foUo\vs:
"The quintessence of the matter is that while the European
enjoysal1his rights and privilegesin onepart ofthe country, namely
in what we cal1\Vliite South Afnca, the Native has similar rights
and privileges, but can in turn only exercisethem within the Native
Areas, i.e. in the Reserves-wliether Tribal territory or areas sub-
sequently purchased.. . . In these territories the Ez~roean has no
claim to property and certain civilrights. There he is t le temporary
inhabitant wlzo helps wilh the developme?it O/ those areas, but they
belongto theNatives. The rights O/ the Natives are bozindnp with this
tact... . Just the opPositeis the casein the European areas.There is
thehome O/ theEuropean'srightsand theretheNative is the temporary
resident nid the girest,for whateuerpzrrposehe maybe there." '
So far as South Africa itself is conceriicd, sucli a formulation
irnports into Rcspoiident's policy a false equivalence in al1 its
relevant aspects: the "Native" urban population alone in "\Vhitc
South Africa" has increasdd from 2,3zg,ooo in 1951 to 3,444,000
in 1960; "the rcserves comprise mcrely 37 percent of Respondcnt's
'native' population", the reniainder living in "White South Afri-
ca" 2; the \Vhites are not subject to racially discriminatory practices
in the Transkei; the one and oiie-half million "Coloureds" aiid
half niillion "Asiatics" in "\Vhite South Africa" are dcnied the
franchise and other civil rights, without any prctension on Respon-
dent's part thnt thcy have, or will be assigncd, "reserves" or
"homelands."
Identical considerations apply to the Territory although, of
course, on a differing statistical base.
Applicants respectfully submit that if Respondent's good faitli
were, by itself, an issue in thesc proceedings, as Respondent errone-
onsly assertsI3 the inherently ambiguous and inconsistent foriiiu-
lations of its policy of apartheid, together with the manifestly false
equivalence of its asserted bdancing of rights and interests as
between "Natives" and "Whites" in South Africa as well as in the
Territory, would in itself raise a serious question of Respondent's
nal lafides.
The false equivalence, going to thc heart of Respondent's pre-
tensions concerning its "homeland," or "Baiitustan," policy, is
exposed by a distinguishetl South African jurist in the following
terms:
' II, p. 174. (Italinoriginal.)
Suniey of RaceRelaliaii(196~3 )..75, andSe" Annex r.pp. 328 g.(irifra.
struction of theSubmissions.uprw, pp.255-25<i,correcting Respondent's miscon-31~ SOUTH WEST AFRICA
"lt is noutliardly open to question that the principïl ohjcct airned
at in introducina the Bantustan uolicv %vas 10 neutriiliie the cal1
for an extension-of the franchise io non-whites and, in particular,
to Africans. What was primarily sought was not the physical devel-
opment of the Reserves, which could have been accelerated more
rapidly without political change and with white capital. Nor was
it the reduction of the growing preponderance of non-whites iithe
so-calied white areas, for obviously no material reduction was
possible
"The worlà was to be invitcd to look at a picture of retribalised
Alricas 'homelands',wheve mulfiracialism would liol be tolerated,
howevermuchthe Africnns mightwant it, and where thewhites,and
also the Coloz~redpeople andthe Asians, shouldbe as aliea aad as
riehtlessas theAfricans wouldbe elsewherein the countrv.
"There woiuldthus be a division between Aftican are& and white
or non-African areas on an eaual or 50-50basis. This reminds one
of the old story of thesausage:maker %hi claimed that his sausages
were 50per cent rabbit since he used a formulaof one rabbit to one
horse. In thi:;way it masthm~ghp tossible topresent the rifht to vote
for somesort of subordinatelocal body as a right substantiallyeqoi-
valentto the;barliamenlaryvote." '
Applicants respectfully submit that
(A) The system of "territorial apartheid" is merely an extretne
application of I<espondent's basic apartheid policy, according ta
which rights arid burdens of the inhabitants are allotted on the
basis of "group" membership; and
(B) Thcsy.;teiii of "l4omel:iiids" isinconip:~tible\r~itlithe\i.<ill-beiiig
:iiid soci:il nrocrress of the iiih~b~taiits of tlit: Territor\,. in tli:it jucli
"homelands" Gikd be neither
(1) politically viable as "independent" entities, or otherwise, nor
(2) economically viable as entities "interdependent" with
Respondent, or othenvise.
(A) That the "Homeland" system, or "territorial apadheid," is
the extreme application of Respondent's policy of allotting rights
and burdens on the basis of "group" is self-evident. Although pro-
claimed by Respondent as the "ideal," at which its policy of sepa-
rate developmeiit is aimed,3 it is the ultimate implementation and
logical extensioii of the policy itself.
' Hon. O. D. S,:hreiner, former Judge. Appellate Division of South Africa:
Presidential Addrejs to the South Afncan In~titute of Race Relations: Souü
Atrica-United or Dividcd 7 (1964). (Italics added.)
Inid.uoted phrase ir that of Respondent's Prime Minister. rupvn,316. REPLY OF ETHlOPlA AND LIBERIA 319
The Group of Experts, established in pursuance of the Security
Council resolution of 4 Dec:ember 1963 '.in a Report tothe Security
C~uncil,~recorded its view that
"... the arguments against apnrtlieid apply with equal or even
greater force to partition. No line of partition could be established
by agreement,and an iniposedpartition wouldcreate a long frontier
of continuing conflict.Nor could partition be politically or economi-
cally viable, for there is no substantial area of SouthAfrica in wliich
there isa majority ofWliites, and the economyofSouth Africa, botli
in industry and agriculture. is entirely dependent on non-White
labour. Partition would iiot solve,but wouldintensify and aggravate
racial conflict."
If, as Applicants contentl, the policy of apartheid, or separate de-
velopment, is in violation ctfRespondent's obligation to promote to
the utmost the "well-being and social progress of the inhabitants
of the Territorv." the svstem of "territorial abartheid." as an~ ~-~~
treme application of tiiatpolicy, incontro~ertibi~ and b$ hypothesis
is,a fortiori,likewise in vicilation of Respondent's obligation under
Article z of the Mandate
(B) In support of their subinission that thesystern of "territorial
apartheid," projected for the Territory on the mode1of the Transkei
developmeiit, would be incompatible with the well-being and
social progress of the inhabitants of the Territory, Applicants
respectfully draw to the attention of the Court the Report of 16
September 1963 of the United Nations Special Comniittee on the
Policies ofAfiarfheid of the Government of South Afri~a.~Consider-
ations adduced by the Cornmittee with respect to South Africa are,
in al1 essential aspects, applicable to the Territory.
For the conveGence of ihe Court, Applicants Ïeproduce from
the Re~ort an extract entitled "The Transkei Constitution Act
and thi~oves Towards the Creation of 'Bantustans.' " "pplicants
hereby incorporate by reference the foregoing extract as part of
their argument in reply to the Co$nzter-Mernorial ,dopting as
their own the statements ot fact and conclusions set forth therein.'
' S. C. Res.. 1078th meeting. 4 Decernber1963 (S15471).
S.C.O.R., Report of S.G. (515658) (1964).
quoted views to the issues in dispute concerning Respondont's interpretatandf the
application ai the Mandate with rcspect to the Territory is evident from the facts
that the conditions described by the Group of Experts also exiçt in the Terri-
tory and that Respondent cancedes that a "similar developmen...is to be expec-
ted" in the Territo,v\~u,o..o. "~",i
S.C.O.R., Spec. Comm. on Ap,zrlhcid at 41-55 (S/5426).
' Annex 3; infra, p. 349.
land."e term "Bantustan," in Respondent's usage. is interchangeable with "Home-
' See, concerning economic viability, paras. 150012Annex 3. at pp. 357-358,
mtva. 320 SOUTH WEST AFRfCA
In supplementation and elaboration of the said facts and con-
clusions, Applicants further respectfully sliow as follous:
The system of "homelands," as projected for the Territory, on
the mode1 of the Transkei, are not politically viable as "indepen-
dent" entities, or otherwise.
It is a principle accepted or professed by al1 civilized societies
that an essential prerequisite of a valid and viable ~~oliticalsystern
is consent of the governed.'
Contrary to Ihis principle, however. Respondent's self-styled
policy of "territorial apartheid" is predetermined and the method
of its application is pre-fabricated.
Thus, as pointed out in the Report of the United Nations Special
Conirnittee on tlie Policies of Apartheid.3 the Chairiiiaii of the Terri-
torial Authority of the Transkei, Chief Kaiser Matanzima, now
installed as "Chief Minister," 'defended his support of Respondent's
proclaimed intentioii to establish the Transkei "Bantustan" on
the ground that
"\Vhite Soutli Africa is IOO per cent agreed oii the maintenance
of white control of the white parliament. Only their defeat on the
battlefiel<lwill divest them of this resolution. Will those people
who oppose tlic peaceful road takcn by the Transkei conie out and
advocate a revolution?"
Respondent's predeterminatioii to implement its policy of nfiart-
heid without consultation. other than of an illusorv and Der-
functory nature, with thoie more directly conceriied,'is manifest
from the record.
The Group ol'Experts established in pursuance of the Security
Council resolution of 4 December 1963,"n its Report of 20 April
That Reçpandent accepts the validity of the prindplc in tlieory, if not in prac-
its o9artheid policy is desired by the "Bantthemselves:Hc.g..llespondent'sun-
tenable contention that "the rnajority of Bantu have welcomed the creation of the
Bantu authorities and have afforded Resyondent an increasing measure of co-
operation indeveloping and extending thern." (IIp. 480.)
Supra, p.316.
' Annex 3.inlrn. p. 349.
* The circumstaiices of his election tu this poit by the legislative assembly of the
Transkei are sumniarizcd in S.C.O.R.. SpecComrn. on Apartheid (S15621 (1964).
For the convenience of the Courta relevant extract of the Report is reproduced as
Annex q,infra,p. 359.
Siaiement of 16 Navernber 1962;quoted supra in U.N. Cornmittee Report
(seeAnnex 3. p. 355,infra).
Supra, p.3i9. REPLY CIEETHIOPIA AND LIBERIA 321
1964,' stated, as one of the major considerations underlying its
conclusions
". . .The Government [Le.,Respondent], in disregard of al1attenipts
to achieve consultation. ~e.s.sted in its oolicies: the non-White maio- ~~ ~ ~ ~
rit).\\.as lrfttlicrcby wirliiiocoiistitutiorial nicanïuf scekiiigfrceclom 3~
incl iiijticc.TIi~:coiiclusionmizlir hnve bccn thît wlic:iici~ii,~ilt:itiuii
and>epresentation had beenso fl~tly rejected there was no hope
for the future. But we believe that the dangers are so great that
there may yet be a desire, and consequently there may still be time,
to avoid a vast and hloody collision. We are convinced tliat the
way to do so, indeed we believe the only way, is to turn to themeans
of co~csi~ltatiofnor whichthe mouement O/ emancipationhas strf~ggled
so patiently and persistently for so long." 2
Thc history of Resporiclent's rejection of consultation is a cru-
cially relevant aspect "of what has been donc and accoinplished in
South Africa, in pursuance of a policy of separate development"
which, Respondent submits, is "instructive" with respect to
Kespondent's present and projected policy towards the inhabitants
of the RIandated Territory.'
Kcsponderit has assertcd that a main objcct of the origins of the
"Honielands" systeni was " 'to put the traditional Bantu form of
goveriirnent into practice by degrees.' ". ' Respondent has further
asserted that the system
" '...istlie traditional Hantu democracv. and the TribalCliief. toeether
witli his Tribal Council, provides theGrotective shelter underkhich
tlie hiehest and the lowest can feel at home and find self-exfi~ession
. .
and fzfilment.' "
Supra, p. 319.
S.C.O.R., Report of S.G. al: 18-19 (S/5658) (1964).
11.P. 477.
' Report of the Department ofNative Afiairç (1954.7). p. 49; quoted in Cowen
The I;ound<ilions of I:reedo+n35 {1961).
' Ibid. (Italics added.) Respondent's concept of "self-expression and fulfilrnent"
under Tribal shelter underlies it5 policy of territorial apartheid, pursuant to which
individual rightsand burdrinsare cleterrnined andalloted on the basis of group. raceor
tribe. In sharp cantrast iç the concept given expression in the South >\frican Legis-
lature in Cape Town in 1960 by the former Prime hlinister of the United Kingdom.
the Rt. Hon.Harold Alacmillan: "lt has been our aim to create asociety which res-
pects the rights ofindividuals-a jociety inwhich men are given an opportunity to
grow ta tlieir full stature, and th:it must in our view include the opportunity ofan
increaçing share in political power and responsibility; a society finally i>twhich indi-
viduol merit, and individual meril alone. is the riter ri onfor a mon's aduancement,
whelher polilicnl or economic." (Sotiuenirof a Visil, I'rinted on the authority of Mr.
Speaker. Cape Town, pp. 8-ri; quoted id., pp. 7-8.) (Italics added.)322 SOUTH WEST AFRICA
The foregoing expressions of policy have been appraised by
Professor D. V. Cowen,' in terms which are, in ailessential aspects,
applicable to the situation in the Territory,
"Kt may be conceded immediately that the old Bantu tribal sys-
tem was iiideed imbued with the democratic spirit; but there are
at leasttwo conclusive reasons why the Bantuctan system will not
be at al1 like 'the traditional Bantu democracy', Save in tlie most
superficial appearance. On the contrary, the Bantustan system
willbe distinctly undemocratic.
"In the first place, even with the best wiü in the world, it would
be very difficult-if not impossible-to restore the conditions
which enablecl tlie traditional tribal system to function democrati-
cally. in the old days the main saiiction against a tyrannical chief
was for his nien to leave him, and offer their loyalty to anotlier
chief in retuni forthe allocation of some of his land. In those days,
moreover, men and followers were more important to a cliief tlian
land, which was plentiful. And the sanction that his followers
might leave a tyrannical chief, and join a rival, operated as aower-
ful incentive to moderate and responsible government. But today
land in the Bantu areas is far from plentiful, and freedom of move-
ment is restricted. In short, the essential conditions which enabled
the earlier sanctions to operate iio longer exist. [Footnote (47):
Ashton, Tlte Basz~lo,p. 217.1
"But, secoiidly, even if it were possible for the Government to
put the clocl: back and restore the conditions of a century ago
(conditions which obtained before the conversion of Africans to
Christianity), the actual pattern of government which is being im-
posed is bath undemocratic and radically different from the tradi-
tional system. Thus, for one thing, under the old tribal systcm if
the people were dissatisfied with a chief, and the way in whicli he
erformed hi5 functions, he could be impeached. [Eootnote (48):
gee generally 1. Çchapera,Governmentand Politics in Tribal Societies
1956p ,p. 135et sqq.] But under the Bantu Authorities Act, the chiei
and his council are carefully insulated against the popular will:
and, what is more, they are expressly made subject to the contra1
of the responsible Minister and the Govemment.
"The insulation of the chief and his council from the popular
will is most <:learlyexemplified in the decision of the Government
to sweep away the idea of the popular vote. which had been in
force for mariy years in the Bantu areas prior ta the passing of the
Bantu Autharities Act. And the reasons aiven for this decision are
so remarkable that they are worth recordrng. Explaining the Bantu
Authorities Act, the authors of the Tomlinson Report Say:
1 Denis Victor Cowen. foreighteen years Advocate of the Supreme Courtof
South Africa: former Head of Department of Comparative Law,University of Cape
Town.currently Priifersor of ComparativLaw. University of Chicago School of
Law (U.S.A.). (SeID.281.suplo.) REPLY OP ETHIOPIA AND LIBERIA 3z3
'Councillors will be appointed by the chief or headman
himself and not, as under the old Local Council System, by
popular vote. The idea is to foster strong progressive action by
tribal authorities u'hosecowncillorsshould be able 10 uct inde-
pendenlly of ri less progressive aiid probably dissalisfied edc-
torate.' [Footriote (4.9):Full Report, chapter 17, para. 223.1
"Ail even iiioic ironic jiistification is given by the Department of
Uantu .4dministr;ition itself. In the 1956 handbook explaining
the Bantu Authorities Act, it is said: 'TheCouncillors wtll Perform
their task without /car or prejudice becausethey are not elected by the
ntajority uotes.'[Footnote (50): At p. 18. bly italics. Qiioted, what
is more, with approval by Dr. Eiselen in Optima. hlarcli 1959,p. 6!]
One has to read a passage like this several times to realize that it
was actually writlen aiid seriously nieant in thc mid-twentieth
century." '
The underscored reference, above, to the asserted desirability of
indcpenclence of the authorities from a "probably dissatisfied
electorate" is, in Applicants' submissioii. a reductio ud absurdum of
Respondent's policy of rejecting consultation with the "Native"
electorate, even in thc forni of the f~inchise.~
Consistently with it~ expressed inteiition to apply in South West
Africa the fruits of the "considerable progress" Respondent asserted-
ly has "made in South Africa in respect of political development"'
Respondent has, as noted above,' expressed approval of the "main
fcatiircs" of the argument aiid findings of the Odendaal Commission.
One of such main featurcs i:;denial to "Natives" of participation in
election of "one rnixcd central authorityfor the whole Territory."s
Respondent's failure and refusa1 to consult, in any meaningful
scnse, with the inhabitants of the Blandated Territory directly or
with leaders freely selected by theni, reflect its pre-deteriiiination
to pursue the policy of separate development. As Judge Schreiner
has pointed ont, so long as Respondent adheres to such a policy,
"consultation" would, in any evetit, be futile:
"You cannot by consultation reach a settlement between those
who refuse to accept a position in their owvncountry of permanent
1 Op. cilsupra, p. 282.footnote I,pp. 35-36, (Italics added andauthor's foot-
notes insertedin brackets.)
2 The scope and çignificaiice of tlie electians hcld with respect to thcareanskei
described in S.C.O.R., Spcc. Comnion Aporlheid at 75-78 (S!5621s:eAnnex 4, in-
Ira. P. 359.
II, p. 477. Kespondent refers çpecifically to its effort"sto prornote growth
fram the roots of the indigenaus Native institutions." (Ibid.)
' Supro, pp. 269-270, 313-314.
' Odcndani Commission R~port. p. 55, para.i84.324 SOUTH WEST AERICA
disadvantage and discrimination based solely on race, and those
who regard such acceptance as essential." '
It is this background against which must be evaluated such
assertions by Respondent as "the CO-operation of the Bantu,"
or the "request" in 1961 of the Transkei Territorial Authority to
Respondent "tms gant self-government to the Transkei," or
the persona1 meeting of Respondent's Prime Minister with the
Executive Council of the Transkei, and the Report of the Territorial
Authority, whic:h "contained a drnft constituti~n."~
Respondent's pre-determination to create "homelands," in
pursuaiice of its policy of "territorial apartheid"was mademanifest,
in explicit ternis, long prior to the events recounted above.3
Respondent's fixed deteriiiiiiatioii to exteiid to the Territory of
South West Africa the system of "territorial apartheid"is conceded
by Respondent in its Pleadings herein,' and confirmed by its en-
dorsement of the arguments and findings of the Odendaal Commis-
sion.=
Coiisistently ivith its practice of no-consultation in South Africa,
Respondent attaches so little significance to consultation with
the "Natives" iii the Territory,tliat the Memorandunrnowhererefers
to sacchconsultation as haviltg taken place prior to the veleaseof the
Commission'sReportorofits endorsentent,in princi$le, byRespondenl.
Similarly, no mention is made of consultation, either in the terms
of reference of rhe Commission,' or in the Report of the Commission
itself. The Conimission prefaces its far-reaching Recoinmcndations
for the territorial partition of the Mandate with the comment:
"In the (courseof the enquiry, the Commissionhas gained the
impression, supported by evidence, that various population groups
harbour strong feelings against other groups and would prefer to
1 South Africa-United or Diuided? 6(rgGd),
II. p479.
E.g.. the programme announced in ,950 by Dr. Eiselen (II. p. 465).\"hich
Respondent descrïbes as"foreshadowing" the "homelands" system (id., footnoteç
4 and 5); and the 'taternent in 1950of Respondent's Rime Minister (then blinister
af Native Affairs) quoted, id., p. 464
' II,p.410.
Memorandum, para.21 (W. p. 213): in announcing itsintention to defer final
decisions concerniiig the Commissiaii's recommendatiofor constituting''Home-
lands" in the Territory,Respondent also stated that it "is favourabdisposed
towards the trend of palicy embraced in the recommendations concorned." See
pp. 269-2703,13-3.14supro.
II. p. 476. REPLY OF ETHIOPIA AND LIBERIA 325
have their ownhomelandsand communitiesin whichthey wiilhave
and retain residential rights,olitical Sayand their own language,
to the exclusionof al1other groups." '
Apart from attributing recommendations for establishment of
"territorial apartheid" in the Mandate to a mere "impression," based
upon undisclosed "evidenco," the Con~missiondoes not refer to the
fact-which consultation with the inhabitants would have made
inescapably clear-that tlie inhabitants would "prefer" to "have
and retain residential rights" and "political say" in the White
area, which comprises more than 127,400 "non-Whites," as against
73,400 "Europeans."
Applicants have sought to show above that the "homelands"
system, or "territorial apartheid," projected for the Territory,z is
not, in any meaningful sense, based upon consultation with, or
consent of, the governed, whose well-being and social progress
form Respondent's sacred trust.
Such failure of consultation or consent achieves an even more
pointed significance in the light of Respondent's failure and refusal
to consult with the United Nations, or in any other mannerto
report to the international organ vested with supervisory authority
by the Mandate instrument. Even more, Respondent has rejected
the overwlielming consensur:of the United Nations mcmbership that
its policy of apartheid in general, including "territorial afiartheid,"
its most extreme forin of application, is unsonnd, inhumane and
incompatible with the obligations of the Mandate. Furthermore, by
refusing to transmit petitioris by the inhabitants, as required by the
Rules established pursuant to Article 22 of the Covenant and the
kIandate,j or permitting petitioners to leave the Territory to present
petitions, Respondent has sought to assure that the inhabitants of
the Territory could not consult with the United Nations, or vice
versa.
In addition tothe fundamental defect of the system of "territorial
aparllzeid," arisiiig from the fact that it isnot founded upon consent
of, or consultation with, th^governed, .4pplicants submit that the
system, as projected for tlie Territory, is neither politicaüy nor
economically viable.
The Court's attention is rsspectfully drawn to the analysis of the
Ode?zdaalConzrnission Report, contained in a Working Paper
prepared by the United Nations Secretariat.' Applicants do not
1 Odendool Commission Rcporl. 55, para. 187. (Italics added.)
IV, p. 198,and AnnexA thereto, p. zrg para. zr.
' Referred tosupra, p. 313.footnote 5:reproduced (inpainAnnex 2,p. 341,
infra. Seo, with respect to economiç viabilit~,42-50,at pp. 346-348infra.326 SOUTH WEST AFRICA
deem it necessary to encumher the pleadings with repetition of the
evidence and coiiclusions set forth therein, which Applicants incor-
porate by reference herein and adopt as their own evidence and
conclusions.
The Court's :attention is also drawn to an equaily balanced
analysis of the "homeland" system, as projected for the Territory,
by Philip Alason, Director, Race Relations Institute, London.'
In view of tlie essentially similar analysis and conclusions of
both these studies, emanating from two independent, expert and
objective sourceij,particularly when read in the light of the evidence
and conclusions set forth in the Mernorials and in this Reply,
Applicants believe that elaboration of further evidence or argument
would trespass upon the Court's time and patience.
It is respectfully submitted that, for ail the foregoing reasons,
the concliisionis inescapahle that the "Homelands" system, project-
ed for the Territory, is inconsistent with Respondent's obligations
nnder Article z, paragraph z, of the Mandate and that such system,
as tlie ultimate and extreme form of the policy of apavtheid is a
fortiori iiivalid inasmuch as the policy of apartheid is, in itself, a
violation of Article 2 of the Mandate.
' Text of article bAir. >faonis reproduced. for the convenience of thecourt
as Anncn I.p.328. infra.Annexesreprodzrcedhereinin szipport ofApplicants' Argu~izents in
tltis ChapterIV, Part B, Section3:
ANNEX r: "SEPARATE DEYELOPMENT AND SOUTH WEST
AFRICA: SOIIE ASPECTS OF THE ODENDAAL
REPORT," BY PHILIP MASOS . . . . . . .'. . 328
ANNEX 2: EXTRACT FR<)bl WORKING PAPER PREPARED BY
USITED NATIONS SECRETARIAT . . . . . . . . 347
. ,
ANNEX 3: EXTRACT FROhI REPORT OF THE UNITED NATIONS
SPECIAI. COM~IITTEE ON THE POLICIES OF "APART-
HEID" OF THII GOVERNUENT OF THE REPUBLIC OF
SOUTH AFRICA (1963) . . . . . . . . . . . . 349
ANNEX 4: EXTRACT FROM REPORT OF THE UNITED NATIONS
SPllClAL COMIIIïTEE ON TIIE POLICIES OF "APART-
HEID" OF THE: GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA (1964) . . . . . . . . . . . . 359 "SEPARATE DEVELOPMENT AND SOUTHWEST AFRICA:
SOhfE ASPECTS OF THE ODENDAAL REPORT"
reprinted from
RACE:,Vol. V, No. 4 (April 1964). pp. 83-97
... This article does not attempt to discuss the Odendaal Report as a
piece of planning nor does it venture to express an opinion on auy
point of internationallaw. It is a consideration, mainly from the point
of view of relationships between races, of the assumptions underlying
the report and ol where they are likely to lead. The method used is
political and hislorical comparison; the assumption underlying this
method is that,wliilethe situation in any nation or temtory at any given
past in other contextsehave produced certain results and niay in this
context produce rrimilar, though never identical, results.
The Report proceeds ou the basis that while the South African
Government does not concede that its administration of South West
Africa is now legally governed by the terms of the Mandate by which
the Territory was acquired (which in its view has lapsed) the adminis-
tration has been conducted in the spirit of the Mandate. The relevant
principles, which are contained in Article z of the Mandate, are:
Shat the Territory may be administered as though it were an integral
part of South ilfrica.
That the administration 'shall promote to the utmost the material
and moral well-being and the social progress of the inhabitants of
the Temtory.. . .'
The Territory has, it is true, been administered in some respects
been the same: experiments have been made inthe basiSouth Afnca andve
applied later to South West Africa if judged successful. The Report
recommends thal. there should be in most respects a closer Ilinking of
the two countrie:j and that the policy of separate development should
now be applied more thoroughly and vigorously than before. REPLY OP ETHIOPIA AND LIBERIA 329
... In the Republic of Soiith Afnca, it is argued with some cogency
that the White inhabitants have lived there for some centuries and
have nowhere else to go; they and their culture are threatened
witli extinction unless special measures are taken. They claim the
right of national survival. The National Party in South Africa
also speak on occasion of their trusteeship for the Bantu-speaking
peoples. The policy of separate development is intended to erisure the
national survival of the White group, more particularly the Afrilcaans-
speaking section of it; it is also argued that the policy will discharge
this dutv of trusteeshio. Uni: the two aims are auit.~d~ ~~n-~~ ~.d th~ ~ ~
argument that separaté development is necessary for national survival
has much less force in South West Africa. In the terms of the Mandate.
'inhabitants' must mean 'inliabitants in 1921'. The Wliites who were
there in 1921 numbered 19,714; by 1960 there were 73.464 Whites, a
more than threefold increase, wellin excess ofthe general rate of increase.
The proportion of Whites to the rest of the population in 1921 \vas I
to II (19,714 : 223.665); in 1960 it was I to 7$ (73.464 :526,004). This
higher rate of increase is due to White immigration into the Territory;
this lias no doubt increased the Territory's wealth, but the recency of
much of the immigration does considerably weaken (if it does not
destroy) in relation to the Trmtory what in the Republic is one of the
strongest arguments for separate development. In the Territory, in
terms of the Mandate, the emphasis must be on Trusteeship.
The Odendaal Report
Perhaps in recognition of this point, the Commissioners in their
Report argue on different lines from those commonly used in the Re-
public. They Say nothing of national survival and imply that Trustee-
ship is the only aim. The half-million population of the Temtory is
divided between twelve mairi ethnic groups, of which the largest, the
Ovambo, numbering 240,ooo, are more than 45 per cent of the whole.
A unitary state with adult suffrage would, Say the Commission, meaii
domination by the Ovambo, who are likely to mie with little consider-
ation for the minorities; therc mould be constant clashes which would
hamper the proper developmc:nt of each ethnic group. The smaller non-
White groups fear this. Further the non-White groups have 'very
limited experience of the alien and to them highly complicated economic
and political systems operating in the white area'. Domination by the
Ovambo would result in 'a lowering of the standards of administration
and government and would also hamper the K'hites, to whom the
Territorv mainlv owes its economic Dromess. to such an extent that the
develop;nent and progress of the ~ekitgr~ would be seriously retarded'.
The Commission is therefore of the opinion that 'one central authority.
with al1groups represented tliereon, must be ~ied out and that as far
as practicable a homeland must be created for each population group,
in which it alone would have residential, political and language rights,
to the exclusion of other population groiips, so that each group would
be able to develop towards self-detemination without any group
dominating or being dominated by another'.
Before further consideration of their political recommendations, it
is worth tuming to the section on economic and social development,
where the Commission explain their thinking at greater length. Thcy330 SOUTH WEST AFRICA
state that the welfare of a community is determined hy its productive
capacity and describe, in terms which would \vin wide acceptance, the
process of advance froina subsistence to a money economy. This involves
a complete socio--cultural transformation which is attended by serious
dangers. Where one population group still in the throes of this process
is in contact witti a group which passed through it some time ago, the
former will need not merelv . .tection but svecial advancement. Both
iiiiinot lx giveriri :<inttgrated iommuiiity~vcn in die most f;i\,our-
able circunistanççs, as in ttic Ciiited Statesis'auiiivr.rsalcliaraireristic
of man to identifil himself with the vovulation erou~ which has the same
gives preference to its own group membershe ha<... where differences are
fundamentaland so vrofound that thev cannot be wi~ed out. a ~olicv
ofintegration isnnre~listic....'If there'is to besocia& wellasécokom&
promess. a volicv ofdifferentiation must be followed.This makes possible
Loth ad;atÎcemé~itand protection.
This is good National Party doctrine and it has been said in the
Republic (and no doubt it is felt that this applies also to the Territory)
that differeiitiat.on without inferiority is as consistent with human
dignity as integration and far more likely to work.
These are the r-eneral considerations which lead the Commission to
recoiiiii~eiida11iiiirfx~e of ab50tper cent in theare& of the hoinclands
fur non-\\'tiite gr~upj. togcthcr \vitti propos;ilsfor mii,:ticlosrr intigr.itioii
of ttit! \vholc tcriitur! with the I<euublicnii<lfo:imore rwid volitical
and economic developinent of the 'homelands' on lines simi'lario those
of the Transkei. What is contemplated for Ovamboland, which would
chiefs and thirty-t\vo headmen would have seatsCouncilexioficio, together
with elected members not exceeding 40 per cent of the total. There
would also be an Executive Council. These bodies would gradually take
over from the Department of Bantu Administration and Development
al1functioiis except those of Defence, Foreign Affairs, Intemal Security
and Border Control, Posts, Water and Power. Dr. Verwoerd has spoken
of the Bantu areas within the Republic as 'independent bodies in the
first stage of development'. and ona number of occasions he has stressed
his intention thit the Bantu States should eventually have complete
political indeperidence which, he once added, would be coupled with
economic interdi:pendence, in a kind of Commonwealth. It is to he
presumed that tliis is envisaged for the homelands in South West Africa
too.
The development plans recommended by the Commission are ontside
the scope of this article, but to give a tme picture it is necessary to add
that the financial aid so far given by South Africa to South West Africa
five-year plan calls for a contribution of R.156 m. and the second seems.
likely to demancl R.91 m. This is generous if regarded as 'aid' given by
one State to another; it is of course a different matter if South West
Africa is regarded as a province of the Republic. Again, if South West
Afnca is regarded as a number of separate States, or homelands. it
would be necesr.ary before assessing the generosity of the aid to give
attention to the: distribution bétween them and particnlarly between
the White area :rnd the rest.
It remains to consider whether the general policy chosen is in the REPLY OF ETHIOPIA AND LIBERIA 33I
best interests of the inhabitants and whether it is likely to produce
harmonious relations. It cannot be discussed as though South \Vest
Afnca existed invaczro;wtiat is proposed is that the polit), of South
Africa should be extended to South West Africa. The circumstances
of the Republic and of the Territory are different and the arguments
for introduciug the policy in one are not the same as those for intro-
ducing it in the other, but the policy is the same and it must be con-
sidered in both contexts.
Separate Developmenlin the Repirblic
It is sometimes argued that the policy of the South African Govern-
ment is neither more nor less than ~artition and that uartition. thoueh
not perhaps an attractive aolution'to minority prob&ms, ma; in trie
last resnrt be the only esc.ipe from an intolerable situation and has
respectable precedents such as Eire and Ulster, India and Pakistan.
This argument is used by Sir Penderel Moon (whose experience and
attainments always entitle his views to respect) in his 1,Vorld Opinion
aiid Soirth Africa. 'It is difficult'. he writes, 'to see how anyone could
object in principle to such a policy if it is honestly and fairly carried
out', and he meiitions Ireland, India and Palestine.
But the policy of separatc devclopinent is really quite different from
partition as it took place iri thesc couiitries. In the case of India and
Pakistan, after inuch argument, it was agreed by each of the two main
parties-though very reluct:mtly by the Congress on behalf of Indin-
that whatever they would have liked, partition \vas inevitable. The
broad principles of the partition were agreed, the more reluctant party
this time being the Muslim League for Pakistan, who had claimed the
whole of any province in whii:h they had a bare majority. The agreements
were reached in the preserice of the former imperial power, at this
stage about to rclinquish responsihility; boundarics were settled by a
British judge on the basis of agreed criteria. The actual boundary was
disliked by Pakistan-but tliere was at every stage agreement to accept
an unpalatable solution. Broadly, this principle applies also to Ireland
and Palestine: discussion aiid agreement to submit to arbitration are
the first essentials of partition. 13utin South Africa there has been no
discussion. The solution is being imposed by one party.
If partition is to have ariy chance of success, it must not only be
acce~ted bv both ~arties ai the solution but also be based ou some
prinbiple of divisin; whiiti bot11regard as fair. (Thcyarc almost bound
to regard tlie applicnlion of the pnnciple :fiunfair. but it is possible to
aerec on ~riiicioles.l In So~irliAfricn. tlic division nt nresrnt nrooosed
içnot onli impÔsed'byone party but on any discemibléground ahears
unfair. In the first place, it is quantitatively unfair. The Bantu home-
lands at present provide 13 per cent of the land surface of the Republic
for three-quarters of the popiilation.' Secondly, the division proposed is
' This figureth.augh the best obtainablc, is nota true indication of the position:
the Imite 87 per cent contains a higher proportion of uncultivable desert nnd
mountain. while the Bantu ares areheavily eroded. The balance would besorne-
what redressed if Bechuanaland, Basutoland and Swazilanwere included with the
were excluded from both sides it cÿnriot I>eclaimed that the result would be any-
thing likean equit;~bledivision nren between White and non-White.332 SOUTH WEST AFRICA
qualitatively unfair. The Bantu homelands are off the main lines of
communication and badlv olaced for industrial deveiooment. The main
wealth of the country isih'e mining area of the and: which is White;
the uolicv denies 1.0the non-White the ov~ortunitv of advancement in
justthat-area where opportunity is likely-Cooccur..
There are two other possible criteria for division, the actual distri-
bution of population at a given moment or, more dubiously, a division
based on some historical principle. The îîrst is certainly not followed;
there are more non-Whites than there are Whites in the White areas
today.' On the hiijtorical principle, if the Bushman and Hottentot are
ignored, it can bi: argued that the ancestors of the Afrikaners were
established in sonie western parts of the Cape Province before there
were any substantial numhers of Bantu-speakers. But thiscannot be
said of the rest of the Cape, nor of Natal, the Orange Free State orthe
Transvaal. Nor does the principle seem a very sensible one; over the
greater part of the country, White and Black have been present for
several generations and snrely this is enough to confer rights on both.
The division ofthe population is much more one of class than of territory ;
it isa group of landowners and managers against a group of labourers.
The principle of partition has really been that certain areas where
for historical reasons the Bantu had remained relatively undisturbed
were set aside risa.reasin which they would be protected; the remainder
of the coiintry is jiidged to be White because it has been developed under
White managcmerit. though mainly with African labour. The implication
that political conf.rolshould belong exclusively to the group which has
supplied capital, ski11and management for development clearly does
not command general acceptance in the world today.
There is thus no agreement that there shall be partition and the
partition proposed cannot be regarded as fair. Rut there is another
and more important reaçon than either of these for regarding separate
development as quite different from partition in the cases quoted.
India and Pakistaii, Ulster and Eire, face each other as equals; a citizen
of one when in the:other is in a position similar to that of an Englishman
in France. The Bantu homclaiids have not of course yet reached the
projected stage of independence, but it does not appear to be con-
templated that a similar equality should ever nrise. The large numbers
of Bantu-speakers in the White nreas, even though bom there, even
though they have no dwelling place in the homelands, are to be regarded
as citizens of the tribal homeland. It is not merely that they have no
vote in the White area but that they may not stay there unless they
have employmenl: or a pass to seek work and that they are subject to
continual humiliation of a kind that would be regarded as quite intoler-
able between the citizens of sovereign States.
The citizens of Eire do iiot find when they visit Ulster that the public
lavatories and park benches are forbidden them. They are not com-
pelled by law to live in segregated areas and when in certain kinds of
employment forced to live away from their families. They are not
forbidden to return to their place of employment if they absent them-
selves for a few days. But in the \nite parts of South Africa, this,
' The lntest censush~iircqshow the Rkk urbnn ~>opiilÿtion ha, actually in-
rnuderii industris>iirt). .iuncnsy 1,erlfi~llow~(m .epnratcde\,eloprnrnt and REPLY OF ETHIOPIA AND LlBERlA
333
and much more, is the case for persons \vho are of African race even
though they have no other home. They can never be naturalised. They
have no right to combine and to refuse their labour. They are subject
to a host of vexatious regulations and to imprisonment if any of tliese
are infringed.' Further, the Bantu Affairs Amendment Bill, if passcd;
as seems likely, will intensify these conditions, with the object of in-
ducing more Bantu-speakers to go to the homelands. This is not the
way that subjects of independent Statesare treated. It is the treatmeiit
of a subject people.
this aspect of tlie question in detail) that the treatnient of Asians and
Coloured does not ht into the pattern proposed for tlie Bantu-speakers,
because there are iio homelands siiggestcd for tlieni. 1t does not appeiir
that tliey are to liave ail:? prospect of self-developinent as scpiiriitc
iiations. They are to have some rights ofself-goveriimciiton the inunicipal
level, witli an a<lvisorycouricil on the national level.
Account must also be taken of certain laws and peiialties of a more
serious nature. The tieneral Law Amendment Acts (So. 76 of 1962
and So. 37 of 1963) amend a iiurnber of existing Acts and are designed
to provide stringent pcnaltit:~ for subversive acts aiii-1also to ovcrcome
the difficulties encouniered by tlie executive in obtaiiiing couvictioiis
in the Courts. l'o deal witli thein at leiigtli would be out of place Iiïre
but anyone who wishesto form a true opinion of the relationship betweeri
the Government and the majority of the people in South Africa shoiild
pay attention to these Acts and irlso the Bantu Laws Amendment Bill.
The 1963 .4ct provide4 (to give three examples) that the Aliiiister of
Justice may, if lie is satisfied that the person conccrned is likely to
advocate any of the objeci:~ of Communism, indcfinitely prohibit a
person who has completed a prison sentence frotii leaving prisoii. A
person who obtaiiis from outside tlie Republic any iiiformatioii wliicli
'coiild be of use in furthering the nchievement of any of the objects of
Cominunism' and who fails to prove beyond a reasoiiable doubt that lie
did not obtain such information for such a purposc, may be sentenced
to death. A commissioned ~olice officer mav without warrant arrest a
person who in his opinionLis in possession~of iiiformation rclating to
certain offences (such as furthering the aims of Cominunism) and detain
hiin in custody for interrogation-for ninety days. No one may have
access to such a person witliout permission of the Police or Minister;
no Court may order the release of such a person; on release, such a
person rnay immediately hi: re-arrested and detained for a further
ninety days.
It should be remembered tliat in South Africa'Communism' ha been
defined by law and the definition is drafted extremely widely. Tt speci-
hcally includes any doctrine or scheme '. . .(b) which aims at hringing
about any political, itidustrial, social or economic change within the
Union by unlawful acts or omissions or hy means which include the
promotion of such acts or omissions .. .'or '.. .(d) which aims at the
encouragement of feelings of hostility between the European and non-
European races of the Union the consequences of which are calculated
' There were 3Rq.497 coiivictioin igGzunderthe t'assL,iwsandinflux control
regulations.334 SOUTH WEST AFRICA
to further the achievement of any object referred to in (a) or (b).' 011
this Mr. Gerald Gardiner has commented:
If the Governnient passes a law which discriminates against non-
Eurooeans. and therefore causesa feelins ofhostiIitv between Eurooeans
and iiori-Europcaiii, tliat ii iiot 'comnii~iiim'. biit.il nnybody protejts
ag;iiiiit t1iatI:L\Ianiaiini:r \r.lii~li~~u~~sdisorJ~rtlinr is 'coiiiiiiunisni'.
-
It seems beyoiiii doubt tliat it would be 'Comrnunisin' to advocate
a general strike in faveur of adult suffrage; it is liard to say wliat might
be judged to be information whiçli 'could be of use in furthering the
achievement of the objects of Communism' and thus attract the death
penalty if obtained from ontside the Republic.
Every Government has a dnty to govem and to maintain order and
it may be necessxry to use force to this end, or even temporarily to
impose regulations and restrictions which are the negation of law as
it is ordinarily understood, and iii certain respects abolish pcrsoiial
freedom. But to fall back on such legislation indicates that something
is seriously wroiig, and a Government in any way responsible, or even
responsive, to public opinion will try to put it right. If such legislation is
steadil, i~ ~ ~ ~ ~ ~ over a iiumber ~ ~ ~ars, it .urelv indicates that
sorn~:thing ijr;.clicallyivruiigin the r~.lstionsliipbet\r.r.cntlic Govcriiiiient
:iii<n larw sçction of tl~er. .i)lcand iiitlic&.olic\'irliicti the Go\.crriiiienr
wishes to-follow.
To sum up wliat 11%beeii said, the policy of separate dcvelopment
as advocated in South Africa cannot reasonably be compared with
the partitions carried out in India and Ireland. To hold out any Iiope of
success, partition must bc accepted by both partics as the best solution
remaining to them and they must agree on certain broad principles
governin the division of territory and resources.' Furtlier, alter partition,
the two %tates will expect equril and reciprocal rights in each otlicr's
territories. The division of resources proposed uiiilaterally by the Soutli
African Goïcrnrn<:ntcould hardly be regardcd as fair by any third part).,
tlie rights proposed arc not reciprocal, and the necessity for repressive
laurs niakes it cleîr that the policy is not acceptable to the majority.
In the light eyen of this brief examination the arguments used by
Dr., Verwoerd in defence of his policy seem singularly unrealistic. Of
various utterances, perhaps the most complete explanation of the
doctrine is contaitied in his speech to the House of Assembly (reportcd in
Reports of South African Parliainentary Debates, House of Assembly,
19 June to 26 June 1962. columns 69 to 72). Hc said that separate
development
could offer an opportunity of developing equalities amongst the
groups. It could satisfy tlie desire for the recognition of human dignity.
Because just as it is possible for us to live with the Black States on a
basis of equality as separate States, to negotiate with each other and
to help each other when necessary, so it would also be possible here if
separzttion could be put into effect.
Does it seem possible that such happy relations could ever exist
must be worked out in South Africa. But to avoid the charge of being purelycle. They
nefiatire. it may btsuggested that they might fairly includea \\'hite homeland
and that certain industrial areas would be non-racial. REPLY OF ETHIOPIA AND LIBERIA
335
when the immigrants from the homelands are forced to live in such
conditions as those at whicli we have glanced? Contrast this with a
Territorial Assembly: 'While we delay, our young men in the urban
areas are being shot for denianding freedom now.'
Dr. \'erwoerd continues:
The creation of states has brought with it contentment, iiot only
iii the present age but riglit througlioiit history. In what way lias
satisfaction been given in Africa, notably in our time? Africa kas been
given satisfaction through the creation of states, and where there is
conflict that is as a result of the fact tliat these new states are not
states which embrace entities,
and he went on:
It is as unlikely tliot it will be possible to hold together the Whites
and the Bantu in peace and freeof strife iiioiie multi-racial unit as it is
to do soin the case of Black nations in other parts of Africa orasit isto
throw together Xhosa, Basuto and Zulu without conflict into one
communal eutity. They too are just as proud of their own national
identity as we as Whites are of Ournational identity. .. .
Xot only, he argues, is it impossible for Black and White to live
together but Africans of different tribal origins cannot live togetlier
either. There are of course difficulties about tribal groups which may not
disappear for generations. Yut can it ret~llybe thought that it would
solve the ~roblems of Africa if Kenva had been divided into twentv-tlircc
States. or;e for ca<.liof tlie iii:i]or l;iiigii.igcsl H:lrdly oricof thcii; !voul:l
Iiiivc bvcn witlioiit eiliriic iiiiiioriticï. Siger13on this ~>ri~icij~iInei~lit Le
divided into inure tli;in;iIitiiidrc~lIiiiciiiitiç croiiipsancl tlierv ir.oul(litill
be minorities within thcm. Can it rGlly beutho;ght that pandcriiig ti
tribal parochialism would make for peace or happiness, let alone the
development of any civilisation or artistic achievement? Surely one has
only to consider these statemcnts in the liglit of a wider frnmcwork of
facts to see that the arguincni: for White separation, which is based oii
the need for White national survival, is being applied tothe other people
of Africa, partly to satisfy a logical principle and partly to perpetuate
\\'hite hegemony when White supremacy has to go.
The White inhabitants of Soutli Africa are a vigoroiis, courageous
and intelligent group who have established a culture and a way of
life which so far have dependeii on the labour of a less developed group.
This they perceive cannot continue indefinitely in its present form.
Since they have rejected the slow, painful road of integration-and it is
to thein is partition, but pcirtition has no chance of providing a solution
unless they are prepared to negotiate a far more equable division of
resources.
Separale Bevelopmentin the Territory
The case of South West Africa is somewhat different. Here, when the
Mandate began, less than zo,ooo Whites were present and, of these,
few over twenty-one can have heen born in the territory. As yet, they
hardly amounted to a vested iriterest. It would show a lack of historical
understanding however to blame the Governnient of South Africa at
that time for failing to perceive how rapidly \vorld opinion and African336 SOUTH WEST AFRICA
aspirations would develop. This \vas the ueriod when Soutliern Rhodesia
bciaiiic a self.gu\, riiing culuiiy; no siibst~iiitialI~udyul opinioii prutcsted
I~ecdusçtlic clectoriite \vas almojt ciitir~ly \\:liirc. It \vas believcd rhar
woÜld dependritsonf developmentcsrby\fEuropeans, and European farmersrirories.
were eiicouraged to come into the Territory. In 1962, there were some
j,jûo White farins. in area 39,Soo,ooo hectares-a considerable vested
interest-aiid, as in Kenya, theycontribute substantially to the economy
of the Territory. The area of the homelands at present is 21,607,745
hectares, aiid it is proposed that they should be increased to 32,609,364
hectares. This wc.uldinvolve the transfer to thcni ofsomc \\'hite farms, iii
area 3,406,181hectares, making the total area of White fürins 36,394,000
hectares. The homelaiids would thus still be stnaller tlian the White
farms. The total area of the territory is 318,261 square miles. The
propu~cil lioiiiclan<Ji:irc appru~iiii:iteÏy izU.uuo sqii:irr: mil<.;. Ic;i\.iiig
in rlic \Vtiitr (or poli~c):ire;i about iy2.000 squ;irc iiiil~s.wliicl~in~liides
gamc rcscrv<:.<:LIICtIwtij a; !vclitjttic \Vhitc ftirni~.'l'hcdi\,i3ion uf ihc
rand proposed then is five-eighths for less than one-seventh of the
population. The result. alter an acceptaiice of these recommendations,
would be division of the laiid in a proportion about as advatitageous to
non-\Vhites as that under the Land Apportionment Act in Southerii
Rhodesia, which is now under criticism from varioiis quarters.
But tliis is iiot the whole story. The homelands, as iii South Africa,
are excised from the whole; the balance is the White arca. The divisioii
is to be not inerely a matter of ownership, iior inerely a inatter of the
right to vote. The citizens of the homelaiids, if they fiiid it necessary
to earn their living in the \Vhite area, are governed by laws similar to
those iii South fifrica. The Afriwn who cornes to the \Vhite area must
carry a permit to work or a contract of service, or a special permit to be
in the area, and failure to produce any of these is a criminal offeiice.
Ail Africnii caiinot leave liis liomelanclwithout a pass iior buy a railwüy
ticket in the White zone without a special permit; if he has been recruited
in one of the liomelands for work in the police zone, he is virtually tied
to his place of employment. Africans from the homelands temporarily
emploved in the White zone are variouslv estimated at from 27,000 to
40,000. and altogether some 160,000 live'there-about one-third of the
non-White population.
It would bc quite wrong to suggest tliat the prohlem of dealing
with a more developed and a less developed population within the
same nation-stùie is anywhere easy. India is finding the Nagas a problem
and the United States have not found a wholly satisfactory answer
for their Amerindians, let alone the Xegroes. Uoth these count-es
have the great advantage tliat the less advanced groups are ininorities
and thus that il any assimilation takes place it is likely to be the more
advanced culture that prevails. South Africa's problems are far more
intractable.
The 0dendri;d Commission has rightly pointed out that in such
circumstances !:lie less developed culture needs both protection and
development. It is not casy to strike a right balance between them.
Protection involves sealing off tribal areas in order to prevent outsiders
from acquiring land or lending money there. Development means
bringing the backward people into the money economy and sooner or
later involves some degree of assimilation. If the protecting power or REPLY OF ETHIOPlA AND LIBERIA 337
niore ad\,aiised culture tries to de\,çlup :ind auimilate too qiiickly. inuch
iiiiscry willcertainly be catisa:d--but protection \vithout dci,clopriient can
look ver' like iieglect. IIICnited .itatc:s1)ulicytuivards tlieir :\meriridi;iiis.
inojt observers \i,ould say iii~t (oncc tli~.jieriod of fronticr wars \vas
ove[) emphuis wu at iirjt inu~li too hcavily 011 .15~iriiili(tiunand thnt
it latcr s\i,iiiig tiiick tu escesiive aiid r.ittiçr ncg<itiveprotection. 111di:i
a[ the iiio~iirritis probhly tryiiig (or Ii:is l>rt:tr!.ingj ro devclop .ilid
a.isiiiiil:itc t.\';imsrratlitr too fast. But \vtiatcver mistakes of cmuhlsis
are being made or have bei:n made, in both countries the phil&ophy
is one of trusteeship. 80th countries protect tribal land against purchase
by outsiders but permit and indeed encourage tribesnien to leave tribal
areas and compete in the money economy with other citizens on equal
terms. Protected at home, tlie tribesman is at no disadvantage wlien lie
leaves home.
South Alrici Ii:istivu:iiinj ivliicliarc uîii~ll).,:uiiii~sç<lt.ticttof triistceship
and also tha~ of iiiitiunal survi~al for th,: \\'liitt,. XIIJmore s~~ciiiciillv
the Afrikaner, group. There is much less excuse for confusing these two
aims in South West Africa, where national survival is not involved.
Here the araument for eivine the \Vhites soecial treatment is that thev
ni;ikc a jpeciai coiitrii,utii>iittli~cionoiii)'. Asa tr;iii.;itiiiii;ililirasur<:
tliis is:tsoiind argiimcnt, hiit itcal1Iihrdly lustify giving tlit \\'hites a
~ri\~ilcccili>o,itioiivcrm:ineni)\~.Triie triiitteiliii~ uould ini~oli,errs-nine
'the n&-\jhite peoples to inake a bigger contribution to the money
economy and the removal 'with al1deliberatespeed' of racial distinctioiis
in the police or White area. Politicaiiy it would surely mean a steady
preparation of the noii-White groups for a share, perhaps, in a federal
system, certainly in one in which al1 the groups could play a part. It
is either disingenuous or naïve to claim that 'one man, one vote' would
mean domination of other groups by the Ovambo and iiistead to re-
commend a svstem wherebv domination is in fact vreserved Liv the
much sinaller White group. About three-eighths of tliécountry is'to be
excised to make hoiiielands for the non-Whites, while the rest is left
for a White group, iiot one-seveiith of the whole, who in this area linve
linguistic,political and soci;rl rights, just as a Bantii group will have
iii one of the 13arituhomelan~is.in spite of the fact that even in tliis area
they are outnumbei;ed by more than two ta one. To this area members
areostrictly limited, the whok:Territory, police area and homelands alike,
being in fact ruled by the White Govemment of South Africa-until
the day when it is split into eleven self-governing fragments.' This is
surely White domination and it is not easy to see how the Ovambo
could really improve on the General Laws Amendment Act as an instru-
ment for perpetuating their rule.
South Africans often ask in genuine bewildennent why it is they
who arouse such hostility in the world. Other people, they Say. are
struggling to preserve their national identity as we are: we are not
the only Nationalists, wveare not the only people doubtful of the wisdom
of adult suffrage. But it is we who are the targets for obloquy. Why are
we so much wone?
' There is noseparatehomeland for the Coloured group338 SOUTH WEST AFRICA
The ansver to these questions is really to be found in the tact that
they are asked, that the questioner is unconscious of the offensiveness
to inuch of the world of the policy of separate developineiit. As has been
pointed out, this 1s not simply a policy of partition; it is not simply a
question of natioiial survival. What is proposed is that in the White
area, whicli is miich the greater part of the country and the area of
chief opportuiiity, the two principal races should contiiiue to exist but
that in that area the White race. although eveii there a minoritv. should
IIÇhy Ia\r pcrmxnt:ntly sul,~riur;iiid the utlicr p~~riiidiiriitlyiiilcrior-;iiicl
tlint cvery iiidividual bcloiixiii~:to tlic lattcr sliuuld Iic rcmiridc01 rlic
inferiority by constant lium?liaiion.
It iç worth considering a legal opinion given in circumstances very
different from South Africa's but in principle relevant. As everyone
who has given aiiy thought to relations betwcen races is aware, on
17 May rgj4 Chii:f Justice Warren on behalf of a unaiiimous United
States Supreine Court Iield tliat
To separate [Xegro cliildren] fromothers of siinilar age and qualifi-
cations solelv bccause of their race eeiierates a feeling of inferioritv as
to theirstat;s irithe community thG may affect theirliearts and ininds
in a way un1ikel.yever to he undone ... \Ve conclude that in the field
of public cducai:ion the doctrine of 'separate but cqiial' lias no place.
Separate ediica1:ionalfacilities are inherently unequal.
This decisioiiwas not based on precedent; iiideed, it sought to establisli
a change of wliat \vas cnstomary. It is an iiiterpretation of the spirit
of the American Constitution (in which the concept of natural law plays
an important part) aiid in particular of the I'ourteenth Amendment
which esteiids the equal protection of the law to all. It explicitly takes
into account a developing social situation. '\Ve caiinot turn the clock
back to 1868 when the [l'ourteenth] Amendment \vas adopted,' wrote
the Court, 'or even to 1896.when the Plessy v. Iiergiison [the "separate
but equal"] nilin{: w,u written. We must consider piihlic education in
the light of its full development and its present place in American life.'
Essential to the reasoning are two propositions: first, that education
is sometliine"iiot onlv eminentlv desirable but essential to the full
d~r\~t.lopiii,:tf prr;oiiilit!. and t'ticrcfurcn rifilit \vt!iclt 'nI>esiii:t<Ii.
availnhlc to a11oii cqual ternis' aii~l,s~contlly.tlint itsfiill Ii<:tcpriidî
on a feeling of self-ionrid~iic~ \\.lii<nill iint he acliic\,crifscgri.gntioii
is <:nfurccd.It i; ;irgiir~ltli;it tlic pr>licyof scgrtyy,tioii iflisi11:illy1nrL.r-
pretcd as denotiii(: that th,! scgrcgatïd gruup is iiifcriur.
'l'lieiecons~derations surel\, nuul\,\iirlcoiisiiler~hle force tu scini~itc
development, if it iç consiiieréb in a \vider framework, outsiàe the
national laws of South Africa. Whatever may have been the case sisty
years ago, today the peoples of Africa mant desperately something not
easy to define, nor very clearly visualised, but essential to self-respect.
It is not simply economic progress, though of course they do want that
provided it is coinpatible with self-respect. It is not simply town-life
nor education, though one of these is part of it and the other a means
towards it. They want to catch up with the rest of the world, to belong
to a group whicli haç some Say in the affairs of the world, a group of
which they feel tliey are really a part. Seveiity years ago they wanted
nothing better tlian to be left alone to grow pumpkins and weave baskets. REPLY CIEETHIOPIA AND LIBERIA
339
Today that is not enough.
This is of course a form of nationalism, and it is part of tlie doctrine
of separate developmeiit that the Bantu-speaking peoples are as much
entitled to nationalism as the Afrikaners. But nationalism surely ineans
more thaii being allowed to s,peakone's own language. It means belongiiig
to a group big enough to exercise sovereignty and to be represented
abroad. The Okavango are a group of less tlian 30,000; the Herero are
less tliaii40,000; the Damara less than jo,ooo; eveii the Ovambo are
only a quarter of a million. To split up half a million people into twelve
groups and encourage them in separatism is in the long run the surest
way to bar them from the self-realisation that they seek.
This would be so even if they were to be genuine States on an equal
footing with the White section. It is eveii more clearly a denial of what
they seek if they are kept at arm's length in remote parts of the country
and only admitted to the ai-ea of progress under a cloud of humiliating
restrictions.
Tliere is a final uoint to hc:made about these restrictions. White South
African ar~umenis are based on the different staces of develo-me~- ~~ ~-~r~~~~~~~
reached bfvarious groups iofpeople. It is undisputed fact tliat groups
have developed at different riaces in respect of the control of eiivironmerit
(althougli understanding oc other aspects of life has not always grown
rit the çame pace). But the aspect of South African thouglit which is
widelv auestioned elsewhere is the assumvtioii that an individual is
".
as a matter of choice, People may prefer to m'ixsocially with those of
their owri group, but to Say that by law people of one group must mix
ivitli no others can really orily proceed froni a conviction not only that
the other groups are inferior but that every member of each of the
other groups is permanently and irremediably inferior. It is this that
ranl<les. 'Separate but equrrl' is possible so long as it is a matter of
choice by botli parties; legally imposed by one, it must be regarded
by the otlier as a hurnilation, and Par more so if it applies iiot only to
the group as a whole but to individu al^. In fact, of course, what separate
development has meant has been anything but equal.
These are some reasons why it will be hard to find natives of Africa
wlio believe that to extend the policy of separate developnient to South
West Africa even more completely than at present is in the interest of
any but the White inhabitarits.
Referenc~s
The literature of separate devi:lopment is considerable.The most up-to-date and
authoritative expositions ofthe doctrine areto he found in:
Dr. Verwoerd's speech to tlieHouse of Assembly on 23 January 19Gz
Dr. Verwoerd's address to Ihe South Africa Club, London, April 1962
hlr. de \VetNel'sspeech to ,.:lHouse of Assembly 12 June 1961
Earlier statementç of the doctrine in slightly different forms are:
S.A.B.R.A. (South African Bureau of Racial Affairs): Integrnfiolor Separaie
Deuelopnrenf? Stellenbosch 1952
Gorbler, J. H.: SoufitAfrica'r Desliny, 1958
hlanifesto of National Party, 1947.
Other refcrences are to: Brown v. Roard of Education of Topeka: 347 US 483, 98
L ed 873. 74 SCt 686340 SOUTH WEST AERICA
S.A. General Law Amendment Act, No. 37 of 1963
S.A. Gsneral Law Amendment Act, No. 76 of 1962
S.A. Bantu Laws Amendment Bill
South Africa and the Rule O/ Law: International Commission of Jurists, Geneva,
1960
D. V. Cowen: The Faundntiorzsof Freedom, London, O.U.P., 1961
Iidgar Brookes: Ciuil Liberty in SorrthAfrica. London, O.U.P.. 1961
S.A.I.R.R. (South African Institute of Race Relations): Annual Surueys, Johan-
nesburg, 1962. 1,163.
Report of the Co>mnission ofEnquiry inIo South West A/vica>r Affairs 1962-3.
(the Odendaal Report), Pretoria. Government k'rinter. R.P. No. 12 of 1964. ANNEX z
EXTRACT FROM LVORKING1'AAPERPREPARED BY THE
UNITED NATIONS SECRETARIAT
(U.N. Document AIAC. rog/L. 108; 8 April 1964.)'
Recommendations fotrhePartitioningofSouthWestAfrica
18. The Odendaal Commission has recommended the partitioning of
South West Africa into ten separate "homelands" for Kon-Europeans
covering an aggregate area of 32,629,394 of the Territory's 8z.386.000
hectares, a Coloured rural irrigation settlement of 92.421 hectares, and
a "White area". The proposed "White area" is not clearly defined to
comprise the balance of the Territory. The Commission proposed that it
consist of surveyed farms, the urban areas and those portions of two
game reserves not included in the "homelands". Such a definition of
the "White area" would ir~clude Walvis Bay and exclude the two
large diamond areas on the southwestern coast of the Territory, other
than the urban areas then:in, and also exclude areas of unsurveyed
government lands. It also proposed that administrative and legislative
authority over al1mines and lands, delegated to the territorial Legislative
Assembly in 1949. rerert exclusively to South Africa.
19. The ten propoxd Non-European "homelands" and one "White
area" are asfollows:
(a) Ovamboland, for the Ovambo peoples, numbering 239,363,
A total of 230,559 (96.32 per cent), including 27,771 Ovambo tem-
porarily employed in the "White area", live in the existing Ovambo-
land Native Reserve; the remaining 8,804 Ovambos are settled in
urhan areas within the "White area".
(b) Okavangoland, forthe 27,871 Okavango peoples. A total of 27,702
(99.40 per cent), including about 850 employed temporarily in the
Police Zone, live in the existing Okavango Native Reserve.
(c) The Kaokoveld, forthe 9,234Kaokovelders, wholive inthe existing
Kaokoveld Native Reserve.
(d) Eastern Caprivi, for the 15.840 East Caprivians, who live in the
existing Eastern Caprivi Zipfel Native Reserve.
(e) Damaraland, for the 44,353 Damaras, 2,400 of whom live in
Native reserves to he in<:luded in Damaraland, 1,224 live in other
Native reserves, and 38,329 live in "White" urban and rural areas.
(f) Hereroland, for 35.35.1 Hereros. of whom 9.017 live in Native
reserves to be included iri Hereroland, 6,436 live in other reserves,
and 19,901 live in "White" urban and rural areas.
(g) Namaland, for 34.806Namas, ofwhom 2,292live in Native reserves
' [Footnotes renumbered.]
' \\'\'alvis Bay, territoaipart of the Cape Province of South Africa, is
administered as an integral part of South \\'est Africa. The Odendaal Commission
Report included a footnote stating that the \Valvis Bay area wascinitially
estimated at 374 squaremiles, was "re-estimated1962 at 434 square miles.
Population figurarefor~gijo.342 SOUTH WEST AFRICA
to be included in Namaland, 2,009 live in other reserves and 30,505
live in "Wliite" areas, 8,998 of them in "White" urban areas.
(h) Kehoboth Ciebiet, for the 11,257 Basters, a Coloured group, of
whom 8,893 live in the Gebiet, 2,026 live in "White" urbaii areas and
the balance livc in Native reserves and "White" rural areas.
(i) Uushmanland. for the 11,762 Bushmen, of whom 9.484 live in the
"White" urban and rural areas or in Xative reserves in the southern
section and 2,278, described as nomadic, live mainly in the north-
eastern part of South West Africa.
(j) Tswanaland, for the Tswaiia population of 2,632, of whom 437 live
in a Native reserve to be abolished and the balance live maiiily in
"White" urban and rural areas; the area to be set aside as a Tswana
"homeland" was promised by the Government to the Herero people
as a future addition to the Aminuis Native Reserve which is iiow
recommended for abolition.
(k) "Wliite are:^"whose proposed administration was referred to as
the "South West Africa Administration", for the 73,464 Europeans.
of whorn 53,68(?(73 per cent) live in urban areas and 19.426 (27 per
cent) live in rural areas of the Police Zone, and 358,mainly missionaries
and officials art: stationed in the northern Native reserves.
20. Of the totill 1960 population of 526,004, a majority (286,4Sj)
lived in the nortliern Native reserves of the Kaokoveld, Ovainboland,
Okavango and Eistern Caprivi Zipfel Native Keserves on the nortliern
boundary of tlie 1:erritory. Of the total northern population, IO per cent
were recruitcd as migrant labourers under one to two and a hall year
contracts for work on the mines, European farms, industries and for
domestic service in the soutliern section of the Territory. The population
of Ovamboland accounts for 45 per cent of tlie total populatioii of South
West ..\frica. It .,vas proposed that the areas of three of the existing
northern reservea be altered, the size of Ovambolaiid and Okavango
increased. and the area of the I<aokoveld reduced.
21. In tlie sout:liern section of the Territory, most of the population,
both European and Non-Europcan, now live in the proposed "White
area". A total of 13,709Damaras, Hereros and Namas and 8,893 Basters
are settled in Na.tive reserves and the Kehoboth Gebiet wliich will be
included in their respective "homelands"; this total represents less than
IO per cent of the Non-European population permanently settled in the
southern section of the Territory. The Odendaal Commissionrecommend-
ed that twelve of eighteen existing Xative reserves in the soiithern areas
of the Territory, and the Rehoboth Gebiet, be included in "homelands"
which are to be extended and consolidated by the addition of European
farmland. Goveriiment land and eame reçerve l~ ~ ~Six of the existina -
"l>erinnneiit" Sati\.c resen.?; nre Fcconiriiended furdii,uliition: :\minuis.
HonJcl:,\inrts St:uliof, Otjinihiiipve, Ovitoto and \Vnriiih~d Tlic report
of ~IICOtlcntl~nl Coniinii~io~i en~.i~:ures ~~~-tr:iiisicruf r~~i~lcnrsof :il1
Native reservcs to their respective "homelands"; the transfer of non-
Baster groups from Rehoboth to their "homelands"; and the transfer
of Namas and ?:asters in "White" urban areas to their "homelands".
A total of 32,906 Non-Europeans would accordingly be moved to their
respective "homelands", 20,882 of them from existing Native reserves
or the Rehohoth. Gebiet, and 11,024 from "\VhiteWurban areas. Some
1.000 E:uropeanc would also be expccted to move from the Rehohoth REPLY OF ETHIOPIA AND LIBERIA
343
Gebiet, as had already been decided before the appointment of the
Odendaal Commission. Approximately 1,000 to 1,500 Europeitns would
have to vacate Europeaii farm areas which would be included in the
proposed Non-European "homelands". From 4,000 to 6,000 Non-Euro-
.pean employees on these farms would also have to be moved to their
"homelands".
22. The Commission did tiot propose that Non-Europeans, other than
11,024Namas and Basters, be resettled from the "White" areas to their
"homelands". Some relocation of Non-Europeans withiii the "White"
area were, however, proposed, involving the transfer of 2,500 or more
Coloureds to three urban centres in the "White area", and the transfer
of some 6,000 Natives in the Windhoek area from the old Native location
to a new Native location (Katutura).
2.3. 011rlic bnsi: of 19Gu~~opiilationst:itistici niid rlier~~oiiini~~i<l;rtiuiii
oi the O<lciidnnlCoii.iriis,ion. tlic vrouo~ecl"\i'liitc ar~a" iv~ultliiiitiitllv
have a de facto populatiori of j3,Îo6 Europeans and 116,383 Non-
Europeans, as well as an additional 28,621 Non-European migrant
labourers recruited from the "homelands" on the northern border of the
Territory. A majority of thi: Non-Europeans in the soutliern portion of
the Territory would thus live in the "\Vhite" area rather than in their
"homelands". UnlesscontinuedEuropean immigration alters the position,
Non-Europeans would also continue to form the majority of the popu-
lation inthe "tl'hite" area. Iiithis respect, it may be iioted, only Euro-
peans are permitted to enter the Territory from South Africa without
permit, and the Commission rccommended that further Coloured im-
migration from South Africcrbe curtailed due to unemployment among
Coloureds in South West Africa.
24. The existence or future disposition of Hoachanas, referred to in
oficial sources both as a "temporary" Native reserve and as "govern-
ment land", is not mentioneii in the report of the Odendaal Commission.
The planned removal of the Rooinasie Nama inhabitants of Hoachanas
to Itsa\visis, one of the European farm areas to be included in the
proposed Namaland, has not previously been carried out, due, iltler alia,
to the kick of~otable water at Itsawisis. It mav be no~ ~~~ ~t the Generai
:\ssembly I>!;rcsoliitiun 1357 (SI\' of 17 Sov<:mbcr r9j5. iirgedtliç
Go~crnn~~i~ of 501itItr\fric;i ru Jt,sist from ttic pliiiiiicd re~iio\,:iI.
Governmcnt
25. The Commission recommended that only the proposed White
area be adininistered by an Administrator, Executive Committee and
Legislative Assembly. the latter to consist, as at present, of eighteen
Europeans elected by the European voters of the Territory. Under the
proposals, these govemment bodies would have greatly reduced powers.
26. At present the Administrator, Executive Committee and Legisla-
tive Assembly of South West Africa exercise authority over al1matters
except defence, police, foreign affairs, Native affairs (excluding, iqzter
alia ,ealth, education and :igriculture for Natives), transport, interior,
information, immigration, customs aiid excise, audit and the custody of
enemy property, al1of which are administered as integrated services by
the Government of South Airica. The Commission proposed that South
Africa also take over the followingadditionai branches ofthe Soiith West344 SOUTH WEST AFRICA
Africa Administra.tion with respect to al1 population groups: justice,
prisons, mines, ca'mmerce,industries and labour, land, the Land and
Agricultural Bank of South West Africa, agriculture. Meat Trade
Control Uoard, water affairs, deeds, Surveyor-General, posts and tele-
graphs, social welfare, archives and the State Museum. The South.
African Government would also take over from the local Administration
andthe territorial Legislative Assembly the following: Coloured Affairs,
al1 education for :Von-Europeans, health for Non-Europeans outside of
the "White area", and roads and works outside of the "White area" as
well as supplies and transport, excluding trans ort of the South West
Africa Administration. In addition, the soutt African Government
would take over revenue other than that to be controlled by the South
West Africa Administration.
27. The European Legislative Assembly would retain powers within
the "White area" over education for Europeans, health services for
Europeans and non-Europeans in the 'White area", roads, local author-
ities aiid townships, public works, personal and income tax, the licensing
of businesses, moi:or irehicles and entertainment, and al1 other matters
not specifically taken over bythe Republic of South Africa. 1ts legislation
wonld be subject to the approval and signature of the State President
of Soiith Africa.
28.It may be noted that under the South West Africa Constitution,
on I<iiiope:ins;iiitl Coloiirc<lsis dçlzgdte(l to the tcrritori:il 1.cgiilntive
r\sx.iiihly. Thérele\.:iiir fiiiaiicinlprovisioiis in the Constitution m:iy iiot
be aitercd cvceut ii,itli the nnnro\'nI of the l.evi~lati\~e:\sseinI~l\~.not-
withstanding a 'generalreser;ation of powers tousouth Africa un&r the
Constitution.
29. With respect to Natives, the Commission recommended, in effect,
that al1 aspects of their administration and development other than
health niid environmental services for those in the "White area". and
tlieir educ:iti~~iIIC triliiifvrred ttlic South .\frican .\linistzr of L<;iiitii
A<liniiiistrntioii?.id I)e\~t.lo~~inziftic ediication of Sati\.cs, it rccoiii-
iiieiided. shoiild be intr~rated with tlic o"cnnizntion of tliç South :\frican
~e~artment of Bantu Ëducation.
30. \Vith respect to Coloureds (other than Basters) and Namas, the
Commission recommended that the development and promotion of their
administration b~:transferred to the Department of Coloured Affairs
of South Africa and that their education as well as the education of the
Rehobotb Basterj be integrated with the organization of tliat Depart-
ment. It also recommended that education and al1matters in respect of
the Rehoboth Basters be left to the Government of South Africa to deal
with at its discretion, due regard being had to the Commission'srecom-
mendation concerning the integration of their education.
31. For each of the "homelands" other than Bushmanland and the
Rehoboth Gebiet, the Commission proposed a Legislative Council, to be
statutorily institiited, consisting of the chiefs and headmen ex oficio and
of members elected by al1citizens or members of the "homeland" gronp
over 18yenrs of axe, living both within and outside the "homeland" area.
provided they registered as voters in the "homeland". Elected members
Act No. qz of ,925,asamended. REPLY 01: ETHIOPIA AND LIBERIA 345
were initially to constitute not more than 40 per cent of the legislature.
32. It was proposed that executive power should be vested in an
Executive Committee consisting of chiefs and other members elected
by the Legislative Council.
33. The "homeland" Legislative Councils were gradually to take over
from the Department of bantu Administration and Development the
legislative authority and administrative functions entrusted to it. This
was eventually to include al1functions except: defence, foreign affairs,
interna1 security and border coritrol posts, water affairs and power
generation, and transport. Al1"homeland" legislation would be subject
to the approval and signature of the State I'resident of South Africa.
34. The Commission recornmended tliat each Legislative Council in-
stitut~ a "homelaiid" citizenship for al1niembers of its group born with-
in South West Africa or born outside of the Territory but permanently
resident in the "homeland" and not declared "a prohibited immigrant
in South West Africa". It also recommended that the Legislative Coun-
cil institute inferior and superior courts, witli appeals from the inferior
courts lying ta the superior courts, the latter's decisions subject to ap-
Africa and thereafter to the Appeal Court of South Africa.t of South
35. The transfer of land within each "homeland" to the respective
Legislative Council in trust for the population \vas recommended, sub-
ject to the proviso that the Council be allowed, with the approval of
the State President of South Africa, to release certain parts of the land
for alienation ta individual citizens, and subject ta the further proviso
alienate land to a non-citizi:n except with the approval of bath the
Legislative Council and the State President.
16. With res~ect to Buslimanland. the Commission stated: "The
poiition is, as is generally 1;nown. that the 13ushmen are a nomadic
community or indeed even asa fairly i;irge group. They are scattered a
throughout Soutlr West Africa .. . There is no feeling of solidarity among
them. and any form of government is wholly unknown to them. In
their case, therefore, there is no conceivable form of self-government
in which they can participate at this stage." The Commission also ob-
served that "the greater part of the Bushman population is no longer
nomadic" and that "9.484 (01.80.63 per cent) . .. have to a large extent
been drawn into the economy of the southern section of the country".
37. For the Rehobotli Gebiet, the Commission recommended that
a form of self-governnient be granted and that the provisions of the
required constitution be detevmined by consultation between the Baster
Community and South Afnca. The report outlined previous unsiiccess-
full efforts in recent years to reach a mutually acceptable constitution
and noted that the Community itself \vas engaged in drafting a new
constitution.
38. The Commission recommended that four chief officers, to be sta-
tioned in "The White area" at Windhoek, be appointed by the South
African Department of Coloured Affairs for the Rehoboth Gebiet.
Namaland andthe Coloureds, and by the Department of Bantu Admini-
stration and Development for the h'ative "homelands".346 SOUTH WEST AFRICA
39. The Commission further proposed that a diplomatic post of Com-
Okairango conibiried, to serve as aolink between these "homelands" aiid
the South African Government and su~~ested that this recommenda-
tion be carried out even before any -oiits otlier recommendations.
i\lr. J. P. van S. Bruwer, who had served on the Commission, was ap-
pointed the first Commissioner-General early in 1964. The Cominission
also ~ro~osedtha.t a Chief Commissioner and a Commissioner be statio-
ned :n Ôvamboland, and tbat a Commissioner be stationed in each of
the other "homelands" other than Namaland and the Rehoboth Gebiet,
to serve in an advisory capacity to the local "homeland" governing
bodies.
40. The Comniission made a number of recommendations regarding
the local governinent of Non-Europeans who would remain settled in
the "Whitc area". For the Coloureds, it suggested that the existing
Coloured Council, which is composed of menibers appointed by the
Administrator of the Territory, should in future include as many elec-
ted members as may be agreed between that Council and the South
African Governnient. Apart from a small number of Coloured farmers,
for whom a rural irrigation settlement was proposed on the Orange
River, the Cominission recommended that al1 Coloureds, who, it ob-
served, were distributed over the whole "White area", be persuaded to
move to the areas of their grentest concentration-Windhoek, Walvis
Bay and Luderit:<-and thatthe management of tlieir separate Coloured
townships be en1:rusted to Coloured Local Townsliip authorities.
41. With respi:ct to Natives settled in separate non-White townships
in "Whitc" urb:in areas, the Commission recommended the establish-
ment of Non-White councils. at least 60 ,er cent of their members to
I>tt.lccted Ibytli: loc:il nun-\\'liite rrsiil<-iitsaii1i:iI~ii:il>poiiiteJ
b\. tlie "lioinel:intl" I.tci*lntivc Coiiiicils.i'.liite iirban niitliorits. or
local eovcrnnieiit. wasto delceate such functions. Dowers and authori-
ties t: the proposed ~on-Wlii& councils as might Le approved by the
South African hlinister of Bantu Administratioii and Development.
Five-Year Rans for tlie Deuelopmentof Sorrth Wesl Africn
42. The Odeniiaal Commission recommended a five-year development
plan at an estin~ated cost of R114.51z.485,' to be followed by a second
five-year plan involving an estimated expenditure of R3o,ooo,ooo, and
a third plan for which no estimates were giveii. The main recommenda-
tions for development may best be assessed in relation to the existing
economic position of South West Africa, and of the various "home-
land" areas.
43. Mining, a,griculture and fisheries are the most important contri-
butors to the i:conomy. In 1962, exports of minerals amounted to
R53,133,ooo. tht: Consolidated Diamond hlines and Tsumeb Corporation
accounting for 9.5per cent of the Territory's mineral production; fish
production was valued at almost R23 million: agricultural exports
and localsalesexceeded R27 million, cattle and karakul pelts accounting
for over Rz4 million of the total. The highest published officia1figure
for the sale ofproduce from Xative areas is that for 1957,when the value
' One Rand equals IO shillings sterling or U1.40. REPLY OF ETHIOPIA AND LIBERIA 347
of the sale of livestock, cream, pelts and hides totalled K834.000,
followed by a drop to K638,ooo the following year. '
44. The Commission notecl tliat tlie niost important economic activi-
ties were concentrated at a few places, cg., diamond mining at Oran-
jemund, metal production ;at Tsumeb and Grootfontein. fisheries at
Walvis Bay and Luderitz, and commerce and industry mainly in Wind-
hoek and Walvis Bay. Xone of these areas are to be included in Non-
European "homelands".
45. According to the Odendaal Commission, the "modern market
sector links up with tlie traditional sector by attracting unskilled non-
White employees, virtudy to the maximum of their availability, as
wage earners on farmsand mines, and in domestic service and indus-
tries". In 1962 migrant labourers were being recruited at a beginning
rate of 1160to K66 for the first year's work. According to a territorial
c:uiniiiissioiiof iiiquii.).,:ivt.ing,: \\.ngt:snmoiintc(1in 19j6 to :ihuii1<120
pcr yenr for farni ;,iiJ clonieiti~ \\,oikcrj riiiJtu ,ili~io,r l<.rof~r S;iti\.i:
\rorkcri in iirl):iii :irc:.j. mircs in~liistrici, niliiiiiii;tratiori ziiid rml\\.ny
employment. According to the Odendaal Commission, average wages
of Non-White workers in mining rose from R123.8 in 1961 to Rzoz.9
in 1962 and wages of White workers from R2,321 in 1961 to K2,452
in 1962.
46. The sales of agricultural produce from Native areas referred to
above relate exclusively to Native areas within the Police Zone, in the
southern sector of the Territory. According to the Odendaal Commissioii
and numerous official source!;,the northerii Native areas, which contain
the majonty of the Territory's population also have the highest agricul-
tural potential in South IVest Africa. Official publications indicate,
however, that tliese areas have hadno esport market throughoiit the
history of the Mandate. Due to cattle diseases, the sale or movement of
animais or animal produce oiitsiclcthe individual reserves escept under
special permit is probibited by law. As regards crop farming in the
northern "homeland" areas. the Odendaal Commission re~orted that
prodiii:tioii issiiiTici~:oi riivrttliriiet;<liof III:opiilation IIIrlic E;isrerii
C:xpri\.i.Ir 13 iicglifiiblIIItli.: I<:iokt,vel<land rcnsonlbl!. coiistniit onl\
clurinr:fnvoiirahli: \cari iiO~.ariihol:iii(land the Okn\.:in~o. These threr:
areasVrequire suppiementary food during the prolonged 8roughts which
occur in the Territory.
47. According to the Odendaal Commission, the agncultural economy
of the four northern homelaiid areas is based Iargely on tlieir livestock
population. It considered that the lack of esports from those areas for
a considerable period had bemsna severe blow to the economy of South
West Africa. The Commissionestimatedtliat these areas had from 1o.oo0
to 15,000 cattle available for marketing annually, and that the num-
ber would in al1 probability increase to 30,000 per year in the future.
These estimates of future potential may be compared to the Terntory's
annual cattle exports of 167,800 head of cattle and 50,000 frozen beef
' The Odendaal Commission gave one figure of the income derired from the
the income from liiie-stock. sliins. hides. bones, and the sale of cream amounted to
R162.228 in 1956.According to aiiather commission of inquiry, total sales of stock
and produce in al1Native reservesamoiinted to R782.718 during 1956.348 SOUTH WEST AFRICA
carcasses in 1962. an additional gz,ooo being slaughtered for local con-
sumption in the southern section. The southern section also exported
in 1962 a total of 67,437 sheep, 2,345,563 karakul pelts and dairy pro-
duce as well as fish products and minerals.
46. The Commission considered it imperative that a market be found
for livestock froni the northern areas and suggested the possibility of
caniieriesin sealet-lvehicles. It observed that the possibility of establish-
ing caniieries within the northern areas had been explored and con-
sidered uneconomic and imuractical. The Commission nevertheless
suggested that iri course of the such facilities should be provided for
canniiiK beef from the Kaokoveld, Ovamboland and tlie Okavango.
For a kmg time to come, it stated, the meat canning factory at Otaivi.
in the "White area", would be the market outlet for Ovambo cattle;
another canning factory, at Okahandja, in the "White area", might also
play a role in thefuture in canning meat from the Kaokoveld and western
Ovamboland, the Commission observed. Other possibilities suggested
for the northern area included the establishment of a furniturefactory
in Ovamboland. ~uhichwould be the first factoryin the northernarea,and
the establishment of a jute industry in the Okavango.
49. The Comrriissionwas of the opinion that there were further possi-
bilities for tlie development of mining in the Territory and suggested that
the South African Department of Mines organize the exploration of the
whole Territory, giving attention first to areas where minerals had
already been exploited profitably. According to the recommendations
of the Commission,mineral and mining rights in the various "homelands"
would eventually be transferred to the "homeland" authorities. The
Commission also considered it important that the inhabitants of the
"homelands" be encouraged and assisted to become entrepreneurs in
their own areas, as well as managers and responsible officers in their
own mining.
50. While prospecting is being carried out in several of the Native
reserve areas, the only operating mine within a Native reserve is the
Uis tin mine in the Okombahe Native reserve in the Police Zone, a re-
serve which is nrooosed to be included inDamaraland. The mine. which
has ore reser\res'est'imatedat21 million tons, is owned by the statutory
South African Iron and Steel lndustrial Cornoration Limited (Iscor).
Production isbeing expanded from 15,000to 66;oootons of ore permont'h
at a cost of Rz inillion. \%th respect to this particular mine. the Oden-
daal Commissiori recommended the establishment by the mining con-
Cernof aNative townshipwithin the Native reserve, and a Native labour
force drawn in fiiture from within tlie reserve. This would represent the
first Native mine labour community settled on a family basisin South
West Africa. As of early 1964.a small White community, which jncludes
41 houses and a school for European cbildren, had already been estab-
lished within tht: h'ative reserve for Eurouean emulovees ofthe Uis mine.
Under existing laws, the income derived $rom takation of the mine pro-
fits is payable into the central revenue of theTerritory rather than into
the Native reserve trust fund ANNEX 3
EXTKACT FRORl REPORT OF THE UNITED XATIONS SPBCIAL
COI\IMITTEE ON THE POLICIES OF APARTHEID OF THE
GOVEKNBIENT OF THE REPUBLIC 01: SOUTH AFlilCA
(U.fV. Security CouncilL>oczrme?S it/5p6; 16 September1963) '
THE TRANSKEI CONSTITUTIONACT AND THE h1OVESTOWARDSTHE
CREATICINOF "BANTUSTANS"
97. The promulgation of 1:heTranskei Constitution Act is perhaps
the most significant deve1op:mentduring the year in the direction of
the implernentation of apartheid. The Act, the provisions of which are
described later in this Chaprer, provides a degree of self-government
for the African reserve of Transkei.
98. The Transkei, situated ou the coast in the northeastern part of
the Cape Province. has an axes of 16,350 square miles. Its population
consists of over two million Xhosa people, as well as 17,369 Whites arid
13,716 Coloureds.
99. The significance of the establishment of self-goveriiing iiistitii-
tions for the Transkei lies, however, not so much iii the legislation
itself but in the proclaimed intention of the Governrnent that it is a
step toward the creatio~i of a series of "Uantustans" in the Africaii
reserves, that the African people can only aspire for political riglits iii
these States and that they aould be regarded as transients and nlietis
in the White areas which comprise six-sevenths of the territory of tlie
Republic of South Africa. The Government has widely advertised
this move as proof of its sincerity with respect to separate development,
and has made extravagant clairns such as the following:
"The White man has undertaken a task such as history has not
known. He is helping the E:lack man to bridge the gap, iii one span,
between the Stone Age and the atomic era."
IOO.To apprccinte thL. rcol signiiisance of thi; development. it is
essenti;il to re\,ieivI~rieflythe (voltition of tlie ~>o,f th' Soiith ?\frican
Goverr~mc.nts[cic:t(iw:~nli.\fri~:aiando\vncrjtii~>niirlthr.\fris:inrçscr\.es.
' [Foottlot~s renumbered.]
No. 48 of ,963. Text iiGooernmenl Gazelle Exlraordinory30 XIvy 1963.
The Coloured population consista chiefly of Cape Coloured but also includes
Cape i\lalays. Bushmen, Hottentots and al1 persans of mixed race.
' South African official statements aften tend to give an erroneous impression
Africa,astwell as three British Protectorates of Bechuanaland, Swaziland andst
Basutoland, in thecalculationç. The figures given here cover only the terriofry
the Republic of South Africa.
Republic of South Africa. Department of Information, The Progress of lhc
b'anlu Peoples lowards Nafionhood(consolidate<l cd.p. 1.350 SOUTH WEST AFRICA
(a) Euoli~ti ofn/18Africo ~ieserues
101. South Afiicaii Goveriimcnt spokesmeii claim tliat the Europeaiis
arrived in the countrv before or at about the same time as the Bantu
and that there vas a: traditional geographical separation betweeii the
White and Blacl.: areas. 'The theory that the Europcans were the first
settiers, wiiicii appiies oniy to a smiii part of the Eountry arouii<lthe
Cape Peninsula, has been disputed by many historians aiid is of little
relevance at the present time as the right of the people of Europcaii
origin to live in South Africa kas not been disputed. The claini of a tra-
ditional separation of the territory between the Whites and the Afri-
cans, however, deserves some consideration.
102. The first Eiiropeari settlement in South Africa was established
in 1652 at Tablc Bay. It expanded slowly at first and faced little rc-
sistaiice from tht: native Africaiis, particularly the Hottentots. In 1702,
however, a part!. of Afrikaner (Dutch) traders crossed tlie lGsh River,
and for the first time encountered the powerful Xhosa branch of the
Bantii. 1:rom 17;,9,a series of "Kaffir Wars" began, as tlie Bantu aiid
Europeans fought each other for land. This struggle was to become one
of the chief factors iii Soutli Africa's history for a century.
IW. Great Britairi, wliicli established its rule over the couiitry in
16r~::ilio 1nirsii:d n systt:iiiatic 1~>1ic!o.f i~iiiie~,~tiiiiniIIISSCL~C~ PO-
1itic:iln~tlioiit!.OVCI tltc 13i1ntii.'l'here5tricri<invf liiiiclo\vricrsliit,!.
tlle I',aiittil!?p is I:L\vs,nd ttic ~-~iipIuyiilritf tril~~lcl.~~lslr~~~~~l~~~~~i~s~
tr;iti\.~,.UIII~Ol,Ia!c:t~iit,:he ~~witsafl~.ti~ir~.osf Sxti\,~ poli,-!.~iiidcrI~ritis11
riile.' 'l'lii:\friz:iii!wrc tltiis.1)r-xic>.IvvI\.~-niitiiit10lIitnit~<I~r~..is
of land.
104. The developiiieiit of <li:imoiidaiid gold inining iii the last quarter
of the nineteenth century. and more recently the rapid dcvclopinent
of industry in the iirbaii areas, led to an ever-increasing dem:ind for
African labour outside the areas to which they Iiad been coiifiiied.
~oj. The Euri~peaiiinineo\rrnersof the Rand exerted pressure on tlie
Goverriment to restrict Alrican landownership as they were faced with
a chronic sliortace of unskilled labourers and the Africaiis were reluctant
to leavr. .~~~~-~ims to work ~or ~o--waees in the mines. Similar Dressiire
was exerted by the White fanners. E:hoing their sentiments, '~ericral
Botha. who \vasto become the first PrimeMinister of theunion, declared
in 193 that "he would, if necessary, break up the areas of land reserved
for the Natives (including the Protectorates) in order to provide labour
for the mines aiid farms". '
106. One of tlie first actsof the Union of Soutli Africa, formed in 1909
by agreement between tlie two major White elements in the country,
was the proniul[:ation of the Native Land Act of 1913, which laid down
--
'LIT W.. J. le lloux, director of the Information Service of South Africa, in a
letter published in the Christian ScierrcehfoniLoro5 June 1963. claimed further
that the Whites r.ettled South Airica by right of first occupation and that the
BantThe Afrikanerî called thc Baiitu people "l<affirsM(unbelieven).
'Sea, for inskince. the report of the Inter-Colonial Commission, puùlished
in igoj.
Quotcd by Julius 'Lewin: "South African Xatire l'olicy Xcver Changes".
The PolilicolQuor:erly.London, January-llarch 1gj7, 1).67. HEPLY OF ETHIOPIA AXD LIBERIA 351
the principle of territorial segregation and separation of land rights
hetween "Natives" and non-Xatives. Under this Act, IO 112 million
inorgen (about ar million acr8-s)were set aside as Native Reserve areas.
The African opposition to this .4ct led to the formation of the Native
National Congrôss, predecessi~rof the ilfrican National Congress. whicli
tried in vain to prevent the application of this mesure by representa-
tions in South Africa and in London.
107. Though the Covernment attempted to justify the legislatiori as
a measure to protect African interests, Africari leaders protested it as an
uniust law directed aeainst the vital interests of their ~eo~le.31ost of
tliérrîrr\.es were. in Cict. Cr<i\vriI.iodj cr>inniun:illykirked'and ilid not
pro\,ide ;1 propcrty m;irkct. Purchxse of lanJ by indi\,idiinl .-\iricaiis
outiide ttic I<c;er\,~.s\Y& cFfc:çti\.el\,~,:siiict~.-~~1~ ~he fc\~url,;rX~L..LI
where the Africans Iiad the right to own land, rights of occupation and
tenancy wcre strictly limited by the Xative (Urban Areas) Act of 1923.
108. The Native reservcs could not support thc African farmers even
at the subsistence lcvel and the pressure on tlie land continually in-
creased.
109. In 1936, the Native Trust and Land Act providcd for the acquisi-
tion by the Government of additional land of 15million acres for Afri-
can occupation, and for the progessive liquidation of thc "Black Spots"
in "White areas." This \vas declared to be a "final settlement".
110. Tlieacquisition of the ;idditional laiid I1as not yet been completed.
\Vhen completed, the native reserves would covcr about 41.6 rnillioii
acres of land or about a seventh of the territory of the Republic of South
Africa. '
III. The reservcs contairi less than tivo-hftlis of thc African popii-
lation of the Repiiblic aiid are already over-popiilatecl. Tlie most optirnis-
tic estimates place the agricultural poteritial of the reservcs at nearly
20 per cciit of that of tlie Republic. But littlc progress has been made in
the agricultural dcvclopincnt of these areas and serious soi1erosion has
dcveloped. According to the report of the Tomlinson Commission (1955).
appointed by the Natioiial Party Covernment, the Reserves can decently
support only half of their population.
1x2. In other words, the tr:iditional geographical separationis mainly
a restriction on land ownership imposed by the Government in which
the Africans had no voice and which the African leaders had protested
strongly. The reserves have for a long time ceased to support even a
majonty of the African popul:ation, and the African population has for
a long timc formed a majority outside the reserves.2
' About five million acresof land have yet to lie t>oughtto carry out the provi
sions of the Native Trust and Land Act of 1936. (Ilepublic of South Africa, Depart-
ment of Information, The J>rogressofBanlu Peoplei Townrds Nationhood [consoli-
dated ed.] p. 84).The dclay in the acquisitionof the land is due to the resistance
of European farrncrs and the inadequacy of fiinds apprapriated for the purpose.
The "Black SpotsM-African-owned land in European areas-are, however, being
rapidly elirninated.
In the urban areas, the African çligtitly outnuinber the Iç'liitethe "li'hile''
rural orca, Ihc numberof Africans is aboul four limes Ihnumbcr of IVhites.[Itdics
added.]352 SOUTH WEST AFRlCA
(b) The policy 01 Separale Developmenl
113. The Natioiial Party came to power in 1948after a campaign in
which it stressed the alleged dangers of increasiiig African population
in the White arcas, aiid the trend towards economic integration. Its
leader, Dr. D. F. Malan. asked in a speech at Paarl on 20 April 1948:
"Wiil the European race in the future be able to maintain its rule,
its purity aiid its civilization, or will it float along until it vanishes
for ever, without honour, in the Black Sea of South Africa's Non-
European popiilation?" '
114. The National Party Government pointed tothe numerical superi-
ority of the Africans and the alleged danger of Ulack domination iii
embarking on a series of laws to outlaw al1 social intercourse between
the racial groups., and to restrict the rights of Africans outside the re-
serves. The policy of "separate development" waslinked with these mea-
sures.
115. This policy was pushed particularly by Dr. Verwoerd, Ministcr
of Native Affairs.from 1950 and Prime hfinister since 1958. As early as
~gjo Dr. \'erwoerd outlined the Government's policy of "Autogenous
Development" for the Bantu:
"(The Government) wishes to create for the Uantu every possible
opportunity tc, rerilize their ambitions and to serve their own people.
This is, therefure, iiot a policy of oppression, but of creating a position
which has never yet existed forthe Bantu, iianiely,that they will be
able to develop oii their own lines in accordance with their own laii-
pages, traditions, history and various etlinic groups."
116. In pursu.ince of tliis policy, the Bantu Authoritics Act of 1951
abolished the Native Representative Council aiid authorized the Gover-
iior-General to establisli Bantu "tribal authorities". ' The Bantu Edu-
cation Act of 1953 provided Government control of Bantu schools and
their reorganizarion along tribal lines. A host of other legislative and
administrative steps were designed to\\.ards the separation of the Afri-
cans from the other ethnic groups and the creationof institutionson the
basis of tribal units.
117. Each of these measures increased tensioii in the country and
could only be imposed by force. The establishment of Uantu Authorities,
for instance, wxs "accompanied by Government threats, by murder,
violence, arson, tribal revolt and severe police action". ' In 1957,
when the Department of Native Affairs attempted to implement the
Bantu Authorities system in Tembuland, the people objected strongly
to the splitting of Tembuland into three-Bomvanaland, Tembuland,
and Emigrant Tembuland-and sent a deputation to Pretoria to con-
vey their opposition to the scheme. Subçequently, four of the delegates
' Qunted by St:ame. L. li.. The HisloryO/Apartheid. London, 1962, p. 73.
Union of SouihAfrica. Department of Native Affairç, Report for 1954-1957.
p. 1.
had ained at than"possible500".ri(Republic of South Africa, Department of In-s
forniation, The Prt>grersthe BantuPeopdas towordsNotionhood (consolidated ed.),
P. 8).
' Tatz, C.M. : Shadoiu anSubftanceiliSaulh AlricaPietermaritzburg. University
of Natal Press.i952.p. i9r. REPLY OF ETHIOPIA AND LIBERIA 353
were deported by the Government on tlie grounds that they were causing
disseiision in the tribe andopposiiig Government measures. The "Tem-
buland techniqueu has since been adopted by the Government to over-
come opposition in other areas. The Government has resorted to threats
to cut ofi financial assistance and discontinue necessary social services,
has deported leaders, and iniposed chiefs and headmen who are willing
to go along with the Goveriiment in return for promotions.
118. Serious rioting as a result of the Government's attempts to
establish Baiitu Autliorities occurred in many areas. In May 1956,
over 300Africanswere arrested after riots in the Sekhukhuneland reserve.
Riots and unrest continued in East Pondoland during Igjg and 1960,
and tlie Government imposed serious repressive measnres.
I'rotnotionof Bantu Self-Goui:rnmenA t ct, Igjg
119. A sigiiificant step in the direction of the Governriieiit's plaris
was taken by the promulgation of the Promotion of IJantu Self-Govern-
ment Act on 19June 1gj9. The declared aim of the Act is "to provide for
the gradual development of self-goveming Bantu national uriits and
for direct consultation between the Government of the Union and the
said national units in regard to matters affecting the interests of such
natioiial units".
120. The Act abolished the limited representation of the Africans in
Parliameiit and provided for tlie gradual consolidation of the 264
scattered Native reserves iiito eiglit self-governing "iiation:~lunits" and
tlie establishment of territorial authorities in these units.
121. Diiriiig the debates in l':irliamerit, Dr. Verwoerd said that the
Goveriiinent's scheme would lead to a permanent White South Africa,
and that unleçç it was accepted, the oiily other choice was a common
iiiulti-racial country where the Whites would be outniimbered by the
Blacks tliree or four to one.
122. African leaders opposed this measure as a further denial of their
rights. Chief Albert Luthuli, President of the African Kational Congress,
stated in an article iii the Rand Daily Mail in May 1959 that the Afri-
can people had not been consulted on the Promotion of Bantu Self-
Government Bill and that they "had certainly not decided in favour of
the system-they did not waiit partition or separation in South Africa".
"This 'solution', which is merely a disguise for the apartheid we
already know, is completely unacceptable to the African people."
123. The Government, however, proceeded with the consolidation
of the African "national units" and the establishment of territorial
aiithorities. In tlie Transkei, which is a relatively large and compact
reserve area, a temtorial authority had been established as early as
1956. Five other temtorial :iuthorities were established by the end of
1962. ' Two more-Zulu and South Sotlieare being planned.
The Transkei CoitstitutiorAc1
124 Meanwhile, in Janua.ry 1962, Prime Minister Dr. Verwoerd
announced a plan ta grant "!ielf-government" to the Transkei. He said
1 Ciskei, Tsivana. Lebowa, Mat!ihangana andVenda.354 SOUTH WEST AFRICA
that the area woiild be given a wholly Black Parliament and Cabinet.
The \$'hite inhabitants of Transkei would have no political nghts in
the territory, but: would continue to vote for the central Parliament.
Dr. Verwoerd also announced that a separate Transkei citizenship would
be instituted for Africans and that Transkei Africans living outside the
territory wouid be eiititled to vote for the Transkei Parliament.
Powers in sucli fields as agriculture, education, health, welfare ser-
vices, land, roads and minor local authorities would be entrusted to the
riew Transkei Parliament; external affairs, defence and certain aspects
of the administration of justice would, for the time being, remain the
responsibility of the Republic. The constitution would be decided by
the Btrnga (local council).
12j. During the discussions which followed between the Government
and the representative of the Buga, it was reported that the Govern-
ment had indicated that it could not entertain any requests for greater
powers than had been offered or for a muitiracial legislature; that al1
legislation of tlie Transkei Parliament would be subject to the consent
ofthe State Presicient of the Republic; and that the Transkei Parliament
should consist of chiefs as well as elected representatives.
126. \Vhile supporters of the Government claimed that the move
was the beginning of a new era in race relations and a step towards in-
dependence of Africans in their areas, members of the opposition and
several African leaders argued that it was merely a disingenuous scheme,
and that the ternis "Parliament" and "Cabinet" were misleading as the
area would enjoy little independence. Serious differences among the
chiefs and people of the area were soon reported in the press. A number
of cases of violence in the territory during 1962-1963were attributed to
opponents of the Government's scheme.
127. Defending his support of the Government's proposal, the Chair-
man of the Territorial Autbority, Chief Kaiser Rlataiizima, said in astate-
meut of 26 Novcmber 1962 that
"White South Africa is roo per cent. agreed on tlie maintenance
of white control of the white parliament. Only their defeat on the
battlefield will divest them of this resolution. Will those people who
oppose the peacefrilroad taken by the Transkei comc out and advocate
a revolution?"
128. The Transkei tenitonalauthonty approved the draft constitution
in December 1962 by a large majority.
129. The Transkei Constitution Bill was introduced in the Parliament
on 28 January 1963 and promulgated on 24 May 1963. The Act confers
self-government on the Territory of Transkei and vcsts executive
functions in a Ca.binet consisting of a Chief Minister and five ministers.
The Cabinet is rnade responsible for the administration of six depart-
ments, namely: finance, justice, education, interior. agriculture and
forestry and public works. 1
130. The Legi:jlative Assembly will consist of 190 members: the four
paramount chief!;of the Transkei appointed bythe Central Government;
sixty appointed ichiefsholding officcin the nine regional authority areas
of the territory; and forty-five members elected by Transkei citizens
' SectionIO.356 SOUTH WEST AFRICA
departments transferred to the jurisdiction of its Government, White
ofiicials would be placed at its disposal. These White officials would,
however, remain in the service of the Government of the Kepublic and
would be paid by the Republic. They would be graduaily replaced by
Bantu "but always beginning at the lowest grade and progressively
advancing to the top so that White officiais would never work under
Bantu". '
137. The biii uras vigorously opposed by the United l'arty which
argued that the Bmtustan policies would not change the outside world's
attitude towards South Africa but would lead to the dismemberment of
the country and endanger the security of South Alricri. lt contended
that economic pr.gr.ss and separate development were incompatible.
138.Sir de Villiers Graaff, leader of the United l'arty, stated:
"In Africa wi: had the position that inetropolitaii I'owers who had
controlled their colonies over many years and Iiad had long experience
in doing so, u7ere abdicating those responsibilities. Here we are
creating colonies, virtually speaking, in order to abandon them and
abandon with them millions of people who will also be permanently
present in the niixed areas but will be artificially rcgarded as citizens
of those States."
He added tbat the experience iii Africa showed tliat once the metro-
politari l'owers promised a people independence, tliey lost control of the
timetable and of the direction and development of the independent
State. The promise of independence to the reserves by South Africa
would create even greater problems in South Africa because of the
influence of the nias of Bantus living outside the Bantu territories.
Imnplemetdutio~ orf theTranskei Constitidioi~Act
139. The 'Sr:inr;keiTerritorial Authority met on 14 i\I;iy to discuss
arrangements for the establishinent of the new institutions.
140. Regulatioiis for the elections were published in the Government
Gazettein June and registration of voters took place until 17 August in
the Transkei and in other areas where large numbers of Traiiskei "citi-
zens" are concentrated. The Government announced that nearly 800,ooo
persons had registered. Elections for the forty-iive elected seats in the
109-member Legiijlature are due to be held on 20 'lovember 1963.
141. The Government is reported to be planning to establish the new
Transkei Governrnent before Christmas 1963.
142. The Miniriter of Bantii Adininistration and Development an-
iiounced on 16 August that the civil administration would be trans-
ferred to the territory in October: 1,900 of the 2,476 Civil Service posts
would be filled by Africans. White officialswould head the departments
and hold other senior posts at this stage. 3
143. Umtata, the largest town in the Transkei, will be the seat of
government. The State will have no capital aç Umtata is a White area.
' Housc ofAsscmiily Debales, Mnrch igG3, cols2238-46.
House O/Assemi5lyDebales,22 January, 1963,cols .7-zg.
The Slar.weekl:,Johannesburg1.7 August1963. REPLY OF ETHlOPlA AND LIBERIA 357
Conclusions
144. ln conclusion, a number of comments may be made on the Trans-
kei Constitution Act and the moves towards the creation of Bantustans.
145. These moves are engineered by a Govemment in which the
African people concerned have no voice and are aimed at the separation
of the races and the denial of rights to the African population in six-
sevenths of the territory of the Republic of South Africa in return for
promises of self-government for theAfricans in scattered reserves which
account for one-seventh of the territory.
146. The reserves contain less than two-fifths of the African population
of the Republic, while many of the Africans in tlie rest of the country
are largely detribalized and have little attachment to the reserves.
147. Second, the "Bantus1:ans" werenot demanded by African leaders,
but were imposed against their wishes. The leaders of the African people
are silenced, entry into reserves by Whites is controlled by permit, and,
under Proclamation 400, the Traiiskeins [sica] re denied freedom of
assembly and speech.
148. Third, the self-government granted to Transkei at present is
limited in many ways. Pararnount Chief Sabata Dalindyebo of the Tem-
bu, one of the biggest tribes in the Transkei, told the Tembus recently,
"The freedom you are getting in the Transkei is a fowl-run. A cattle-
kraal would be better." '
149..Fourth, the scheme aims at reinforcing tribalism and iitilizing
the tribal systern against African aspirations for equality.
150. Fifth, the "national units", made up of scattered reserves, are
not economically viable. They do not provide a minimum standard of
living even forthe existing population of less than four million. Serions
famineshave recently been reported in Vendaland and Sekhukhuneland
reserves in Transvaal. They Iiave few known mineral resources, and they
are almost devoid of industries. Their economies depend largely on the
esport of their labour to the "White" areas, at the rate of over hall a
million mimant labourers a vi:ar. 'The Transkei is de~endent on Govem-
nierit gr:iriïs ei,furit.sadn;iraistcitivecosts:tlw ~oikrnment hnsoffcr~d
20 niillioti I<aiin !.car fortl~iipiirpoie.
151. A report on the Bantii areas prepared for the Government in 1955
-the Tomlinson report-stated that the farm population in the reserves
sliould be reduced by hall to promote eoonomic agricultural units. It
recommended rapid industrialization by White capital to provide
employment to 300,000 farniers and add 50,000 new jobs a year. The
Govemment, however. decided to limit industries within the areas to
' The Star. weekly, Johannesburg, roAugust ,963.
As in the rest of the continent. the African nationalist organirations in South
Africa liîve opposed tribalism. One of the objech ofthe AfriNotiortal Co,zcrcss
is: "To encourage mutual understanding and to bring together into common action
as otrpolitical people al1tribes and clans or races and by means of combined effort
and united politicalrganization to defend their freedom,rights and privileges."
persons, nearly al1 malesareoeniployed outside Bantuoareasiut one or anotherd
stage betiveen the fifteentli and fiftieth hirthdays."35s SOUTH WEST APRICA
I3antu capital, \vit11Go\~~rniiienrencouragement. It fn\,oiire~leiicourrtge-
ment of liiiropç:~n-ownedindustries on the bor<lersof--rnrlicr tlim in-
the Uantu ârèas. '
152. A Bantu Iilvestment Corporation has becn set up with a small
capital to promote industrial and commercial enterprises, but it has had
little impact. The Government has attached greater significance to
the "border industries" and given vanous concessions for that purpose.
Over half of the expenditure for the first five-year development plan of
Bantustans (of which Transkei is one) is allocated for the establishment
of villages intended to house Bantu labour forces for "borderindustries"
in White areas. E:ut these have not created much employment either.
According to a report delivered at a conference of the South African
Bureau of Racial Affairs in June 1963, only 56,000 of the seven million
Africans in and near the reserves were employed in industry. '
153. The creation of Bantustans may, therefore, be regarded as
designed ta reinforce White supremacy in the Republic by strengthening
the position of tribal chiefs, dividing the African ,people through the
offer of opportunities for a limited number of Africans, and deceiving
public opinion.
-
1 Memovnndum : ilovernmenl decisiona mi fhe rarommendofionr of theCommission
forIhe Socio-Econon~ic D~v~lopmenl ofthe Banlu Aleos tuilhin the Union ofSozslh
Africa. This decision had the advantage of ensuring adequate cheap manpower
without disturbing the separation of races. But the rate of investmeso far appears
to be considerably below that recommended hy the Tomlinson report.
2 By JuIy 1963. the Corporation granted loans totaling 862.811 Rand, and
Africans had deposited 453.000 Rand in its savings accounts. (The Sfar. weekly.
Johannesburg. za July ,963). The total number of Africans ornployed in industry
in the Transkei is orily I.rgg. (Statement bythe Minister of Rantu Adminiçtrïtiaii
and Development, Igouse of Assembly Debates, 28 AIay 1963. col. 8772.)
3 Rep~~blic of South Africa, Department of Information: Scope, AIarchlApril
1962.
+ The Sfar. daily. Johannesburg. io June 1963. ANNEX 4
EXTRACT FKOM REPORT OF THE UNITED NATIONS SPECIAL
CO1\IMITTEE 0i\' THE POLICIES OF APARTHEID OF THE
GOVERNMENT OF TllE REPUBLIC OF SOUTH AFRICA
(U.N. Security Council Document S/j6zi; 25 March 1964) '
... 6. Implefnentation ofthe Transkei Constitution Act
The Adoption of the Tra:nskei Constitution Act, as a step towards
the creation of Bantustans, wasreviewed in the lastreport of the Special
Committee. The Act provided for limited self-government in the over-
crowded African reserve of Transkei, to be exercised through a legislative
.assembly composed of sixty-four appointed chiefs and forty-five elected
members.
Elections for the legislativc:assembly were held on 20 November 1963.
The Government announced that 880,425 persons-414,~38 men and
466,187 women had registewd as voters.2 One hundred and eighty can-
didates were nominated for the forty-five seats.
Political parties were not allowed, and the two main contenders for
the post of Chief Minister-Chief Kaizer Matanzima, head of Emigrand
'rembuland and Paramount Chief Victor Poto of Western Pondoland-
issued electioii manifestoes. Chief Matanzima supported the Govern-
ment's policy of "separate development", while Paramount Cliief Poto
called for multi-racialism ancl a more democratic legislature.
1 [Footnotes renumbered.]
All Africvns born in the Transkei. al1 IVhosa-speaking[sic] persons in South
Africa and al1 Sotho-speakingpersons linked ivith Sotho elements in the Transkei
were regarded -as Transkei citirens. Of the total registered voters, about 61o.w~
had registered in the Transkei aiid about270.000 outside the territory.
Soulb Atricurz Digest (7 November 1963) summnrized the main points of the
ma"Chief Matnnzima says in his rs-point rnanifesto that he would advocate:
"Separate development; induçlries for the Transkei, but not European private
enterprise; the gradua1 takeover for the Bantu of al1 land in the Transkei including
municipal pioperty in the 26 villages; the establishmenof a Bantu battalion in
the Republic's defence force to train the young Transkeianç for military service in
the event of war involving South Africa.
"He wauld also press for an all-Black civil service in the Transkei with salaries
comparing fnvourably with those of their White counterparts in the Republic.
"The Transkei's Education Department should be solely responsible for the
nature and standard of educatioii to be given to the Bantu children. The people
of the Transkei should decide on the medium of instruction and syllabi.
"The Transkei would reluire financial stability.Forthis reaon good relations
would have to bc maintained wii:h the RepublicanCovernment (to facilitate the
flow of money) from South Africa to the Transkei by way of grants and thc employ-
ment of Trilnskeianç in the border industriand elsewhere.
''He wanted agriculture to bo placed an a high standard whereby every able
hodied man ovining land shoulduce modern methods of farming. The whole country
should be completely rehabilitaled--irrig sahtmos to be undçrtaken, soi1
eroîion checked. dams built and good-quality stock bought.
(Foot-note continucd on follo~ving page)360 SOUTH U'EST AFRICA
Tlic issues in the éleztioiiswere ratlier unréal as the Go\.eriiriicnt ha<1
nibde it clear tliac multi-rncialism cu~ildnot bc acceptc<l. I'aramount
Cliicf \'iztor Poto stnted ttint thoiirrti lie\vas in I;i\.our of a iniilti-r~cilil
Transkei, lie realiz.edthat he would not be able to do mucli to promote
it before the Transkei was totally independent. '
hloreover, the elections were conducted under a State of Emergency
and with the full use of repressive force against the militant opponents
of the policies of apartheid. As the Liberal Party noted shortly before
the elections:
"One candidate at least, Mr. L. Mdingi of Bizana, was given go-days
when he emerged as organiser of the IQumru LamaMpondo Ase-
hlpumalanga (Pondoland People's Party) putting up eight candidates.
Another, Mr. Hammington Majija, a well-known Liberal, was banned
under the Suppression of Communism Act on 1st October, the eve of
Nomination Day. An outstanding local leader, nlr. X. 1. Honono.
was house-arrested in Umtata in 1962 and another, &Ir.R. S. Canca,
banned and confined to Idutywa and Willowvale this year. And al1
the old factors remained-the cream utterly sceptical, banned, or
elsewhere involied-Traiiskeians like Messrs. Nelson Nandela, Walter
Sisulu and Govan Mbeki al1 in gaol and Mr. Oliver Tambo in exile.
So came the Iilection, with many leading figures knocked out ,in
advance, no political parties, no freedom to hold meetings at will,
freedom of speech muzzled by the Emergency Regulations whicli
make even 'interference with the authority of the State, one of its
officiaisa chie1or headman' by making 'a verbal or written statement'
an offence punishable by up to three years' gaol and £300 fine."
The Paramount chiefs and the chiefs seemed to have esercised much
influence on the rlections.
(Foot-note 3 coiitiniied)
"He would strive to induce the Republican Government to employ Bantu men
Governmentin soas to train them for independence.en transferred to the Transkei
"The traditional ;iuthority of chieftainship çhould be preserved. and in order to
do so. chiefs should pariicipatein the body that made the laws--the Transkeian
Legislative Assembly. The chiefs should be in the Assembly by virtue of their
status.
"This is one of the main points on which Chief Matanzima and Paramount Chief
Poto disagrre. The latter has said that members of the Assembly should al1 be
elected members and that the chiefs çhould sit in an Upper House of Review.
"Other points which Paramount Chief Poto advocates in his election are:
"The formation of political parties which have the interests of the Transkeian
people at heart; an educational system that will fit the individual into human
society and whicli is not bound by geagrapbical boundaries; a palicy of equal pay
for equal work: frcedom to cornpete for any position or employment in an un-
restricted labour market and removal of disabilities of the work-seeker; a palicy
that will remove fear and uncertainty and instil confidence in the futureaa sense
of belonging and usefulness toa growing and expanding community; the establish-
ment of factories and industries resulting in increased opportunitiesfor employ-
ment; a legvl systern that will measure up to the international standarofjustice;
a policy of scientific. pastoral aagricultural development; increased and State-
subsidized health si:rvices; and freedom of speech and religion."
1South Africnn I>igest. Pretoria21 Sovcmber 1963.
'Contact. Cape Town, 30 Sovember 1963. REPLY OP ETHIOPIA AND LIBERIA 361
Paramount Chief Botha Sigcau of Eastern Pondoland (Quakeni),
against whom there had been revolts in the area, appealed to the elec-
torate in his region to abidi: by the principle of separate development
on which the Transkei Constitution was based and added: "order, law
and justice, and not subversion and sabotage, have always adorned the
careers of wise statesmen. Voters of Pondoland, vote for such men." 1
His statement was considen:d significant particularly as his region has
the biggest block in the Assembly-eight elected members and fifteen
chiefs.
Paramount Cliief Sabata Dalindyebo. on the other hand, supported
Paramount Chief Victor Poto.
Despite the clear evidence of the Government's support for Ctiief
Matanzima, nearly thirty-five of the forty-five elected seats were won
by supporters of Paramount Chief Poto. This was widely interpreted
as a repudiation of apartheidby the Xhosa people.
Chief Matanziina, however, was elected Chief hlinister on 6 December
1963by 54 votes to 49, having obtained the support of a large majority
of the chiefs.
Paramount Cliief Poto and his supporters formed the Democratic
Party as a parliamentary opposition.
' South AfriconDigesl.Pretoria.21 Novernber ,963 c.Analysis ofRespondent'sMeasuresoflmplementation
ofIts Policy
(A) GENERA LOLICY
(1) Introduction
Respondent's educational policy with respect to the "Native,"
"Coloured," and "European" children in the Temtory is similar
insofar as each "&~oup"isseparated from each of the other "groups."
This is "educational apartheid." The education of "Coloured"
children "has heen promoted in princi9le to equality with European
education."' Ac. stated by the South West Africa Committee:
". . . [Tlhe sarne courses are offered for both groups; syiiabuses
are the sarne: theduration of the courses and examinations (with
one exception)are the same; the inspection of Coloured schools is
undertaken by the same inspectors as for European schools to
ensure tliat the standard for al1schools, European and Coloured,
willbe the same."
Under the Education Ordinance of 1962, 3education for "White"
children is compulsory between the ages of seven and sixteen.
and a "White" child mny be allowecl to attend school from the
age of six years (secs. 61(1) and 60(1), respectively);education may
be made compiilsory within a given area by proclamation, for
"Coloured" children between the ages of seven and fourteen, but
no "Coloured" child under seven may attend school (secs. 97(2)
and 97(1), respectively).
As stated in 1961 by the Coinmittee on South West Africa,
"al1 indications point to the conclusion that Coloured education is
devoted to the fundameiital aims of keeping the Coloureds as
a group apart, superior to the Natives but inferior to the Euro-
peans." '
The educatioii of the "Native" children of the Territory involves
extreme application of "educational apartheid." It is based on
Respondent's system of "Bantu education" in the Republic, which
applies to al1 "Bantu" children in the Republic of South Africa;
this system has now been applied in the Territory, assertedly
' G.A.O.R. 16thSess.S.W.A. Comrn.,Supp. No12at 5(A!4957). (Italicsadded.)
Id., p. 26.
' G.A.O.R.e16thSess.. S.W.A. Comm., SuppXo. r;atr25a(A/4957).izz 8. REPLY OF ETHIOPIA AND LIBERIA 363
"with due regard to local conditions." ' The application of prin-
ciples of "Bantu educatiori" to the Territory is brought out in
Respondent's Cof~nter-Memorial and has been crystdized, iii
certain respects, by the enactment of recent legislation.'Apart from
institutional aparllteiil, the essential distinctions between "Native"
and "Coloured" education are the use of a special syllabus for
"Natives" and the use of what Respondent refers to as "mother-
tongue instruction," or teaching in the tribal tongue through the
fourth year of school (with the ultimate expressed aim of using it
as the instructional medium in al1years). Institutional segregation
in higher education is common to both "Native" and "Coloured"
children, and thus they share the saine disabilities in available
opportunities. Respondent's policy of "Native" education as applied
to al1 "Natives" in the Territory is therefore an extreme form
of "educational apartheid." Inasmuch as "Coloured" persons have
no tribal tongue for "mothar-tongue instruction" and form a small
percentage of the population, no syllabus is required for their
instruction as manual labourers. as in the case of the "Natives."
In view of the fact that ~~blicants' submissions have not dis-
tinguished between the "ISuropean," "Coloured," and "Native"
1 "The system of education for Native children is based on that whieh obtains
for Bantu Children in the Union, with due regard to local conditions." (S.W.A.
Administration: M~mornndu>riof Educution Policy Adopted with Raferencc 10
Reports ofCommissions of Enguiry RegardingEuroPcanand Non-Europcnn Educalion
Appointed in 1956and 1958,p. 29 (1960));see also G.A.O.R. 16th Sess., S.W.A.
Comm., Supp. No. r? at 26 (A14957).
See e.g.,III, p. 358 (mother-tongue instruction), p. 455 (~yllabuseç). and p. 370
(community schools); seealso,for aparallel identificatioofthe ultimate objectives
of apartheid in South Africa with those of apartheid in the Territory, id.. pp. 528-529,
paras. (b) and (g) (the creation of "homelands" entailing "self-government" and
"full independence" for the "Native" groupç therein). See also. for information.
the Odcndvnl Commission RePort at para. 99z (cnrricula and examinatianç).
'The Education Proclamation, 90. 16of 1926. The Lowr of Soulh Wcrl Africo
1926,pp. 132-226 (see 1,p. 152) was amended in 1960 by the Educztion Further
Amendment Ordinance. So. 19 of ,960, The Lnws of Soulh IVcst Africn 1960
pp. 671-687, "to pave the way for the introduction of the Rantu system af
education in South West Africa." (G.A.O.R. r6th Sess.. S.W.A. Comm.. Supp.
No. 12 at 25 (A14957)). The ameriding legiçlatioii dealt, inter dia, with the con-
version of mission schools for "Satives" to government schools. Subsequently.
the Adrninistrator adopted a neur educational system for "Natives" based. "with
dueregard tolocalconditions." upon the systern of "Bantu education" which had
been in effect in the Republic since the passage of the Bantu Education Act,
No. 47 of 1953. Slaluter of theUnion of South Africo 1953.p. 258 ("5 from time
to time amended). Finally, Administrator's Proclamation No. 84 of 1963. Oficinl
Gazelle Eztroordinury of South Wrrl Africa No. 2518 (r7 December 1963). brought
into force on 15December 1963 riew South West African legislation oneducation.
the Education Ordinance of ,962 (Ordinance No. 27 of 1962, The Laws of Soulh
Wcsl Africa 1961.]>p. r22-241); in Respondent's Counler-Mernorial. III. p. 351,
the Ordinance iç mentioned but not described as having entered into force.
The 1962 Education Ordinance covers almost every aspect of "White." "Col-
oured." and "Sative" education in the Territary, giving. interalin.wide grants of
power to the Administrator (or ti>a Director of Education responsible to the Ad-
ministrator) with respect to practically al1 mattem touching on education.364 SOUTH WEST AFRICA
groups in the Territory, l and since .4pplicants view Respondent's
policies of "Coloured" and "European" education as sharing the
essential evils of "educational apartheid,'' as dramatized in its
most severe and unwholesome form in Respondent's "Native"
education policy, it will not be necessary to deal with the "Coloured"
policies fier se except insofar as they are interwoven with the
policy in respect: of "Natives."
In Applicant!;' submission, Respondent's policy of educational
apartheid with respect to the children of "Native" persons within
the Territory in(:vitably distorts the social perspective and political
and moral outlook of the children of "Coloured" or "European"
inhahitants. As such, the "Native" education policy is, in itself, a
violation of Respondent's obligation to promote to the utmost the
material and moral wen-being and the social progress of al1 of the
inhahitants of the Territory.
Finally, Respondent's frequent references to practices in other
African States, including those of Applicants, are wholly irrelevant
to the present ],roceedings, inasmuch as thcre is no other African
State subject to Mandate, nor any other State, anywhere in the
world, which practises the policy of apartheid. 2
(2) General Policy
The assertecl objectives of Respondent's policy of apartheid are
that the varioiis "non-European" groups be separated in every
possible way from the "European" group and from each other,
that such "non-.EuropeanS' groups "develop" in their own manner
and at their own rate to form their own institutions and communi-
ties, and that siich groups eventually "have self-government. . .." '
Education in South Africa and in South West Africa is gearecl to
the objectives of Respondent's general policy of apartheid. Res-
pondent's "Native" education policy has come to form an integral
part of state policy, since the instruction of the young determines,
to a large extent, their future attitudes. The South African 1961
Education Panel found in its First Report:
"Al1education is necessarily geared to the future for, although
modern educationisgreatly concemedwith the happinessandwelfare
of the childrenwhilethey are being educated. al1its main objectives,
whether moral, social or economic, relate to a significant extent
to the adult lives of the children. .."'
In this connc:ction, the International Commission of Jurists has
stated:
"It is not difficult to perceive that the Bantu Education Act
of1953,its amendmentsand subsequentActspertaining to education
' See Sec. A of this ChaptIV.at p.255,suPra.
' SeeIII, p. 342.
' Id.. p528.
' EducationfovSouth Alrica: The ,961Education Panel First Repap.I(1963) REPLY OF ETHIOPIA AKD LIBERIA
365
are necessary to complement the African reserve, group areas and
pass law Iûgislation which aim at separate and restricted develop-
ment of the non-white only to the labour level required by the
Europeans." '
The basic assiitiiption of apartheid, which therefore constitutes
a fortiori a basic ~rernise of "Native" education ~olicv. is t<.t tliere
is'an unbridgea61e gulf between the population "groups." Lord
Hailey has written that "the advocates of the principle of separatisni
clearly hold that the gulf between the European and the Bantu is
sodeep that it would be unprofitable, even it if were not politically
inadvisable, to attempt to bridge it."
There can beno clearer statement of the intentioii of Rcspoiidcnt's
"Native" education policy than the following, by Dr. Vcrwoerd
on 7 June 1954:
"It is the policy of my Department that education should have its
roots entirely in the native areas and in thc nativc environment
and native comniunity. There Bantu education must be able to
give itself complete expression and there it will have to perform
itsreal service. 'TheRaritu miist be guiùed to serve his own com-
munity in al1 respects. 3"here is qzoplace for him in the European
commz~nityabovethelevel of certaia forms of labour.Within his own
community however al1doors are open." '
Any concept of "equality" of the "Native" aiid the "Europe;ln"
is, therefore, aiitithetical to this basic preniise. Dr. Verwoerd,
introducing the Bantu Education Bill iri 1953, referred to the pre-
vious situation in cducation, and said that tliis was unsuitable for
the "Bantu" because it "niadc him feel differerit, made hirn feel
he was not a member of a Baiitu community, but a membcr of
a wider community."
Any attempt to cross into the "wider commutiity," Responderit
holds, must only result in the "fmstration" of the "Nativc"
'International Commission of Jurists.South Afriçu and tlitHule of Law 77
(rg6III,p. 528, paras. (b)-(d).
' An Africnn Survey 166 (3d. ed. 1957).
' U. of S.A.. Pnrl. Dcb., Sennl~rth Purl.. 2nd Sitting (weekly ed., 1954). Cols.
z6i8-2619. (Italics added.)
' U. of S.A.. P<rrl. Beb.. Houre of Arrerrr11th Parl., 1st Sittin(weekly cd..
1953). Cal.3577. The unbridgeable chasm said to exist between the communities
was admittedly not Iiasedon hereditary orgïnetic characteristicsTho Commission
on Native Education Iieaded by Di-. \\M. M. liiseleii (the "IIiseleii Commissiori").
whose recamrnendations resultediii the Bantu liducationAct. found in itç Report
that:
"The Bantu child cornes to achool with a basic physiçal and psychologieal
endoment which differs,ço far aç your Commissioners have ken able to
determine from evidence set before them, so slightly,if at all, fram thaof
the European child thatno speciûl provisionhas to bc made in educational
theory or ba5ic aims." (Report of Ihe Commissiori on Nutive Education.1949-
1951, para. 773 (U.G. 53/r95i).)(Heroinafter referrcd to as the "Eirelcn
Commission Hcport.")366 SOUTH WEST AFRICA
inaking the atti:mpt. ' Respondent apparently hopes to avoid this
"fmstration," in part, by creating a utilitarian scheme of edu-
cation for the "Natives" in the Territory which will train them to
continue serving the "White" group without "fmstration," on
the oiic hand, and to tend to their own problenis in their own
"areas" by theinselves, on the other. As Dr. Verwoerd succinctly
stated in a Senate debate iii 1954:
"[Ilt is of no avail for [the Africaii] . . . to receive a training which
lias as its aim absorption in the European community while he
cannot and .#il1iiot be absorbed there. Up till now lie has been sub-
jected to a :.ch001system which drew him away froni his own com-
munity, anii practicaily misled liim by showiiig him the green
fiasturesof the Eurofieanbut still did not allow him to grazethere."
Dr. Verwoerd also maintained that the previous curriculum and
teaching methcids, "by ignoring the segregation of [sic] apartheid
policy, could not offer preparation for service within the Bantu
community." :By produciug students in the "White" system,
"the idle hope was created that [the "Natives"] ... could occupy
positions in the European community in spite of the country's
policy . . .. "This was, he stated, "the unhealthy creation of'white-
collar ideals' and the creation of \\ride-spread fmstration among the
so-called educated Natives."
Lord.Hailey commented that the passage of the Bantu Education
Act
". . .amouiited to a decision that education on Europeaii lines
would be no good to an African in the sphere which he was now
destined to fill, and it might even be dangerous, as encouraging
hjm to trespass into that occiipied by the European." .'
Although thiis denying equality of opportunity tothe vast major-
ity of the inhabitants of the Territory, Rcspondent regards it as
appropriate at the same time to "respect the unwillingness of rnem-
bers of the White group to serve in positions of subservience to
members of thi: Bantu groups." 5To that end, "Native" education
is planned so that, in Dr. Verwoerd's words:
"[it] inil be suitable for those who wiilbecome the industrial workers
in the couritry and also that education can be suitable for those
who have to stand on their own feetin the reservesand whowillhave
to conserve tlieir soi1and develop their agricultural activities . . ."
' See 1,p. 157. and 111.pp. 528-529. paras. (e)-(f).
W. O/ S.A..P~zrl.I>rb.Senole,iith Parl., 2nd Sitting (weekly ed., 1954). Col.
261% (Italics added.)
' Id. at Cols. 9598-2599. (Italics added.)
' III, p. 529: Rt:spondent does nat consider the unwilliiigness of "rnofnthes
Bantu nrouns" ta serve in ~asitions of çubservience to mernb~-~ of the "White"
group for an indeterminate future period.
W. of S..4.Pad. Dcb.. House of .4ssci»zbly,11Z'arl.rst Sitting (weekly ed..
1953).col. 3580. REPLY OF ETHIOPIA AND LIBERIA 367
The Eiselen Commission, in discussing the plan with regard to
language instruction, expressed the view that instruction should
proceed so that "the Bantu child will be able to hnd his way in
European comriiunities; to follow oral or written i~zstrtictioits;
and to carry oit a simple conversation with Europeans about his
work and other sz~bjectso! common interest." ' Respondent asscrts
that it has foiind it best "to creatc compensatory opportunitics
for higher employment of menibers of the . . . ['Bantu'] groups
through acceleration, as far as practicable, of the development
of theirolvn honielaiids and economies."
In contrast with such benevolent form of expression, yet ex2
plicitly addressed to the same proposition, is the more forthriglit
admission by the Miiiister of Bantu Education in 1959:
". . . [Elvery law concerning the natives which the Nationalist
Government has passecl or is passing, is being passed with the
object of protectiiig the white man in social and economicspheres;
also to ensurethe paramoulrtcyof the white man in Soidh Africa.
"Further and future relationships between the European and
non-European would depend on the schooling given to natives.
It was wrongto create the impressiontliat the education he received
would be the key that would givc him the job which the white
man has."
In conclusion, the niosr concise illumination of Iiespondent's
basic policy was giveti by Dr. Verwoerd in the 1953 debates,
when he said :
"1just want to remind hon. members that if the Native in South
Africa to-day in any kind of school in existence is Being taught
10expectthathemil1live his adultlife undera Policyof equalrights,
he ismakinga big mistake."4
(3) Categorization
Respondent argues that "Colour and racial origin per se do not
determine the distribution of educational facilities or clifferential
expenditures on education in South West Africa." This is true,
but only so far as it goes.
Distribution of facilities and differential expenditurcs on edu-
cation are, in fact, determined by the weightgiven by Respondent
to colour and racial origin. Throughout its Coz~nter-Mernorial.
' Eiselcn Commission Report. para. 924.(Italics added.)
111p. 529.
' Speech made by thc Ministcr, Mr. W. A. hlareezzoAugust 1<)50broadcast
or,the South African llroadcasting Corporation. Sunday7 am., 23 August 1959
(statement quoted byDr. A. B. Xuma in a paper delivered to the South African
Inrtitute of Race Relatioiis Anniial Council Meet17-20 January ,961,p. 6,
Johannesburg). the News Deparimerit of the South >\fricanBraadcasting Corporation.
' U. O/S.A.. Porl. Deb.. Howof .4srambly, iith Par1stSitting (weekly ed..
1953)C.ol.3586.(Italics added.)
"II, p. 385.368 SOUTH WEST AERICA
Respondent expi-esses its policy in terms of "groups," of irrevocable
and involuiitary categorizations thrust upon each of the individual
inhabitants of the Territory as a result of his birth. A feur examples
will suffice:
". ..Thougli standing generally iiearer to the level of civilization
[the 'Coloureii'group was]it.. .uevertheless much lessadvanced than
the White group." '
"In view of the considerable differences in the social background,
habits and ciistoms of the various population groups, it has always
been Hespondent's policy to provide separate hospitalisation and
liealth services forthe respective groups, and to make provision for
each of the groups to he served as far as possiblehy its own members.
At first, as may readily be iinagined, the Whitegroup rovided sucli
services for al1the groups. But as the otlier groups a Lvaiice in this
sphere, their members are given preference in the service of their
owngroups. Many members of the non-Whitegroups are still working
groiip, but Respoiident's policy envisages that when tliey haveWhite
gained sufficient esperience and a mature sense of responsibility,
complete coiitrol of their own hcaltli services will bc Iianded over
to the respecitivegroups themselves." 2
Nowhere is there a sign of an individual being considered other
than as a member of a group. ' This rigid tendency to categorize
by group designation is the recurrent theiiie of the nictaphysics of
apartheid; it m;ry be seen iii its most extrenie form in a speech by
the Ministcr of Bantu Education, {uoted by Respondent in its
Cozlitler-Memon'al ,n wliicli he characterizes South African tribes
as "national units" and "national groups":
". . .[I]t is self-evident that a university which in the first instance
does not serve a particular natioiial community and which draws
its students from heterogeneous national units, will not only find it
difficult to provide for the special needs of national units, but more
national unxts. Thatga1s true, particularly where you have national
groups at difierent levels of development as in South Africa .. . In
the third place there is the consideration, of course, that if a uni-
versity institution serves a particular national group, the stridents
are more easily and better equipped for living in and serving the
cominunity to which they belong. . . ."'
As a result of the outlook reflected in the final parqraph quoted
above, the social interchange and natural competition necessary
for the realization of wider horizons is made impossible. Respond-
' Id.,..471..
' See especiallyid..pp. 527.530. CfOdsndnnl Commission Reporl (at p. 427,
para. 1431):"The moraland economic principles of a modern economic system
aredifferent frothose oftraditional groups where the groupand nthe individual
is the focal point."
III ,.484. REPLY OF ETHIOPIA AND LIBERIA 369
ent's policy serves to hartlen the lines of demarcation and to reiider
staticthe elements of socicty. A striking indication of Respondent's
attitude is revealed by the fact that, throughout its Corrnter-
iMemorial,Respondent attributes to individuals qzlalitiesand char-
acteristics which may only properly be assigned to groups. Emblem-
atic of this is the ascription, to "White" children of school age,
characteristics wtiich may only be properly attribnted, at al], to
an entire culture scen in the perspective of hnndreds of years:
"For the White group of South \Vest Africa, which had the
advantage of the educational tradition of Western civilization
extending over centuries, there was little difficulty in devising a
syllabus suitable to its needs."'
When IZespondent refers to iiidividual huiii;rri heings, it is in
the large. Thus:
". . . [Mlembers of the: White group were deriuedentirely frorn
peoples and comrnunities regarded as bearers of Western civili-
zation."
On the other hand:
"III the caseofthe indigeiiousgroups, iiowever,the situation was
vastly different [from the sitiiation with respect to the 'White'
group]. There was, on their part, not only an absence of an edu-
cational traditioii, but, also. because of their background and
tradition-hoiind econoniies, :ils0 of those qiialities and incentives
which characterize a niodern economy and which make for the
crcation of economic opportunities and potentialities."3
It is an inevitable step, or descent, from this concept of the
role of the individual in human Society to the approach which classi-
fies al1 "Natives" or "Bantu" into one large homogeneous mass,
without regard to the fact that "Natives" may and do differ
extremely ilzter se, as do any other human beings. Although Rc-
spondent adinits that "tliere were, furthermore, as there still are,
vast differences in the level:;and stages of development of the various
groups, particularly as gauged by standards of what is generally
known as Western civilization," Respondent's only acknojvledg-
ment in practice of such different "levels and stages of develop-
ment" is to perniit the children of different "Native" groups to be
instmcted in different "mothcr tongues." Other than that, the
Herero are lumped togetlier with the Dama, the Ovambo with
the Bushmen, tlie Namawith theEast Caprivians. Al1are "Natives":
none has rights or opportiinities which the others do not have; al1
suffer the same restrictions.
' IIL p. 363.
Id., p. 383.taUcs added.)
' Id.. P. 354. REPLY OF ETHIOPIA AND LIBERIA
371
for a suborclinate role in the social, economic, and cultural life of
South West Africa. This last description is true both of the limi-
tation on opportunity within the areas considered by Respondent
to be "European" and of the development of any reasonable op-
portunities within prospective "homelands" ' in the Territory.
Such segregation, separation, and limitation are al1 in violation
of the duty of Respondent to "promote ... the material and moral
well-being and the social progress of the inhabitants" of South
West Africa, as is shown below.
(1) Segregatioii by Race
The natural result of Respondent's exclusive arrangement of
individuals into "groups" is that racial and tribal feelings are
fostered and, to a large degree, sanctioned. Kespondent charac-
terizes a system of open schools as bound to "lead to dissatisfac-
tion and group friction ... [and to] result in the neglect of the
needs of al1 the groups and in irreparable harm to the Territory
as a whole." Nevertheless, by inaiiitaining its present system of
racial and tribal segregation, Respondent is inevitably setting the
stage for more profound dissatisfaction and group friction than
any yet manifested. As Rlr. Justice Albert van de Sandt Centlivres 4
vote when he \vas Chancellor of the University of Cape Town,
concerning "university apartlaeid"in South Africa:
"As far as the present writer is aware there was iieither in 1948
nor in any subsequent year any unpleasant relationship between
Europeans and non-Europeans in those universitieswhichadmitted
bothEuropeans and noii-Europeans. In these racially inixed insti-
tutions the relationship has always been satisfactory. . . .On the
other hand experience has shown that when the policyofsegregated
university institutions is applied, there is a very real possibility
of trouble.. .."5
Respondeiit's de jtrre segregation of school children by race and
by tribe coiild only be permissible if the segregation were ac-
complished de facto by applying a test of individual ability, not one
of race or "group." Yet if allable children were in the "White" group,
and al1"slow" children in "Native" or "Coloured" groups (which is
inconceivable), it would constitute a searingindictment of Kespond-
ent's past performance a:; Mandatory. It would not, moreover,
justify continuing a policy which produced so grotesque a result.
' III, pp. 528-529p.aras. (b)a(g).
Alandate, Articl2.para.2.
' III, p. 382.
Quoted in another cantext, p. 286.rupro.
' Centlivres, "University Apartheid in the Union of South Africa." g Buofeti
Commission of Jurists.outh Africaandmthe Rule of Lam, p.8(~gGo).nternational
The Eiselen Commission, as quotcd above(seefoatnote5.p. 365)stated in its
Report that "theBantu ehild conies toschool wubasicphysical and psychological
endowment which diaers ... soslightly. if at all, from that of the European child
that nospecial provision has to bemade in educational theory or basic airns."372 SOUTH WEST AFRICA
Segregation on racial grounds has been condemned in al1civilized
nations, at least since World \Var II. ' It is escluded, for example,
from the educational policies of Territories subject to Trustee-
ship .4greement iinder Chapter XII of the United Nations Charter,
or subject to reporting as Non-Self-Governing Territories under
Chapter XI.2 Intensive efforts made in recent years in the United
States to bar racial segregation from public education through the
medium of judicial action are worthy of note in this connection.
In Brown v. Roard of Editcntion, 3 the United States Supreme
Court, holding that separate educational facilities are inherently
unequal, said :
"To separate [cliildren iri grade and liigh sçliools] ... from otliers
of similar age and ~lualificationssolely because of tlieir race generates
a feeling of inferiority as to tlieir status in the comrnunity thal
may affecttheirheartsand minds i~ away u~tlikelyevertobeuitdone." '
.Ihe Court c~uot~~dw , ith approval, a fiiiding by the lower court
which stated:
"Segregation of white and colored childreri iii piiblic scliools has
a detrimental effect uDon the colored children. The impact is
greater wlicii it has the'sanction of the law; for the policy Ôf sepa-
ratingtheracesis usually interpretedas denotingthe iriferiorityof the
Negrogroup. r\sense of inferiority affectsthe inotivrrtion of a child
to learn. Segregation witli the sanction of law. tlierefore, lias a
tendency to [retard] the educational and mïiital development of
Negro c1iildn:n andto deprivc thein of some of the benefits they
would receivl: in a racial[ly] integrated school system." '
The Suprerne Court concluded:
"We conclude that in the field of public educatioii the doctiine
of 'separate but equal' has no place. Sefiarate edz~cntionaflacilztzes
are inherently unequal." 6
'In 1960. C. \V. de Kiewiet made the folloiving statement in the Second T. B.
Davie Alemorial Lecture at the University of Cape Town:
"The deprivetion by law of free access to open universities by qualified
members of the non-\'hite community seems to me to be unjust. uneconomical.
and dangerous. 1 am using these words deliberately. The injustice is plain to
see.The law runscounter to the growing conviction iiithe modern world
that the henefits of civilisation must be made equally available to al1 men
regardless of race or creed. These benefitç can he summrd up as food. hoalth.
dignity,opportunity, and education." (de Kiewiet, Academic Freedonr 18
i1961).)
See Annex 5. p. 398, infra. Lest any rnisleading impression be created by
ent population groups" under the League of Nations, the Court's attention is drawn-
to the dates of th,: P.M.C. material quoted by Respondent. being ,923. 1928.
1939, 1928. and 1930.rcspectively. SeealsoChapter V, Sec. 5. of this Reply. 512.
,n/va.
'347U.S. 483(1954) discussed in other contexts. pp. 307,3upra; 1,.487infra.
'Id.,p. 494. (Italics added.)
'Ibid. (Italics added.)
Id.,p. 495.(Italics added.) REPLY CIE ETHIOPIA AND LIBERIA 373
This holding by the United States Supreme Court was made on
the basis of a clause in the Fourteenth Amendment to the United
States Constitution which prohibited state action depriving persons
of "the equal protection of the laws." The present Mandate is a
constitutional-type document, ' and the obligations contained in
Article z are more affirmative and explicit than the general injunc-
tion of the "equal protection" clause of the Fourteenth Amend-
ment. Moreover, Respondent's policy of racial segregation in the
educational system of the Territory is more affirmative, evplicit
and far-reaching than was the racial bar stnick down by the
Brown decision.
The reasoning of the United States Supreme Court is relevant
as a response to Respondent's query why "theexistenceof similar
[but separate] institiitions for Colourcd and Native students should
be styled [by Applicants, in their Memovids,] 'a remindcr of op-
portunities denied' to non-Eiiropean students ...." The "oppor-
tunities denied" ' are not only the opportunities to attend Inany
South African univcrsities; they include the opportunity not to
be segregated against one's wishes, the opportunity to be a (Ai-
zen of equal standing with a "European," and the opportunity to
live one's life freely in an open society.
Responderit implics that the Pernianent Mandates Coniiniçsion
knew and tacitly approved of its policy of separate schools. '
Yet as Kespondent candidly admits, 5 "Native" education was,
during the lifetime of the Permanent Mandates Commission,
almost completely in the hands of the missions; as a rcsult, it
can hardly be said that Respondent had, at that time, a "_olicy
of hauing separate schools in South West Africa for Eiiropeaii,
Colourcd and Native children" which was susceptible of tacit or
express approval by the Permanent Mandates Coinmission. Re-
spondent's policy w:~s,in fact, developed only after the Second
World \Var. It has never been reviewed, with Respondent's
co-operation, by an administrative supervisory organ. '
A reflection of the proposition that separate facilities are inher-
' See Chapter V of this Reply, p. 476, infra.
111,p. 527.
' 1, P. '57.
' III, PP. 372-374.
Id.. PP. 372-373.
' It is of coursetrue that the various Committeeç on South West Africa have
reviewed Respondent's policy, but Respondent has never çeon fit to submit such
policy theretoforreview. The Report of the Special Committee for South West
Alrica. written after representativof the Special Committec had visited the
Territory in1962,stated. intealin.that "the basic palicy of the South Alrican
Gorernment in the educational fiel... iç to rertrict Africanç to a rudimentary
system ofschooling and training designed to confinhem to menial occupations
in order to keep them instateof subservience to the \mite minority." (G.A.O.R.
17th Seçs.Sp. S.W.A. Comm.. Siipp. No. izat r4 (Al~z~z).)374 SOUTH WEST AFRICA
ently unequal was contained in the Report of the Eiselen Commis-
sion, where it stzrted that:
"The Bantii have, for numerous reasons, come to feel that any
di@erentiation il&edncation must to be their detriment. hluch evidence
to this effect was given before this Commission. particularly by
Bantu teachers. Reference to previous commissions shows that
this attitude lias persisted from early times." '
The practice of segregation by race is, moreover. uneconomic.
Not onlv does it: inevitablv ~roduce du~lication of administrative
machinéry and personnel*\;here there'is already a shortage of
available help and resources, but it also means that "Native"
children must 11e restricted entirely to facilities intended for
"Natives" and tbereby go without schooling in situations where
there may be facilities for other "groups,"-but -nadequatefacilities
for "Natives."
One example of this would be the situation with respect to
the hostel and teacher shortages suffered by the "Native" children
in the Police Zone. '
(2) Separation by Tribe
The racial segregation of the children of the Territory is made
possible by c1as:jification according to skin colour and appearance
for "\Vhites8' arid "Coloureds," and according to appearance and
tribal origin for "Natives." A further degree of segregation practised
by Respondent in the educational life of the Territory is separation
of "Native" children by linguistic classification. This is the system of
'Eirelan Commisrio8r Report, para. 233. (Italics added.)
The 1961 Educ:ition Panel wrote. for example. in its First Report. Educalion
for South Africn (1963).that the system of "separate education administrations for
theseparategroups, each adrninistrvtionihelfbeing centralized ...underlines group
differenceç to an extent that seems unfortunate in a country where the different
groups must co-operate and if involves the duplicatioO/rrllndministralivc personnel.
alid hiriders th&Pooling of expcricnceven nt a high leuel." (Op. cit.. 57.) (Italics
added.)
' Reçpondent, in itç Countcr-Memorial, III. p. 493. acknowledges that nearly
40 per cent of the "European" children in the Territory are accommodated in
hostels.40 percent of the "European" children is approximately 6.800 in number.
using r7.ooo as thc figure for "European" children in the Territory attending
school (Odendnal Commirrion Report. p. 245, Table LXXXXII. gives i7,qqz for
1962). In its Counter-Alemorinl, III, p. 520. Respondent gives the total number
of hostels for "Eurupean" children as being 67; on the basis of this,a calculation
Respondente tthen :.tates (ibid.) that there are 31 schaolç with hostel facilities.
for "Native" childi-en in the Police Zone. Assuming ~oo children per hastel. this
accommodates 3.100 children, or 9.17 per cent of the total "Native" scbool age
population of jq,oao in the Police Zone(Odcndaal Commissiow Rsport, p. 249.
Table LXXXXIII). There are 19,160 "Sative" children in the IWice Zone who
do not attend schaol (ibid.); surely some of them could beaccammodated in the
hostelsnow reserveil for "European" children.As a result, inter alia, of Respondent's
segregation policier,56.36 per cent of the "Native" children in the Police Zone
do not rïceive any education at all. whereaç 99.66 per cent of the "European"
children attend school.376 SOUTH WEST AFRICA
Commission nas of the opinion that, although education by the
mother tongue was "essential" in the early stages, it was improper
as the inedium iri secondary schools:
"If this is ever to come about, it must come about as a result of
a natural development. The inadequacy of the vocabulary, text
books, and rcference books is a vcry real and important obstacle
in the way of its introduction as a medium of instruction in the
secondary school." '
The forced nature of Respondent's scheme of completeinstruction
in the mother tongue was recognized by the 1961 Education Panel:
"It must also be accepted, however, just as there is no place for
trying to change cultures from outside, so there is none for trying
to reserve them from outside. AU cultures must and do change
angif they did not they would ultimately perish through losing
touch with conteinporary needs. The decision as to how fast and in
what direction a culture shall change, what its attitude should be
to other langiiagesfor example, is a decision belonging to the bearers
of the culture alone. In Our opinion, therefore, White-inspired
attem ts to iusist upon the preservationof Bantu languagesare as
misp ?aced as White attempts to eliminate such langungesrniouldbe.
The decision as to how Bantu languages as a medium of culture
and leaming shall develop belongs to the Rantu; or, to he more
accurate, the decision as to each particular language belongs to
those whose language it is."
Respondent has not consulted the "Native" groupsin the Territory
with respect to tlieir wishes on vernacularinstruction in allstandards.
Indeed, the present Chief hfinister of the Transkei hasstated that
the Transkei w<iuld abolish Xhosa as medium of instruction after
Standard II. 3
An authonty on "Bantu education" has concluded:
"The introduction of a third lnnguage may well prove to be the
most calamitous blow struck at Rantu education. . . .
"It will bc:seen, in brief, that the language provisions minister to
the twin gods of apartheid and tribalization. They aim at producing
an African irolerably fluent in his own language, if he stays long
enough at school, and able to communicate to a strictly limited
degree in the two officia1languages with officiais and other casual
contacts." '
Itwas to this limited end, indeed, that the Eiselen Commission fa-
voured a method of instruction so that " ... the Bantu child will be
able tofindhis way in European communities; to follow oral or written
' Rcporfof lhc Commission ofEnpuiry into the Tenching ofIhe Oficial Language
ond fhe Use ofMiilh~r Tongue os Medium O/ Instruction in Trnnskeian Primory
School.rro.~,-20.Ri??.22 \-,~-,.
Education forSouLh Africa: The 1961 Educatian Panel First Report. p. 56
(1963).(Italics added.)
' Seefootnote 4.p. 377, infra.
40-41(Octobzr-Decembzrew1956). in Bantu Education," iAfricn Soulh So. 1.pp. REPLY OF ETHIOPIA AND LIBERIA
377
instructions; and to carry on a si?izpleco~zuersation mith Europeans
abotdthis work and other subjects of cornmon interest." '
A natural result of mother-tongue iiistruction at secondary levels
is the decline of English. Thus, the "Native" inhabitants of the
Territory are becoming ever more isolated from the world which
initiaüy committed them to the care of Respondent. If Afrikaans,
and, a fortiori, English, are taught as foreign languages to Soiith
West African children, the effects will be far-reaching. As a pe-
titioner before the Special Committee on A$artheid stated:
"Tliis ineans that the standard of English and Afrikaans remains
very low making it even more difficultfor the African to fit into
an economy run by Whites who do not speak tribal languages, and
even to commuiiicate with Africans of other tribes." 2
This is hardly promotion "to the utmost," or otherwise, of the
social progress of the inhabitants. Not only wiü children be "re-
tribalized," not only will they be cut off from the outside world,
but they will be divided from one another. ' Chief hfatanzima of the
Transkei, according to a news report, is quoted as saying
"that although Xhosa wouldbe the officia1languageof the Transkei,
it would be abolishedas a medium of instruction after Standard
Two; the Goveriiment's insistence on Xhosa as a medium of
instruction was 'a sore point with the people' (Johannesburg Star,
air mail editioii, 27 January 1962). Africans do not want to be
linguisticallyisolated from one another, let alone fromthe world." '
C. W. de Kiewiet has identified the central problem when he
stated that "the whole myth of a separate native culture collapses
when it is recognized that, for the African, progress and einanci-
pation depend upon an escapefront the tribe and a deepereiztryinto
the life of the West."
Respondent in effect coricedes this cvil of its plan by quoting a
recommendation of the Eiselen Commission providing for the
"study of the two oficial langz~ages . . . 'as a means of communi-
cation with Europeans, as a help in economic matters, and as a
means of securing contact zoithtlte knowledgeof thewider world.' " '
In view of the central purpose of the Mandates System, to render
peoples not previonsly capa.ble of doing so "able to stand by them-
selves under the strenuous conditions of the modern world,"
' EiselenCommission Report, para. 924. (Italicç added.) This is clearly attuned to
Respondent's genervl policy as otitlined in Part (A) of this Section. p. 362. supra.
Ouoted in S.C.O.R.. S.>.Comm. on Aoorlhcid. at.96 ..-.12. .faloo issued as
45'9A policy of division such as Ibis naturally snps the energies and the ofwers
"Native" opposition to the policiofthe Respondent.
' M. Friedmann. "The Hunpy . . Sheep Look Up." 208 The S$edotor 234 (23
February 1962).
' Cited in a difierent contexp. *Sr. supra.
de Kiewiet. The Anotomy of South African Alisery 54(1956)(.Italics added.)
' III, p. 365. (Italics adcled.) 378 SOUTH WEST AFRICA
Respondent's avoured aim of rnaking South West African tribal
tongues the medium of instruction at all levels, while retaining the
teaching of English and Afrikaans as "foreign" languages, ' is
in direct contradiction to the purpose of the Mandate.
The language quoted by Respondent from Mme. Wicksell's
report submitted to the Permanent Mandates Commission is ad-
dressed generally to the problem of language instruction, but
cannot be reduced to authority in support of tribal vernacular
instruction at all levels: "the number of different languages ...
[in Africa make:] it necessary to teach a foreign language and, in
some territories, even to carry on instruction in a 1oreigr.language."
None of the quotations cited by Respondent from rhe minutes of
the Permanent Mandates Commission can reasonably be adduced
as authority for the plan of mother-tongue instruction as recently
introduced into the Territory. Theystand, rather, for a different and
laudable objective, that of "more systencalic instruction in the
mother tongue." ' The difference between "systematic" instruction
and total education in such vernaculars as Ndonga, Kuanyama,
Kuangali, Nama, Lozi or Herero is obvious. Indeed, Lord Lugard,
whose approval of "more systematic instruction in the mother
tongue" is notetl by Respondent ',wrote that:
". . . Xo greater benefit can be conferred on the African,whether
as a means of enabling him to make known his desires, or for
purposes of trade, or as affordingan access to a great literature,
than theteaclcingof Eitglishas a universal medium." 5
Not only does Respondent's policy thwart the social progress
of "Natives" by isolating them from each other, and from the
modern world, but it is also impractical and unworkable. Re-
spondent admits that "the Native peoples in the Territory had no
literary culture," and that "although their vocabularies are rich
enough to meet the daytoday needs of people living inasubsistence
environment, tliey are al1 poor vehicles of abstract thought." '
In addition, Respondent acknowledges that, "because of insufficient
development [of Ndonga, Kuanyama, Kuangali, Herero, Nama and
Tswana] . ..rnother-tongue instruction is generally not yet feasible
beyond the Standard II level in these languages." 7 As a result,
the inhabitants are being held in suspension while their languages
' See Odcndaal <;ommissio%Report, para. iago, where English or Afrikaanss
referred to as "a fcireign language."
P.hI.C.Min.,,:!tSess..p. 186, as quoted in 111.p. 359.
PP.1.C.Min.. 26tSess..p. 59asquoted in III, p360.(Italiacdsded.)
' Ibid.
Lugard, TheDual hi~ndalrinBritisThropicaAfrira454 (1922). (Italics added.)
= III, pp. 4.5-qi(i.
' Id.. p416. REPLY OF ETHIOPIA AND LIBERIA 379
are being "developed into vehicles suitable for general communi-
cation. Indeed, the Odendaal Commission stated:
"It is important that each of the various language groups (inter
alia, Bushmen, Nama, Herero, Tswana. Kuanyama, Ndonga, Kuan-
gar, Mbukushu. Lozi) should have its own medium of instruction,
but at the saine time this hampers the proper development of
reading books, textbooks and general literature." '
They are not even being held in suspension in the proper "groups";
indeed. the administrative ~roblemi l~articularlv in the Police
Zone) attendant upon ~espkdeut's p&cy are ingoluble:
". .. The policy at prejent is to institute a separate class for a
minonty group at any school as soon as thcy [sic]number twenty
in al1classes from Sub-Standard A to Standard II. . . .
"Thereare certain areas where the pupils of a minority language
group are so few in number that even the establishmentof separate
classesis not practicable.. . . Only very rarely does it happen that
so many language groups are represented in the same class that no
Native language at al1 can be used as the medium of instruction,
but when such a situation does anse. the Administration allows
ofteof the oficial 1anguagt:sto beused as medium. . .
". .. Of the roz sclioolsi~~I/~ePoli presZnot,eneoffersinstruc-
tion in three langunges, and twenty in two languages. Hercro is the
mediumofinstruction in elevenschools,and teii of theseare attended
almost exclusiuely by Herero pupils. Nama is the medium in sixty-
eight schools: in six of these lessons arc also explained in Herero,
and in the others Nama-speaking pupils form the ouerwhelming
majority. Tswana is the medium of instruction in two schools, at
both of which Tswana-speaking pupils form the uast rnaj~rity."~
Unfortunate Herero children are being snbjected to "mother-tougue
instmction" in Nama, Naina pupils are being taiight in Herero,
and various other children, not Tswana, are being instmcted in
Tswana. Findy, a minority group of nineteen "Native" children
are unable to obtain instmction in their "mother tongue"; they
must, in fact, be taught in the "mother tongue" of a different group
until they reach twenty in number.
With respect to the development of the "Native" languages so as
to afford "Native" childreii adequate education through "mother-
tonguc instruction," Respondent states that:
1 Odcndnnl Commission Report,para.,089.
III, p. 362.(Italiw added.)
Id.. p. 362.Cf. the stated policy for the recognition of secondary schools (not
"asminimumateaverageenrolment of twenty pupils inlhefourth and fiflh rtandordrr afin.
combined has heen rnaintained for ut leone year." (Id.. 496.)(Italics added.)
For the reductio ad obsurdum oi the situation arising when a "Native" South
West Africanwho has heen fully inçtructed in his "mother tongue" attends uni-
versityin theRepublic of South Afrieçee pp.382-383& .},o.380 SOUTH WEST AFRICA
"In the final result, however,it willbe for the groups themselves
edircatio~~nleeds."' development of their languages fo meei dl
The "Native" inhabitants of South West Africa are, then, being
forced into instruction, eventually in d the standards, by the
medium of the iame tribal tongues they possessed in 1920. These
lariguages are admittedly not suited for communication wviththe
world at large or even, in the modern context, inter se. "Natives"
are, iri certain cases, instmcted in languages of other tnbes. They
are, finaily, left to develop their own languages "to meet ailedu-
cational needs." These developments have taken place, as a matter
of Respondent's policy, since the dissolution of the League ofNations
and in the absence of international administrative supervision or
accounting.
Applicants contend that such policies have as their purpose
and inevitable consequence, restriction of the "Native" inhabitants
of the Territory to their isolated, pre-industrial, tribal groups and
that such policies will exclude the "Natives" from meaningful par-
ticipation or consultation in the life-social, political, and econo-
mic-of the Territory as a whole.
Respondent'~ policy of "mother-tongue instruction," as current-
ly practised anil as intended to be applied, has at least four major
defects :(1)it perpetuates, rather thanimproves, existing deficiencies;
(2) it "retribalizes" the "Natives"; (3)it tends to aggravate the
very problems rvhich are asserted to justify its adoption; and (4)
it is inadequate to provide even the limited educational oppor-
tunities it professes to offer.
In the first place, Respondeiit'spolicy serves to perpetuate exist-
irig deficiencies, rather than afirmatively to promote social pro-
gress. Applicants insist that a policy whose "ultimate aim [is] that
the vernacular be used as the medium of instruction in al1 stati-
dard^,"^ involves abandonment of Respondent's duty to promote
the social progress of the "Natives" not yet able to stand by them-
selves under the strenuous conditions of the modern wvorld.
In the second.place, such a policy serves to foster tribal differen-
ces in the Territory and, as such, to agg~avate the very situation
which Respondent asserts as a justification for the policy of
"self-determination" of the individual tribes as separate units.
In addition, the policy exacerbates factors which are alleged
by Respondent to create a need for tribally separated schools
to hegin with. ' The circnlarity and fdacy of such reasoning is
obvious.
Thirdly, "mother-tongue instruction" automatically creates
' III. p416.(Itiilics added.)
' rd., p.36i
' SeeII. pp.458-459472-474.
' III, p.367. RF.]-LY OF ETHIOPIA AND LIBERIA 381
a shortage of teachers and inaterials, ' and :rlsolays a heavy burden
on the administration of the separate educational facilities. This
functional slowing-down of the educationd process must in turu
lower the level and estent of education, ' and as a result the "Na-
tive" çommunities, being relatively uneducated, do not appre-
ciate the value of education. ' This, in turn, aggravates the con-
ditions to which Respondent's reaction is to institute vernacular
instruction. 5The effccts oi this vicious circle are compounded by
Respondent's failure to malre education compulsoryfor "Natives" 6
aiid its policy of discrimination as to the ultimate opportunities
for "Natives" to put their education into [>ractice. Taken separ-
atcly and togcther, dl of these factors crcate and maititain tlic
circular pattern of deprivation of educatioii of which Applicarits
complain in their Menroriczls.n'othiiig advanced by Respondent
in its Cotiï~ter-Menlorialexc~.~se itss conduct; on the contrary, Res-
pondent's explanatioiis reinforceApplicants' allegations.
In the fourtli place, "mother-tonguc instruction" caniiot possibly
accommodate al1the "Native" childreii. It cannot even accon!nio-
date al1 the "Native" languages:
"It would Iiavc beeii an impossible task, however, to prcpare
schoolbooks in each of the various langiiagesor dialects spoken in
the Territory, or to coiivert each of tlieni iiito a teacliing languagc,
aiid the policyconsequently wil.,to concentrate on the developmeiit
of those languages whichare spoken b .most of the Xatives. Thus
far Xdonga. Kuaiiyama, Kuangaii, Aerero, Nama and Tswana
have achieved the status of schoollancua~es.but. becauseofinsiiffi-
cient developmcnt as yet, mother-tong& instrnction isgcnerally
not yet feasible beyond the,Standard 1I level in these lang~ages."~
As a result, children whose "mother toiigue" is Diriku, Icuanibi,
Bushman or Sikololo (Silosi) are instructed in Kuangali, Ndonga,
Kuanyama, Herero, Nama or Tswaiia. 'O Thus even were there,
' III,pp. 360, 4r8. and 517 (teachers) and pp. 361. 415-416 (materials).
' Id..PP. 360. 433.
' Id., p. 450: "The extra year in the case of Native pupils is necessary Iargaly
becoureoflanguoge dificulficr..." (Italicadded.) See alsoid., pp. 393. 413414-416,
and a.~,azr~ ~
of Part (C) ofthis9Section.p. 387,.infra.1.462, aiid 538-539. See,generally,sec.(1)
"" ..rslince the mvioritv of Native ~u~ils leaveschool after the firsfew vears
of schooling."(Id.. p. 359.) . .
See sec. (2)of Wrt (C) of thisSection, p. 390, infra.
' See Part (A) of this Section, p362, supra. and sec. (3) othis Part (B). p. 383,
infra.
III,p. 362 (seep. 37% st'pra)and pp.4i4--115.
Id.,p. 416.
'O"The principal Sative languages çpoken were. and stilare:
"Kuangaliand Diriku (amongt1ieNativ esthe Okavango) : Ndonga. Kuanyvma
and Kuambi (among the Natives of Ovambol&nd); Herero. Nama, Btishman.
Tswana (in the case of a small section) and Sikololo.also known as Silosi.
(among the Natives oi tlie Eastern Caprivi)." (Id..p. 356.)382 SOUTH WEST AFRICA
at a Kuangali-speaking or Ndonga-speaking school, more than
twenty Diriku- or Kuambi-speaking children, such children could
not in any everit he taught in their "mother tongue." '
Similarly, thiç wasteful and frustratingpattern continues through
the limited university education which is presently offered to "Na-
tives" in the Tcrritory. Respondent cites four South African (iiot
South West Afuican) resiclential universities as being "availablc"
for South \l'est African "Natives," namely: the University Col-
lege of Fort Hire, at Fort Hare, Cape Province; the University
College of the North, Turfloop, Pietersburg, Transvaal; the Univer-
sity College of Zululand. Ngoye, Natal; and the Medical School
for "non-Europeans" of the University of Natal.
The evils of "mother-tongue instruction" in primary and secon-
dary schools in South West Africa arecompounded in South Africa
at the university levelhy the evils of "Bantu education" in different
"mother tangues." Three of the "universities" cited by Respondent
are tribal colleges for South Africa?, "Baatu." The University
College at Fort Hare constitutes ". . .a tribal university for the
Xhosa group," ' and "new students admitted to Fort Hare are
selected mainly- from the Xhosa group." The University College ,
of the h'ortli ". . . admits inainly Sotho students but members
of the Tsonga and Venda groups are adinitted." Finally, the
University Collegeof Zululand, at Ngoye in the Mtunzini District,
"caters for Zulu and Swazi students." '
In 1962 the first student from the Territory \vas admitted to the
Collegeof the Forth. Speaking Herero or Ovambo,he would pursue
Cf. Respondcnvs statement that "The policy at present is to institute a separate
class for a minorit:, group at any school as soon as the[sic]numher twenty in al1
classes from Sub-Standard A to Standard II." (III. p. 362.) See alsoid..p. 363.
Id..p. 326. Orily three of these would qualify as "universitiesin the accepted
sense of the term. since a medical school is a professional school only.
' The Commission of Enquiry on Separate Training Facilities for Non-Europeariç
at Universities stated in its Report (1955):
"... As an ultimate ideal, three Bantu university institutions are envisaged,
namely-
" (1) Fort Hare which should become a Xosainstitution;
" (3) A Sotho institutioniin the Transvaal toe serveethe whole of the Sotho
community."
(OP. cil., p. 27.) These refer to the present institutionof Fort Hare. Zululand.
and the University College of the North, reçpectively.
' Tatr, Shadoiii andSubrlnncc in Soulh Afkn 148 (rg6z).
Id., p. 149; ILIuriel Horrell, in A Decade of Banlu. Education (1964). States
although certain Coloured and Asian students have heen permitted-speakto continue
courses of study rommenced prior to the change of control." (Op.dl.. p. 147.)
Tatr. op. cil.. p. 148.See also Horrell,op. dl.. pp. 142, 147; S.C.O.H. 18.th
Sess.. Spec. Comni. on Apartheid at 93 (S15426).
' Tatz, op. cil., pp. 148-49See also Horrell. opcil..p.147.
Horrell, op. cil.. p. 147. REPLY OF ETHIOPIA AND LIBERIA 383
a course of "higher education" in the Company of Sotho-, Tsonga-,
and Venda-speaking associates. This is the redz~ctioad absz~rdz~m
of Kespondent's educational apartheid policy. '
(3) Limitation of Objectives in Syllabus
As long ago as 1936, the South African Departmental Coinniis-
sion on Native Education had reported that
"The Education of the IVliiteçhild prepares him for life in a domi-
nant society,and the ediication of the Hlackchild for a subordinate
society. .. . The limits [of a Xative child's development] . .. form
part ofthe wholesocial aiid economicstructure ofthe country. . .."
Such limitation on the education of "Natives," whether inten-
ded to encourage thern to undertake occupations in the service
of their own "corn~nunitie~,," or to obtain the training necessary
fora continuing position as labourer in the "\Vhite0 industrial world,
inevitably resulted in "Nrtive" education becoming materialis-
tic and utilitarian. Dr. Veimoerd. in a 1954 South African Senate
debate, had said that ". . .the school education must equip [the
African] . .. to meet the deinands which the econorniclife in South
Africa will make upon hiin," and the Eiselen Commission had
concluded that "it is essenti:rl to consider the languagc of the pu-
pils, their home conditions, their social and mental environrnent,
their cultural traits and theirfutz~refiosifionand work in SozrtkAlri-
ca." '
Dr. Verwoerd, introducirig the Bantu Education Bill in 1953,
said, "What is the use of teaching a Bantu child matheniatics,
when it cannot use it in praclice? Tliat is quite absurd." J This
philosophy was irnpleiiieiited so thoroughly that the 'l'rniiskei
Commission, ten years Inter, found, ittter alia:
". .. much evidence of dissatisfactioii witli the syllabuses in the
primary schoolson the grounds that too mucli time was devoted to
the practical subjectsand religiousinstmction. It was asserted that
an over-emphasis had been made on fitting the child at too early
1 Respondent, in iis Counfer-&fernorial.III, p. 522, states that "Native
students of South West Africa ... may enrol at vgricultural schools for Bantu
in South Africa. .. ."(to lie providedfor each rnajorBontu group, e.g.at Fart
Cox in the Ciskei. Tsolo in the Tr;inskei, and Arabie in the h'orthern Transvaal)
"where specific instruction is given in regard to the types and methods of farrning
practisedin each particulararea." (Ibid.) Thus. South West African Hereros and
Ovambos may Lxdirected to a Xhosaspeakinp:.çolle-., specializininthe problerns
of Transkei& agriculture.
paras.458-459So(1936). (U.G. No. zglig36.)mission on Nafiua Educafion Rcporl.
' U. ofS.A.. Parl. DebSemz1.e.1th Parl., 2nd Sitting (weelily ed., 195~),Col.2606.
' Eisclen Commission Report, para. 765. (Italicî added.)
' U. ot S.A.. Parl. Dcb.Hot'sc cfAssembly. 11th Parl.,1st Sitting (weekly ed.,
1953)~Col. 3585.384 SOUTH WEST AFRICA
an age for his post-schoollife, to such an estent that insuficient
time masbeingailocatedto thebasicskills in thelanguagesand arith-
metic."'
There is a striking contrast between the syllabuses offered for
"Natives" and those offered for "European" children. The sylla-
buses offered i~ithe lower primary courses are roughly similar,
except that the "European" children receive one subject entitled
"Handwork" where the "Native" children receive instruction in
a total of six subjects entitled :'Drawing, Cleaning Work, \i7eaving
and Clay\vork, Needlework (Girls). Scrap Work (Boys), [and]
Gardeniiig." The existence of five additional subjects, in the
"Xative" syllabus, dealing, inter alia, with "Cleaning Work"
and "Scrap \York," implies only thrrt proportionately less of
their instructioii is devoted to the nine other subjects, eight of
which are parallelcd in the "European" syllabus, 3 and that the
"Europe;m" children are given proportionately more traiiiing in
Englisli, Afrikaans, Arithnietic, Environinent Study, Health
Education, \Vriting, Music, and Keligious Instruction thaii are the
"Native" childi-en, wlio are kept busy with their manual subjccts.
In the higher primary courses the same pattern is prescrit, Save
that the "Native" subjccts have been estended to cover "Gardcning,
Tree Plantiiig and Soi1 Conservation (Boys), Wood, Leathcr and
Scrap Work (Eioys), Needlework (Girls), [and] Handicrafts." "f
these, onlv "Haiidwork" is offered to "European" children iii the
higher primary courses.
The secoiidary syllabiises for the "Natives" at Oiiguedira in
Ovainbolaiicl ai~dat the Auaustineum iiiclucleAariculture. with the
alternative of Needleworkvfor girls (iii ~vam~oland) as "exami-
nationsubjects"for the Junior Certificate examination.' Respoiident
states that "in the first year of the ... [Agriculture] course,
instruction in Leatherurork, Scrapwork, and Tinwork is given to
boys, while girls do Needleivork." 6
"European" children may, on the other hand, follow a
"strictly academic course," "a general course," "a practical course,"
with "Woodwork and Metalwork for boys, and Needlework and
Domestic Science for girls," ' and a "Commercial course," which
includes "Bookkeeping and Typewriting at high and secondary
schools, and Shorthand at high schools." 7The coinmercial courses
' RePorlO/ theCommisrior* 01Enpiiirinlo th8Teuchirig
alid lheUse ofnlolher Toxgue as Medium of Inlrzïlio,r
Schools, p.14,R.1'22 (1963). (Italics added.)
' Id., pp. 44.$or.
' Id.. p. 449.
' Id.. pp450,,166.
Vd.. p.466.
Id., p. 50r HEPLY OF ETHIOPIA AND LIBERIA 385
are taught at al1 "European" high and secondary schools.' The
contrast between the options open to "Europeans," and the "Na-
tive" syllabus, at school--aiid consequently in later life-is self-
evident.
Thus the Coniiiiittcc on South West Africa, in its 1960 Report:
". . . regret[ted] tliat the courses contemplated for 'Xatives' [by
the Administratioii, after the report of the Commissionof Enquiry
into Non-European Education had been considered in 19591are
based on syllabuses different from thosr offered for other sections
of the population rather than on a svstem of education whichwould
prepa& (hem to participate more fÜUyand on an equal basis in the
political, ecoiioniicand social life of the Territory." 3
Turning to "industrial" courses, Respondent statcs that the
Augustineum "offers a thrce-year training course in one of thrce
trades, Carpentry, T:liloriiig and Masonry," 'and alsorcfcrs to "tlie
poor support giveii the courses generally. .. ." 5 Furtlicr techirical
or vocational training, statcs Kespoiident, niay bc eiijoycd by
"Natives" by virtueof assist:lncc in the form of loans and bursaries.
There are only sis bursarics availablc for further indiistrinl or
vocational training; thcsc ;Ire open to al1stuclents in the I'erritory;
in addition tliere has been rcceiitly established orle bursary "to
a dcserving Nativc studciit: wlio proposes ta follow :L post-Rlntricii-
lntion course in South Africa." ' .Thus. it \vould appear tliat the
chances for a "Nativc" stiident to i~roceedwith "industrial" trainiiie
other tliaii \voodwork, tailoriiig' and bricklaying are l>r:~cticall;
lirnited to the onebursary riientioned, or to loa~is.Rcspoiidcnt :tvers
-
'III, p. 501.
Respondent lias expressed tlie "liuropean" reaction to the G;iinriianiand
Stvmpriet agricultural schaols (id.p. 507) when it acknowlcdgcd that:
"Ry 1943 both these nttempts atproviding vocational training for future
farmers had been obnndoned for lack of support. Most parents. it appeared.
preferred tolet their children takethe academic coursoffered at the secondary
and high schools." (Id..pp. 507-508.)
These agriculturnl schools oifi:red curricula u.liich appeartu be anly çlightly
le% "humanistic" than thane presently offered at Onguedira and theAugustineum.
("Culturalsubjects. such as Religions Instruction,Languages. History and Civics.
were also taught.") (Id.,11.507.) The "Xative" parents. however. cannot express
such apreferenceevenif they have it (with the exception of the school at Doebra).
G.A.O.R. rgth Sess.. S.W.i\. Comrn., Supp. Ko. 12 at 54 (A144G.0. (Italics
omitted.)
' III, p. 466.
' Id., p. 467. The Ode~irloalCo,nnrissioiReporf refers to these courses in "Car-
pentry, Tailoring and Xaionry'' aç being courses in "woodwork, bricklaying and
tailaring."(Para. 996.)
III,p. 468.
' Id.,P. 477. SOUTH WEST AFRICA
386
that "thus far no Native student has in any way meriten . .. [one
of the six bursaries open to al1students]." '
What, on the other hand, are the industrial courses available for
"Europeans"? I:n addition to the two-year practical course in
agriculture offered at the Neudani Agricultural College, there are
the differentiated secondary courses offered in \Voodwork. Metal-
work, Domestic Science, Needlework, Bookkeeping, Typewriting,
and Çhorthand, and the evening classes for appreiitices offering
courses in Ivfotor Rlechanics Tlieory, Mathematics and Machine
Construction and Drawing. 2 The lnst seven of these courses are not
available to the "Natives" of the Territory, who are restricted in
the Territory to training to be woodworkers, tailors, and bricklayers
and whose chances of obtaining aid to pursue such other courses
as they may wish are limited, in practice, to borrowing money from
the Administration and to 0128 merit bursary, available only since
January 1964.
Thissituation is not surprising, siriceit is a result of liespondent's
larger policy coricerning the position of the "Native" in the "Eiiro-
pean" economic world, or, in the alternative, the level of ski11
required or desirable in the development of the "Natives'" ourn
',commiiriities." '
Thus dicl Dr. Venvoerd state in 1953:
"Racialrelationscannot be improved ifthe wrong type of education
isgiven to Xatives. They cannot improre if the result of Xative
cducation is the creation of frustrated peoplewho. asa result ofthe
education they receive, have expectations in life whicli circum-
stances in South Africa do not allow to be fultilled ininiediately,
when it creates people ivlio;ire trained for professionsiiot open to
thein. when there are people who have received a iorm of cultural
training which strengthens their desire for the white-collar occu-
pations to such an eetent that there are more such people than
openingsavailable." '
(C) EITENT OF EDUCATION IN THE TERRITORY
Applicants h:ive shown that the nature and objectives of edu-
cation in the Territory are a violation by Respondent of its obli-
gation to proriiote in any degree the material and moral well-being
and the social progress of the inhabitants. Applicants now show
that the entent of education in the Territory is a violation by Re-
' Id.,p.508.(Italics added.)
Sec, generallPart (A) of this Section. p.mpva.
' Li.ofS.A.. Povl.Db.. House ofAsser>ibly. 11th I'n1stSitting (iveekly ed.,
1953)Col.3576.388 SOUTH WEST AFHICA
(a)
Respondeiit i:j at pains to demonstrate that the situation in
therrerritory was had in 1920;' it reiterates that the "Natives" feel
little "need" for schooling; it quotes liberally froni the Permanent
Mandates Comniission's minutes to show that the "Natives" littlc
undcrstood or desired education for their children: "The Hcreros
as a race do not believe in education for their children." According
to Respondent, the situation reiiiaiiis unchanged today; there is
still "insufficient desire for education" on thepart of the "Xatives."
In view of Kespondent's duty to proinote to the utmost the social
progress of the inhabitants, the attitudes of the "Natives" should
have served to induce and stimulate Kespoiident to undertake
positive ni~ddyiiamic efforts to iiistill a scnse of values in the popil-
lation. Altliough, in the absence of effective political representation
or consultation, it is not knowii on what basis Respoiideiit's
assertions concerning "Native" opinioii can bc made, Applicants
iievertheless nccept such assertions (but oiily as an indictinent of
the passivity and negligence of Kcspoiideiit's conduct of the Rlaii-
date). Tliat suc:h attitudes shoiild still exist to any significant
degree, inorc thiin forty years after the Mandate's inception, is an
accusationin itsi:lf; that Respoiident should rely upoii such attitudes
io justify passivity and ncgligencc compouiids the offence.
Thus, discussiiig cducatioiial cspeiicliturcs, Respondent states:
"The various factors aiid conditions \\.hicfiinhihited the iiitro-
ductiori aiid development of education in the case of the Xative
groops, rendzreditalmosl inevitablethat espenditure on ec1acstion
in the Territory should have hegun oiia basis of substantial escess
on the sideof Europeaii education over that of Xative educatioii."
Applicants subriiit that tlie very reverse of tlie foregoing propo-
sition was true in 1920 and rernnins true today. The iiihibitiiig
factors referred to by Respondent should have made "inevitable"
pro$ortionately higher expenditt~res 092 tlte "Native" groz~p.The
extent to ivhich Respondent has permitted its attitude ofInisser-inire
to limit tlie extent of education in the Territory-both with respect
to.isolating "group" from "group" and with respect to institutiiig
enthusiasm for education-is iiiade clear in Respondent's ouZn
words, in Book VI1 of its Coiinter-Mernorial:
". . . Tlie introdiiction of a mixed school systern would have ruii
directlycouliter to the prevailing social order, and would, for that
very reason, have failed." (III, p. 367.)
Quoted id...4,108seealso id..p.408-410.
' Id.p,. 535 (footnote omitted). (Italics added.)This statement aprcfçisly
to folalexpenditure, which in view of the population ratio renders Respoiiderit's
negligence the rnori:egregious. REPLY OF ETHIOPIA AND LIBERIA
389
"The attitude of the respective groups is, as far as possible.
rejpected by providing separate facilities for them." (p. 368.)
"The policy ofseparateeducation as applied in the past is also in
accordance with the wishes of the oast majority of the population
of the Territory." (p. 376.)
". . . Not only \\fould [schools open to al1 groups] . .. lead to
dissatisfaction and group friction. . . ." (p.382.)
". . . There is, to this day, a large body of parents who do not send
their children to school, even when schools are available nearby,
for no other reason than that they do not want to do so and see no
good in schools . ..." (p. 393.)
". .. [Until] parent cornmunities [desiring compnlsory education]
. . . fully appreciate what it entails, its introduction can only create
hardship and cause resentment." (p. 393.)
". . . [Tlhere are still many parents who do not send their children
to school for no other reason than that they see no good in
schools. . .." (p. 4x0.)
". . . [3I]any parents [in the Eastern Caprivi Zipfel] believe that by
attending school their daughters become laz , and, accordingly,
less attractive to prospective Iiusbands." (p. &.)
". . . [Tlhe system of lieparate scliooling [is] in accordance with
the wishes of the vast majority of the population of the Terri-
tory. . .." (p.513.)
(b)
The second elernent of abdication of the dynamic duties of
the Mandate consists in Respondent's professed reliance upon the
initiative of the "Natives" to promote their own material and
moral well-being and advance their own social progress. Respondent
has thus formulated its conception of its obligation as Mandatory:
"Respondent's tnsk isin essence one of adviçing, encouraging
and assisting the various groups by providing facilities consistent
with tlieir needs and guiding them to\\.ards self-help. Il'hether,aiid
largely with themselues.paThey will, however, continue to receive rests
sympathetic assistance and guidance from Respondent." '
In the words of M. R:ippard, this "appear[s] to throw the initiative
... of obtaining education on to the native." 2 This applies not
only to the interest shown by the "Natives" in the education avail-
able but also, more specificaiiy, to the system of "community
schools," ' to the question of cornpulsory education, and to the
financing of education.
Thus, with respect to the "cornmutiity schooi" systern, Respon-
dent states that "it is hoped that al1Native parent communities
will in time utilize to the full the opportunity which has been given
1 III,p.537.(Italiac dded.)
2 P.M.C. illin., 18Sess..p. 136.
' 111,pp. 371-372.3g0 SOUTH WEST AFRICA
them of fi7omotir.gedz~cation throicghtheir own eforts." 'The "Na-
tives" have thuc, been delegated the duty of promotion of their
oxvnsocial progri:ss which, in the Afandate, mas entrusted to Res-
pondent; these are the same "Natives" whom Respondent charac-
terizes ashaving a "slow response .. .to education, owing, no doubt,
to the absence of a keen feeling for the need for . . [teachers, nur-
ses, policemen aad civil servants] at their present stage of social
evolution."
Respondent admits that the "Native" parents often cannot af-
ford to bear the hoarding expenses of their children at hostels
and suggests that this, together with the problem ofteacher shortage,
is a reason wliy "in the case of Native education such facilities have
thus far been found practicable only to a very limited extent."
In the Easterri Caprivi Zipfel each of the two main tribcs "has
shown itself propared to grant bursaries from tribal funds to
students svhowish to be trained as tcachers." 'This is not altogether
surprising, since Respondent itself has only granted two bursaries
for such purpose.
Similarly, Respondent's complaints about "lack of support"
or "lack of interest" in various educational ventures undertaken
with respect to the "Native" groups rcsound of laissez-faire and
are wholly inconipatible with the dynamic nature of the Mandate. 6
Thus: "so many- Native pupils leave school at an early stage,"
"so feu, Native students enrol for the [senior secondary] course,"
"the number of pupils that enrol for the various [industrial] cour-
ses is disappointing," "the response to the opportunities offered
[for training as nurses] has been slower than was hopcd for, but
probably no slower than could really have been expected," and
"students soon lost interest [in the evening classes for adult 'Na-
tives'], and seenied to be incapable of the sustained effort iiecessary
to achieve success." 7
(2) Compulsory Education
The Permanent Mandates Commission made clear its view that
compulsory education for "Natives" was an important aspect of
the duty to promote the well-heing and social progress of inha-
bitants of Territories under Mandate. Thus:
III, p. 371. (Italics added.)
Id.. p. 388.
' Id.. p413; See also id.. 520: "One afthe reaçons why the provisioofhostels
for Plativecannot proceed an the same scale as for Europeans, itiiatin thecase
of the latter the pa7ento a great extent bearthe costof the facilities provided."
Thus many "Native" children inthe Police Zone are not able toattend school.
even ifthey should wish todo so.
' Id.. p462.
' Ibid.
Augt<slineum" (id., pp. 466-467); "Teacher Training Schools"(id.,pp.C467-468):
"Nursing" (id., p. ,468): and "Adult Edt'cation" (id.,489-491).
' Id.. pp. 449 451, 467. 47and 489.respectively. REPLY OIi ETHIOPIA AND LIBERIA 39'
"Mme Bugge-Wicksellsaid that she had no question to ask, but
desired to express her admiration for the steps taken by Australia
as regards education in the mandated temtory [Nauru]. She was
happy to note that there was compulsory education for children
from 6 to 16 years of age and that the proportion of children who
attended schools \vasIOO percent. Shehad examinedthe programme
ofinstruction givenin the annex to the report and couldonly express
her complete approval." '
Similarly :
"Mlle Dannevig drew attention to the provisions of Article z of
the decree reorganizing«Aicialeducation in [French] Togoland ...:
'School attendance may be made compulsory for al1 children
between 7 and 12 years of age wherever the number of schools
allows. It is always compulsory for the children of chiefs, notables
and officiais'''2
Since the dissolution of the League of Nations, the organized
international community bas frequently emphasized the impor-
tance and desirability of compulsory education. Respondent in
its Coz~nter-Memorid describes the difficulties attendant upon
any compulsory educational scheme for the "Natives" in the Ter-
ritory. Paramount among such difficulties are that the "Native"
groups do not desire conipulsory education for their children,
or, if they desire it, do not understand the sanctions attendant
thereupon. Respondent's p:rssivity with respect to these difficulties
has been noted above, and represents a partial abandonment of its
obligations under the Maridate. ' The fact that such difficulties
should exist at this point in time with respect to al1of the "Na-
tive" groups, and even with respect to the "Coloured" group, '
is in itself proof that Respondent has failed in its responsibilities.
Applicants have not insisted in their Memorials, 6 nor do they
now insist, that education be made compulsory for al1the "Native"
children in thel'erritory. Applicants reaffirni their objection to "a
system of education in which a fur swiallerfraction of the 'Native'
childrett withiiz the ter rit orr:ceive any schoolitzgthait in the case
of the 'Ezlropean'childrenof the Territory."7 Remedies for such im-
balance would have been for Respondent to undertake positive
measures to encourage "Native" parents to send their children
to school, to render education compulsory for certain groups of
"Natives," to inake it fiiiancially possible for more "Native"
children to stay in hostels, to encourage more "Natives" to become
teachers, and to employ more "European" or "Coloiirnd" teachers
P.M.C.Min.. 5thSes.,p. 145.
' P.M.C. alin26th Sess.p. rrg.
' 111PP. 390-395.
' Seesec.(1)of this Part (C), p. 387.supra.
' 111p. 392
See 1pp. 153. 154.r6oand 165-166.
' Id.,p.165-166(.Italicadderl.)392 SOUTH WEST AFRICA
in "Xative" schools. Respondent has not done so; on the contrary,
liespondent lias increased the minimum scholastic attainment,
for exemption of "European" children from compulsory school
attendancc, to the eighth year of schooling. '
This Court is not asked to decide to what extent compulsory edu-
cation ought to be introduced for the "Native" children of the
Territory, nor to ~vhat estent such a system ought to have been
introduced in the past. Applicants submit, however, that the
failure by Respondent, to introduce any compulsory education.
on any levcl, for any population other than the "European," is
a manifest failuire to promote the well-being or soci-l progress o. -
tlie inhabitants.
Respondeiit states that "an insurmountable obstacle to univer-
sa1 com~ulsorv education .. . is the scarcitv of teachcrs." Al-
though ;nive& compulsory education is noi at issue, Applicants
are constraiiied to point out that the shortage of teachers in the
Territory is also the result of Respondent's failure to acquit itself
of its dutics, not only with respect to adequate expenditure of
funds, 3 but also with respect to education in the first place. '
Respondent's e<lucational policy reflects in every light the same
basic circula rit if:^; a soliition to the tencher shortage would have
been the use of more "Eiiropean" teachcrs, yet liespoiident's pol-
icy of "mother-tongue instruction" raises new barriers in this
regard. Similarly, Respondent decries the lack of interest or of
motivation on tlie part of the "Natives" with respect to vocational,
liigher, or aduit education; yet Respondent's apartheid policy
with respect to job opportunities 5 in itself places a damper upon
any nasceilt eiitliusiasm among young "Natives" to seck educational
opportunities which, as Respondent concedes, would nierely pro-
duce "frustration."
In conclusioii, Applicants assert ttiat liespondeiit's total failure
to narrow tlie educational discrepaiicy between the "Europeaii"
'III, p.39,.
Id., P394.
Seesec. (3)of 1:hisPart (C). p. 393. infra.
' See III, p421.
of those thnt do enrol nnlarge percentagetarenlost on the way by reasan aof
either moral iiistabilior i>iability virainfoifhe rudai>zedeforlrequired to
eomplete the prescribed two yearcourse.... [Tlhe main hope forimprovement
in the qualifications of Native teachers seems to be a gradua1 raisinO/ the
minimt'm vequiremcnts for admission to the varioustraining schools." (Italics
added.)
And id., p.4r8:
". ..The only solution to the problem [of the shortage of ''Native'' teachers]
was ta try to ;~chievea gradua1improvement in the quality of Native teachers
and in lhegen,:ralstandnrd of educnfio*i."(Italics added.)
' See p.419. inj~o. REPLY OF ETHIOPIA AS0 LIBERIA 393
and the "non-European" children of the Territory has violatetl
its obligations uiidcr Article 2, paragraph 2, of the tlandate.
(3) Disparity in Expenditure
(:i)On Education in General
Respondent adinits that the "amounts spent on Native education
have at al1timcs been substantially Icss than the amounts spent on
European education," ' but denies that there has been unfair
discrimination. Respondent concedes that "the expenditure on
18on-Ettropeaneducation amounted to 25.6 per cent of the total
amount spent on education" in 1962.1963. This means that 74.4
per cent of the total education expenditure in 1962-1963\vas made
for 13.79 per cent of the pi~pulation of.the Territory. ' Respondent
argues that such a comparison "cnnnot per se be indicative of
unfair discrimination against the Native groups." ' To the con-
trary, Applicants submit that so astonishing a discrepancy, viewed
in the context of the affirmative obligations of the Mandate, is a
$er se indication that Respondent has, from the inccption of the
Mandate, neglected the "Native" population, to the advantage
of the "Europenn" l~opulation. Respondent has spent, and contin-
ues to spend, a great majority of its educational funds on a small
ininority of the inhabitants; this can only be interpreted as a pro-
motion of the well-bcing and social progress of a minority of the
inliabitants, to the disadvantage of the over\vhelming majority
...-.n...
'l'ti~perc,rpi/.cspcntliriirel~y I<cil)oii~li~ior 1962-1963sirikingly
coiiiiriiiitliu iliîcn.i~an<\. het\icsn I<~i~unclciit'iesi>~.iiditiirei fonr
education of the "European" and "Native" inhabitants of the
Territory, as the following table shows:
f'er cabita Pev caaita
espen$iture. expenditure,
in Rand, in Rand,
on al1 on al1
children of children
school age 5 attending
school
"N,~TIVE C"HILDREN
I. PoliceZone: 11.92
, n. Northem Territones: 3.92
3. Eastern Caprivi Zipfel: 4.02
4. Territory as a wholc: 6.59
' III,p. 534.
3 Odendnal CommissioR neport. p. 245. TabLXXXXII.
' III. P. 534.
J Applicants consider that Respondent's per copita figugiven atIII,pages
458-459 and 507)aremisleading in that tliey are calculover the total nurnber
of dildren altcndi~rgrclrool rather than the total number of children. Applicants394 SOUTH WEST AFRICA
"EUROPEAN" CHILDREN
1. Including net estimated
hostel exuenditiire: ' 156.50 157.02
2. Including 20% of gioss
cstiniated hostel
expenditure:
3. Excluding hosto1
expenditure:
(b) On Teachersin Padicular
Respondent identifies the shortage of teachers with many of
its difficulties in the field of "Native" education. 2 Such shortage
hinders the introduction of compulsory education; 3 it limits the
number of schools which may be operated; ' it hinders vernacu-
lar instruction; 5 it affects the availability of hostels; 6 it limits
education in general. ' Respondent, inter alia. attributes this short-
age to "the absence of a keen feeling for the need for such ser-
vices [on the part of the 'Native' groups] at tlieir present stage
of social evolution," "sserting, for example. that "the Herero, in
particular, show very little interest in the teaching profession. .. ." 9
çuhmit that a calculatian made ovcr the numher of pupilr does not present a
truc picture of the actunl disparity in educntiondexpenditure as hetween "Euro-
pean" and "Native" children. since 99.66 per cent of"European" children at-
tendcd school in 1962, as opposcd toonly 46.16 per cent of "Native" children
(OdcndnalCommisricn Report, p. 245.Table LXXXXII). Thus Respondent has becn
able to render the .:omparison ktseen "Native" and "European" expenditures
les shocking hy pro-rating the "Native" expenditures over a much smaller
numher of children than the total. A true cornparison should reflect the total
efforts made on hchalf of the total number of "inhobilonts of the territory çuhject
to the present Mandate." hroken down into the numher of children of çchaol
age in the "Native" and "European" groups (see 1,p. 159). In order toavoid
statisticadiçputatiiin hefore the Court, Applicants have given per capifa figures
for 1962-1963 colculaled on bolh bases. It is readily apparent that the discrepancy
ktiveen "European" and "Native" par copiln figures is flagrant on eilher basis.
although Applicant:; regretfullyinçist that the lower par cnpiia figures are, for
the reasons given, a truer reflection of Respondent's efforts toward the "Native"
children as a whole. (The figures used have heen calculated using the population
figures given for1962 in the OdendnalCommissionReport, pp. 245 and zqg. Tables
LXXXXII and LXXXXIII.)
1 Sec South \\:estAfiica Administration: Eslimates During the Year Ending
3111 hlnrch. 1964, pp. 6, 47, qg, 50. and 52.
2 This shortage i:; of "Xative" teachers; the situation is of course aggravated
hy Respondent's over-al1 policy of racial segregatio(seesec. (1)of Part(B) of this
Section, p. 37r, rupi,n).
' 111.PP. 393-394.
' Id., p. 413.
' Id.. p. 415.
Id., p.520.
' Id.. pp. 417-421,516, 518.
Ud.. p.388.
rd.. p. 363. REPLY 01; ETHIOPIA AND LIBERIA
395
Yet Respondent cites the lieport of the 1958 Commission as hold-
ing that "it was rcmarkable to what estent the idea of scrving
on [school cominittees] .. . and exercising authority ovcr their
schools stirred the imagination of Native parents, tribal coun-
cils and chiefs, without exception." '
A reasonable conclusion is that Respondent has failed to render
the teaching profession (as distinguished from part-time service
on school committees) sufficiently attractive to the "Native" popu-
lation. Inthc 36th session of the Permanent Mandates Commission,
Mlle Dannevig stated:
"During the previou'. year's discussion, she had expressed the
view that the offer of Iiigher salaries would perhaps induce more
young natives to be trained as teachers. She thought that that
observation still held good." 2
At the same tiine, higher salaries are openly recognized as incen-
tives by Respondent, with respcct to "Europeans":
"Since the war then: ha been a considerable increase in the
number of teacher traiuees, both for primary and secondarywork.
l'l~isis proliablyto be ascribed largely 10 increasedsalary scales for
tenchers,and to the financial aid offeredsince 1950by the Adminis-
tration in the form of bursaries and loans."'
i'et "Native" teachers are offered salaries and allowances far lower
than thosc available for "European" teachers in the Territory.'
The comniencing salary of a married male "European" teacher
in the lowrest cntegory, including a spccial allonance, is R1.406.
The coinmencing salary of married malc "Native" teacher with
comparable <lualifications, together with Iiis cost-of-living allow-
ance, is RGg& '
Respondent attempts to justify this cxtraordinary disparity by
stating that "Native" teachers are not as well qualified as "Euro-
peans," that there are more economic alternatives open to "Euro-
peans," that to pay "Native" teachcrs higher salaries than they
presently receive might msult in their becoming "separated or
estrangecl from [other men~bers of their group] . .. as a result of
an artificial financial barrier" so created, and that such disparity
III,p. 369.
P.M.C. Min.. 36thSess.,p. 39. Worthy of notewas the response givcn to this
remark:
"Mr. ANnREwS said that he would not fail to transmit hllle. Dunnevig's
idea of teachen who were siich from lucrative motives only. Doctor Vedder.
for example. had said that the ideal at present to he faund with young teachers
was a religious one, and that teachenwithout ideals werenot fit to educate
primitive peoples." (Ibid.)
III, p508. (Italics added.)
' See tables. id.. pp. 452-457, cf.tables. id., pp. 502-506.
' Id., p. 506.
Standard X plus a teacher's trainiCourSc(Grade 3: id., p. 4cf.id., p. 388).
' Id.. PP. 455-456.396 SOUTH \VEST AFRICA
exists "also in o~her African territories." ' To the contrary, as has
just been sho\\.ii, it is entirely possible to have equally qualified
"European" and "Native" teachers; furthermore, the argunient
by economic alternative is the creation of yet another endless
circularity-it has heen Respondent's duty for more than forty
years to create meaningful economic alternatives for "Natives,"
and its failure so to do caniiot be adduced as a justification for a
failure of a diff~xeiit sort. With regard to "other African terri-
tories," Applicants iieed oiily repeat that such coniparisons are
meaningless and scrvc no useful purpose, since there arc no other
African territories subject to Mandate.
\$rith respect, however, to Respondent's statement that to pay
higher salaries lo "Native" teachers would "separate" and "es-
trange" them fi-om "other members of [theid . .. group," Ap-
plicants insist that this is yet another circularity, since if no mem-
bers of the "Nativc group" are rewarded above others, the "group"
progress will at al1 times be limited to the rate of advance of its
slowest member Yet Respondent States:
"It colild,liowever,do incalct<lableharmto anticipate [the process
of the narrowing discrepaiicy between 'European' and 'Native'
tencher salaries]. . . by singlingout Native teachers for payment to
them ofsalaries wliichwouldproducea completeeconomicimbnlance
betweentheni andvirtually al1othermemhersoftheir commiinities."'
Responàent has thus stated that it will harm a man to pay liiin
niore. Where does this "incalculable harm" arise? Respondent's
answer to this question is to be found in a statement of Dr. Ver-
woerd in the South African Senate:
"The Rantu teacher must be utilized as an active factor in this
process of development of the Bantu community to serve Iiis com-
munity and build it up and leam not to leel abovehis comm%rnity
so that he rniantsto becomei%legratedilito the life of the European
communityaiid becomefrustrated and rebelliouswhen this does not
happen, and he tries to make his community dissatisfied because
of such misdirected and alien ambitions."
' 111,PP. 532-533,
Cf. Reçpandent's stntement at id., p. 388: "And, because the Native teacher
is *ofso dl quolified athe Coloured or White teacher. he naturally commands
a lower salary than thoçc whose education has cost more," with its statement at
are loaer than thosr paid to European teachers, aven whergt<alificalions mbcchers
comparable." (Italic; added.)
In any event. roost other African territories. in recruiting Eurapean teachers.
do so fromEurope: çalary dilierences become understandable in this light. since
the motivation and eKect ir wholly different than is the case with respect to the
"Europeans" of Socth \Vest Africa.
+ In, P. 533.
U. of S.A..Pml. Beb.. Scizolerith Parl.2nd Sitting (weekly ed., 1954). Cols.
2606-2607 Italies added.) REI'LY OP ETHIOPIA AND LIBERIA 397
jc) Conclz~siorz
In conclusion, Apl>licaiits submit that this last-mcntioned dis-
crimination is but another example of iniplementation of Kes-
pondent's basic policy of educatioiial apartheid. It is a product
and syinptom of thc policy which lias prolonged and aggravated
thc vcry conditions which Respondcnt relies iipon as justificat'ion
for its policy. "Natives" remain uncclucated bccause there arc
not e~iough "Nativc" teachers; tliere are not enough "Native"
teachcrs because not enough "Natives" arc attracted to teaching;
"Nati\,eW teacliers' salarii:~ remain low because "the socio-eco-
nornic structures within the Native groups are still at much lower
levels than those withiii thc \Ilhite group, [and] it is inevitablc
that their teachers slioiild at present commaiid lower remunerntion
than the teachers of thc White group." 'Tlic "socio-economic striic-
tures within the Nativc groiips" remaiii at "lower levels of devel-
opnicnt" because of lack of education, aricl the "Natives" rcinaiii
uneducated because of a I;ick of "Native" teachers.
Similar circularities csist in every aspect of tlic cducatioii of
"Nativcs" in the Tcrritory. Such patterns rcst upon thc same as-
sumptions, and move toward a common objective. With respect
to classification by group, scgrcgatioii by race, separation by
tribe, "mother-tonguc i~isi:ructioii," 1imit;rtion of syllabuscs ;ind
opportunities, lack of active encourageiiieiit, abdication of the
affirmative rcsponsibilities of tlie Mandate, aiid failurc to provide
cveii a bare sernblàiicc of parity in espcnditurc: all of tlicse as-
pects relate to, and arc infornied by, thc essential desigii ancl
assumptions of aparll~ciil:
". . . %'hatever segrnciit or scctorof the life of the Territory iiiay
he cxainined, tlie irnport of tlie facts is identical. Each p:rrt of tlie
record supports and coiifirms every otlier part. Thc record as a
wholesupports anclcoiifii-nisthe record in detail. Indeed, the record
takcn as n whole has an impact greatcr than a mere arithrnetical
sum of the severalparts. The recordas n wliolerevealsthe deliberate
design that pervades the several parts." '
III, p. 389.
In the 34th Sessioof theP.M.C. te following opinion was expresse<!:
"hl.VAN AÇDECKthought the prcsent systern represented a vicioiis iiiwliiçh
becauscvtherewasino prirnary ediicntion." (l'.hl.C. hliii.. 34tp. gr.),chers
' 1, pru,. RACIAL SEI'ARATION lx EDUCATION IN DEI'ENDENT
TERKITOR113S. AS VIEWED i3Y THE UNITED NATIONS
Tlic appropria1:e political organs of the United Nations Iia\re deter-
mined tliat racial separation in education is incompatible with the
purposes nnd principles of administration of dependent territories.
Speaking through such organs, the United Nations has specifically
determined that separation is iiicompatible witli (a) the broad goals
of educatioii; (b) the b:isic meaning of ediication; (c) tlie principle of
equal opportunity; (d) the principle of racial equality; aiid (e) the goal
of uiiification of the territory.
(a) Separation on account of race is incompatible witli the hroad goals
of education. Iri its eighth session, tlie General Assembly resolved
that the objectives of education in the Non-Self-Governing Territories
reqiiire thnt "the proccss of education should he designcd to familiarizc
tlie iiiliahitaiits viith ;md train them in the iisî ofthe tools <ifeconomic,
social :ind political progress, witli a vicw to the attainnient of a full
measure of self-go\~ernmeiit." ' Iii its eleventli session. the General
rlsseiiibly recalled tliis rejolution and further resolved that to attain
tlie objectives of educatioii "it is necessary to establish systenis of pri-
mary. secondary and higher educatioii which will meet the iieeds of all,
regardless of ses, rncc, religion, social or economic statiis, and provide
adequntc prepar;itioii for citi~ensliip.~
(b) Apartheid is iiicoinpatible mitli tlie riicaiiing of e<lucatioti itself.
Iii a brief but coiisidered report on educntion, which \vas specificallj~
aplxoved by a resolution of the General Asseinbly, the Conimittee on
Inforniation statcd that "thc pnnciple of iion-discrimination is esseiitial
to and is an essential part of education." '
(c) Separation in education is inconipatible with the principle of
eqiialit~ of oppsrtunity. The Committee on Information stated that
'8in tlie field of education no principle is inore important tlian that of
equality of opprtunity for al1 racial. religious and cultural groups of
the population."
In order to assure equal opportunity, there must be equal treatment,
not separate tratment, of the population. In its fourtli session the
'C.A. 11~s.743 (V111). 27 November 1953. G.A.O.R.8th Sess.,Supp. No. 17at
24 (A12630).
G.A. Res. ioq!, (XI),20 Febriiary 1957, G.A.O.R. 11th Sess.,Supp. No. 17 at
26 (A13572).
G.A.O.R. 11th Sess..Comm. on Info.S ,upp. No. 15 at23 (!\/3i27).
' G.A.O.R. 5th Sess..Rep. ofthe Sub-Comm. on Education in S-S-G T's, Supp.
No. '7 at21 (Alr3ojlAdd. 1);repeated in G.A.O.R. rqth Sess.,Comm. on Info..
Supp. No. 15 at ri(Alqiri); and in G.A.O.R. 15th Sess.. Comm. on Inio., Supp.
No. 15 at 52 (A/+37i). Approved by G.A. Res. 445 (V). IZ Deccmber 1950,
G.11.O.R. 5th Sess.,Supp. No. 20 at 54 (Ali775): and by C.A. Iles. ,462 (XIV),
12 Deceniber 1959, G.A.O.R. 14th Sess., Supp. Xo. IGat 34 (A14354). SOUTH WEST :\FRIC.+
400
"practical difficulties, particularly those of language,,are held by some
Members to justif:? school systems adapted to the special iieeds of groups
of the population."' Later the Committee m'rote:
"As long as separate school systems must esist, they caii oiily be
defended as a transitional arrangement from which their integration
should progressively evolve; and even in this transitional period
when they niay have to be predoiniiiantly racial thcy should not
be esclusively so, but should adrnit al1 children who qualify for
entry to therii, regardless of tiieir racial origin."
It is clear that the operative part of the Cornmittee's statement is its
insistence upon the principle of equal opportunity. As the Committee
states later in its Report, "tlie Committee has come to thc conclusion
that every child of every racial, religious or cultural groiip should
have an equal opliortunity for education at al1stages, and it recommends
that efforts should be directed to the devclopment of a commoii system
of education, open to al1children, both at the prirnar~~and tlicsecondary
stage."' And tlie fact tliat primarily separate scliools may quickly
becoriic coinpletely inter-racial u~ithoutiiicreasing the quantiini of prac-
tical difficiiltiesi~evidcnt from the conclusion ofthe Trusteesliip Couiicil
witli respect to oducational conditions in the Cameroons uiider French
.4dministratiori:
". . . The Couricil ilotes ivitti sntisfactiori the policy of the Ad-
ministering Autliority which lias led to the establishment of scliools
open to students of al1 raccs, \vithout any discriniination, and
considers tliat the lack of any difliculty in the functioiis of tliese
schools is iridicativc of a praiseivoi-thy attitilde." '
\\'itli the probletil of practical difficultics firmly in ~iiincl,tlic :rppropri-
ate organs of the United Nations Iiave Iield that "oii no grorind whatso-
ever can education oii riracial hasis be justified." Insofar as Trust
Territories are concerned, the General Assernbly lias resolvcd that "dis-
crimination on racial groiinds as regards educational facilities rrvailable
to different communities in the Trust Territories is not in accordance
with the priiiciples of the Charter, the Trusteeship Agreements and
tlic Universal Dechration of Hunian Rights." 6 And with respect to
Non-Self-Governing Territories in general, the General Assembly "con-
demns resolutely" racialdiscrimination and segregration 7and "soleinnly
reaffirms its resolute condemnation."8 In its most recent resolution on
'G.A.O.R. 10th Sess.. Comm. on Info.. Supp. No.16at 30 (Ajzgo8).
' G.A.O.R. iqth Sess.. Comm. on Info..Supp. So. rg at 16 (A14iii).Approred
by ,y.:\Kea. 1462 (XI\'), iz December ,959. G.A.O.K. 14th Sess.. Supp. Xo. 16
"t 34 (h/43j+).
Ibid.
* G.A.O.R. 12th Sess.. T.C. Rep.. Supp. No. 4 at 144 (A135g5).
"G.0.R. 14th Sess.. Comin. on Info.,Supp. No. rj at 16 (A14irr). Approved
by C.A. Res. 1462 (XIV), 12 December 1959, G.A.O.R. 14th Sess., Supp. No. 16
at 34 (A/4354). and by C.A. Res. ,464 (XIV). iz Decpmber 1959, G.A.O.R. 14th
Sess., Supp. NO. rr,at 34 (~14354).
C.A. Res. 324 (IV), rj November 1949. G.A.O.R. 4th Sess.. Resolutions, at
40 (Al~zj~).
' C.A. Res. 169s (SVI). ig December 1961. G.A.O.R.16th Sess.. Supl). Xo. 17
at"AA.(AIjRes. iSgo(SVII). ig Deccmber ig6z. G.A.O.R. 17th Sess.. Supp. No.
17at 43 (AIjzi7).402 SOUTH WEST AFRICA
establisliment of two inter-racial secondary schools in Taiiganyika,
and urged the Administering Authority to continue this trend. 'IVithin
tao years a secoiidary school and a preparator~: schoolaere operating
on an inter-racial basis. And coincident ivith the indewndence of
'i'ang:iii!ika.a c,,iiipreheiisivc syjtcni of urdinanies \vlii<:liIiad bcen iii
tlic furniulatiw stuze forscver:il\tesri o.as~oiiiingiiitu cii~ct c.~t:ibli~tiiii::
a complete integrated system of education. - -
(c)Apart from South Africa, no Administering Authority has contestcd
the principle of iiiter-racial schools on the priinary level. All are taking
steps to iiitcgrati: these schools. In Ruanda-Urundi, for example, any
child regardless of race is admitted to schools run on European lines
if he speaks Freoch and his standard of education is up to tliat of his
age group. Aware of the liinitatioiis that eveii these rules imply, the
Administering Aiitliority was iioted to be seckiiig to evolve a systein
of inter-racial education by a positive prograiii. ' In the Ciriiicrooris
under French Adininistratioii, by 19573.11 schools were open to stiidents
of al1races.
(d) I'ocatioiial scliools are increasinsly estal>lisliedupon an iriter-racial
basis. This is.trut: of the Teclinical Iiistitute ofDar esSalaam inTsiigan-
vika 6 and the vocational schools at Yaoundé, Douala and Garua in tlie
Cameroons under Frerich Admiiiistration. ' Froin 1958 oii, tlicre \vas
no distinction as to race in nny aspect of vociitional training iriTangan-
yika.
(e) In al1 dependent territories other thaii Soutli IVest Africa. tlie
general practice lias beeii to narro\ir the gap between Europeaii aiid
indigenous teachers in al1aspects of their employiiient. As early as 1949,
European and indigenous teacliers in Togoland under French Adniinis-
tration were placed on a completely equal footing. 9 Statistics for New
Guinea denionstrated to tlie Trusteeship Coiincil in 1960 and 1962
tliat maiiy lion-indigenous tcachers were einployed in scliools Iiaviiig
a majority of indigenous students. '0
The promotion of the moral wcll-heing and the social progress of
al1 the inhabitaiits of a territory by impleinenting non-discriminat'ioii
in education is evidenced by the development in Somaliland under
Italian Administration. Somaliland ischosen because Italy was facedwith
natural obstacles exceedine tliose of South West Africa when Somaliland
V I i i . :iTr,ist 'Lrritsr!. oii ? OCC<:I~I)L 1q~50 -I'IIc3oin:ilis \v~rC
iioins<lii:~)copl,:to a (lcgrce f:ir grcltcr rlisii tl..itof tli,:iiidigciit~u~
iiili:~bitantsof Soutli \\'est ..\fric'l'liti~o~iilntii~irilcnjit\r.:o~xtrr.iii~l\.
low (two penoris per square kilome&ej. Finally, unlke South
' G.A.O.R. izth Sess.. T.C. Rep.. Supp. No. 4 at 50 (A/359j).
G.A.O.R. 14th Sess., T.C. Rep.. Supp. No. 4 at 3S (Alqroo).
4 ,hi,+.R. 16th Sess., T.C. Rcp., Supp. No. 4 at 2.8 (A14818).
G.A.O.R. 15th Sess., T.C. I<ep., Supp. No. qat 57 (i\/4404).).
' G.A.O.R. 6th Sess., T.C. Rep.. Supp. No.4 at 151 (A/rSgU).
G.A.O.R. 15th Sess.. T.C. Rep.. Supp. No. 4 at 57 (A/44oq).
G.t\.O.R. 6th Scss.,T.C. Rep.. Supp. Xo. 4 at 199 (Ali856).
'O G.A.O.R. 16th Sess.. T.C. Kep.. Supp. Xo.4 at 145 (A/.@iS): G.A.O.R. 17th
Sess.. T.C. Rep., Supp.60. 4 ut 27 (A/5204). REPLY OF ETHIOPIA AND LIBERIA 403
Africa, Somaiiland ?vas very poorly endowed with natural resources,
and as a result the Territory could il1afford high expenditures on edu-
cation. '
At the outset of the Trusteeship period, petitions filed before the
Trusteeship Council claimed that Somali and Itaiian pnpils in elementary
schools were completely segregated. 2 Four years later, however, the
Trusteeship Council found that the "Itaiian" schools (which offered a
metropolitan curriculum, as opposed to the Somali schools. which were
"adapted" to the Territory) were open to Somali students. Out of a
total enrollment of Sr6 in the "Italian" elementary schools, 236 were
Somalis. 3In 1956the Representative of India noted in a meeting of the
Trusteeship Council that there was no segregation in the schools of the
Somaliland Territory. ' And l'y 1937,of a total enrollment of 971 iii the
"Italian" elementary schools.qoj werefound to be indigenous inhabitants
of Somaliland. '
' Id., p. '37. Sess., T.C. Kep., Supp. No. 1 at 96 (AIr856).
G.A.O.R. 10th Sess.T.C. Reg,.. Supp. No. 4at 140 (A/2933).
' G.A.O.R. 11th Sess., T.C.Reg)., Supp. No. 4 at114 (A/JI~o).
' G.A.O.R. 12thSeçç.. T.C. Reg)., Supp. No. 4at 97 (A13.595). 2. THE ECONOlMlC ASPECT
(A) INTRODUCTION
Kespondent's purported explanations of the particular measures
by which it effactuates the policy of apartheid evade Applicants'
central point, which is that the policy of apartheid itself violates
Respondent's obligation to promote the well-being and progress
of the inhabitants of the Territory. Thus, Respondent asserts tliat
".. . Applicants have formulated certain specjfic duties which
thcy allege are included within the ambit of Article z of the hlan-
date." '
So stated, Kespoiideiit's characterization is a niisleadiiig hall-
truth; indeed, it misses the central point at issue in this context.
Applicants' references to, and complaints concerning, such
"specific duties" 2 set forth standards or objectives which are
indispensable prerequisites to promotion of well-being antl social
progress. Specihc measures of implementation of the general
policy of apart.izeid,or separate development, merely illuminate
and confirm thi: nature and consequences of that policy, the in-
herent evil of which lies in the allotment of status, rights, duties,
opportunities and burdens on the basis of membcrsliip in a
"group" or tribe.
It follo\vs that, although examination of specific measures of
implementation is highly relevant to an appraisal of the basic
policy of aparllteid, inasmuch as these measures give dimension
and effect to that policy, they must be viewed not as isolated de-
tails or events, but in light of Applicants' contention that:
"The record as a wholesupports and confirmsthe record in dctail.
Indeed, the recordtakenas a whole has an impact greater116a.tnhat
of a merearithmetzcalsum of the severalparts. . .,. [Tllie details are
not isolated events or phenomena. They are significant not only
in themselves, but in their mutual and multiple relationships and
theircumukitive effect." '
In Applicants' subrnission, a specific measnre designeti to effec-
tuate an unacceptable policy is not extenuated by arguiiient. or
even by demonstratiori, that it may produce n tolerable side-
effect in certain instances.
Altbough the bulk of the Cozinter-Mernorial, includiiig Book
V, thereof, is concerned with largely irrelevant minutiae. the admit-
tedly discriminatory predicate of specific measures invalidates
' III. p1.
See e.p..pp. 107-io8.
Id.p. 161.(Italicadded.) REPLY OF ETHIOPIA AND LIBERIA 405
them in terms of Respondent's obligations under Article 2, para-
graph 2, of the Mandate.
Thus, in conceding that only "Europeans" may be employed
in levels above comnion labour in mining enterprises "owned by a
European" (as, indeed, al1 such enterprises in the Police Zone are
owned), Respondent reiterates the premise underlying its education
and other apartheid policies:
"In the history of the Territory there has at ail times been social
separation between theje groups, and experience has shown that
members of each group prefer to associate with members of their
own group, and that certain kinds of contact between members of
these groups tend to crcate friction." '
If, as Applicants conterid, such a premise and policy is wholly
repugnant to Respondent's obligation ta promote the well-being
and social progress of the inhabitants of the Territory, little if any
purpose is served by Respondent'slengthy examination of thedetails
of restrictive laws anclregulations designeclta effectuate that policy.
Furthermore, as in the case of restrictions upon rights of resi-
dence and movemeiit, 3 Respondent's major premise concerning
the role and place of the "i\'ative" in the Police Zone infects spe-
cific measures of economic a9artheid with an unacceptable design.
Thus, Respondent explains:its policy of denling with "idle persons"
in the I'olicc Zone on the basis that
"... it involves removal from an area in which their presence
sewes no prrrposein the absence O/ willingness to work, to a place
wliichis their realhome.These considerationsdo not apply to \ilhite
or Coloured persons whose only real home ma- be in zrrbanand
proclaimedareas." '
Respondent thus by fiat :andby policy denies tothe vast niajority
of the inhabitants of the Territory, including those spending a
largepart of their working lives in the Police Zone, 5 any possibility
of a "real home" in 70percent of theTemitory (whatever the quoted
phrase signifies).
(B) GENERAL COXSIDERATIONS
Respondent's policy of apavtheid, as applied to the economic
life of the inhabitants of the Territory, rests, as has been shown,
upon the same structural l'oundation and reasoning as does Re-
spondent's policy of afiartheid in education. "Each part of the
record supports and confirms every other part." 7 The education
' III> P. 55-
See.e.g.. idpp. 47-63.
< III, p219.(Italics added.)
' The latter admittedly number more than r70.000(II,p. 402.)
See p.362.supla.
7 1,p. r6r.406 SOUTH WEST AFRICA
received by the "Native" child prepares the "Native" ndult for
his distinctive role in the economic life of the Territory, that of
agricultural or industrial labourer. The Committee on South \\'est
Africa, in its Report to the General Assembly for 1960, stated that
"beyond some niinor teaching and menial positions at the lowest
levels, their training and education seems directed merely to
preparing the 'Natives' as a source of cheap labour for the benefit
of the 'Europ~aiis.' ' Denial of equality in the educational sphere
leads to a denial of equality in al1 other spheres, not only as a
coiiscious continuation of "the deliberate design that pervades the
several parts" of the life of the Territory, but also as an inevita-
bleconsequence of the lack of educational training.' Education and
economicstatus are inseparable,' as are economicstatus and political
rights and opportunities.5
' G.A.O.R. 15th i',ess.,S.W.A. Comm.. Supp. No. iz at 56 (A14464).
1,p. 161.
Thus the Eiselen~Commission reported in ,951, with respect to the "Bantu"
desire for equal educationnl rights, facilitieç, and opportunities:
"The insistence on exactly the same curricula and examinations as are found
in European schools is linked with the desire for the same certificates. This has
also an economic motivation for the Bantu feel that if they do not folloiv
the same cumcula and paçs the same examinations they cannot obtain certi-
ficates of equal value. Consequently they would not have a daim to equal pay,
and. although thc Bnntu do not receive the svme pay, the possession of the
same qualifications is held to be a powerful instrument in pressing for improved
financial treatircnt."
(EirclenCommission Rep011,para. 235.)
' Thus did the G:roup of Experts report to the Secretary-General in 1964. with
respect to the educational needs of "Rantu" in South Africa:
"Technical education and vocational training inust be given top priority,
bearing in mind the opening up of wide fields of employment to those hitherto
restricted by law from skilled work in mines. in building and al1 other fields."
(S.C.O.R., Report af S.G. at 30 (S!5658).) Similarly. the An9ze.vto I.L.O.: Report
of the Commitlee on Quastions Concerni>rgSouth Africa, C.B. igS/z/5 (Internn-
tional Labour Conference, 158th Session, Geneva (1964)) States. with respect
to South Africa, that "discriminatory trevtment to thc detriment of tho 'non-white'
sections of the popu:lation... is the result principally of the inequality of opportuni-
tics for vocational training eçtablished by the legislation, which organises al1
education on a çeparate and unequal basis for persons of different races." (Anrrcx,
p. I.paras. z and 3.) (The Annex is entitled "An I.L.O. Programme for the Elimina-
tian of 'Apartheid' in Labour Matters in the Republic of South Africa.")
' "A special Iheory is developed in which the economic life of society is
subordinated to its political objectivesso that non-European workers are not
free to improvi: their standard of living if lhareby lhcysrek nlso 10gain ndded
Polifical opportrinity or socioduanccmenl."
(de Kiewiet, Thc ilnalamy of South Afvican Misery 25 (1956).) (Italics added.)
The converse of th,? above was succinctly expressed by Dr. W. M. M. Eiselen of
the Commission on Native Education (the "Eiselen Commission," see foatnote 5
on p. 365, supra) in 1g5g. when he wrote that ". .. the maintenance of white
political supremacy over the country as a whole is a sine qua non for racial peace
and economic prosperity in South Africa." (9 Oplimn S (Xo. r, hrarch 1959); as
quoted in Roskam, APorlhcid and Disçviminotion 87 (rg6o).) (See p. 439. infra.)
Inaçmuch as preiiisely the same considerations and circumçtances apply in the
Territory. the foregoing comments regarding South Africa ikelf are relevant in al1
respects to the Territory. REPLY O:F ETHIOPIA AND LIBERIA 407
Economic apartheid is necessarily based upon the sanie major
premises as is educational apartheid,' and produces identical results
with respect to the inhabitants affected. The "Colonred" inhabitants
fa11between the "Native" and the "European" groups, and reflect
yet another application of the apartheid policy, inasmuch as the
rights, opportunities and burdens of "Coloureds" are likewise
wholly allotted on the basis of membership in a group.2
Areas of the Territory occupied by "Europeans" are in al1 re-
spects economically well tleveloped in comparison with the areas
occupieù by approximately 75 per cent of the "Natives," and
since the "Native" population is proportionally great,it follows that
an inevitable result of territorial a$artkeid is that "Native" labour
will, to a significant degree, be drawn from the reserves to service
the more advanced "European" economy on a niigratory basis.'
Another consequence of economic apartheidis that the balance of
the "Native" labour force within the Police Zone is recruited from
among the inhabitants of the "Native" reserves within the Police
Zone,5 or is obtained from "Natives" resident on "European"
farms or in urban areas. With respect to these latter two groups,
Applicants show in the Mernorialsthat their status in the "White"
economy is 110thinterminable and impermanent, by reason of the
sweeping powers of the Administration with respect to "Native"
rights of residence anywhere in the Territory.6 De iure and de facto.
'See p. 362, supra.
Cf. pp. 144-145, Supva."Whatever segment or sector of the life of the Territory
may be examined. the iinport c,f the facts is identicaEach part of the record
supports and confirms every other part." (1,p.16r.)
The 1960 figures were aifollows: "Natives" living in "Home Areas" in the
Southern and Northern Sectors totalled 315,342 or 74.35 per cent of the total
"Native" population of 424,047. Of the remainder, q8,grg (11.53per cent) were
distributed in urban areas (al1 in the Police Zone) and 59,786 (14.09 per cent)
in ruralareas (on farms in the l'olice Zone)(Computed from Odendaal Cotnmisrion
Report, pp.39 and 41. Tables XVlII and XIX. bu: excluding fram "Natives" inrural
areas and from the total amounl. of "Natives" the "4,528 employees mostly from
Angola" listed in footnote "9" to Table XVIII.)
* Respondent. at III, p.74,poiiitç out tha41 percent of the adult male "Satives"
employed in the Police Zone in 1960 came from Ovamboland and the Okavango
territory.The same figures (27,771 and 850. respectively) are given in thOdendaal
Commission Reporl, p. 39. para. 147; what Respondent has not set forth in its
Coliiiter-illcmoviis the fact that "these 28.621 warkers represent approximately
Iober cent] of the population of the Northern Sector." (Zbid.) ioper cent of the
population of the Northern Sector is the equivalent of approximately one-hall of
the ndult male "Natives" between the ages of eighteen and forty-two, or al1 of
the male "Natives" between twenty and thirty-two calculating life expectancy of
sixty years as a base. Manifestly. such a drain of manpower is, in the life of the
Northern reserves, an extremely significant factor.
' Of which the population in 1960 \vas 28,866. or 6percent of the total "Native"
population. (Odendaal Contrnission Report.p. 41, Table XIX.)
1,pp. ~46.1~8.40~ SOLTH WEST AFRICA
the entire "Native" population of the Territory is so controlled
and po~verless with respect to rights of residence and freedom of
inovement that any labour drawn therefrom is teniporary in its
essence; the difference between a "Native" labourer in an urban area
or on a farin and. a "Native" labourer imported from outside the
Police Zone is one of degrec.
The predilectioii of employers for low-cost labour, coupled with
Respondent's concern that no "European" person be placed in
the position of "serving under the autliority of a Native" ' (on
~vhichRespondent's educational policy so heavily rests), 2 assures
that the horizon of "Native" economic potential remains confined
to the semi-skilled level.3
The Special Cornmittee for South West Africa reported in 1962,
after a visit by two of its officers to the Territory:
"Under this discriminatory policy [apartheid],certain inadequate
areas are re!;erved as the homelands of the indigenous groups.
Outside thosc areas, the country is regarded as belonging to the
White popul.ition and the presence of indigenous inhabitants is
considered to be temporary and as not giving grounds for political
or rclated rights. The entry of indigenous inhabitants into the area
outside the reserves, in particular into iirban areas, and their
continued residence there, are regulated by a pas system. In town,
they live iiijegregated townships and locations and, except for a
few minor sctivities in those townships or locations, have no
economic po!;sibilitiesother than wage labour." '
.4partlzeid, whether territorial, econoinic, social or educational,
tbus imposes upon inhabitants of the Territory an interlocking
series of consequences.
A factor contributing to economic stagnation of the Northern
reserves is the prolonged absence of approximately one-half of
the adult male population therefrom. \Vere the families of "Native"
labourers permittecl to accompany theni to their work, population
pressure upoii the land inevitably would decrease 5 with the possi-
bility of a correspotidingly more prosperous agriculture for those
remaining; similarly, the land in the Northern reserves would
tend to bc farmed by persons who would devote themselves exclu-
sively to farming, rather than on a "part-time" basis by persons
who migrate to and from the Police Zone at intervals. In the
Northern reserves
"Thcre is \,irtii:illy iio artiiaii tr:iditioii: [thc iiihnbitaiits] . .con-
sume\\.tiat thcy produse anil thcr~~isconsequcntlvIittle biiildingiipof
permanent c:ipitai assets . . . animai husbandr) and crop production
'III..."56
Id.. pp.529-530.
' See p.419, inlnz.
'G.A.O.R. 17thS~SS. ,p. S.W.A. Comm., Supp. No. rz at 13(AI5ziz).
in the Northern resi?rves.ription of the recent "rapid increvin population" REPLY OF ETHIOPIA AND LIBERIA 409
are practised mainly for self-maintenance,[and] there is always a
certain proportion of the male population wlio, as temporary
employeesin the money or eschange sector, could put their abilities
to more profitable use than in their own siibsistencesector." '
If equality of opportunity were afforded to inhabitants without
restriction based ori "group," tribe or colour, many families ivould
remove from the reserves to the Police Zone; a surplus of production
ivould result in the resen.es, in place of the suhsistence econorny
which now fmstrates crecition of capital or entrepreneurial skills
from within. Not only would production be more efficient, but a
natural modernization of agricultural methods would take place
rather than either of the l.wo extremes suggested by Respondent.2
Similarly, the reasons given by Kespondent why "Northern
Natives . .. do not acquire greater skill than they actually do" 3
would tend to disappear. These are mainly as follows:
". . . the shortness of their period of contract service . .. the
difficultieswhich they r:speriencein adapting themselves to forms
of work which are strange to them, and . .. the tendency on the
part of many of them, when they return to the Police Zone for a
second or further period of service, to explore new avenues of
employment rather than to return to their former field of work.
These factors naturally militate against acquiring any considerable
degree of skill inany psrrticularoccupation." 3
In thepresent situation in the Territory,not only do theNorthetn
"Natives" fail to acquire any considerable degree of skill, but when
they have returned to their reserves the few skills they may have
acqiiired do not match the requirements of the area. Thus the
Northern reserves are deprived. on the one hand, of the presence
of a large percentage of the able-bodied men and, on the other,
of their effectiveness ivhen they return. At the same, time, the
initiative for effecting changes devolves upon the women inhabitants
in addition to their accustcimed labour on the land. ' Together with
the foregoing, the inhabitants cnnnot generate capital owing to
the subsisteiice economy which is fostered, in turn, by the large
population and by the Iack of adult males devoting themselves
exclusively to farming. It is one of the vicious circles of the policy
of a$artlteid.
The foregoing consequ1:nces of the policy are impossible to
reconcile with the positive obligations of Article 2 of the Mandate.
They would violate Respondent's obligations toward the inhabi-
tarits even if they were not based upon "group" differentiation. A
policy producing such effects by means of "group" differentiation,
' Odendonl Co~nmirrionReporl, p. 315para.1286.
IIIp. 22.For policy and resulin comparable areassee Annex 6, Section(1).
infra. p426.
' IIIp. 75.
' 11.p.325.41° SOUTH WEST AFRICA
theii, is a fortiori a violation of the obligations of the Mandate.
Respondent has not concealed the racially discriminatory
motivation of economic apartheid. Thus, the Administrator of the
Territory, in 1960. announced:
"1 want tc, make a very special plea tonight here to al1 our
municipalitie:, industries, business concerns and private people: Do
your duty for the welfare of the people in this country and do mitla
as liltle non-Enropean labour as possible. K'e mus1 createa surfilus
of labozrr.Thcre are thousands of Europeans who are willing to come
to this country to take over work. We have got to see and realise
oiir prospects for the future if we are to remain a Eiiropean race in
tliis country :ind be happy. . . ." '
The relegation of "Kative" interests to a low priority occurred
from the inception of the hlandate; it is apparent even from the
manner in which liespondent describes certain historical situations,
in its Counter-Mernorial:
". .. Respondent could iiot reasonably have pursued a policy
permitting individual Natives, or srnail groups of Natives, to live on,
or to roam over large tracts of potentially iiseful land."
"The only wny in which Respondent could have ensured the posses-
sion of land I)y Natives, was by creating reserves."
"There can be no objection to granting a right to a farmer to have
persons removed £romhis land if they are not prepared to work for
him. The only possible objection relates to the fact that land was
graiited to farmers despite tlzepresencetkereonof ATatiues." '
"In the Police Zone, the Natives were at the inception of the
hlandate to n considerableexlenllandless.. . ." 5 ,
Similarly, iiititually co~itradictory contentions of Respondent
undcrscore its preoccupation with "Europeati" interests and its
abdication of respoiisibilitieswithrespect to "Native" interests.Thus,
Respondent ass<:rts that
". .. it has always been open to any Native to purchase land in
the so-called European farming areas. Their failure to do so, or
euen to show any interest in this possibilily, confirms Respondent's
view . .. that the Native population is on the whole not yet ripe
for individiia.1ownership of land." 6
' G.A.O.R. 15th Sess.,S.W.A. Comm., Supp. No. izat 40 (AlqqG4). quoting
Thc IVindhoek Adverliscr, 14 January 1960. (Italics added.) The Cornmittee noted
the policy implications of this statement w"grave concern." (Id.. p. 43.)
111,p. 24.It is apparent in pages 28-33, id., that Respondent's introduction
of "European" fariners from South Africa was at no time accompanied by any
the agricultural life of the Police Zone; rather. wereurelegated to a status inn
reserves conducive only to the profits and development of the Police Zone.
' Id.. p. 3'. (Italics addeThe "Natives" acknowledged as living on land in
the preceding cluohtion were nat. of coursei.n "possession" thereof.
' Id.. p25. (Italics added.)
' Id.. p. 3i. (Italics added.)
Id., pII. (Italics added.) REPLY OF ETHlOPlA AND LIBERIA 41 1
And, further, that
"It is notable tliat outside the reserves in the Police Zone, no
Native has ever purchased land, despite the absence of any legal
impediment in lhal regard." '
On the other haiid, Respondent states with respect to the leasing
of land by "Natives" :
"The condition regardirig miscegenation in the probationary lease
cannot by itself be relevant to 'well-being, social progress and
development iii agriculture,' except to the extent that it indicates a
contemplation that srichlenses woirld . .. be grnnled lo Eziropeans
only. That this hnsindeed beenfhecontemplnlion,is admilted. \Vhen
Respondent deems the Native population ripe for individual land
settlement, provision can be made therefor." 2
It is not surprisiiig tliat no "Native" has ever purchased land.
"[Ajssistance under the land settlement laws had not been re-
quested by, or grantecl to, Natives." Furthermore, any such pur-
chase would give to a "Native" precarious tenure, inasmuch as
he could at any time be nioved from his land "to any other place
within the mandated Territory" ' by a government in which he
is not represented.
Similarly, with respect to mining, Respondent asserts that
". . . despite the fact that prospecting and mining in the Native
reserves have for al1 intents and purposes been reserved to them,
the Native population of the Territory have thus far generally
shown n lack of iirtereslin mining actiuzties.This is probably only
natural when regard is Iiad to their background and traditional
subsistence econoiny." 5
On the other hnnd, ltespondent points out:
"As mnch as 96 per cent of the mining output in South \Vest
Africa is controlled by two companies. This state of afiairs is
ascribable to the nature of local mineral deposits and the high cost
of exploitation resiilting from poor, or a lack of, water supplies,
lack of fuel and transilort difficulties. These factors necessitate
large-scale operations r&piring the ernployment of qiialified and
experienced technical personnel, and substantial capital funds."
Respondent's assumption of inevitability of permanent main-
tenance of the status quo h:w led to deprivation of opportunity and
incentive whicli helps iiiturn to assure the continuance of the
statirs quo.
' III, p31. (Italics addçd.)
Id., p. 33. (Footnotes ornittecl and italics added.)
' Sec. Iof6the Native Adminir.tration Proclamation, No. 15of iqz8. Tha Laws
of SouthWest Africn 1928.pp. 588.; seo1, pp. 139-140. Fora survcyof a numùei.
of such removals in the pnst. çee G.A.O.K. 12th Sess., S.W.IZ. Comm.. Supp.
No. 12 at 15-17 (Ai36~G).
III, p. 56. (Italics added.)
Id., p49.412 SOUTH \VEST AFRICA
Respondent ccincedes. with respect to the discriminatory provi-
sions of the hliiiing Regulations,' that they "... constitute one
of the 'unpopular control methods' which are considered desirable
in the phase of transition from guardianship to separate self-realisa-
tion, and which are destivzedto fa11away when developments in
the latter respecl remove the reason for them." 2 The implication is
either that the "l\Tatives" will develop their own comparable mining
enterprises or that they will, in any event, eventually be dischar-
ged from employment in the Police Zone mines. The first alternative
is strikingly improbable, if only in view of the quotations set
forth hereinabove; the second alternative would lead to the labour
surplus desired tiy the Administrator, but to neither the material
well-being nor the social progress of the "Natives."
In fact, the actual result will be that the "Native" labour force
will continue to man the mines, under the same "unpopular con-
trol measures," for niany years into the forcseeable future. These
measures. although allegedly "destined to fall away," have an
indeterminate future, as they have had a.long history. Thus, Re-
spondent cites a letter written by its represeiitative to the Perma-
nent Rfandates Commission in 1928, which advised the Conimis-
sion that
"Owiiig. however, to the present low state of civilisation among
the natives, no native is at present employed either by the Ad-
ministration or by the Railway Department on work involving the
risk ofhuman life.such as driving a motor-car or workingan engine.
A certain colourbar is therefore being observed in practice, but it is
certainly not a statutory enactment and isft~relytemfora?y,that is
until such time as the native is sufficientlyadvanced to be able to
undertnke tliis responsiblework."
Siiiiilnrly, an:? prospect for the disappearance of the policy of
racial discrimination applied in the Railways and Harbours Ad-
ministration, by "Natives" becoming "eventually ... able to
occupy the highest posts in their own areas," will be confined
for at least fifteen years to the stretch of approximately twenty
miles of main railway line, from Keetmanshoop to Windhoek,
which passes through the Berseba-Tses Reserve. 7
Conjoined with the above elements is Respondent's abdication
of the positive and progressive obligations of the Mandate by its
See 1, p. rzi. pira. 46.
2 III, p. 56. (Footnote omitted and italics added.)
3 Seo p. 4K.supra.
4 III, p. 69. (Italics added.)
' 1. o122.
Iif,p. 68.
' Oderrdaal Com>nissionReporl, Fig. 57, lachg p. 376; the Commission in its
for the nearfuture." (id., p. 381) and none of the Five-Year Development Plans
contained in the Report contemplate expansion (id., pp. 481. 483). REPLY OF ETHIOPIA AXD LIBERIA 413
policy of "laissez-faire" with respect to tribalism. ' Thus, with
regard to the widely-criticized policy of preventing the families
of "Natives" from the Northern reserves from accompaiiying
them on their tours of employment, Rcspondent states:
"Employers iii the Policc Zone have often requested that an
employee's family shonld be allowedto accompany him to his plilce
of employment, but the tribal aulhoritieshavealways stertclyopposed
suchsrrggestions."
An illuminating comparison may be made to Book III of the
Counler-A4emorial:
"Already during the Germnn period, nuinbers of Ovambo were
employed in the Police Zone.The general practicc was for Ovambo
men to work in the Police Zone for a period and then to return
home. This nccordedwith the wishes O/ the leaders of the variolis
tribes, who wherejealou.slyort gziard against nll factors which cozrld
lead todetribalisalion."3
Thus tribalism, which \vas one of the reasons why "Native"
inhabitants were "not yet able to stand by themselves under the
strenuous conditions of the modern world," has been deliberately
fostered through apartheid.
Inasmuch as Kespondeiit's policy is assertedly founded upon
an "evolution towards separate self-realisation for Natives in
homelands of their own," + and inasmuch as such' "homelands"
are to be orientcd entirely to tribal considerations. Respondent's
policy may fairly be ch:iractcrized as a headlong advance into the
past. An exposition of econoniic nfiartheid in this respect has beeii
given by an authority wiih unquestioncd first-hand knowledge:
"The economicprinciples of nprirtheidare bad simply because they
are upside down. 13ytrying to herd the native population backinto
separate economic and political areas the Nationalist government
isin effectallyingitselfwith the primitive and backwardcomponeiits
of native lifc, with those customs and practices which are the lirst
cause of poverty and stagnation."
Although, as this Honourable Court has held, Kespondent is
under no legal obligation to conclude a Tmsteeship Agreement
with respect to the Territory, and has obdurately refused to do so
despite repeated requests of the United Nations that it do so.
policies pursued by Governinents rvhicli have :issunied such re-
sponsibilities, and standards enunciatcd by United Nations organs
with regard tliereto. are relcv:int indications of current norins in
respect of the promotion of the well-being and social progress of
inhabitants of dependent l'erritories.
' Cf.p. 387.supra.
l III, p. 73. (Italics added.)
II,p.325.(Footnote omitted and italics added.)
' de Kiewiet,l'ha Artalorny of !;outh AfrMisery 71 (1956).4I4 SOUTH WEST AFRlCA
Applicants accordingly include, as Section (1) of Annex 6
hereto,' a suiiiinary of policies and practices in Trusteeship Ter-
ritories iiivolving situations analogous to thosc in South West Africa.
The said Sectii,n, (1) of Annex 6 demonstrates the geiicrally
accepted objective of maximum effort on the part of the Adminis-
tering Authority to iiitegrate inhabitants into the econoiny of
the Territory as a whole, on an equitable and progressive basis.
(C) THE RESERVES
Respoiident has introdiiccd its discussion of economic policy in
the "Native" reserves witli a false tlichotomy. Tlius Respondent
states that tlic rcinoteness of the Xortherii tcrritories from
".. . tlicpriii<:ipalarerisof modcrii econoinicde\reloprnent. . . coiild
have been altered in onc u/ two ~minyu s,iz.eitlier by ciicouragiiigor
forcing the people to leave their lands and flock to the Police
Zone or, altarnatively, hy a process of rapid development of the
Northeriiterritories miththe aid ofEuropeaiiinitiativeand ~apital."~
I<espoiident's options wcre not in fact liinited to sucli cxtrcnies.
Irideed, ;L souii(l sociological ancl econoniic approacli woultl have
been to develop the Nortliern territories with outside capital,
slowly nt first, but with increasiiig specd as capital and surl>lus
resources werecrcated withiii the rcserves themselves. Respondeiit's
duty in this regard \vasone of educatioii and systematic developinent.
The situation required, and continues to rcrluire, special effort; al1
the more so if, as Respoiident asscrts, tlicre existed a so-called
"lack of iiiterest" on tlie part of the inhabitants of tlie Territory
toward miiiing, land owncrship, aiid other aspects of "the strenuous
coiiditions of the modern world."
Respondent ~narshals detailed arguirieiit in rcply to Applicants'
observation about the allocation and alieiiation of land to "Euro-
peans" aiid tht: gradua1 extension of thc Police Zone hithout.
Iiowever, explaining why "the Mandatory lias progressively rcduced
tlie proportion of farm land available for cultivation or pastoral
use by the 'fr'ative'population, while it has progressively increased
the proportion of such farm land available to 'Europeans'."
--
' Ixtra. 1,426.
111.p.22. (Italics added.)
' The stimulation ofeconomic development and activity in the Northern terri-
IZuropearisofthe oiily availahlo natural resources of areas(i.et.he agricultural
~lotential)luith a tesultatrt loss ofland by Ihe A'div(Id.. p22; italics added.)
It is from this firsr incorrect assumption that Reçpondent's incorrect conclusions
Ilow, 8.g.:"Applicants' coinplaint [that...Respondent failed to create'areas of
modern ecoiiomic rlcvclopment and activity' in[theNorthern territories.. .or to
make tlieni'part of the modern monetary economy' ... in efcct aniounts 10 a
conrblai>lt Ihat Resbondeafailed Io itilroduce Ew"baatlortrrers info tl2urear."
(ld.:pp. 30.31: fo6tnote okitted and italics added.)
' 1,p. "5. para. 25.and p. 118.para. 33(i).
Id..13."8. para. 33(i)Cf. III, p~. 30-3,. R~:PLYOF ETHIOPIA AND LIBERIA 415
To this Respondent merely replies:
"It was Kespondent's duty to strike ELbalance between [the]
contïicting coiisiderxtions [of providing reserves for the 'Natives'
and farms for tlie 'Europeans'],and, benringin niilzd lkat i\'alives
areentitled fo purcliaseagriczdturalland in a?lypnrt ofthePoliceZone,
it is submitted that the provisions that have been made, are not
unreasonable." '
In view of the poverty of "Native" iiihabitants, thc fact that
tinancial assistance was availablc to "Europenn" settlers but not to
"Nati\~es," and that Respondent's laws and practices render resi-
dence by nny "Native" anywherc in the Territory irisecure aiitl
iiinkc it iiiipossible for "N;ltives" to leasc kriid, therc is rio valitl
basis for Respontlciit's conclusioii that "... tlie provisions that
have bccn made, arc not unrc:isonnble." '
In contrast with l<espondeiit's policies on the "land tlucstion,"
a noted scholar is reportcii to have <leclarcclbeforc the Jiily 1960
Science Congress held in Johannesburg:
". . . [Blotb tlic Covenaiit of the Lcagiic of Xltions niid tlie
Charter of the United Xatioiis described the inandate ES a 'sacred
trust' on the part of x civilisedstate towards theindigeiious peoplc.
. . Posing the tluestion of whetlier South Africa hnd fniledin lier
sacred duty to!\rnrdsthe Natives I'rofessor\Vcllingtonconimented,
'JVeseein to haiw looked aftcr ourselves very ivell'." '
The policy of "looking aftcr oiirselves very well" likewise appears
from Respondent's admissions coiicerning the disparity iii drought
relief as between "Europeans" aiitl "Natives." Kespondcnt statcs
that "the picture drawn hy Applicants is misleading, largely
becausc tliey fail to distinguish betweeii the types of 'assistance'
given to the Europeaii population and tlie Native population
respectively." 6 Respondent proceeds to distinguisb hetween loans,
on the one hand, aiid "free grants," 6 on the other. Without ex-
plaining wliy the "Natives," with far fewer finnncial resoiirces to
hegin with, should be less damaged in the over-au by the drought
than the "Europeans," Respoiident asserts that "there was no
question of [the 'Natives"] being forced off the land by reason
' III, p. 31.(Italics added.)
See discussion atp. 4ii.supr<$
' Footnotc Iof thii page, stcpnz.
' Professor J. H. \\'elli~igton. formerly I'rofeïofi'eography. University of
Wellington;was.reported to have :itated that "South r\fri...Ihad allocated only
a small areato the Hereros in the southern Hardeveld and hûd sent the remainder
of the Hereros to the barre" Kalahari sandarea.The Union had then settled South
African farrnerson the fertile Hadeveld area." (Ibid.)
' III,pp. 33-37; cf.1pp. 116-117.
Id.. p.34.qr6 SOUTH WEST AFRICA
of failure to pay interest or capital instalments on mortgages, or
inability to meet other obligations." ' The figures produced by ,
Respondent afford the follouringcomparisons, distingztishingbetween
tyfiesof assistants giue~r:?
(IS RAND)
,EUROPEAKS" "NATIVP)~"
Total Loai~s
4,900,000 120, jO0
Loarhs$er cn$ita
66.70 .2S
ï'otd Graltts
300,000 170,000
Grar~fs+er ca$itrc
4.08 .40
The "Native" population composes 85.24 per cent of the combiiicd
total "Xative" and "European" populations, yet was restricted
to 2.4 per cent of the total loans and 36.17 per cent of the total
grants made alrailable for drought relief. Its share of the total
outlay was but 4.53 per cent. These figures must be viewed in
conjunction with the obvious factor that the margin of financial
elasticity, or "cushion" against adverse circuinstances. is infinitely
lessfor the "Natives" than it is for the "Europeans" in the Territory
in spite of the iact that the "Europeans" have progressed to the
point where they inay incur debt obligations.
This discrimination xvith respect to drought relief is consistent
with other legislative policies in the Territory as a whole. For
example, the TVorkmen's Compeiisation Act. Xo. 30 of 1941, '
diffcrentintes batween racial groups in the following ways: on his
dcath, a "European" or "Coloured" workman's family receives a
pension,with allowancesforchildren, whereas a "Native" workman's
III, p. 35.
Population figures employed in nrriving at per cupiia estimations were the
figures $ive" for 1960 by the Odendaal Contnrissian Report (pp. 39 andTables
X\'III and)<lx), being 424,047 "Xatives'' and 73,464 "Enropeans," respectively;
financial data is derivcd solely from examination of Counter-hfcmorial, Vol. V.
PP. 36-40.
'Act So.30 of ,941, Sfafufcsof the U?lioa of Sould Africa r941, pp. 3661481,
The Lnuis of South FVesIAfrica 1956, pp. 4-129.asamended by: the Warkmen's
Compensation Amendrnïnt Acts. No.27 of 1945 (Stefutes ofthe Unioti of Soutli
Africa rgdj. pp. 214-41;1 The Lawr of South West Africa 1956. pp. 129-55):
So. 36of 1949 (Sf,ziufesof the U>rionof Soufh Africo 1949, pp. 306-27; 1The Law5
of Soulh li'erf Africo 1956, pp. 157-78); So.5 of 1951 (Sfnfrilesof the Union of South
Africn 1951, pp. 18-21;The Lnms of South FVeslAfrica 1956. pp. i79-83So. 51
Proc. No.173aoft,956f(S.A.U).The Laws of Soulh West Africo 1956. pp. 206-07);
and So. 7of iq6i (1Stolutes of tIlepubliof SoufhAfrica 1961, ]>p.36-491 The
Laws of South IVesfAtrica 1960, pp. 10-23).4x8 SOUTH WEST AFHICA
standards applicable to the three said areas, and is based upon
exaiiiination of :r legal and administrative system which is anal-
agous, iii al1 relevant aspects, to that existing in the Tcrritory.'
The parallels bctween the Territory and the Rcpiiblic werc
expressly recognized in the second area (freedom froni forced
labour) by the United Nations-1.L.O. Ad Hoc Coinmittee on
Forced Labour in 1953; with respect to complaints concerning
thc pass law situation in South West Africa, tlie Committcc "refer-
[red] to its conclusions with rcgard to pass laws and thcir possible
effect oii the Natives concerned in the Union of Soutli Airica,
which apply also in the case of the territory of South-IVest Africa." 2
Sirnilarly, with respect to compulsorylabour, theCommittcefound
that "the legislation in force in the territory concerniiig, for exam-
ple, hnbitually uiiemployed Natives, breaches of contracts of service,
and the master :and servants laws is similar to that appliccl in the
Union itself." ' ilonsequently, "the Committee's findings ori these
allegntions [coiicerning compulsory labour] nre the saine as tliose
which it reached in the case of the Union of South Africn regarding
the compulsory nature of labour contracts for 'noii-whites'. "'
Similarly, the Committee stated in its finalcoiiclusioiison the Terri-
tory that "the cvidence beforc the Committee leads it to confirni
in tlic case of South-West Airica the conclusions it reaclicd with
regard to the Viiioii of South Africa itself."
The Unitecl Nations Comniittce on Soutli \17cstAfrica hns accura-
tely and expressly acknowlctlgctl the staiidarcls approvcd hy the
I.L.O. in its Reports for the ycars 1957-1960:
"l'hc Corninitteecontinues to recomincnd tliat the Inl>ourlaxi~ ~~~~ ~ ~
of the Terri~oryshould con/orm 10 the sln~idnrdsnpproved 6y the
InlertcntiorznlLabour Orgarrisafionfor ttotc->netropolitanTerritories
1Of the three ol,erative sections of thc I.L.O. Puogrumnie. tho first applies in
its entirety to similnr patterns inthe Tcrritory (with the exception that tliereis
no parallel for the axplieit provisions containcd in sec. 18); the laws described in
the second section differ from Territorialegislation and practice only with respect
to the modalities of labour bureaux and farm prisons (secs.49-54 and 62); and the
situation described in the third section is analogous save for certaindetails con-
cerning unions (sec::88-101). the çpecific language of sec. 103. and the offence of
"sabotage" discuççed iiisecs. 1x5-zo (which is not aprilicable to the Territory).
Report of the Ad Hoc Coinmittee on Forced Labour,Studies and I<eports (New
Series) No.36at81 (IJ.N.I>oc.E/z+3i) (1953). Fortheconvenienceof thecourt. Appli-
cants have set forth the relevant conclusions of the.4d Hoc Committee, applicable
to bth South Afrit:a and the Territary, as Section (2)of Annex 6. p. 431, infra;
for the conclusions with respect to the pass laws. seeliaras. 340-51 of section (2)
thereof, pp. 431-43:). i+:fra. and for the language quoted abovseepara. 382, p. 437,
..,.-.
' Id.. para. 384, p. 218. For such "legislation in force in the territory." see
1,pp. 124-127.
' Id..para. 385.p.2i9. For the conclusions ivith respect to the compulsory nature
of labour contracts for "non-Wbites," see paras. 352-60 of Section (2)ofAnnex 6.
PP. 433-434 infra.
Id..p. 219. Farsuchconclusions with respect to South Africa. sce sec. (2)of
Annex 6.paras. 370-75, pp. 435-436, ifilva. REPLY OF ETHIOPIA AND LIBERIA 4I9
and with the principles of the Mandates System and, in particular,
recommendsthat penal sanctions for the breach of labour contracts
should be abolished." '
Keeping these standards in mind, Applicants \vil1now turn to
a discussion of the tliree areas of economic rights discusscd in
the I.L.O. Programnze, with respect to the Territory in general,
arid thc practices in the Police Zone, in particular.
(1) Racial Discriminntion in Resfiect of Admission -to Employme?$t
and Access to Vocational Training
The Appreiiticeship Ordinance of 1938 2, as amencled,' provides
that in desirnated industries a minor mav be emüloved onlv if
lie has cxecGed a contract of apprenticesh~p with Gisemployer. '
It is furtlier provided, however, that only "Europeari" minors
(with certain qualifications) rnay excciite contracts of apprcntice-
ship. The Ordinance, ais supplemented from time to time hy
various Government Notices, 6 presently controls the following
industries: boot making, building, clothing, carriage building,
electrical and mechanical engineering, food (baking and butchery),
furniture, leatlier, miiiing, inotor industry, printing, painting and
decorating. Thesc Goveriiment Notices also establish criteria for
courses, practical work, and examinations required for qualification
in tlie trades specified.
Bccanse of ihe restrictions imposccl unclcr the Apprenticeship
Ordinatice of 1938, it has riot been neccssary to promulgate legisla-
'G.A.O.R. 12th Scss., S.\V.A. Corrim., Supl,. No. rz at 21 (AjjGzG). (Italics
oniittcd iit part.)Substantially tiie same laiiguage appears in the Cornmittee's
Reports for 1953 (G.A.O.ll. 13th Sess.,S.\V.A.Conini., Supp. So. rz atz3 (Aj3906)).
for 1959 (G.A.O.R. 14th Sess., S.W.A. Cornm., Supp. No. 1.2at zq (A14isr)).
and for igGo (G.A.O.K. r5th Sess., S.W.A. Camm., Supp. No iz at 43 (AI4464)).
Ord. No. 12 of 1938. TheLnuis of South West Africa 1938, pp. 214-35.
' Arnended by Appreiiticeship Amendment Ordinance Xo. 15 of igqS, The
Laws of South West Africo 1948, pp. 224.26; Apprenticeship Amendrnent Ordinance
P\'o.z5of 1957, The LawiofSoulhCl'edAfricarg572, 5p2.54;andbyApprcnticesh'ip
Amendment Ordinance No. 20 of 1959, The L.aws of South West Atrica 1555, pp.
"20-2".
* The Laws of South West Afr.ica r548, p. zzq. sec. r. amending Ord. No. 12 of
1938, loc. cit., footno2eof this page, supra.
Ord. No. 12 of 1938 (lm. cil.. footnot2 of this page, supra).sec. Sir).
See, 8.g. G.N. No. 28 of 1957 (S.\V.A.), in OficialGozette Zztraordinirry ofSouth
West Africa, No. 2056 (rFebruary 1957). p. 84: G.N. No. 42 of 1957 (S.\\'.A.). in
Oficiol Gazette E.ztroordin<iryof South West Africa, No. 2058 (15 February 1957).
p. rzq.
' As speciried in G.N. No. 122 of 1957 (S.W.A.), The Lawr of South West Africa
1957, p. qSo, the building industry includeç the following trades for the purposes
of the Ordinance: bricklaying, pl;istering, carpentry,joinery, painting, decorating.
plurnbing, sheetrnetal working, si@-writing and wood-machining.
AS specified inG.N.Ni>. 12Soi 1957 (S.W.A.), id.at482, therniningindustry iiaw
consists of the following tradesfor the purposes of the Ordinance: blacksmithing,
boilermaking. rnasonry, carpentry and joinery, electrician,fitting and turning,
motor rnechunic, plumbing and sheet metal working. radiotrician, rigging, tvelding,
diesel fitter and upholstering.420 SOUTH WEST AFRICA
tion similar to tlie South African legislation which prevents "Xa-
tives" from being employed "on skilled work" in aiiy urban area
other than a "N;itive" area. '
With respect to the converse of job exclusion, namely the
opening up of jobs, the Cornmittee on South West Africa included
the following in its 1956 Report to the General Assembly:
"The Al1ge:meine Zeilung of 8 November 1955 . . .reported that
the Chief Native Commissioner, acting nnder the direction of the
Minister for Xative Affairs,had stated that the use of 'Natives'
for qualitative jobs, as was under consideration in Northern Rho-
desia, would iiot be permitted in South West Africa. The statement
had been occasioiied by information which Iiad been circulated
that 'Natives' in the Territory would perforrn work which had until
then been reserved for 'Europeans'." 2
Iii addition icithe skilied trades which liespondent has closed
to Dersons other than "Europeans," the fields of minina. railwavs
and harbours, ' aiid public -transportation 5 are sub&ct to tge
effects of econoniic and social apartheid.
In addition to the clear .violation of the duty to promote the
inhabitanis' social progress which sucb practices involve, they are
wasteful, in thi: extreme, of available hurnriii resources. Thus
MT. S. G. bleiiell, Chairman of the Anglo-Traiisvaal Consolidated
Investment Conipany, Limited, stated on 6 December 1963:
"1have Iiearclthe argument that the ..\frican is not yet ready to rise
above fore1na.nlevel. However,thereis little vaizrei>a zssessingpeople
in gronps. In business, the employer seeks talented individiials-
whose talent:; he tries to utilise to their own and the company's
best advaiit:i,;e. It is for this reason tliat the 1:rwsrestricting certain
jobs -o certain groups of the population seem illogical."6
' Sative Uuildin,: XVorkersAct, So. 27 of ,951, Stalutcsof lhe Uirion of Soi<th
Africazgjr. pp. 106-53, sec. ij(1)(a) (as amended by Act So. 60 of 1955);see
I.L.O. Progrnmnr~. 1,.18. pua. zj.
G.A.O.R. 11th Sess..S.\V.A. Comm., Supp. No. 12 at 23 (hljrgi).
See 1,p. 121, and III,p. 55 (Respondent has omittcil two "Europenn" positions
from its list, ibid.: that of operator oa windiiig engiiie used for the conveyanco
of persons, aiid thvt of "onsetter," i.ea persos authoiized to givo signals for the
raising aiidlowerin;: of persons) (G.N. No. 33 of ,956 (S.W.A.) in The Laws of
South West Africa 1956, p. 547. secs.66(2) and ~I(I)).
' See 1.p. 127.
' hlotor Cnrricr 'Transportation Act, No. 39 of ,930, Statutesof the Uniori of
South Afriro I930, pp. 4%-83, asamended by: AlotorCarrierTransportatioii Amend-
ment Act. No. 39 of 1932.Sfnlufes ofthe Union of Sou6 Afrbo ,932,pp. 29-59;
hlotor Carrier Trarisportation Amendment Act. So. 50 of 1949, Stnlufcroflhe
Unionof South Africa 1949, pp. 552-61; Motor Carrier Transportation Amend-
ment Act. Xo. 44 of 1955. Slotules ofthe Uniori ofSoulh Africa 1955. pp. 422-67;
and Alotor Carrier 'Transportation Amendment Act. No. 42 of ,959. 1 Slnfitksof
the Uniori ofSouth Africa 1959. pp. 424-31, The Laws of Soulh Wesl Africa 1959,
pp. 20-26. The principal Act. asamended. establishes sepnrate transport services
Or, in certain casesf.acilities for "Natives." and discriminates by race in the use
af public trançportatian.
The Fino>zcial,Mail,Val. X, No. 15. 13 De~ember ,963. p. 887, cal. 2. (Italics
added.) REPLY O'FETHIOPIA AND LIBERIA
421
With respect to liespoiident's discriininatory practices in voca-
tioiial training, the Court's attention is respectfully directed to
thc section of this Reply on Education, ' and tothe I.L.O. I'roposed
Declaration. 2
(2) Measzires Having the Eflect of Coinpulsion to Labour Which
IjrvolveRacial Discvinzination
The exposition in Appli<:ants'Mernorialsof Respondent's coercive
"egislation concerning the relationship between "masters" and
servants" 'is correct in al1respects. Although it is true that the
hlaster and Servants Proclamation of 1920, as originally enacted 4,
did not define "Servant" in terms of race, it is also true that the
1923 amendnient referred to by Respondent added to such defini-
tion the category of "Natives" employed by the Administration,
the Railways and Harboiirs Administration, any local autliority,
or employed under contract in railway or harbour construction.
Apart from this instance of explicit discrimination, it is significant
that those sectors of the economy in which the largest number of
"Europeans" are employ<:d in manual work are precisely those
nrhich are lzot inclutled in the original definition of "Servant," 7
but wliich are included in the amendment of 1923 (which is speci-
fically confined to "Natives" employed in those sectors).
In addition, Respondent's explanation of the background to the
legislation concliisively shows that it was in fact aimed at the
meinbers of the "Native" group. Thus the Ad Hoc Committee on
Forced Labour had no difficulty in weighing the effcct and the
character of such legislation, '0 and the I.L.O. Progranznzefound
with respect to similar lei;islation in the Republic that in areas
other thaii those wherc specificprovisions are directed at "Natives,"
"provisions for penal sanctions for breaches of contracts of employ-
ment, although iiot litiiited to 'native' workers, are in practice
applied overwhelmingly to such workers."
'See. in particular. pp. 383-386, supra.
Paras. 3. 10-15, 35, 145, 146. 148, and 149.
1, pp. izq-126.
' Froc.No.34 of 1920 (S.W..4.). Thc Laws of Soulb Wesl Africa 1915-rgzz,
pp. 336-66.
III, p. 81, para6.
PIOC .O. 19 of 1923 (S.W.A.). se2.(h). in The Laws of Soulh WeAfrico 1923,
p. 40. cited in III, p. 81.
' "[Elvery person employed foi.hire, wages or other remuneration to performany
handicraftor other badily lal>ourin agriculture. manufactures. industries or in
domesticserviceor araboatman, porter or other occupation of alinature. ..."
(Prac. No.34 of ,920 (S.W.A.). sec.2,rn set out in III. p. 81.)
See [rg61] South Alrican Inïtitute of Race Relations, A Suniey of R~CL RC-
lationsin Soitth Atric219 (1962).
III, pp. 82-83.
'OSec Aniiex 6, Section(2).paras. 3j2-60, 372-75. pp. 433-434 and 436infra.
" Pan.42: seealso paras. 66. 74. 145. 146, 148 and 149. With respect to Respon-
dent's contention that the hlaster and Servants Praclamationinuresequallyto the422 SOUTH WEST AFRICA
The Permanent Mandates Commission \vas highly critical of
the Master and Servants Proclamation. Thus:
"Ur. Grimshaw called attention to the labour legislation of 1927
[for South 12'i:stAfrica]. It was, in his viete),a somewhat unhappy
fact that that a'ztringthat year thereshonld have occurredin a territory
under mandate a chaitgein labour legislation directly opposed ta the
tendency shown in almost everyothercoirnt~yof the world which kad
similar prollelns toface. An advance had been made towards increas-
ed liberalism in Australia and the Argentineto name twocountries
which had been mentioned in the discussion-in regard to the treat-
ment of the natives. The Masters and Servants Proclamation of
rgzo in South-West Africa, however, had been amended and made
mucli more s<:verebv Proclamation No. IO of 1427. The monetarv
penalties for offenceAnder the Ordinance commiitéd by natives ha;
been generally doubled. The maximum fines had been increased
from £3 to Ly; that was to Say, seven months' wages. The periods
of iniprisonment had been extended and a new punishment, that
of wliipping, had beeii introduced. Could 3lr. Werth inform the
Commission whether these severe measures had been productive of
that better feelingbetween the white man and the natives which al1
desired to see ?" '
Penal sanctions for breacli of labour contracts illustrate the
dominance and privilege afforded "European" interests. As was
found by the United Nations-I.L.O. Ad HocCommitteein 1953:
"There caii, however, be no doiibt, in the Committee's vicw,
that the fact that it is im~ossibie for the worker to terminate his
contract unilaterally befoie the expiration of its term, without
running thc risk of Iieavy penalties, constitiites a serioiis restriction
of his personal liberty."i
Respondent's laws with respect to "Native" labour in the Police
Zone are inherently repugnant to the social progress or material
well-being of the "Natives." The Master and Servants Proclamation
fnrms aii integral part of such restrictions, togetlier with the "pass
laws" in effect in the Territory.3 and denial, to "Native" labour,
benefitof themasterandthe serva~t. it is noteworththat an employee thereunder
is guilty of an offen-e if he commits certain breaches of contr"without lnwful
couse" (secs.46(1).. 46(2), and 48(5)), whereas the employer must nat commit
certain acts "withoutreasonableami pvoboblccausefor believing" that his action
is justific(secs. 65. 67, and 73) (italics added). Thus, in certain instancan,
employer may have recourse to tho criminal courts for enforcement of a labour
the other hand. the employer maystbedconvicted only if heacke "unreasonably."
' I'.ll.C. alin.. 14th Sess.. p. io*.(Italics added.)
See Anner 6,Section(2).para. 360. pp. 433-434. iafra.
' For o discussion of Respondent's policies with respect to freedom of
movement, seepp. 464-473, imlrasee also I.L.O. Programme, puras. 38. 40, 41.43.
65, 71. 7.1, 145 146, 148. and 149; and Annex 6 Section (?),parns. 340-5,. at.
PP. 431-433, irrfra. REPLY OF ETHIOPIA AND LIBERIA
423
of the riglit to organize. The comment of a Member of the South
African Parliament, with respect to pass laws, is equally applicable
to penal sanctions for breaches of contract: "lt is a cardinal prin-
ciple except in a slave country, that the labourer may go where
the pay is highest." '
Finally, the Vagrancy Proclamation of 1920 2 permits a first
offender to be committed for work on a private farm. 3 Such
practice likewise was condenined by the Permanent Rlandates
Commission in an early report to the Council of the League. The
Comniission found that "this power of imposing forced labour for
the benefit of private individuals in lieu of the sentence of the
Court is a practice w~hick cannol be approved." Such practice has
been criticized and condenined by both the Ad Hoc Committee
on Forced Labour and the I.L.O.Programme. 6
(3) Racial Discrinzinationin Respectof Freedomof Associatidtzaltd
the Kightto Orcanize
The Coinmittee on Freedom of Association of the Governing
Body of the 1nternation:il Labour Organisation has concluded.
with the apy>rovalof the Governing Body, that provisions of Iaw
involving
". .. discrimination agiunst African workers [with rcspect to the
riglit to organize] [is] . . . inconsistent with the principles that
~vorkers~vithout distinction whatsoever should have the right to
establish and, subject onlyto the rulesofthe organisation concerned,
to join organisations of their owii choosing withoiit previous
autliorisation and that ail workcrs' orgariisationsshould enjoy the
right of collectivehargaining." 7
' U. of S.A.. Pnrl. Brb., House of Asrembly. 9th Parl.. 5th Sess. (iveekly
ed., 1948). Col. i670.
recruitingsystem (III, pp. 72-73) rcveals that the cantractoffered is a standard
contract, that the prohibition cn recruiting by individual employers eliminates
ail possibility of competitianbetween employers in the labour market. that the
restrictionson entry into the Police Zone make it virtually impossible for a
labourer from outside the Zone to obtain ernployment through his own effort,
or othenvise than through SWP.NLA. and that the choice is therefore between
accepting the standard contract or remaining unemployed.
f Proc. No. 25 of rpzo (S.W.A.), Thc Lawr of South Ives1 Africo 1915-rgzz.
pp. 280-86,as amended by Proc. No. 32 of 1927 (S.W.A.). The Lowr of Souih West
Africa 1927.pp. 244-46. and by the Trespass Ordinance. No. 3 of 1962 (S.\V.A.),
The Lnwr of South West Africa 1962,pp. 21-23,
' Other than on a farm belo~ging to a magistrate or to a person at ivhose
instance the prosecution was brix~ght. (Proc. No. 25 of 1920 (S.W.A.) (lm. ci(..
footnote z of this page. suprasec. 14.)
' P.3I.C. ÙIin.. 3rd Sess., p. 293. (Italics added.)
See Annex 6,Section (2).paras. 361-69. pp. 434.435 infra.
Paras. 43.6-62, 67. 71, 74. 145146, 148 and 149.
' 15th Report of the Committce of Freedom of Association, CaseNo. 102.para.
185(2), as q~~otedin the I.L.O. Pvograrnrne,para. 124.424 SOUTH WEST AFRICA
The I.L.O. Progrrlmnzesupports this view. l
Respondent juc.tifiesits failureto recognize "Native" trade unions
(of which there are none in the Territory) for the purposcs of collec-
tive bargainiiig and the conciliation of industrial disputes 2 by
assertions that "the Native employees of the Territory have iiot
as yet displayed any real interest in trade uiiionism," that "the
interests of Native workers, if leftto the protection of trade unions,
could be neglected and ... such workers could be exploited by
unscrupulous individuals," ' and that "the Native eniployees of
the Territory ha-vegencrally not yet reachecl a stage where they
caii partake iii collective bargaining on an equal footing with their
employers." 5 The terms and conditions of work of "Natives"
are left to the discretion of officialsof a government in which such
wor kers have no representation, and to conciliation by Conciliation
Boards composed of persons drawn entirely from "groups" which
Kespondent's basic policy distinguishes andseparatesfrom "groups"
of \\-hich "Nativc:" workers are members. Furthermore, the reasons
advanced by Respondent for its restrictive policy should cal1for
encouragement, training, and fostering of participation by "Nn-
tives" as repreçentatives of "Native" workers, rather than the
converse.
The conditions of the employment of "Natives" are thus
left entirely to the judgment and management of members of
tlie "European" group, as are the lerms of their contracts, the
places of their resideiice, and the limitations upoii their jobs.
Administrative action by government officialscan be no substitute
for collective bargaining; this bccomes true n fortiori when the
government is representative of the employers, but not of the
inajority of einployees. Applicants submit that such a policy is
repugnaut to the positive obligations containcd in Article z of the
Rlandate.
(E) CONCLUSION
Applicants have demonstrated that Respondent's policy of
economic apnrtheid is inconsistent with the Mandate in that it
degrades and frustrates what Respondent is obliged to promote.
Such a policy is inherently inconsistent by creating an endless
series of circularities, which, interwoven with the educational,
political, and civil policies of apartheid, aggravate the conditions
asserted as justifying the policies themselves. As the Chairman of
the Anglo-Transvaal Consolidated Investment Company, Limited,
stated (with respect to South Africa) in December 1963:
Paras. 143, 145, 14148. and149.
See 1,pp.129-130.
' III.p. gz.
'Ibid.
'Id.. p93. KEPLY C~FETHIOPIA AND LIBERIA 425
"\Ve have no shortage of unskilled labour and the overseas
methods of collective bargaining have limited application in this
countrv. These circunistances work aeains~,chanees in "resent
cinl>lu!.iiiciitp<~licir.s'.llinsirs tiiriitt,iicltu ri:;tricltlir.\v;tge-
e.îriiinE:,nd ,~ieiiiliril:p.iwi.rof the conimiinlr\., tliiiirsecoiioniic
erowtti. Cons&uentl< we are uresented iviih a vicious circle from
\+.hich,as alwâys, t6ere is on]$ one way of escape-through acts
of free will on the part of enliglitened, intelligent, well-informed
and determined indiaiduais acting in concert." '
Economic apartheid is, moreover, wasteful and impractical by
its very nature. Thus, n noted autliority has comniented:
"The moment will certainly come when a competent study of the
uolicv of derelo~ine seoarate native economic and industrial
Syst/ms wiiireveai the shDckingbalance sheet ofimpossible expense,
inefficiencv and social \vaste which must be the result of trvina.to-
herd inen-into separate areas of life and labour."
Aibartheidis based upori a fundanientally unacceptable series of
major premises, which arc wholly incompatible with the spirit
and the letter of Article 22 of the Covenant and ilrticle 2 of the
Mandate. It reîlects and assures domination of the many by the
few, of the underpriirileged by the privileged. of the wnrd by the
guardian.
Tk Finoncial iMoil, \'o., No. 15,13 Deeernber 1963.p.887,cols. 2-3.
'de Kiewiet. Th6 Anatomy O/Ijouth Africovnlisery 48-49(1956).ISTEi;l(r\l'lOS OF ISH:\UI'I'.4STS 1x1'0 TIIE ECOSO\IIES
01; 1~1~t'liSDES'~'l'l<lil<1T01Z11~ :5\.\'IIS\VED UY THE liSI'l'ISI)
S:~I'1OSS
1. The organs <ifthe United Nations have adhered to the standard
that indigenous inhabitants of dependent territories be allowed and
encouraged to participate in the economic life of such territories. In a
formulation of economic policy for al1 Xon-Self-Governing Territories.
the Committee on Information laid down the following requirement in
two Reports to the General Assembly, each of which was approved by
General Assembly resolutions:
''[The] fundamental aim of economic policy in the Non-Self-
Governing Tcrritories niust be to develop these Territories in the
interest of ail sectors ofthe population, to raise thestandard ofliving
b!. iiicre;isiiig individual riai purcli:isiiig poivcr. tirid io iiicrc.:isé
rli,: tutti1n.c:rltliof i:acli'l'c.rritor!.in IOdmake possiblc ;iIii~her
st:iii<l;irif cui.i.~lsL,r\.iccs;iiid .~dniinistr;itioii 'I'licrdt:lni?rgcfr(81n
this fundamental aim the following concrete objectives. .. .
"(e) To secure the equitable distribution amongst the peoples of
the material benefits of the economy as espressed in the national
income.. .
"(g) To conserve and develop the natural resoiirces of the Terri-
tories for the benefit of the peoples. ..." '
The Trustecship Couucil has made many recommendntions along
similar lines. It recommended, for example, that the French Adminis-
tering Authority of Togoland "take al1 appropriate measures to en-
courage and facilitate participation by the indigenous inhabitants in
the industrial and mining nctivities of the Territory . . ." Increased
native participation "in the development of the abundant resources" of
New Guinea was urged by the Councilin 1949. In the same year it rec-
ommended thatthe French Authority in Togoland "do everything in its
power, by making grants and loans or other forms ofassistance available,
to encourage and enable indigenous inhabitants to take a full part in
industrial development. " '
In calling for niore participation by the indigenous inhabitantsin the
economy of the Cameroons under British Administration, the Council
called for "the expansion of tlie system of credit facilities, the develop-
'G.A.O.R. 9th Sess., Comm. on Info.. Supp. No. 18 at 16 (A/z729); reiterated
uerbatimin G.A.O.R. 12th Seçs.Comm. on Info., Supp. So. 15 at 13 (A13647).
Approved by C.A. Res. 846 (IX), 22 Sovember ,954, G.A.O.R. 9th Sess.,Supp.
No. 21 at 26 (AIz8go); and by C.A. Res. 1152 (XII).26 November ,957, G.A.O.R.
12th Ses?.., SuppNo. r8 at 26 (A/38og).
'G.A.O.R. 1'2tllSess.,T.C. Rep., Supp. No. 4 at151 (A13595).. .
' Id., p. 46.h Sess.. T.C. Rep.. Supp. No. q at65 (A193.3). REPLY OF ETHIOPlA AXD LIBERIA 427
riii.iit nf the CO-opcr:iti\.eniovemeikt aricl thc t:iicour;rgcnicnt of the
teclini.:nl rr;tiniiil: of the iiidigcii~ui iiiliabitants'"
\1;iiivIi,iic-r:riixçecuiii,ini<:11l\vcrcfiiriiiul;itcd!%,itlricsi>c.,:tln 'ï'r~ijt
TerritGies yn thé early I~:;Ô'S,and with respect to each'of them the
Council recommended goals similar to the one expressed with reference
to 12uanda-Unindi, that the plan "place special emphaçis on increasing
the participation of the indigenoris inhabitants, on a more respoiisible
level, in the economiclifeof theTerrit0ry."~.4l itindiuvidual cases
the recommendations \irere tailored to suit the particular economies
involved, the general reconimendation remained the same. Thus, with
respect to Tanganyika:
"The Council considers that, in the economic develo~meiit of the
Territory, measures should be taken to increase theLparticipation
of the inhahitants in the development of the Territory, particularly
as regards the exploitation of minerals and other natucal resourc&
and the production of basic raw materials and consuiner goods."
In addition, recommendations addressed to the problem of raising
the standard of living of inhabitants and increasing minimum wage
scales have been correlated tothe importance of maximizing participation
of al1 inhabitants directly in the niodern economy of the Triist Terri-
tories. For example, the Council explicitly recognized that the raising
of the standard of living iii Tanganyika "should be a natural result.
and is also one of the primary objectives, of the policy of the Adminis-
tering Autliority to increasc: Africaii productivity and participation in
the economic life of the tcrritory. . .."4
2. The legally enforcedseparation of the peoples of South West Africa
into a uredominatelv Africari "labour" area in the North and a ~redomi-
nately'"Europeaii";ndustrial and urban area in the Police zonéexacer-
bates the gulf between "Native" mell-bein~and the benefits of the modern
economv.-as well as contril>utine to inëfficient allocation of economic
resourc& to the detriment of the people as a whole. In the words of
the Economic Commission for Africa in a 1963 report to the liconomic
ancl Social Council:
".. . The setting aside of k~iid for members of different racial
groups bas almost invariably led to overcrowding and eshaustion
of inuch of the land set aside for Africans and under-titilization of
uther areas. . . . In hrief, tlie division of the economy into arbitrary
African and non-African sectors rather than treating the economy
as one whole, has had aiid cannot but have deleterious consequences.
Until land allocation ~s no~-ra~ ~ ~ ~ ~ ~ ~the other aso~cts~of
agriculture are seen as non-racial problems the process of &onomic
developinent must remain heavily and artificially burdened."
The Commissionfound that separation of heavy industry from the African
reserves has "tumed these arens generaily into economically inactive
' G.A.O.R. 13th Sess., T.C. R,zp., Supp. No. 4 at 75 (A/3822. Val. II).
G.A.O.R. 6th Sess., T.C. Re]>., Supp. No.q at 65-Gg (AlrRsG).
' G.A.O.R. 5th Sess., T.C. Kep., Supp. No. q at12 (AIi306).
* G.A.O.K. gth Sess., T.C. Rel,., Supp.Xa. qat 62 (AjzG8o).
' U.S. Doc. E/CN.I~/~~Z/R~V. r, lcconomic =>rdSocial Consegucnr~s of Racial
Discriminolory Practiccs(U.N. Piibliaition, Çÿles No. 63.rr.lC.1). at 38.428 SOUTH WEST AFRICA
centres-denuded of' the prime of their manhood, and incapable of
attracting private European capital." '
Furtliermore, tlierc is economic wastagc in duplicating houscs, since
temporary accommodations must be provided for migrant workers
who might othenvise be living with their families in their own homes.
But the primary <:vilof territorial apartheid, such as that proposed by
the Odendaal Commission, and endorsed in principle by Respondent, is
maintenance of a. bare subsistence economy among the "Natives"
outside the Police Zone, and prevalence in the reserves of frustration.
In the words of tlie Committee on Information (approved by resolution
of the General As~embly)
". . . Material benefits to the advantage of only a limited group
of peoples alwa sbrced discontent. If the advantage is to be found
only outside t& community concerned, siich discontent will be
bitter and justified. III the Non-Self-Govcrning Territories, it is
the proud responsibility of the Administenng RIembers to seek
a broader natural basis for prosperity, creative initiative and
contentment."
3. Administering Authorities have progressively responded to such
directives by increasing the participation of indigenous inhabitants in
RIandated Territory or former Mandated Territory, other than Southe is iio
\Vest Africa, in which land is divided along "racial" lines Such stark
dissociation of groups froni centres of modern economic develop-
ment would be ille,:alin any dependent territory. Apart from the negative
ohservation that g:eograpliicalsegregation is not allowed, the dependent
territory administrations have contributed positively to the economic
development of the indigenous inhabitants in response to legal require-
ments as laid dovin by the appropriate organs of the United Nations.
In Tanganyika, for exaniple, the Administeriiig Authority instituted
"special credit facilities" for peasant farmers in the form of a "Local
Ilevelopment Loans Fund, which makes loans at low-interest rates for
agricultural purposes." ' In Ruanda-Urundi,steps were taken to increase
the number of indi enous trading centres and to organize indigenous
CO-operatives.The founcil noted "with satisfaction" the development
of CO-operativesand of "the increasing participation of Africans in retail
trade."
In its 1953 report, the Administering Authority of Ruanda-Urundi
stated,
". . . as evidence of increased participation of indigenous inhabi-
tants in the money economy . . .their deposits with the Savings
Bank of the Belgian Congo and Ruanda-Urundi increased during
1952from 2.;'million francs in 2.377 accounts to 12.1 million francs
in I5,272 accounts."
Id.. p. 61.
Id.. pp. 46.47.
' GG.0.R. 6th Sess.. Comm. on Info.Supp. Xo. 14 at 39-40 (A/1836). Approved
hy C.A. Res. 564 (T'I). 18January 1952. G.A.O.R. 6th Sess.. Supp. No.20 at 59
iAIz119).
* G.A.O.R. 9th Sess.. T.C. Rep., Supp. No. 4 at 53 (ApzG8o).
G.A.O.R.9ththSt:sç., S.C. Rep.. SupXo.o4 at 84 (1\/268o). REPLY OF ETHIOPIA AND LIBERIA 429
In the Cameroons, under British Administration, one of the most
important measures to secure the participation of the indigenous popu-
lation in the Territory's economy waç the establishment. in the first
year of Trusteeship. of the Cameroons Development Corporation. This
Corporation has managed former Germnn plantation lands and hns also
overated hosuitals. schools. and comniunication facilities. ' Its p.licv.
irklii~l~~esxte;iai\,c tr~ii.iiig(f:\frit.;tiiIIIt~:~:Iii.~~C~:il~>:LC \vi~11:i,,isw
toii;ircls yronir~tioiitu seliioi po;itii>ii, iiitlic (:orpor.itioii ' 1111954 111%
Cor~n)r:trio~ 5i baird iuii$i,ttd ol nine iii~:iiiI~~~lo rti,r ol \\,Iioiw:rc .Afri-
ian; ' In respuiisc 10 tlit ricoiiiiiit:ii~l:irionsol thi: Triijteesliip Couiicil.
ttii::ltlriiinistering ;\iitliurity's ~>olii\l.iaclioiisi-tvntl!. bc~.noncofe\.ciiIii-
ally eiitruitiiig tiic 011cr;iri6n6f tlieCorporntii~ii"tu sclected rcpres(:ii[n-
tiwi of the iiidifi,:rioiiipopiilntioii." ' Tliis polit!. \v;~seritirïly ionjistciit
ivitli ioinrncrcial profit :iiiiIcficieiic\, ;i stiosi.nIIIthe (:i>rliur:itioii'sre-
cords through 1952.
With respect to the Cainerooiis under French Adniiiiistration. the
Coiincilcommended tlie Administering Aiithority "for the establishment
of producing, processing, inarketing and consumer co-operatives :iinong
the indigenous inhabitants as ;i means of bringing about their more
effective participation iii the econoniy of the Territory." "n tlie followiiig
year the Council commended the Administeriiig Authority "for the
vigorous econoiniç activity in tlie Territory," and rcconiiiieiidcd a
continuance of the policy of "iiecessary assistance and eiicourrigerneiit"
to the indigenous iiiliabitants. '
The Administering Autliol.ity receired another coinnieiidatioii for its
policy of associating the indigenoiis inhabitants ivitli the Territory's
industrial devclopnient "by reserving for them 50 per cent of the shares
in the palm oil processing plants" when a huge palm oil plant cornplex
began operations in 19jo. In Igj7 the Council further comniended the
Administering Authority "for <-le\,eloping the saving habits of the popula-
tion, providing credit facilities, aiid increasiiig financial aid to agricul-
tllr~ " 9
In 1gj7 the Council w;~sable to say of Xew Guiiica, a territory hadly
ravaged by the \var aiid estremely backward in its indigenous economy
in 1946:
". . . The Cnuncil notes the cconomic progrcss hcirig made by the
Territory and the incrczsing part which the indigeiious people :ire
playing in it. It hopes that the Administering Authority will
continue to assist indigenous enterprise and that it will devote
particular attention to encouraging indigenous commercial and
trading activities." l0
The case of Nauru offers a clear exaniple of compliaiice witli United
Nations recommendations to increase the participation of the indigenouç
' Id.. p. 134.
Id., p. 135.
3 Ibid.
+ Zbid.
J Ibid.
G.A.O.R. 5th Sess.,T.C. Rep., Supp. No. 4 at y2 (Al1306).
' G.A.O.R. 6th Sess., T.C. Rep., Supp. No. 4 at 136 (AI1856).
Id., P.140.
G.A.O.R. 12th Sess., T.C. Rcp. Supp. No. 4 al 134 (A13595).
Id., p. 186.430 SOUTH WEST AFRICA
iiiliabitarits in ccoriomic developinerit and the wealtli resiiltiiig therefrom.
In Nauru "the pruceeds of the sales of phosphate . . provide the only
nieans of cconomic progress of the indigenous populatioii." ' Yet even
Sy rgqg there war; full employment of the indigenous inhabitants as a
result of phosphate mining, as \\.el1.as a rise in indigenous expenditures
for clotliing and liixiiries. The royalties paid by the British Phosphate
Commissioners on tht pliospliate proved adequate even for setting up
"spccial trust fuiids . .. which will mature with later generations of
Nauruans." The Trusteeship Council iioted that "since the Trusteeship
Agreement was concluded, the percentagc benefit to tlie Xauruans
agaiiist tlie value of phosphate at the point of export lind increased
from just 4 per cent to 24 per ccnt."' In addition, the total payments
to the Nauruaiis increased iii the same time span by a factor in excess
~f~~ ~ ~v-four.
In it; siiiniii:iticii ;iiii:osive rcpcvt uii I?i.oiioiiiicCoiidiiiuii iiitlit:
Son-Sclf-C.ui%irning 'I'erriruric.~prcl~aretl Ily \.:irioiis :igcri<:ic; of rhr:
Unitecl S:itions iiii~fio, clicCoiiiniitt~.~<,IIIiiform:itioii st.itt:d tliiit
". . . iii inost. cases the dividing lines betweeii coinpartmelits of
cconoinic activity are no longer fixcd either hy policy or by preju-
diced coiiceptions of the capacity of indigciious pcrsoiis to take
nart in inore ~:omulcsbraiiclies of the economv; the lines arc in fact
beirig crossed at in iiicreasiiig rate, liniitcd ody by tlic tinic needed
to acquire skills and capital. Most Go\.erniiients :rnd maiiy private
eiiterpriscs are actively~encouraging the steps by which indigenous
people can play a fullcr part in al1 branches of the ecoiiomy: siicli
steps ns proniotioii iii employinent from unskilled to skilled labour
and froin. tliere to su~er\~isorv and maiiacerial i~ositioiis; the
provisiori of credit, traiiirig aiid encourascmërit for'the cstablish-
iiieiit of iiidcpendent enterprises; aiid the reforiri of I;lrid tenure and
tlie orcaiiizitioii of loan fiiiance for the moderiiizatioii aiid ex-
pansioii of a[:riculture and cattle raising. A favoiiral~le climate for
tlicse developinents is being establislied iri Territories wliere the
people are ai:qiiiring a full sliare in the formulation of economic
and educational policics and in tlie planning arid inipleflieiitation of
~>rogrammesof economic de\.elopment."
G.A.O.R .th S~:SF T.,C.Rep., Supp. Xo. 4 at 73(A1933)
Id.p,.74.
Ibbid.
' Ibid.
"ec PcogvcssO/ fhe N.S.G.1"s Uiidcr !liCharter (STjrKlISI:1<..\115 2.Vol.
Progress O/ 11'I\I.S.G.T.'S Under fhe CIICIIp,3(ST/T~<I/SER.A/I~3 /V.OI. EXTliACT I'RO3I IIEPORT OF SHE U.N.-I.I..O. AD HOC
COMMITTEE ON FORCED LABOUR
Linionof SorclhAfricn
7'1~Questioirof Pass Larus.
340. The various p:ss I;iwsin force in the Uriioii of Soutli Africa are
alleged to be a meaiis of siipplying European employers with African
labour, under the nieii;rcc of ilpenalty. Non-whites, it is said, are
compelled to reinain wlicre they work through the application of siich
laws.
341. Thesc charges scern serious eiiougli to tlie Coiniiiittcc to warrant
:in investigation of tlie relevant legislation and of how it affects tlie
people to whom it is :rpplic<l.It can indeed be argued t1i:it if, by siicli
devices as pnsses, freedom of movement is siifficiently restriçted to
compel great nunibers 01 pcrsons to reniain where tliey are, tlicy will
be forced to accept work at thc conditions offered at their place of
resideiice. Furthermore, the existence of siich laws may also enahle
the Government to dircct workcrs towards areas where labour isrequired.
Legislation of this kind in;iy, tlicrefore, he useas a direct or indirect
or ofsprivate interests important forthe economy of the couiitry.vernment
342. A $rima fncie case as to the relevancy of tlie allegatioii seems
therefore to be establislied.
343. Legislatioii on pass I:rwshas beeii summarised in the dociinieiit
transmitted by the Ch;iirinari to the Government of the Union of South
Africa. It is evident from this surnmary thatthe legislation concerned
severely restricts the movements ofNatives, that urban authorities may
direct Natives to live in certain areas and may remove them from such
areas, that Natives may not corne to or be introduced into such areas
without the writteii permissioii of the competent aiitliorities, that
contracts of service may have to be registered under regulations issued
mation in the Gazelleaiid that regulations for the control aiid prohibition
of the movement of Natives into, within, or from sucli areas may be
prescribed. Natives arriving in pass areas must report at the police
station or Native Commissioner's office and authorised officers niay
refuse to issue or endorse isses for any Native to enter or leave or
travel within a pass area, or any reason appearing to such an officer
[Footnoteç partially oinittcd; the barcnumbered.!432 SOUTH \VEST AFKIC.+
to be suficient (for instance, if the Native concerned is under ai. iinex-
pired contract of employment).
344. t'iolations of this legislation by Natives are punished hy fines,
or imprisonment vvith hard labour in case of lion-payment of the fines.
345. The report. of the Native Laws Commission (1946 to 1948)
considers such legislation necessary because the settlement of N"'t'ive
coinmunities iii proximity to European ones and contacts I~etween
the Europeans and the Natives will, according to the Commission, be
regarded by a large portion of the white population as a daiiger to the
economic life of the country. The legislation is also consideied essential
for the mainteiiance of the principle of residential segregation.
346. In its coiiiinents aiid observations the Go\,ernment states tliat
pass laws have iiow been repealed by the Natives (Abolition of P.asses
and Co-ordination of Documents) Act, 19jz.
347. This Act, wliich consolidates the pass legislation, eiiables the
authorities to issue reference books to Natives having attained the age
of 16 years, in lieu of the various passes. The Kative has to carry this
reference book with him and to exhibit it upon request to a competent
officer. Itcontains the liolder's identity card as well as other essential
particulars, such :IShis cinployment contract, tax receipts aiid so on.
748. The South African Government states that the Dasssvstem was
orkinally intended as a protection for Natives compelÎed b<economic
circumstances to seck employment in the towns and cities of the Union.
Passport systems were ;iisoévol\,ed. according to the Goveriiment, not
to control the movement of Natives but purely foridentification purposes.
iiewly developed :sinccthe First \Vorld War, has resulted in uneinploy-
ment, a decline iii health and ai1increase in crime, and has compelled
the Government to convert the passport into a nieaiis of coritrolling and
often ~reventina the movement of Natives towards the towns. The
registration of &tracts of employment, curfeivs and the expulsion of
idle and undesirable persons have served the same purpose.
349. In view of the evidence briefly examined above, the Committee
has found that the pass legislation in the Union of South Africa con-
stitutes a serious handicap to the freedom of movement of the Native
population and that it has. or may have, important economic conse-
quences.
350.The Comiiiittee is of the opinion that this legislative device may
he used for the control and regulation of the flow of Native labour
from orle part of the territory to the other. There can be no doubt that
such control may serve the purpose of directing a supply of ample, and
consequently cheap. labour towards regions where it is required for
economic reasons.
351. The former pass la\vs and the Natives (Abolition of Passes and
Co-ordination of Documents) Act, 19j2, "hich replaces them. may
therefore be considered as an indirect means of implementing economic
plans and policies, ivhether emanating frorn the Governrner~tor from
private interests po\verful enough to command Government support. REPLY OF ETHIOPIA AXD LIBERIA 433
The State, through the operation of this legislation, is in a position to
exert pressure upon the Native populatioii which might create conditions
of indirect compulsion similar in its effects to a system of forced labour
for economic purposes.
The Comprrlsor)'Natzire of LabofrrCotitraclsfor Non-Whites.
352. It hCubeen alleged that, under the Native Labour Regulation
Act, 1911, a breach of a labour contract by an African, or his refusal
to obey a lawful order, is a criminal offence. The Committee \vas of the
ouinion that such leais..tion miaht b. conducive to forced labour
rsactc.d for cionornic purpo;cs. It then:lon! esamiiicd the rcle\,nnt South
t\fric:<nI<.gisl:itioii-the Xative Labour Kc.ulation '\CI. iqi1.as aiiiendcd
by Act No. 56 of 1949.
353, This legislation is applied to tliose Natives (approximately
joo,ooo) \\.ho are recruited for employment or are employed or working
on any mine or works, i.e., :i place where machinery is used. The legisla-
tioii contains provisions designed to protect the Native against uri-
scrupulous dealings by labour agents. The Act also punishes by finesor,
in default of payment, by irnprisonment with or without hard labour for
a period not exceeding two months. any Native worker wlio deserts or
terms of his contract.is place of employnient or fails to carry out the
354 The Natives (Urbaii Areas) Consolidatioii Act, 1945, and the
relevant regulations also contain detailed provisions punisliing breaches
of coiitract by Native morkers and failure to do work which it is their
duty to do by virtue of suçh contracts.
355. U1henpassirig seriterice the presiding judicial officerdealiiig with
siich mntters may, if the employer so desires, direct the Native concerned,
after the sentence imposed iipon him lias expired, to retnrn to work with
his employer and coniplete his contract.
356. Tlie Government iii its observations explains 'tliese provisions
hy the fact that Natives h:ive no conception of the hinding nature of
civil contracts. Abolition of the penal sanctions provided by Iaw for any
breacli of contract would, in the opinion of the Government, leave the
employer without means iofobtaining redress, if, for instance, the
labourer deserted from his place of employment.
357. The evidence briefly examined ahove appears to substantiatethe
allegation that the legislatioii in force in the Union of South Africa makes
it "a criminal offencc to refuse to obey an order or to break a contract".
358 It remains to be seeri whether this legislation coiistitutes forced
labour within the meaning of the Committee's terms of reference.
359. The Committee iiotes, in the first place, that at least the recruit-
ment of Natives for work in mines or works is not comoulsorv. The
Native enters voluntarily into the agreement. Penal sanctions are
applied only in the event of a breach of contract or some other violation
of the law-
360. There can, however, be no doubt, in the Committee's vieur, that434 SOUTH WEST AFRICA
the fact that it is iinpossible for the worker to terminate his contract
unilaterally hefore the expiration of its term, without running the risk
of heavy penalties, constitutes a serious restriction of his personal
liberty. 'Sincethetotal number ofAfricans ivorking rindersiich contracts
ofemployment is vcry large, legislatioii oftliis kind, if abused or vigorous-
ly implemented, rr,igIit lead to a systeiii of forced labour for cconomic
purposes.
l'he Use O/ Petcal Laws fo oblain a Supply O/ rl/rica,is /or FVorkil&I?idusiry
and Agricr<lture.
361. The allegatioiis reproduced uiider this Iieading referred to the
right of a magistrate to declare that a Native leads an idle, dissolute or
disorderly life and to sentence him to be detained until he is assigned
to suitable employment. The ailegations also mentioned that convict
labour is hired out to farmers and industrial enterprises at a nominal
amount per day.
362. With regard to the first of these allegations, Section 29 of the
Native (Urban Areas) Consolidation Act, 1945,a amended by Section 36
of the Native Laws Amendment Act, 1952, reproduced in the comments
and observations of the Covernmeiit of tlie Union of South Afnca
lays dowii that Natives may be ordered to be detained in a work colony
established iinder tlie \Vork Colonies Act, 1949, that if a Native is
declared to he an idle person he may be sent for a pcriod not exceeding
two years to a farin colony, work colony or similar institutioii and that,
ifthe Native agreei, he may beordered to enter a contract ofemployment
with an employer and may be detained pending his removal to the place
where he \\riIlbe employed.
363. This Act aims, accordiiig to the Co\~eriiinciit's~bser\~atioiis,at
removing vagrant Natives to some place where they inay be rehabilitated
and at giving them a chance to prove that tliey arc prcpared to lead au
industrious life. .
364. The report of the Penal and Prisoii Rcform Comniissioii,
examinecl hy the (:oinmittec in connectioii with thcse allcgations, shows
that prison labour is liired out to railways, harl~ours, local authorities,
certain gold mine!;, farmers and other private pcrsons.
365. Tlie rt?portstatcs tli.itir IiiLLccii thL.practicc jiiiir1i)j4 tu Iiirc
out to fiirriicrs at Gd per da\. lion-1iiri11)canmalt firjt oiicnrl8rj iiiidçr-
going sentences of less-than ihree months. Also, according to the report,
it is a widespread practice in the Union to hire out to private persons
at 2s. per unit per day non-European prisoners serving sentences of hard
labour. In its comments and observations. the Covernment of the
Union declares thrit pass offendersarenot sent to~fririnprison outstations.
Under a sclieiiie iiiaugurated 20 years ago. a pett~ offender admitted to
gaol could intimate his preparedness to-worL in riiral area at a fixed
mage, but it is only at his express wish that he is engaged as a labourer
The Government of the Union of Soutli Afiicahas not ratified international
labour Coiiventii>n Plo. 6concerning peiialsaiictioos fobreaches of contracts of
employment by indigenouç workers. REPLY OP ETHIOPIA AND LIBERIA
435
for the period of his sentence. It was recently decided to extend this
scheme to persons with sentences of up to four months.
366. In the statement on farm prison outstations prepared by the
Department of Prisons, the Goverriment of the Union declares that in
certain areas there are associations of farmers formed at the Goveriiment's
A proper contracf is entered into with thise asso6ations determining,
inter alia, the basis on which the Department would make prisoners
available to the association. The prisons themselves remain under the
supervision of the staff of the Department.
367 The only persons transferred to these stations are those who liave
received sentences ranging fi:oinsix months upwards for serious offences.
The districts whcre these prisons are situated include the country's
higtiest food-producingcentres, where labour is extremely short.
368. The Committee also noted that in the 1950 report addressed by
the Government of the Uniori of South Africa to the International Labour
Office on the Forced Labour Conventioii (No. 29) it is stated that "the
advisability of abolishing thi: practice of hiring convict labour to private
companies and individuals h;rçbeen the object of fu;ther study; however,
the situation remains unchanged, and the Union of South Africa is
accordingly unable to ratify the Convention".
369. In reviewing the evidence examined above the Comrnittee has
lounù that the allegations rnade with regard to tlie use of penal labour
for work in industry and agriculture are substantiated by thelegislation
in force in the Union of South Africa and by the comments and ob-
servations of the Governmeiit of the Union. It also seems certain thüt
the use of such labour is of isomeeconomic importance. The Comrnittee
has noted in this connection that, in its comments and observations,
the Government states that farm prison outstations are situated in
regions ivliere labour is scarce. Since, moreover, a, very considerable
number of Natives arc cornrnitted for short terms for minor offences,
the Committee found that labour of the kind described above is of
importance for the economy of the country and that the laws might be
applied in such a way as to increase the Native labour force at the
disposal of the national economy and thereby lead to a system of forced
labour for economic purpose!;.
Conclusions
370. No allegation has been made regarding the existence of forced
labour as a means of political coercion in the Union of South Africa.
The Government of tlie Union of South Africa, in its cornments and
observations, referred to tho Suppressiori of Communism Act, 1950.
Its attention having been drawn to this legislation, the Committee
has examined its provisions in some detail. The Act, amended by Act
No. 50 of 1951,prescribesvarious penaltiesup to ten years' irnprisonment
for offences agairist its niain provisions, such as furthering the achieve-
ment of any of the objects of communism. The Government of the Union
of South Africa states that under the Act the propagation of the doctrine
of communism is a criminal offence but that no attempt is made to436 SOUTH WEST AFRIC.4
influeiice the opinion of any offender mhile he is serving his sentence,
and that the number of convictions under these Acts hris becn so insig-
nificant that "it could not conceivably be suggested that it plays any
part at al1in the 1:conomyof the country".
371.In the Cornmittee's view these Acts could be used as ari instru-
ment for the correction of the political opinions of those who differ
from the ideology of the State. \Vhether these laws will remain as n
simple deterrent for potential political offeiiders planiiiiig to ovcrtlirow
the constitutional Government bv illeral meaiis. or wlicther tliev will
become an iiistrurnent of politicd percecution Gd oppression, théreby
leading to a svstein of forced or corrective labour as a means of political
coercion or punishmeiit, will depend on the meaning placed~hy the
competeut judicial and adniinistrative authorities on the numerous and
important pro\.isions of tliese Acts whicli are susceptible to a varicty
of interpretations.
372.\.Vith regard to tlie ecoiioiiiicaspect of its ternis of rcfcrciice, the
Committee is convinced of the existence in the Union of South Africa
of a legislative system applied only to the indigenous population and
designed to maintain an insiiperablc barrier hetween these people and
the inhabitants of Europcan origin. The indirect cffect of this legislation
is to channel the hulk of the indigenoiis inhabitants into agricultiiral and
nianual work aii,l tliris to create a permanent, abundant and clieap
labour force.
373. Industry :and agricultiire in tlie Union depend to a large extïiit
oii the existence of this indigenoris labour force whose inenibers cire
obliged to live under tlic strict supervision and control of tlic State
authorities.
374. The ultimate coiisequences of the systein is [sic] to coiiipel tlie
Native populatioii to contribute. bv their labour, to the implemeiitatioii of
the ecoioki<: ~)nlici<;osf tliecori~it;~,bill thecuiilpulwrAnd iiivoliiiit:ir!.
n:itiirroftl~isiontril)iition rehiiltj from tlic~~:irtiriilar,tntuj;ii~d sitii;itioii
<:rratc~lIN SP~CI:L ~~islnti~iian~lii:il>leto tlic iii~licenoiisinli;~bit:iriti
alone, rafhe; than f&m direct'ioercive measures dësigned .to compel
them to work, although such measures, which are the inevitable con-
sequence of this status, were also found to exist.
375. It is in this indirect sense therefore that, in the Cornmittee's
view, a system of forced labour of si~uificanceto the national economy
appears Coexist in the Unioii of South Africa,
Soztth-WestAfrica
376. hllegatioiis conceriiing the existence of forced labour iii the
temitory of South-West Africa were made duriiig the debates on forced
labour in the Economic and, Social Council by the representative of
Poland.
377. These allegations refer in substance to the following points:
(a) the conditions to which indigenous workers are subjected, as
reported in a memoranduin addressed to the General Assembly of the
United Nations by the Reverend Michael Scott; REPLY OF ETHIOPIA ASD LIBERIA
437
(6) compulsory labour imposed on indigenous workers.
378. At its Fourth Sessionthe Committee had before it the allegations,
the documentary material concerning them, the comments and obser-
vations of the Government of the Union of South Africa and ils reply
to the Cornmittee's questioiinaire. 'The following are tlie Committee's
findings and conclusions concerning the alleged existence of forced
labour in South-West Africa.
TheConditions O/ InrligenousIVorkers.
379. The first of the allegations of this point refers to certain docu-
ments, including petitions by South-West Africans. The complaints
of the petitioners refer, inter alin, to the existence of pass laws and the
oppressive use that is made of them by Government anthorities, to
the low wages paid for their work, and to the fact that Native workers
wishing to complain about ill-treatnient by their masters, and appearing
before the police without a proper pas, are gaoled, and have later to
retnrn to their place of empl.vm,iit.
3S0 In :inyrt bv the So~itli-\i'cst.\frira S;itivc 1.nbourcrsCoiiinii.;.
sion, al50 quotcd iiitlic do~:iiniciitin <lucirion,it i; stnted tlint Sati1.c~
;ire ii~i;~iiiiiiiitlwir criticisin of tlw loi\\,-(ceAaid to fiirin I:iI~~tir<:r<.
381. The Corninittee noted the comments of the Goveriiment of the
Uriion of South Africa to tlie effect tliat the main object of the pas
laws is to provide identification papers for those members of the in-
digenous population who ha.ve not advanced sufficiently to be able to
do without them, and that persons who have progressed beyond this
stage have been exempted from the provisions of these laws.
382. The Committee refers to its conclusions with regard to pass
laws and their possible effecl on the Xatives concerned in the Union of
South Africa,' wliich apply also in the case of the territory of Sonth-
\\'est Africa. As to the lo\v wages paid to workers, tlie Committee
considers that investigation of this question would be outside its terms
of reference. It noted the observatioiis of the Goveriiment of tlie Union
on this matter.
383. Concerning thc alleh.atioii that workers wishing to coinplain
about their employers have to carry a pass to he able to go to the nearest
police station and that failiire to cary such a document is punished
with imprisonment, the Government of the Union States that, according
to the law, Native workers in such circumstances may proceed without
a pass to the nearest aii1hori::erlofficer.
ComparlsoryLabourI~nposedo.%TndigenousWorkers.
384. In connection with the .seconddegation, concerning compulsory
labour imposed on indigenous i;orkers in South-\Vest Africa, the Com-
mittee had before it the infoi.-ation contained in United Nations
document T/175. It is evidi:nt frLm this document that the legislation
in force in the territory concerning, for esample, habitually unemployed
Natives, breaches of contracts of seivice, and the master and servants
laws is similar to that applieii in the L-nionitself. The Committee noted
the comments of the Government of the Union referring (a) to a judg-
' United Xatians document EIAc.3611r.
Reproduced in United Nutioiis document AIC.qlL.66.
' [Sec paras. 340-51. pp. 43'-433. supv0.143s SOUTH WEST AFRICA
ment of one of the Supreme Courts of the Union of South Africa;
IbJ to the necessitv of maintainine nenal sanctions for breach of labour
ciiitracts becausc: of the impos'Sibi~ityof enforcing such contracts
otherwise; and (c:) to tlie protection afforded to the emnlo. . bv the
master and servants laws. .
Conclusions
3s.;.l'Ire Cuiiir.iitree's lindings or1these allrgations are tlie snme LS
tliosi:\(.11ic11re;~.:l.,:din tliz cilje of the liiiioii of South ~Ifricarcgnrdirig
thi: coini>iiliorv iiature of I;il>ourcontriicts for "non-whites". 1
386. The e\;idence before the Committee leads it to Gnfirm in the
case of South-West Africa the conclusions it reached with regard to the
Union of South Africa itself.
' [Sec puas. 35z-3h. PP. 433-434. supra.],
' [Sie paras.370-375,pp. 435-436. supra.] 3. GOVERNMENT AND CZTIZENSHIP
(A) IKTRODUCTION
In section 4 of Chapter V of the Menborinls. ' Applicants have
set out several respects iri which Respondent has failed to promote
to the utmost the welfare of the preponderant part of the popula-
tion of the Mandated Territory of South West Africa. In sum-
mary, Applicants have alleged that contrary to current and gene-
rally accepted standards of administration, Respondent has:
(1) Totally denied rights of suffrage to the "Native" population;
(2) Deniecl to the "Nal.ive" population any participation wliat-
ever at the political level of the Government of the Territory, aiid
confined to the lowest levels of skill and responsibility "Xative"
participation in the administrative structure of that Government ;
(3) Excluded the "Native" population from any meaningful
participatioii in the affairs of local government iinits, and of the
"Native" reserves.
Applicants allege that Respondent
". . by law and by deliberate and consistent practice . . . lias
failedto proinote to the utmost the developmentofthe preponderaiit
part of the popiilation of the Territory in regard to suffrage or
participation iii any aspect of govemment. It has not only failed
to promote such development to the utmost, it liasniadeno notable
systematicdoaiid active program which prevents the possibility ofd a
progress by the 'Native' population toivard self-respect,responsi-
bilitv or skill in any aEpectof citizenship or government, whetlier
TerGtorial or localor tribal." 2
It was further submïttcd by Applicants that the terms of Ar-
ticle 2, paragraph 2, of the Mandate must be construed to include
the obligation of promoting political advancement of the peoples
of the Territory "through rights of suffrage,progressively increasing
participation iii the processes of government, development of self-
government and free political institutions." 3
Respondent attributes to the foregoing contentions the premise
that:
".. .in the political sphere, as well as in other respects,there ought
to he no distinction or differentiation between various inhabitants
of the Territory. and that the whole population is to be treated as
an integrated unit, with identical rights and facilities for all."'
' 1.pp.131-143,
Id.. p. '43.
Id., pr3r.
' 111p. 105.440 SOUTH WEST AFRICA
Respondent argues tliat such a "premise 0x1 Applicants' part is
wholly unfounde(1, in fact and in law." '
Kespondent tlius begs the central question, namely: which
"distinctions or idifferentiations" are permissible, and which con-
stitute violations of the obligation to pronlote to the utniost the
\vell-being and social progress of the inhabitnnts?
The answer to this question rests upon Applicants' submission
that the policy of afia~theid is repugnant to Article z. paragraph
2, of the Mandate precisely because the "distinctions aiid differen-
tiations" which it imports into the lives of the inhabitalits of the
Territory are based upon meinbership in a "group," ratlier than
upon their qualities and capacities as individuals.
The unacceptable purposes and consequences of such a policy
constitute the (lecisive major premise upon which Applicants
rest their case;al1other premises, argumentsandconclusions are in-
cidental to, and derive from, this central premise.
In respect of Government and citizenship, 12espondent's pol-
icies-as might be expected-are ruthlessly consistent with its
pervasive policy of apartheid, or separate development, and are
merely specihc rneasures of implementation thereof.
Just as Respi~ndent's policies in respect of education in the
Territory, as shown above, are grounded upon educational apart-
heid, so its policies in respect of government and citizenship are
grounded upon liolitical aparlfzeid.
True to its pliilosophy of regarding its subjects as species ar-
ranged in "groups," rather than as individual persons, Respon-
dent formulates the premises of its policy with respect to political
institutions and activity as follows:
,.. . Its approach involved recognition of the \Vliite population
gror@ .as on,: tliat could nppropriately enjo a mcasure of self-
government and participation in processes O? central government,
subjectinter aliato control of Native affairsbeing the responsibility
of the3land:~toryitself. The approach furtlier involved recognition
of theseparate identity, politicallaç in other respects, of each of
the non-IVhilegroups, and according to eacli an opportunity of
developing on the basis of its own institutions and culture. In
regard to theindigenozcsgroups,the processofadaptation to modern
conditions was foreseen as one that would necessarily have to be
slow, and which could not be divorced from other facets of ad-
vancement and progress."
The hollow and inhumane nature of such a premise is obvious;
every individual member of an indigenous group. however gifted,
is ordained, by reason of the circumstanccs of his birth, to be
"slow" in "the process of adaptation to modern conditionsw-
so "slow" indeed, that after iiiore than forty years of Mandatory
administration no single member of a "non-White group" has heen
III, p105.
Id., p106.(1tz.lics added.) REPLY OF ETHIOPlA A'ID LIBERIA 441
found with the adaptability to exercise the franchise in respect of
members of the Territorial legislature. Kone has been found ca-
pable of taking part in the Territori:ll Government at the political
levcl, nor at other than the lowest levels of ski11and resl~oiisibility
in its administrative structure.
Under these circumstances, the voluminous detail with which
Respondent bulks its Cozwzter-Mernorialhas at best a highly tcn-
uous relevance. hleasures of political implementation of a fun-
damentally defective policy, resting on an intolerable premise,
hardly justify an elaborate refutation.
In deference howcver to the importance of the issues presented
to the Court in these Proi:eedings, Applicants deem it appropriate
to indicate, at least illustratively. in what respects Respondent's
purported explanations and justifications of its measures of po-
litical afiartlteid are as fallacious as the systematic policy which
those measures are designed to effectuate.
(B) STATEXEN TF LAW
With regard to political rights, the relevant and generally ac-
cepted norms by which the obligations stated in Article z, para-
graph z, of the Mandate should be measured, have been estab-
lished by the United N;itions. Thcse include the institution of
universal adult suffrage and the promotion of participation on
the part of al1 qiialified individuals in al1 levels of government
and adrninistration. within the frnmework of a single territorial
unit.
For an el;iboration of the views of thc United Nations which have
given rise to tliis standard, and of compliance by Administering
Powers therewith, the Court is referrcd to Annex 7 hereof.'
In rcferring to the practice of the Trusteeship Council and the
General Assembly in respect of Trust Territories, Applicants do
not, of course, imply that ;isa matter of Iaw the Territory for Soqtli
West Africa is subject to the Trusteeship Council or that the hlan-
date must be construed :is if it were a Trusteeship Agreement.
Applicants are well aware that, of al1territories previously under
Mandate, South West Airica alone has not been placed under
Trusteeship, despite persistent urging by the organized inter-
national community that Respondent follow the example of al1
other mandatory Powers and the clear expectation of the Charter.
The practice of the Trusteeship Council, approved by the General
Assembly, is adduced as evidence in support of the proposition:
that tliere cxist established principles and processes pertaining
to problems and objectives analagous in al1 respects to those in-
volred in Article z, paragraph2,ofthe Mandate; that such principles
and processes are generally accepted by States comprising the
Trusteeship Council and inembers of the organized international
Infra. p451. REPLY OF ETHIOPIA AND LIBERIA 443
electcd by the "all-White" Territorial Assembly, "whenever mat-
ters of policy or administration concerning non-Whitcs were con-
sidercd by the Executive Committee." '
In reply to Responderit's assertion that it has "regularly con-
sulted" tribal leaders with regard to expenditure of "their funds,"
the Court's attention is respectfuiiy drawn to the discussioii, in
another context herein, of the liinits imposed by Respondent
upon meaningful "consultation" with the "non-White" inhabi-
tants of the Temtory.
Even such "consultation" as does take place can have small
significance in light of the powers reserved by Respondent :
(1) to appoint and depose chiefs and headmen;
(2) to pay them for diijcbarge of their official duties, insofar as
they rcceive compensatioii; and
(3) to override, modify or abolish any authority delegated to
them. '
It is not surprising, therefore, that Respondent describes eighty-
one chiefs. headmen and tribal councillors as "officials" \r.hom
"~es~ondent employs." 5
IVith regard to its plaiis for "fiiture development," Respondent
rcfers to the alleged siiccess of Rantu Authorities in South
Africa," %s suggesting "that a siinilar system inay bc fruitfully
applied iii the Territory." ' To this end, Respondent refers to the
work of the Odendaal Commissioii, the Refiort of which has been
released since the filing of the Cozmter-A-iemorial.
As previously pointed out, Respondent has endorsed the prin-
ciples and acccpted "the main features of the argument aiid recom-
'III. p.Iiz; and seeid..p. i16 with referencetoa similar procedure in Ovambo-
land.id.p,. 118.
'SU$?=.pp, 312-327.
'See 1, pp. 139-140.I;II, pp. r338.
JIII, p. 148.
In respect of Respondent's repeated reliaiice upon its policies iri South Africa
to justify its present and future course in the Territory, the Court's attention
respectfully is draan to Applicants' discussion, p260.supra, of the dilemma with
which they are confronted by thiç method of pleading on Itespondent's part.
Respondent, although correctly pointing out that such policies "are not in them-
selves matters for adjudication" (II, p. 477) nevertheiess adduces such policies,
notably its "Bantustan," or "Homelandç." policies,aç evidence relevant to its
defence in theinstant Praceedinp. Insofar as such evidence bas any probative value
in respect of the issues jained herein, Applicanti submit that it goes no further
than demonstrating the essential short-camings and fallacies of the palicy of
apartheid. or separate developrnent. itself. The repugnancc of such policy, and
its manifcst inconsistency with Respondent's obligations under the Mandate are,
it is submitted,arnply demonstrated by Applicants' showings with respect to the
purpose. nature and consequences of the policy ofaporlhaid as it is applied to the
inhabitants of the Territory.
' III, p. 13'.
Supro. p. 133.
Ibid.444 SOUTH WEST AFRICA
mendations [of t:he Commission] as an indication of the general
course to be adopted in the next phase of the development of
South West Africa." 'One of the basic conclusions reached by the
Commission, which Respondent explicitly approves, is that "the
objective of self-detemination for the varioiis population groups
will, in the circumstances prevailing in the Territory, not be
promoted by thi: establishment of a single multi-racial central
authority in which the whole population could potentially be repre-
sented."
Respondent. accordingly. projects the institution of territorial
apartheid, in which the large majonty of the inhabitants perma-
nently will be dt:nied the nght to vote for representatives to the
central governing authority or to participate therein. 3
Applicants submit that Respondent's presently pursued policy
of political apartheid violates its obligations, as stated in Article z,
paragraph z, of the Mandate, and that such policy would be aggra-
vated and rendered even more repugnant to the said Article, by
the policies projected in the Report of the Odendaal Commission.
Respondent's references to policies alleged to have been followed
in other areas have no relevance to the issues in these Proceedings. '
Conceding, argziendo.the accuracy of the facts set forth therein-
as distinguished, however, from the inferences, particularly the
fallacioiis interpretation given by Respondent to the policy of
"indirect rule"-in none of the areas in question did the governing
Power apply thi: policy of afiartheid, on the basis of which the
status, rights, drities, opportunities and burdens of the population
xvere,or are, systematically allotted on the basis of race, colour or
tribe. I:iirtherniore, none of the areas cited by Respondent is
presently admiriistered under Mandate. In respect of policies
pursued in Trust Territories, however, the Court's attention is
invited to Annex 7, herein. 6
In the premises then, Applicants respectfully submit that Re-
spondent's refusa1 after more than forty years of Mandatory
administration, to grant to the indigenous peoples of South West
Africa rights of suffrage and participation in government, within
the framework of the Territorial Government, constitutes a failure
'dfe~iiorandum.zyApril 1964, Sec. B.5.
Id..Sec.E. (c)21.
'The corollary ti, this would be the establishmof "Homelands," as recom-
rnended by the Conimission. Although Respondent has announced its decision to
defer implementationof this proposal pending the Courtudgment in the present
Proceedings, Respordenthas endorsed the principle in question and has announced
its decision to purcliase large areas of "White-owlands for no other purpase
than eventual incoqoratianinto the "Hamelands."(Id.S,ec.C. 14.)
'The sole exception. Southern Rhodesia. has sirnilarly incurred the opprohrium
of the ovenvhelming iveight of the internaticommunity.
=Infra. p. 45'. REPLY <IF ETHIOPIA AND LIBERIA
445
to promote the politicai advancement of such peoples, and is
therefore a violation of tlie obligations of Article z (paragraph z)
of the Mandate agreement.
(D) GESERALADAIISISTRATIO (SIVIL SERVICE)
\Vith regard ta the gcrieral admiiiistratioii (civil scrvice) of the
Mandated Territory, Applicants allege that
"At the administrative levels of the Goverriment of the Terri-
tory, in the Public Service.the participatioii of "Natives" isminimal.
\Vith few exceptions,"Natives" are confined to the lowest levelsof
employriieiit,involving iieither skiil iior responsibility."'
Respondent does not dispute the fact that iii geiicral the sciiior
posts iii the Public Servico iiithe Territory are exclusively occupied
by "Europeans," but contends that the absence of "Natives" in
senior posts is due to the lack of suitably qualified candidates for
such posts, 2 and that it eiivisages advariccment of Native officials
to positions of responsibility in the higher categories of the Public
Service in those areas ancl departments designed to serve the ethnic
groz@of which the officia1concerned is a membcr.
The first of these contentions is, if true, inerely a self-indict-
ineiit of a course of administration ~vhich,duriiig a period of more
than forty ycars, has failed to produce numbers of persons quali-
fied to undertake administrativc, professional nrid technical em-
ployment iii governnient. Aiialysis -of Respondent's policies of
educatioiial apartheid ' cxplaiiis the result.
Such policies stand in sliarp contrast to the view of tlie Trustce-
ship Council of the Uiiited Nations that cclucation of iiidigenous
inhabitalits "to fil1responsiblc posts in the adniinistration" should
be carrietl out so as to cnable such inhabitants to have a "progres-
sively important share in the conduct of thcir own affairs and those
of the Territory as a whole." 5
Rloreover, it is Resporiderit's policy affirinatively to cxcludc
"non-\VhitesU from senior raiiks of the Civil Service, irrespective
of qualification. This is a reflection, and is in implementation, of
Respondent's policy of regarding higher levels of government and
administration as "political institutions clevisetl and intendeci
solely for the White population groiip."
This, iiiturn, explains its second purportcd justification for
the absence of "non-Whites" in senior civil service posts, viz.,
that their advancenient ie envisaged iii connection with serving
"the ethnic groiip of which the official coiicerned is a membcr."
' 1, p142.
See. 8.gIII. p. 14%
Id., p. 164. (Italics added.)
' Annex,7. secC..1..p.455. iiilrn.
111,p.132.446 SOUTH WEST AFRICA
This is, of course, a inere corollary of the basic policy of apart-
heid and is designed to effectuate its most aggravatcd form, tlie
policy of territorial apartlieid, or "Homelands."
(E) LOCAL GOVIIKNXP:'.BT
Applicaiits conteiid tliat:
"ln the governinent of the established local uiiits \vithiri the
Territory-tlia iiiunicipalitics and the village iiiaiiagement board
are&-the 'A-ative'population is alrnost entirely e,xcluded frorn
participatioil or eveii any sernblance of participation. Tlie sole
faint approxiination of any kind of participation is to be found in
the liinited advisory role ofthe Native Advisory Boards with respect
to the 'locations,' 'Native villages' and 'Native liostels,' and evcii
this minimal role is carried out under the firmcontrol of the 'white'
local authorities and the Administrator (after .4pril 1, 1955. tlic
hlinister of Native Affairs and currently the llinister of Bantu
Administration and Development)." '
The refusa1 to perinit the incligcnous inhabitants of the Maii-
datcd Territory to participate in local governiiie~it, constitutes
a failure "to proinotc to the utinost the development of the prepon-
derant part of the population of the Territory" iiiregard to poli-
tical advancement. It is subinitted that Respondent has siib-
stantially concedcd the validity of the premises undcrlying thc
foregoing contention. 2
Tliiis, with respect to inunicipal couiicils and village maiiagc-
iiiciit boards in tlie Territory. wliicli are responsiblc for the local
goveriiiiicnt of the urban aiitl town areas, liespondent does not
disputc that :
(1) the population of the sriid arcas includes a sigiiificant iiuinbcr
of non-\Vliite inhabitants;
(2) oiily "Eu~.o~)eans" may be nienibers, or iiiay participntc
iiithe clectioii of iiieinbers, of any of the niunicipal couiicils; no
lion-White inhabitant is in fact n nlember of any of the village
inanagement boards ;and
(3) the only Iijcal government institutions for "Natives" iii tlic
urban areas are Native Advisory Boards, such boards haviiig no
legislative or erecutive powers whatsoever.
Tlie indefensible nature of the policy implicit in the exclusion
of "non-Whites" frorn agencies of local governmcnt is compoun-
ded, rather thaii justified, by Respondent's assertion that tows
and villages of the Territory "\vert never intended for the com-
inunal settlemeiit of any of the indigenous inhabitants .. . and
indeed such towns were sornethiiig foreign and unknown to the
Native population." '
'1.p. 142.
IIIp. 167-193.
' See 1pp. 137-138.
' III, p. 16s.448 SOUTH WEST AFRICA
ditions of resideiice in locations, native villages and native hostels.
th- -rohibition orreeulutioii of tlie entrvof non-residents. the imoosi-
tion'of penalties in respect of the fail&to pay reiits, the surn;iary
ejection of persons who fail to pay rents, the control and restriction
of meetings and assembliesof "Natives," and numerous other matters
affecting the daily lives of residents in urbari and village areas; '
e. the authorityacts as prosecutor in criminal charges for failure
to pay rents and other breaches of its regulations, and the fines
paid in such crises accrue to the authority.
Although subject to varying degrees of control on the part of
higher authority, such bodies exercise a discretion important to
the community as a whole, in bvhichthe welfare of al1the inhabitants
is involved.
(F) GOVERX%~~~ \S THIS TtlE "NATIVE" TRIBES AXiI "NATIVE"
RESERVES
In respect of govcrnmeiit within the "Native" tribes aiid "Nativc"
reserves, Applicaiits contend tliat
"III the adniinistratiori of the 'Native' reserves, tlie same pattern
of discrimin:ition. riegation and fmstratioii prevails. All sigiiificaiit
authority is confined to 'Europeans'. Theonly semblance of parti-
cipation by the 'Native' population is to be found in the riidi-
mentary fuiictioiis of the 'Native' headmen aiid the 'Nativc'
members of the Native IZeserve Boards in regard to the Native
Reserves withiii the Police Zone, and in the eleinents of tr:iclitional
tribal administration iinder tribal laws and customs still periiiitted
to the 'Natives' in the Native Reserves outside the Police Zone.
As has been pointed oiit. even this shadowy participatioii is kept
subject to complete, coinprehensire and pervasive control by
'Europeans.' '
Wiih regard to govcriinient in tlie reserves, outside the I'olicc
Zone, Respondent conteiids that
". . . in Ovamboland, as in the other tribal areas beyorid the Police
Zone, the Native inhabitants to al1 intents and purposes govern
themselves through their cliiefs and headmen accordiiig to their
own laws and customs." '
As already pointed out, howevcr, such officiais are appointed
by, paid by, aiiswernble to, and removable by, Rcspondcnt. '
'Id.,SÇC. 32.pl>.154-62.
ROC. No.30 c.11935 (S.W.A.),Sec. 15(d), in The Law$ otSoulh Wesl Africa
1935, pp.,158-424:PTOC .O.56 of 1951 (S.\V,A.)Sec. I~(I)(a)in The Law$ o/Soufh
Wesl Atrtca 1951, 1,1i8.
' IIP. 143.
4 III, p.11s.
' Supra, p. 443.
Thus. Proclamation No. ij of ,928.Sec. I (a)provides:
"The Adrninistrator sha11LE vested aith the follo~~~iIx>,uers and authorities
in any part of the mandated Territory of South \\'esAfrica. thatis to say-
of a tribo, or ofanlocationor annativepreserve,and is hereby authoriscd torge REPLY OF ETHIOPIA AND LIBERIA
449
In purported explanatio~i of the grant of broad powers to the
Adininistrator, incliiding those of defining the boupdaries of the
area of any tribe or of a location, dividing existing tribes into two
or more parts, or amalgamating tribes or parts of tribes iiito one
tribe or constituting a nelv tribe, and ordering thc renioval of any
"Native" tribc or iiidividiial from aiiy place to any other place in
the Territory, Respondent agrees that such powers
". . . correspond to those enjoyed by any Native chief in South
Africa or South West fifrica, by virtue of Native law and custom,
in relation to heaclmen and tribesmen subservient to him, and . . .
it was necessary for the systein of tribal government under the
coiitrol of a modern head of State to recognizea supreme chief in
charge of al1chiefs and headmen, and to confer such powers upon
him." '
Such an exphnation, Iiowever, is beside the point: the inhabitaiils
of thc Territory subject to the Adminislrator's authority have no
voice or vote in respect of his selection or the manner of exercise
of his powers.
Possibly the most signiiicant of the governmental powers in the
reserves (in terins of the v~ell-beingand progress of the indigenous
inhabitants) çoncerns the expenditure of fnnds from the various
Trust Funds established frorn time to time by Respondcrit. Here
again, the indigenoiis inhabitants have no effective control over
sucli expenditures since tlie funds must be "expended as directed
bv the Admiilistrator (I~OIN the hlinistcr of Bantu Adrninistration
arid Developnient)." '
The lack of practical signiticance of "coiisullatio~~s," which
Res~ondent asserts ;ire mziiitained wilh thc tribal leaders concer-
nini tliis matter, has dready been ~ioted. '
With regard to indigenous political institutions mithiii tlie Police
Zone, the same situation prevails as in the rcscrves. The Native
Keserve Boards, of which a "European" is chairman, inay discuss
possible cxpenditures from the Reserve Trust Funds, but tlie actual
process of dccision-niaking is not perinitted to any degree to the
"non-White" rnembers of i:he Boards. Respondent asserts that the
Board "assists the superintendent generally in the development
of the reserves," ' but policy making with regard to reserve devel-
opment is entirely in the hands of "Europeans."
Respondent concedes the central point at issue, in its argument
--at
make regulations prescribing the duties. powers and privilegeç of such chiefs
or headmen. Any such recognitionmay at any time be withdrswn, and such
appointments may be either permanent. temporary, or in an acting capacity.
and mny be on such conditions as to emoluments or atherwise ahe may deem
fit."(The Lawsof Sor'lhWest Africar9a8, p. 158.)
' IIIp. '34.
Id., p118.
' III,p.12,.443. AIWEX 7
GOVEKNMEKT AND CITIZENSHIP IN DEPENDENT
TERRITOKIES, AS VIEWED BU THE UNITED NATIONS
(A) United Nations policy regarding establishment of universal adzilt
suffrage. '
I. "Ainong the forms of development supported by the actions of
tlie [Trusteeship] Council either by approval of existing policies or by
recommendation, ha[s] been . . the introduction of methods of suffrage
leading eventually to elecrions by universal adult suffrage. . . ."
The continuing reaffirination of this policy and the increasing compliance
therewith by al1Trusteeship Territories, including al1 former class "C"
Mandates, evidences a clear standard from which substantial deviation
is illegal under the practict: of the United Nations. In statements of
Administering Autliorities of Trust Territories, there bas been no devia-
tion from this principle.
2. Thc Trusteeship Couricil bas consisteiitly recommended "such
democratic reforms aç will eventually givc the indigenous inhabitants
of the Trust Territory the right of suffrage aiid an increasing degree of
participation in the executive, legislative alid judicial organs of govern-
ment . . . ."Following upori this recommendation to the British admi-
nistering autliority of Togoland, the Trusteeship Council in 1950. noted
with satisfaction
". .. that a beginning has been proposed by the Coussey Committee
in the introductioii of methods of suffrage on al1levels of government,
appreciating the difficulty of introducing at once a modern system
of suffrage, recornmendr; that al1 necessary educative measures be
undertaken to prepare the population for the adoption of universal
suffrage with the least possible delay."
In its 1954 report to the General Assembly, the Trusteeship Council
noted with satisfaction "the decision to extend direct. universal adult
suffrage to the whole of the Trust ~erritory . . . ."'~ogoland under
British administration achieved its independence on 5-6 March 1957.
111ita1937 rcport. tlie l'mit,:c~liip Cuuncil iiote.1 th,: cit.ibli,linierit of
iiiii,!r.:il n,lult ,urfra:c in rlir~t. 'ï'ru:t Ttrritorie- 'i'ti? (::~nicrnoiis
untler Frc.nclis(Imiiiistr,tioii' 'i'ogol~iirliiii.lcr 1:rcncli zcliiiiiii?tr^~tiiiii.
' 1,pp. 131-134.
q Repertoly ofPractice of UniledNation s rgans109 (1955); accord, id. (Supp.
No. I,at 18r (1958)).
' G.A.O.R. 4th Sess., T.C. Rep., Supp.No. 4 at 36 (AIg33).
* G.A.O.R. 5th Sess.,T.C. Rep.. Supp. No.4 at 73 (Ai1jo6).
G.A.O.R. 9th Sess.,SC. Rep., Supp. No. 4 at 185 (A/?68o).
See G.A.O.R. 12thSess., T.C. Rep., Supp. No. 4 at 23 (AI3505).
Id. p. izg.
Id., p. 149. REPLY OF ETHIOPIA AND LIBERIA 453
2. The importance attaclied ta the development of territorial integrity,
with identical political rights for all, by the Trusteeship Colincil is evi-
denced by its recommendations conceriiing local tribal authorities in
African dependent territories. In 1952 the Administering Authority of
Tanganyika reported that it was encouraging "amalgamations and
federations of tribal units" as a step in the direction of territorial
consciousness. 'The Council in 1954 reaffirmed its approval of efforts of
the Administering Authority "to anialgiimate or federate" tribal units,
notina ex~licitlv that "the emat number of se~arate tribal authorities"
invol;ed,' was*an obstacle to progress towârd self-government of the
Territory as a whole.
With respect to Ruanda-Unindi, theTrusteeshi~Counci1 recoinmended
a sweeping although gradua1 change in locai government without
reference to the wishes of the inhabitants asfollows:
"The Council, noting that the Administering Authority has pre-
served the indigenous political and triln1 structure of the Territory,
commends the Administering Authority for not forcibly uprooting
the indigenous institutions and customs, but suggests that the
present system does not offer sufficient opportunity for the develop-
ment of a sense of political respo?zsibilityapnongthe indigenous in-
habitants as a wholc. and that their political. economic. social and
the principal fnnction<;ind responsibilities."
Such recommendations undedine the importance attached by the Council
to a unified political structure for eachterritorv in which al1inhabitants
would have ëqual rights in the government and before the law.
3. A further example of the Council's reqnirement of a totally iute-
grated political unit for each Territory is its discussion with respect
to a "multi-racial" Society iri Tanganyika, an African former class "B"
mandate of roughly the same territorial size as South West Africa. The
1954 Visiting Mission found that the government of the territory was
only "multi-racial" in the sense that each of the three main "races"
had equal representation in the Legislative Council. 4In the view of the
Council, the principle of majority rule clearly called for government of
the Territory "mainly by Africans,"s hence the Council recommended,
at its Eleventh Session, that although the principle of equal represen-
tation "re resents a useful step as an interim measure, this proposal
does not o 1er a satisfactory long-term solution . ..."
1 Ibid.
G.A.O.R. 9th Sess.. T. C. Rep., Supp. No. 4 41-42 (A/zOBo).
' G.A.O.R. 3rd Sess.,T.C.Re],., Supp. No.q at 29 (A/6o3). (Italics added.)
' G.A.O.R. 10th Sess.T.C. Rep., Supp.No. 4 at 31 (A12g33).
' Ibid.
' G.A.O.R. 7th Sess.,T.C.Rep., Supp. No. q at 32 (Al215o).454 SOUTH WEST AFRlCA
In its 19jg report to the General Assemhly, the Council noted
". .. with satisfaction tlie stateme. made by the Governor of
Tanganyika at the opening of the Legislative Council on 14 Octoher
werc and would remain an ovenvhelming majority of the populationns
of Tanganyik:~,African participation both in the legislature and in
the executive should steadily increase; that it had never been
intended to make parity a permanent feature of the Tanganyika
scene; that the fact that the legislature and the government of a
self-governiiig Tanganyika were likely to he predominantly African
sliould in no way affect the secunty of the rights and interests of
the minority icomrniinities; aiid that there was complete agreement
on this matt<:r amonc tue responsible leaders of major pol. .cal
partics.
"The Councilalso notes withgreat satisfaction that this statement
of . .icv was warmlv welcomed throu~hout the Territory . . . ." '
According to the 19'50Visiting Mission, Africau participation inthe
legislature and e:xecutive continuously increased, without attendant
insecurity on the part of minority groups. Constitutional developments
in Tanganyika, announced for 1960, involved reconstitution of the
Legislative Couiicil on the basis of a broad franchise,with a majority of
the seats occupied hy African elected members. In theTriisteeship Coun-
cil's words:
"The Visiting &fissionobserved that the most noteworthy feature
of the political situation in Tanganyika was the peaceful and
harmonious atmosphere of good wiU. Nowhere, the Missionstated,
did it get the impression that there were any political tensions or
any current threat to law and order. It found excellent rel t' a ions
esisting between persons of different races and it considered that
the preseiit 5.itiiation in Tanganyika was an encouraging example
to other multiracial societies." '
Accordingly, the Council resolved at its Twenty-sixth Session:
"The Council welcomesthe important constitutional reforms taking
place in Tanganyika and notes with great satisfaction that the
Territory is moving into the last stages of political evolution
hefore independence in an atmosphere of harmony and good will." '
On 9 Decemher 1961, fifteen years after it hecame a Trust Territory.
Tanganyika was (:ranted full political independence.
4. South West Africa is not the only territory consisting of a diversity
of peoplcs and ciiltures, as the following statement of the French ad-
ministcring authority for the Cameroons suggests:
"The indigenous population consists of a great diversity of races,
with different languages and customs; they vary from the Bantu
tribes, who occupy the forest areas in the south and have rudimen-
tary social and political organizations, to Sudanese in the north,
who until recently lived under a feudalistic system."
' G.A.O.R. 14th fiess.. T.C. Rep., Supp. No.4 at 23 (A/qroo).
G.A.O.R. 15th !jesr., T.C. Rep., Supp. Ko.4jr (A14404).
' Iln'd.
' Ibid.
' G.A.O.R. 4th%:ss..T.C. Rep.. SuppXo. 4 at16 (A1933). REPLY OF ETHIOPIA AND LIBERIA
455
Nonetheless,uiiity was not bzyond the capacity of a willingAdministering
Authority :
"The Council, noting with interest the statement of the Adminis-
tering Authority that, in spite of the artificiality of the boundaries
and the heterogeneity of the inhabitants, a sense of territorial
unity is being developed, and, being of the opinion that ftrll de-
velopmentof such a sense of unity and commoiiidentity is essentiaiin
the evolution of the Trust Territorv as a distinct bolitical entitv.
recomrrizii<lst1i':ittlie ~dniinistenii~ r\iitliurity fustir tlii, dcvelo&
iiirnt b\. ail possitle riie:iii;, s;ij1112iiitensiiicntioii of t.<liicition.
the improvèment of icommiinications and the encouragement of
common political activifies in the Territory." '
Achievemcnt of universal adult suffrage and a single electoral college in
this Territory in 1956,Zand complete iridependence on I Jannary 1960,
attests to the success of this policy.
(C) Unifed Nations policy regardirtg encouragement of meaningfzrl
native participation in.governmenland administration. '
I. The Trusteeship Council has constantly urged greater participation
of indigenous inhabitants in the government and administration of the
Territory in which tliey live. Thus, with respect to Ruanda-Urundi,
"The Council recommends that the Administering Authority, in
order to grant the indigenous inhabitants a progressively important
as aewhole, shorrldprovide increasedfacilities for training iiuiigenozrs
inhabitaitts to fiIl responsibleposlsin the administration, and should
study the possibility of granting them, at the earliest possible
moment, direct represenfationin the higker admiiiistratice organs."'
At its Ninth Session,the Councilrecommended thatthe French Admiiiis-
tering Authority for Togoland "assimilate the chiefs into the adminis-
trative structure" ofter having noted the "successful reorganization of
indieenous administration :and the modification of the role of the
cliicfs." 'flic CouiicilIi.isofien strcssed tliç iinl,urt:iiicvof triiiiitliis
regardlt dren. the nttcritioii of the Adniinisteririg .\uthorit!. of Se\\,
C.iiine;i"10 tli<~dcjir;iliilit\roftrninine i-dicenous inhabit~nts iiiinircu-
ing iiiiinl~crsto nssiiiiie ihcicnsingly rcpoiisilile liujitioii; :iii<ltliiis to
porticii>;iti:tu;igrentcr estent in the adrniiiistrnti,~~~uf thc 'l'i.rrir~ry."~
\VitIl rcsnrst tu S;~iirii.tlic Counciliirct:iino1onli. "\i.idtr f:icilitic..ifor
the training of Nauruans in administracve positiu~s" but also "oppor-
tunities for experience in ublic office". '
In its consideration O ! contentions concerning the requirement of
experience in office,the Councilrejected the question-begging argument
that experience is a prerequisite to public office, noting that the only
' Id.. p.21.(Italics added.)
G.A.O.R. rzth Sess.. T.C. Rcp.. Supp. No. 4 at 125-29 (Ai3595).
' 1,PP- 135-137.
G.A.O.R. 3rd Sess.. T.C. Rep.. Supp. No. 1 at 9 (A1603).(Italiacdsded.)
' G.A.O.R. 6th Sess.. T.C. Rep.. Supp.No. 4 at 184 (AIr856).
G.A.O.R. 4th Sess.. T.C. Rep.. SuppNo. 4 at 77(Algjj).r306).456 SOUTH WEST AFRICA
way to achieve socli experience is by providing suitable training and
opportunities therefor:
"Thc Council . . . noting the statemcnt of the Administering
Authority that it could not, witliout failing in its duty and ignoring
its responsibilitics, contemplate the riskinvolvcd inplacing Nauruans
in any of the positions calling for professional or tcclinical qualifi-
cations iintil thcy obtain the required qualifications and experi-
ence . . . eiidorses the view of the Visitine Mission that it should
not he too reluctant to take a certain amount of risk in, placing
them in positions where they can obtain the necessary cxperience." '
2. There has been general compliance with the Trusteeship Council's
recommendations for greater indigenous participation in government
and administratioii in al1the Trust Territories. Thus, the British Adminis-
tering Authority for the Cameroons in 1951 assured the Council that it
was "fully in sympatliy" with the Council'srecommendation "to increase
the number of adniinistrators and technical officersto advise the indige-
nous inhabitants and train them progressively to assume increasing
responsibilities in the Administration." 2 .The Adniinistering Authority
stated that this end was ensured not only by :in increase in the tech-
nical staff,
"... but also bythe selection of Cameroons inhabitants for scholar-
ships and training scliemes, by technical education such as that
which would be provided at a new trade centre in the south near
Victoria, and by appointments to important positions, for esample,
on the board of the Cameroons Development Corporation." '
Tliat this Territory achieved independence in 1961 \vns duc in no small
measure to tlie su<:cessof the training progran1for indigcnoils inhabitants
in the Territory's administration.
In the Cameroons under French administration, the first year of
trusteeship saw the creation of a commori civil service for Africans
and Europeaiis, \vliich was commended by the Council. ' This section of
the Cameroons achieved its political independence on I January 1960.
The reports of the Trusteeship Council are replcte with notations of
progress in indigenous participation in civil service. By 30 June 1951
it noted that of pz persons employed by the Administration of Nauru,
250 were Nauruaris. Ry the end of 1958. 4,713 out of 5,251 persons
in the public service of Somaliland under Italian administration were
Somalis. 6 The Council noted that in many cases these were positions
of high authority:
"The Council, taking note that fourteeri of tlie nineteen departments
of the Territory's Government are directed hy Somalis . . .commends
G.A.O.R. 14th Sess.,T.C. Rep.. Supp. No. 4 at157-58 (A/~Ioo)
G.A.O.R. 6th S<:SS.T..C.Rep.. Supp. No. 4 at 106(A/1856).
Ibid.
' G.A.O.R. 4th S<:sî.,T.C. Rep.. Supp.30. 4 at 22 (h/g33).
' G.A.O.R. iqth lieîs.T.C.RRep., Supp.SSo.44aat2Gg (i\/qroo). RRPLY OF ETEIIOPIA AND LIBERIA 457
the Administeriiig tliitliority for the continued progress in the
Somaiization of the Administrative services of the Territory." '
As a result of suc11steady and progressive improvement, Somaliland
achieved its political independence on I July 1960.
3. Finally. tlie Committee on South West Africa liasconsistently
found that Respondent's policies in tlie Territory with regard to political
rights are repugnant to its Ilfandate objectives. A typical illustration of
the Comniittee's views, often repeated in the years since 1954,is:
"The Committee deplores the continued implemeiitation of a
system of administration based on apartheid, which inter alia,
deprives the Territory of political institutions representative of
the ~o~ulation as a whole. and denies the 'Non-Euro~ean' in-
hnhiki;t.; of tlic riglito vote and seek officcand the oppo;tunity to
partiiipiltc. in ttic acIministr:itio:~i\icll :LStu partiiiyntc fully in
[tic t~iuiioriiic.FIICI~iincduciltio~1.1 1~\.C~ODIII<:Iof tl~: Territ<lrv
The Committee reiterates that the policy of apartheid is n flagrant
violation of the Charter, the Mandate and the Universal Declar at'ion
of Human Rights, and reaffirms its considered opinion that the
practice of apartheirl aiIl evcntuaily operate to the detriment of
al1sections of the population of the Territory.
"The Committce is deeply concerned at the continued failiire of
the Union Government to take steps to comply with the previous
recommendations of the Committee that measures be taken to
provide the Territory tvith organs representative of a11sectors of
the population, to recognizc political rights for tlie 'Non-European'
inhabitants and their right to participate in the administration,
to eliminate al1 discriminatory lcgislation and practices which
operate to the clisadvantage of the 'Non-European' population,
and to ensure the revision of existing policies and practices of ad-
ministration so as to make them consistent with Articlc 22 of tlie
Covenant of the Leagut: of Nations and the Charter of the United
Na"The Committee ur@:sthat priority be given to the training of
the 'Non-Euopean' inhabitants of the Territory to enahle them
to play their full and rightfiil part in the executive, legislative and
judicial braiiches of Gorcrnment." 2
' Ibid.
' G.A.O.R. 15thSess., S.W.A.. Comm.. Supp. No. rz at ig (A144641 REPLY OF ETHIOPIA AXD LIBERIA
459
"separateness" or apartheid, \vhich it asserts as an explanation
aiid justification for its present policies' based upon the fiction
that reserves are the only "real home" of the "Natives."
(A) RELEVANT HISTORICAR LESUME
Contrary to Respondent's account that before the whites began
to settle in the seventeenth century Southern Africa \vas "nearly
empty," the eastern half of the country was effectively occupied
by Bantu-speaking farming tribes. 2 and the western half was oc-
cupied more thinly, but effectively, in relation to their economy,
by Iiunting and herding peoples whom the whites were to cal1
Bushmen and Hottentots. Tliereafter any prospect that distinct
racial communities might develop along their own lines in separate
territories in Southern Africa \vas rapidly uridennined. The Dutch
(1652-1795, 1803-1806) and British (1795-1803, 1806 and after)
governments of the Cape Colony did try to keep the area of white
settlement separate,first, from the Hottentots and Bushmen, and
later from the Bantu-speaking tribes; but they failed, because
the white settlers themselves took occupation of land previous-
ly used by Bushmen, Hottentots and Africans, and because the
white settlers themselves became dependent on the use of
Bushmen, Hottentot and African labour, as well as the labour of
iniported slaves. Tlie white South Africans' appetite for land.
and for the labour of the previous intiabitants oftheland, haslong
since destroyed any prospect there rnight have been of dividing
Southern -4frica into self-sufficient, autonomous, uni-racial terri-
tories; and South Africari society, within the frontiers of white
settlement, has al\vays been a plural or multiracial society, domi-
nated by its white niinority. '
Today nearly al1 the productive land in seven-eighths of the
liepublic is owned by white South Africans. Ijntil about 1870
the labour needs of the whites wre liniited by the fact that most
of them were pastoral farrners: but now that the mineral resources
are being exploited and there is a wide range of manufacturing
industriesmost of the non-whites as well as the whites are involved
in a modern exchange economy. At the time of the 1960 census only
about 39 percent ofthe Africans in South Africa were in the "Bantu
Areas," which are scattered lands amounting to about one-eighth
of the Republic, producing very little for interna1 exchange and
virtually nothing for sale in the "white areas," let alone for export,
II, pp. 4fl.
Wilson. "The Earlv Histop, of the Transkeiand Ciske.." .hican Studics.
Vol.18.No. q,1959, pp. 167-79.
Th8 Cape Coloured Peqle 1652-19375-8.r3-r6 (1939). 27-3.r. 40-43 (1930); Marais.
' Marais.op.cit282-284;vander Horst, Natiuc Labourin South Africa, 319-322
(i942): de Kiewiet, AHislory .of South Atricn: Social and Econonzic, 12420,
(1941); JValker. A Hirtory of Southern Africn (3d ed. 1957).460 SOUTH WEST AFRICA
aiid de /rictohaving the econoniic fiiiiction of labour reservoirs for
white-owned farms and white-controlled industries. ' Consequently
now, more than ever, the real task coiifronting the government
of the Republic i!i the task of dealing with the realities of a plural
or niulti-racial society.
\Vhite settlement and economic development started in South
West Africa niuch later than in most other parts of Southern
Africa. Nevertlieless the 1960 census figures, as reported by the
Odendaal Cominission, show that at the time of the census teii
per cent of the total population of the northern sector of South
\Vest Africa(and thus about twenty percent of the ntalepopulation
and perliaps fifty per cent of the male adult population of that sec-
tor) were working (for "Whites") in the southern sector; and that
of the people domiciled in the southern sector, 47 per cent were
in the towns, 37 per cent were in the ("White") rural areas and
only 16 per cent were in what the Commission calls their "Home
areas". 2In South West Africa, as in the Republic itself, a plural
or miilti-racial society is a fact; policies based upon a contrary
premise rest upon fiction.
Before the nineteenth century the government of the Cape
Colony failed to exert effective coiitrol over the situation beyond
the vicinity of the Cape peninsula, with the result that most of
the white settlers became very much a law unto themselves.
Since the only non-whites they encountered were their slaves.
their servants, or their enemies, and since they were imbued
urith a simplistic version of Calvinism, they became an exception-
ally colour-conscious people. ' The Great Trek ofthe 1830's-1840's.
in \vliich mnny of the Afrikaner farmers left the Cape Colony, was
in large measure an ideological protest agüinst the attempts which
the colonial government had been making to apply the rule of law
to the entire colony and to abolish legal discrimination on racial
grounds. Thereaiter in the South African Republic and the Orange
Free State the Afrikaner Voortrekkers estahlished a caste system
in wliich only "\Vhites" were deemed to be members of the body
politic and al1 non-"\lihites" \irere subject peoples. In the Cape
Colony, on the other hand, the idea that the law should not dis-
criminate between people on account of their race or religion gained
considerable support among al1 sections of the population. Thus
Union of South Africa, Social and Economic Planning Council Report No. 9:
The Native Reserves and lheir place in ihc Economy of the UnofnSouth Africa:
W.C.3211946 (1946)Swmmavy ofthe Refiovfof theCommissiofortheSocio-Economic
Devtlopment of the .Bontu Arenr wilhin the UnioofSouth Atrica: U.G. 6rIrgg5
(125Odcndnal Commission Report, pp. 3941.paras. 146-49and tables XVIII-XX.
' Thuç. 170.720"Natives'' and 23,590"Colaureds" reside and work in the
"White" Police Zone. a-hich comprises 7per cent ofthe Territory. (IV. p21.)
' nIacCrone.Race Atliludes in Southfric:Hirtorical, Experimcntal arrdPsycho-
logicnl Studics (1957)1.o7-10S. 129-130.462 SOUTH WEST AFRICA
in land ournership aiid in industry outside the reserves. 'The slogan
Lhat \vas used by the South African government to describe this
policy was "Segregation", and segregation was justified on the as-
surnption that Africans liad a real choice between living thcir tra-
ditional lives in their reserves or coming out ta work for "Whites."
and the further assuiiiption that if they chose the latter tliey could
fair!y be treatcd as tciiiporary migrants. But as tinie wciit by it
became more and iiiore evidcnt to anyone who tried to discover
the facts that th,: choice was not a real one, for most Africnns were
economically obligecl to earn wages, at least intermittently, ancl
many of them had become permanent residents of the "White
areas" conipletely divorced froni the reserves and from the tribal
structures.
These facts wi:rc nctually enihodied in a serics of officia1 publi-
cations. III 1932 the Holloway Conimission reported:
"\'iews have bccn expressed which would meaii tliat tlie Xativcs
should live in a part of the country set aside for tliem, and
that individiials should be admitted iiito the European area
on teinporarv permit to work; they should not, however, rnake
their homes 'in the Eiiropea~i area, and those who have so made
their homes shoulcl gradually I>etransferred to tlie Native aren.
Your Coniniissiori cannot give any support to this vie\\,. Uesidcs
being inipraci:icablc, it woiild be uiifair to Natives wlio Iiavc nlready
become permanent town-dwellers or divellers on Eiirope:iii farms.
hloreover it would iiican that Native labour iiitlie Eurouean nrea
\\.ould alwayr; be casunl labour, and if this were to contGiue there
\\.ould be great difficulties in the way of increasing its effiçieiicy."
In 1946 the goveriimeiit-al~pointcd Social aiid Econoriiic Plaiiiiing
Council dcclared
"...that theul.inostcxteiisioiiof theReserves possible~iiiderthepreseiit
Iaw,and their utmost development, \vil1still leave outside them large
masses of the Native population to be provided for. Xo Reserve
policy . . . will make it possible for South Africa to evade tlie issues
raised by the presence of the Native in European farming areas
and in urban areas. These must be coiisidered on their own
merits .. . ."
In 1948the Fagnii Coiiiinission warned:
"From what we linvc alreaày said it should I>cclcar, tirstly,
that the idea of total segregatioii is utterly impracticable; secondly,
that the movement from country to town has a backgroiiiid of
economic iiecessity-that it may, sa one hopes, be guided and regu-
lated, but that it cannot be stopped or he tumed in the opposite
' Roskarn. Apartheidand Discriminolion 55-58 (i960).,
2 Union of Soutli Africa, Hcport O/ Nolive Eco+tomic Comnrissioii 1030-r93a:
U.3.Union93ofSouth)pAfrica,Social and Economic Plnn98ingCoioacil HeporlA'o.9 :
The ~Vaibe Reserverand Ihcir filacc in the Economy of Ihe Uniotr of Soi'th Alricri;
U.G. 321r946 (1946).p. 3. para13. REPLY OF ETHIOPIA AND LIBERIA 463
direction; and, tliirdly, that iti our urban areas there are not oiily
Native migrant labourers, but there is also a settled, permaneiit
Native population. These are siinply facts, which we have to face
as siicli. Tlic old cry, 'Send them back!'-still so often raised when
there is trouble with Natives-thereforenolongeroffersasoliition." '
And in the saine year the Social aiicl Ecoiiomic Planning Council
made an accurate appraisal of the rcalities of the South Africaii
situation :
"South Africa, in short is pursuing the csperiment in race relations
of finding a bais on which a multi-racial society, composedof people
of varying standards of education and culture, can develop in
harmony in the same country.
"The essential fact is that South African society to-day is divided,
firstly, into two main castes, a smallïr upper caste of Europeans,
and a larger lower caste of rion-Europeans. This lower caste is
nlso sob-divided into thrce, Asiatics, Coloiired and Natives, tliough
thç caste barriers are in this case lcss rigid. Each caste is ng:iiii
divided intoclasses, maiiily onan econoriiiçandoccupational I>asis."
In 1929, when he was Leader of thc Soutli African Oppositiori.
General J. C. Smuts admitted tliat
"'ïhese urbanized natives living among the whites constitute the
real crus, ,and it is a diiliculty whicli goes far beyond the political
issue.Tliep raiseaproblein forthe wholeprincipleof segregation ...."'
In tlic sanie work Smuts said Ihat ;$IIiiidustrial colour-b:ir was
"botli iiiil>r:rcticablc ;ilid ail offciice against the iiiodern coriscicricï".
and that a11classcs aiid colours should have some sort of reprcscii-
tation iri the Soutli Africari parliainent. '
In 1941 Dr. C. Ili. de Kiewiet, who had been brought up as a
white South Africaii, but had lcft South Africa to become, succes-
sively, professor of liistory iii the State Uiiiversity of Iowa aiid
professor of history in Coriiell University, and who later becnriic
President of Rochester University, wrote:
"Segregation is a myth, a fancy, anythingbut a fact. As a word
it describes a hope or a policy but not a real situation. It is denied
by the sight of hundreds of thousands of natives dwelling perma-
nently in the toivns and upon Europcan farms. The census-takers
of 1936 founcl559,675more iiatives outside the reserves tlian inside
theni. It is dcnied by the recruitcrs of native labour for the mines,
by tlic farmers who po::sess the bulk of good land, by the taxes
whicli compel the natives to go out to earn money by their labour.
It is denied above al1 by the fact that industry has been, in the
language of the horticulturalist, buddcd or grafted on to the stock
' Union of South Africa.Re.ort of theNntive Lnwr Commission r0..-48. U.G.
~811948 (i948)p,. r9.para.28.
Union of South Africa, Social orEconomic Plan+ting Cottncil Report No. 13:
The Ecoaomic altd Socin1 Cot$ditions of tRocial GrouOs in South Africo: U.G.
5311948 (ig48) p. 108.para. 162.
Smuts, Afrrco andSonie WorliiPrvblcms 93 (1930)
' Id.. pp.94, 96.464 SOUTH \\-EST AFRICA
of native labour. It is deiiied by the fact that the native population
was no longer homogeneous.The greatest differences had developed
in their ranlrs. ...\Vhat has been trvisted together by history
cannot be readily disentangled by laws. To unwind the woven cord
of native and Europeari life is simply to require history to retrace
its steps.'
Applicants sul2init that, on the basis of the forcgoing currcct
version of developnicnts in South Africa and in the Territory, rio
tenable hasis exists for the premise that the "Europenns" aiid
"Coloureds" in l.he Police Zoiic are tlie only inhabitaiits eritilled
to regard it as tlieir "real honie," making use of the "Naiives" so
far as necessary to the prosperity of the dominant group.
As demonstrated in the hlemorials, and elaborated helow,
Respondent's restrictive and discriminatory laws and practiccs
justify the concliision of an authority that
". . . the con\.entions iiiid laws which inhibit tlic flomof rneii aiid
their families to the towns cnn onlv become a sentence of poverty
and deprivalioii... . The segregation laws are an embargo upori
the derelopinent of the non-European populatioii. . . . These
laws seek to imprison tlie population ~vithiiiits oivn backiv;irdness
and set up blockades agaiiist the flow of experience, skills, and
amenities oii which moderri progress is based.. . . The whole
myth of separtite native culture collapses when it is rccogriized
that, for the Africaii, progress and emancipation depend upoii ari
escape from Ilie tribe and a deepcr entry intothe lifcof tlic We3t.''
Respondent's coiicept aiid preiiiise, however, upori whicli the
policy of apartheid rests. and tlie restrictions upon seciirity, resi-
dence and movenient u.lrich eiiectuate that policy, relegatcs to
"the tribe," as their "real home", inhabitants \vliose "progress aiid
emancipatiori" Respondent undertook in 1920 to promote to the
utmost.
(B) ANALYSIS 01:MEASURE OSF IYPLEMEXTATIO 0N: APARTHEID
WITH RESPECT TO RESIDENCE,FREEDO'I OF MOVE~~IEX T ,D
SECURITY OF THE PERSON
Restrictions imposed by Kespondent on the riglits of residence,
freedom of movement, and security of the person of the iiidigenous
inhabitants of South West Africa, comprise a mechanisni whereby
the policy of qbartlzeidis implemented and "non-White" inliabit-
ants are confined to the poorest areas of the Territory, except for
purposes of migatory labour on hehalf of "European" employers.
Respondent concedes that "Katives" from beyond the Police
Zone, although possessing riglits of residence within the reserves,
are not permitted to effect a permanent change of residence so
as to live in the Police Zone generally, or in urhan areas within
' deKiewiet.pp. 242.43citep. 28,.supro.
1. pprq3-rp.
'de Kiewiet.op.cit., 45,(ig56). REPLY OP ETHIOPIA AND LIBERIA 465
the Police Zone. ' It isconceded further that labourersrecruited from
the reserves for the purpo!je of eniployment within the Police Zone
niust return to the reserves after two and a half years at the most. 2
Respondent admits also that "non-\VhitesW working in urbaii
areas in the Police Zone are restricted to "n~n-\\~tiite" areas of
the cities and towns and are not pcrmitted to reside in \\.liat are
coiisidered "\llhite" areas; ' if an incligenous inhabitant is seeking
\vork in an urbati area, he has threedays in whicti to get perinissioti
to retiiain a further two weeks-and if employment cannot bc found
\vithiri that period, he niuiit leave. ' In order "to control the influx
of Natives iiito [urban or proclainicd] areas" and to implement
the restrictions on freedoiri of resideiice imposed by Respondent on
"non-\\'hite" inhabitants, "Native" work-seekers must register with
designated off~cers upon entering such areas.
of &th \$'est -t\frica is supl~lemented and complemented by
what have become generally known :is the "pass laws." Thus it is
admittcd by Respoiidetit that upoii pain of crimiiial con\,iction
and punishnient, a "Native" must upon demand produce a pass
if he is travelling within the Police Zone but bcyond the confines of
his location or reserve or auray froin the farm or place where he
rcsides or is cmployed; ' niust produce a pass upon deniand if
Iiis doniicile is beyond the Police Zone and lie is withiii the Zone;
inust have n written perniit eriabling him to remûin in an urban
or proclaiiiiecl area; and mnst have a written periiiit to avoid
possible curlew restrictions iii "White" urban arens. lu
Insofar as "Natives" are to be foiintl in urban or proclaiiiicd areas,
but areiiot in ttiecmploy of the Goveriinient orof "\\'liitc"cml>loyers,
removal or \\rork is certain. Tlius, shoiild a "Native" be declared
See III,pp. 266-275.
Id..p. 276, paras. 14s-49. See L'ruï. No. ?g of igjj (S.\V.A.)S, ec.G(4). in
Tlie Law5 of Soulb lV~stAfricn 1935. \'olXI\', p. 152, asamendcd by L'roc. So. 38
of 1949 (S.\\'.h.).Sec. 2,in The: Laws O/ Sorrth West Africa 1gq9. Vol. XXVIII.
.. ,60.
'III. pp. 277.297: see Proc. >Io. 56 of r95r (S.\V.A.) in The Lawr of Suulh West
Africa 1951. Vol. XXX, pp. 90-171.
' III, p.289.Although Sectio~i 25 of I'roclamation No. 56 of ,951 hm not been
invoked in terms, n policy calling for the rernoval of"i\'atiues" "in ercess ofthe
Respondent la(see id..pp.m208-zori p.aras. 184-88).endorsed and maintained by
' Id.. o.29,.
~hid.. -
' Id.. p. 315; sec Proc. No. Ir of 1922 (S.\V.A.)S ,ec. IO.in The Luwrof Soulh
lVest Africa rgrg-rgzz, &>p.751-52. Applicants concede the existence of class
exemptions (see id.p. 316, para. 64) but these cannot change the essence of the
compiaint. .- .
Id.. p. 322, para.85: see Prw. No. zg of 1935 (S.W.A.). iii The Lawr of South
IYesl A/nca 1935, Vol. XI\', pp. 148-58. particularly Sec. 9, at p. 154.
Id., pp. 324-327.
'O Id..pp. 3'27-329.466 SOUTH WEST IIFRICA
an "idle person" lie will be ordered removed froin the urban or
proclaimed area, or if he had previously agreed to enter into a
contract of employment, he may be ordered into employment un-
der the terins of the contract. i If a "Native" in a reserve within
the Police Zone remains idle, the superintendent of the reserve may
"order such person to take up employment on essential public
works or services at a sufficient waae to be determined bv the suner-
-
inteildent."
Resporident dcfends its reserve policy by emphasizing the exist-
ence of different population groups in the Territory, the need to
restore tribal life, differences in systems of land teiiure. and the
need to prevent: alienation of "non-White" land. The fallacy of
such premises bas been demonstrated in Applicants' analysis of
the nature and consequences of the policy of apartheid as a urhole. '
Respondeiit asserts that the Permanent Mandates Commis-
sion was aware of and approved the reserve policy. During the
early years of Mandatory administration, the Comiiiission was
deeply interested in the econoniic and political development of
the reserves. The Commission, however, did not approve a policy
of confiniizg inhabitants to reserves and forbidding thcm to take
up permanent n:sidence in the Police Zone generally, or in urbau
areas withiii tht: Police Zone. Tlius, at the Third Session of the
Commission, tlie Chairman asked tlie South African reprcsentative
(SirE. \Valton): "\Vhat \vasthe policy of the South African Govern-
ment in regard to these Reserves? \Vas it its intention to maintain
these reserves and to constitute new ones, or did it contelitplate
in tlze nenr /rilnre the possibility of bringing tlze niztive popzllatioil
in cotttactwilh c:ivilization?"6
At the snmc session, tlic Chairiiinn inquiretl "whethcr this
[reserve] systerii could be reconciled with the spirit of the man-
dates and the civilising mission with which the Mandatory was
entrustcd." ' Siinilarly, during the Fourth Session of the Com-
mission, M. Beau stated that " . .. he wanted to draw attention
to the difficulties ~vhich resulted from the system of reserves,
as at present practised, in connection with the development of the
natives, confined as they werein a sort of 'watertiglztcornpartment.'''a
Respondent fiirther seeks to justify its policy on the ground that
". .. the exclusion of residence by \Vhite perçons in the Native
reserves is abs~3lute." 9 Tlie false equivalence is clear; reserves
provide no more than a subsistence economy, whereas the seventy
IIIpp. 214-216paras6.5-69.
Id.p. 220.para.89-90.
' rd..p. 240-245.
' IIIpp.233-257.7.
P.M.C.Min.,3rd Sess.p.roq.(Italics added.)
' Id.,.io5.
P.M.C. Min.. 4thSess., p.63.(Itacdsded.)
IIIp. 267,para.irg. REPLY OF ETHIOPIA AND LIBERIA 467
per cent of the Territory set aside as the "real hoiiie" of the "Eii-
ropean" inhabitants, coritains most of the wealtli of the Ter-
ritory and a Iiighly developed economy. Indeed, as Respondent
concedes, ' this is precissly why indigenous inhabitants wish to
come to the "White" are:ls in the first place. As Lord Hailey has
stated:
".. . it is wlicn oiiç coiitemplates the poverty of soi1 and low
agricultural possibilities of tliese Reserves that one realizes the
difficiilty 'of assuming tliat the Xative can ever achieve a really
adequatestandard oflivinginthe areasset aside forhisoccupation." 2
Kespondent asserts as a justification for its reserve policy and
pass system, the objective of "influx control," assertcdly to pre-
vent a rush of "Natives" to the urban areas, thus causing unem-
ployment and attendant social evils. such as prostitution, venereal
disease, alcoholisin, crinie and the like.
The true cause of thc social evils to which Respoiideiit refers,
however, is not to be fouiid in the fact that "Natives" congregate
in urban and procl:iinied areas; it is in fact found iiitlic tliscrim-
inatory systein of iiiigratory laboiir itself. Splitting of families,
an evil attributc of tlic system Kespondent nowlicrc sccks to
justify, generates many of the cvils the influx coiitrol policy is dc-
signed to meet. l'hiis, tlic United Nations Economic Comn~ission
for Africa has found that
"Iii brief. the systeni of iiiigratory labour produces two ecoiiomic
ills-iieglect of :y.riciiltural production on the rescrvcs ancl an
unstable, uneconoiiiic labour force. Besides, tliere :irc tlie inany
evil social consequences, particularly the disruption of family lifc.
Urban centres are crowded with men whose \vives aiid families
are on the reserves, creating the problem of a disproportionate
number of men to woini!iiin the cities and, con\rcrsely, more women
than men on tlie reserves: situations which breed the problems of
venereal disease, prostitution, crinie and delinquency." '
III, p. 299.para.5.
Hailey, An A/ricati Survay ,764 (3d cd. 1957).he unjustitkable nature of the
discrimination practised against indigenous inhabitants is compoundcd by the
fact that the reserveç within the I'aliceZone are not, in iact. tribal. Thus Lord
Hailey has poiiited out that such reserves "... have not been ~>roclaimed in the
name of particular tribes or se<:tionç of tribes; many of them indeed contain a
considerable variety of tribes. Herero are to be found in at least six of the Keserves;
in several of tliem there is almost an equal aumber of Hottentot and Bergdama,
the reserveç in the Palice Zone "are not in thertrue(çense tribal Reçerves."(Id..t
P.'6See III, pp. 279-287.
U.N. Dac. EICi\'.i4/13~/Rev. i. Economic and Sociol Consequetices O/ Racial
Discriminnfovy Pvncliç~s (U.N. Publication. Sales No.: 6j.1r.K.ia)t 27. The .
Commission alea stated that ""rider the migratory labour system the able-bodied
male population spendç part of its time on the native reçerves and ]>art ivorking in
industry, living in compounds in towns or on the mines. The result is that in the
cities there is a prepuiidcranccof males over females, while in the reservcs the
coiitruryiç true. African hommj arc in fact chronically 'broken homes'. wliicli46s SOUTH WEST AFRICA
Lord Hailey, in ;idiscussion of the inigratory labour system, stated
that
"It is not difiicult to visualize the social effect oii ail indigenous
society of the absence of large numbers of its adult males; it is
to be seen in the loosening of kindred and tribal tics and the
weakening of the influence of the traditiorial rules regulating
social conduct. Tlie effect on the wives remaiiiiiig bcliiiid iiithe
villages may \vell be imagiiied. Equally unfortunate has been the
growth of prostitution in the urban centres and the consequent
spread of veriereal disease among migrant workers." '
It \vould seeiii then, that the hest tbat can be said for 12espond-
ent's "influx control" policy is that it is designed to ameliorate
the effects of another of Respondent's policies, i.e., the preserva-
tion of a system of migratory labour. The two policies taken together
are at the core of the implementation of the policy of apartheid.
\Vith respect to unemployment, whicli "jt1fl~i.u control" assertedly
eliminates, the central point again in this context is that Respon-
dent's failure to devclop in any meaningful sense the economies
of the reserves, rcsults in pressures upoii "Nativcs" to corne to
urban areas seoking employment. The position is then, that
under "influx coiitrol" the "Natives," who have a far greater
need for employment than most of the whitc iiihabitants of the
Territory, are given at most two weeks to find such employment.
If tliey do iiot succeed, they are sent back to the very areas they
had tried to escape--to areas where "oiie realizes the difficulty
of assuming tliat the Native can ever achieve a really adequate
standard of liviiig."2
As in the case of other aspects of implemeiitation of the policy
of apartheid, the basic fallacy and evil of the "influx coiitroi"
ineasures, pass l:iws, and other restrictive devices, consist iii the
premise that al1 "Natives" are to be treated alike, whatever their
individual merit, caqacity or potential. The presence in the "White"
zone, of a "Native, ' regardless of his persoiial skill or attributes,
"serves no purpose in the absence of williiigness to work"; he is
to be relegated l:o his "real home" in a reserve.
A "European," on the other hand, is in his "real home" in the
Police Zone; "absence of uillingness to work oii his part" is not
relevant. The uriconscionahle implications of so double a stand-
ard justify the concl\ision that:
"The suin of segtegation Iaws are an effort to prevent failure in
a white man and successin a black man."'
unavoidably results in a high rofedivorce. polygainy, prostitution. drunkenness.
to became more and mort loose." (Id.. p. 46.) reîervcwomen's morality tends
Hailey, p. 1386. cited p. 467, supra.
Id., p. 764
"II, p. zig.
' de Kicwiet, The Arzatv,O/South dfrican~~Illisjy (r936). REPLY OF ETHIOPIA AND LIBERIA 4b9
Kespondent seeks to justify its "influx control" policy by refe-
rence to assertedly sirnilar policics in other countries. III no case,
however, are tlie policy considerations underlying limitations on
urban immigration based upon total and permanent separation
of "Whites" and "non-Wliites" in the Iiighly developed sections. '
"Influs control" cannot jiistify the total ban on residence by "Na-
tives" in the urban areas of the Territory. Housing problems, no
matter how serious, cannot rightly be the basis for "Native"
urban residence limited to "European" labour requirements.
Respondent asserts thxt restrictions on "Native" liberty of
inovement and residence ;ire designed to "protect .. .tribes froin
clisintegration" or "detribalization." 3
This again serves as ail instructive example of Respondent's
policy of classifjing al1 inhabitants on the basis of "group" or
tribe, ignoriiig individual nierit or need.
Conceding that Proclamatioii No. 29 of 1935 requires "Natives"
recmited from reserves beyond the Police Zone to return to reserves
after two and a half ye;irs at most, Respondent contends that
siich a requirernent
"... was made at the snecific reoucst of the tribal authorities in
integration and tu maintain tribal relations."2 tribes from dis-
Not a wortl is slid concerning the wishes or needs of the indiuidz~ul
who has come frorn the re:icrves to work as a labourer in the Police
Zone. Respondent's profei;sed solicitude for preservation of tradi-
tional forrns of tribalism is. iii fact, self-serving. As Lord Hailey
stated in 1956:
"In the prevailing philosophy of South Africa the Native in tlie
urban ares is a transitorv residcnt rvhoin the ti-ordsused in the
Traiisvaal 'should deparc therefrom when he censes to rninister
to the needs of the White man.""
The inescapable fact is that the entire cornplex of legislative and
administrative restrictions irnplementing afiartheid by restricting
freedom of movement, residence, and security of the person is
designed for the convenience of the "European" inhabitants of the
Territory. Almost aithout exception, the provisions complainccl
of by Applicants in part 5 of Chapter V of the Mernorials kcep
"noii-Whites" and "Whites" apart, except for labour demanded
of the former. Thus Respondent States with some candor that
". . . Natives are not entitled to obtain permanent residential
rights or ownership in the urbaii areas in the Police Zone. Since
Xatives are, however, allowed to enter these areas in order to
1 III, pp. 285.287. paras. 176-Er.
* Id.p. 276. para. 149.
' Id.. p. 323,para. 8;.
' Hailey, p. 428. cited p. 467, supra.47O SOUTH WEST AFRICA
obtain empl«)ment, it has been necessary to provide proper
accommodation for tliem /or the purpose O/ such employmenl." '
Similarly, the pass system is the mechanism enabling Respondent
to keep "Native:j "and "Europeans" apart, except for purposes of
migratory labour.Respondent States that pass laws do "not unduly
restrict the movement of Natives" becaiise "Respondent has
endeavoured to make it as easy as possible for Natives to obtain
passes." 3 The essence of the evil is not that passes are difficult
to obtain, but that a system is enforced in nrhich individuals are
categorized and treated solely as members of a "group," not as
perçons.
The inhereiit (:vil of the system has been widely recognized and
coiiimcnted upon, by authorities both within and outside South
Africa.
Thus, a leadirig South African industrialist has concluded that
". .. there was a time when it might have been rensonable to
regard the bulk of the Africans in the urban areas as temporary
resideiits. But that time is long past and today .. . there is a very
large and increasing African population in the towns whose con-
nexion with their original tribal homes has aln~ost or entirely
ceased to exist. Jforeover these urban Africans are absolutely
indispensable to the industrial life of the country. Nevertheless
they are trea.ted as though they were migrants and the pass laws
and other lej:islation operate to prevent their obtaining the right
of permanent occupation of the only homes they have. If they lose
their jobs and do not find another one within a short period they
may he uprooted and forced to go to quite a different part of the
country. In this way, families are broken up and the urban African
is dcnied that sense of permanence and security wliich is one of the
prime needs of al1human beings.
It is difficiilt to exaggerate the sense of frustr:ition these featurcs
of African urbanlifecause, particiilarly among the growing number
of intelligent and educated men wlio liold responsible positions."'
The International Commission of Jurists, in ;L stucly dealing
with South Africa, found that
"The most basic, and at the same time perhaps the most resented,
application of apartheid is to be found in the restrictions imposed
upon the rfiovement and residence of non-whites. Particularly
as applied to the African these restrictions reveal the fundarnentally
econoinic purpose ofthe policy of separation. In short, the movement
and residenc? of the African labour force is regulated to meet the
industrial and agricultural requirements of the European."
'III.p. 294.para.205. (Ilalics added.)
' Id..p. 314, pan. 61.
Id.. p.316.pari,.66.
'H. 1;.Oppenheimer. Chairman of the Anglo-American Corporation of South
Africa. Ltd., quoted in SouthAfrica and lhcRule of Law (igGo). p. 37. (Pub. of
InternationalComniission of Jurists.)
'Op. cit., p27.'TheCommission also stated that ". . an objective anvlysis of
the presently existiiig restrictions of morement can only bring forth the conclusion REPLY OF ETHIOPIA AND LIBERIA 47'
When regard is had to statements made by Respondent such as
"Permission to be in a proclaimed area may be refusecl if therc is
a surplus of Kative labour available in such area. . . ." '
it is difficult to reach any conclusion other than that reached by
the International Commission of Jiirists.
Other restrictions on "Native" freedoin of movement are directed
nt the same objective. Legislation differentiating between "White"
and "Native" people also controls egress from and entry into the
Territory. In respect of egress from the Territory, Respondent
States the "reason for thi:; differential treatment is to ensure that
Natives in the Territory who are inexperienced, illiterate or in
poor financial circumstances, do not in ignorance embark upon
trips to South Africa without realizing the implications of such
ventures." ' Thus "Natives" require passes to go to South Africa.
Exempted from the requiremeiit, however, are "Native" females
and "Native" males fourteen years of age and under, thus con-
firming that the legislation in fact is designed to serve the labour
requirements of the "Europeans" in the Territory and the Republic.
Similarly, curfew restrictions on "Natives" are said to protect
against "disturbaiices" and "crime." ' \'et such curfew restrictions
apply only in "White" areas, and only to "noii-White" peoples.
The system is roundcd off by Rcspontlent's legislation restricting
the security of the person. Thus, although Respondent gives many
reasons why the Vagrancy Proclamation in South West Africas
is justifiable, it cannot be denied that it is much easier for a "Native"
to befound a vagrant, tliaii it is for a "White" man.The Proclama-
tioii is not applied in the areas beyond the Police Zone, nor in
reserves within the Police Zone. 6 It is applied precisely where
the "Native" inost needs his pas-iii the "White" urban areas.
The lack of a pass niight well result iiia "Native" being declaretl
a vagrant.
that the Government haç for the purpose of allocation of labour between industry
and agriculture erected a careful system of discriminatory legislation. This legis-
lation docs not seem or even prctend to protrct,but only restricts the African
and is cleverly designed to complernent equally discriminatory restriction of
residence." (page 3r.)
'III, p.324. para. 93.
Id., pp. 319-322.
Id., p. 320, para. 78.
* Id.. p.328, para. 107.
p. 260.oSecNIII, pp. 196.214..\V.i\.)in The Laws ofSoulh Iï-esfAfrica1915-2922,
III, p.333, para. 127.
' Indeed, Respondent concedes that vagrvncy was one of the reaçons the pass
syçtem waç devised in the first place.Respondent quotes {rom a Commission
Report of 1921 that a pas system is desirable since "it cannot now Lw rendily
ascertained whether a Native found travellina - alon" a road or across country is
a vagrant or not .. ."(Id.. p. 311.)
Respondent's venion of the attitude of the Permanent Mandates Commission
toward the pass system and the Vagrancy Proclamation is not correct. The Report472 SOUTH WEST AFRICA
Respondent's policy of nibartheid in the Territory is further
implemcntetl by the Natives (Urban Areas) Proclamation of 19j1,
as amender1 in 1954. ' Under the Proclamation, an idlc "Native"
in urban or proclaimed areas may be removed from such area, or
if he hacl previoiisly agreed to a contract of employment, may be
ordered to carry out the employment, regardless of Iiis wishes;
if he is removecl to a reserve within the Police Zone, he may be
ordcred to work on essential public works within that reserve.
Respondent's defetice is its argument concerning the policy of
"influx coiitrol."
The policy of aparflreid is similarly effectuated by legislation
authoriziiig a superiiitendent of a reserve mithin the Police Zone
(Le., within tlie highly developed area of the Tcrritory) to order
idle "Natives" to take up employrnent on essential public works '
and permitting the Administrator to remove "undesirable" "Na-
tives" froiii certain reserves within the Police Zone. =
In suni, Kespondent's measures restricting rights of residence,
freedom of movement, and security ofthe inhabitantsare based upon
of tho Commissioii to tlie Lcague Council (3rd Session) <:riticized the Proclamation
on the ground, inlei, aiia. that a magiçtrate was aiithorized ". . .in lieu of the
puniahment prescritied, to adjudge the accused to a term of service on public
works or to employrnent under any municipality or private person othcr than the
complainant. for a term not exceeding that for which imprisonment inight be
imposed. at çuch wageç as the magiçtrate deemed fair. This poiver of imposing
forced labour for the benefit of private individuals in lieu of the sentence of the
Court is a Dractice rrhich cannot be a~&.oved." 1P.li.C. illin.. ?rSeçs.,p. 2~3.)
AS for the pass sristem, it is instructiveto note thc views of Lord ~;gard.'~t
the third session of 1:hcCommission he is reported to have "called attention to the
system of uasses which was i!n+orcd on the natives" (italics added) and the Chairman
thought "it would be well tX asli the reasans for these restrictions upon personal
liberty". (Pd1.C. Aliii.. 3rd Sesç., p. 61.) At the fourth session, Sir Lugard asked
"whether the pass eystem-which was a /orm O/ chss iegisliiiiorr mliich onewould.
if possible. derirlucrbolish-was absolutely necessury. together with the obligation
to obtain permits ta enter or to leave the country or tu travel."(I'.AI.C. Min.. 4th
Sess., p. 64 (italics added).)
' See III,pp. 214-zig.
See Id.. paros.66-68,
'Supra. pp. 467-468.
' III. pp. zzo-zzr. Applicants concede that the provisions relating to farm colonies
are not applicable in the Territory, but the policy of ordering idle "Natives" to
woik is admitted by Respondent to be implemented. as discussed above.
Reçpondeiit state; that ". .. no objection canbe raised against the habitually
idle and unemployed resident of a Sative reseme within the Police Zone being
compelled to take up employment in lieu of being sentenced as a criminal affender
to imprisonment under the provisions of the Vagrancy Proclamation." (Id.. p.220,
para. 91.) The views of the Internatinnal Labour Organisation regarding such
practices are discussed intrn, pp. 474-475.
' III,pp. 222-224. That the powers given must I>e exurïised in a bonafide manner
(p. 221. pua. g3; p. 224, para. 104) is not respansive to Applicants' camplaint that
the power is largely a discretianary one. Discretion in the exercisc of immensely
important powerç iconcerning the welfare of the indigenous inhabitants is also
the essenco ef Applicants' complvint concerning Section i of Proclamation So. 15
of 1928 (S.\\'.A.)--szcid., p. 274, para. 143, and the essenceof thecornplaintregard-
ing the power (ifnrrest under the vagrancy and pass laws. REPLY OF ETWIOPlA AND LIBERIA 473
.
menibership in a "group" and are desigiied to effectuate the po-
licy of apartheid, or sepai-ate development. A key feature of that
policy, as lias been shown: is the tolerance of presence of "Natives"
in the highly developed areas of the Territory only as migrant
and temporary labourers.
As Lord Hailey has stated:
"From timeto time Europeans who have settled in other territories
have shown an inclination ta look to South Africa for countenance
in their effort toaintain policiesbased on separatist ideas, while
to those who look forward to a grcater iiieasure of integration, the
regime of the Union h,~sbecome n natiiral target for attack. But
there is Iiere somethiiig more thari a contrast of philosophies.
Uoth sides realize that the essence of the matter lies in the fact
that the doctrine ofapartheid i~npliesthat the European commtinity
mrisl continue to holda position of control over the non-Europeaiz
commrririties. It is actuaiiv on this basic issue. and not because
-
so decisivelyin opposite camps."'
(C) STATI.:I\IE SPTLAW
By reason of the fact that in no dependent territory other than
South West Africa does there cxist a system of restrictions on
seciirity. rights of residence, and freedoin of movement, basedsolely
iipon membership in a "group," currcnt standards in this area
have not had to be evolve~ieither by the l'rustecship Council or the
Committee on Information from Non-Self-Governing Tcrritories.
The Committee on South West Africa, however, whose annual
reports have bcen approved by the Gcneral .4ssembly, lias dealt
explicitly with suc11restrictions on inhabitants of the Territory
and has consistentlr viewed such restrictions as a violation of the
Mandate agreement.
Periodic condemnation by the Committee of the limitations on
securitv. ri~hts of residence. and freedoni of movement in the
Territory dkneates the st:indard established bv the United Nations
~4th regard thereto.
Several illustrations make clear the Committee's views. In IQi4
the Cominittee on South IVest Africa reviewed the restrictive legk:
lation described above and concliided that "[tlhe Committee feels
that the measures enumerafed above speak for themselves. The
Committee observes that such measures are clearly inconsistent
with the principles and purposes of the Mandates System. In the
opinion of the Committee, any further comment on these measures
would be superfluous."
In 1958 the Committee stated that it had
applied to 'Native' labour in the Territory. It h.u recommended,e
' Haileyp. 169.citep. 467, supra(Italics added.)
G.A.O.R. gth Seçs., S.W.A. Comm.. SSi>.14at 25(A12666).474 SOUTH WEST AFRiCA
and continue:; to recommend, that every effort should be made
to promote axrareness in the Territory of the fundamental principle
that labour i!not a commodity, and that the labour laws of the
Territory should be altered to conform to the staiidards approved
by the International Labour Organisation for non-inetropolitan
Territoriesand to tlie priiiciplesof the Mandates System." '
With regard ta frecdoiii of movement, the Committee notetl that
it had "drawn the attention of the General Asseinbly to the severe
restrictions placi:d on the freedom of movement of 'Non-Euro-
peans' in the Territory, and particularly the 'Native' majority, as
well as to the extensive controls established to ensure the appli-
cation of the restrictions. Many of these restrictions and controls ...
largely related to the labour requirements of the 'European'
community. Considering them as a whole, the Committee finds it
impossible to regard them as compatible with the social, moral and
material welfare of the 'Native' inhabitants of the Territory and
thereforewith the 'sacred trust' undertaken by the Union of South
Africa when it accepted the responsibilities of the Mandate." '
The General Assembly approved the Report of the Committee on
South West Africa on 30 October 1958.
Current standa.rdsin tliisareahavesimilarlybeenestablishedby the
International Labour Orgaiiisation. Thus, the Ad HocConimittee on
Forced Labour of the International Labour Officefound in 1953that
"the pass legislation in the Union of South Africa coiistitutesa seri-
ous handicap to tlie freedoin of movement of the Native population
and that it has, ur inay have,important economicconsequenccs."
The Committee concluded also that the pass laws
". .. may be usedforthe controland regulation of the Aowof Native
labour from one part of tlie territory to the other. There can be
no doubt that such control may serve the purpose of directing a
supply of aniple, aiid consequently cheap, labour towards regions
where it is required for economicreasons." '
The Committee accordingly concluded that the pass system
may ". ..be consideredas anindirect means ofimplementing economic
plans and policies, whether emanating from the Government or
from private interests powerful enough to command Government
support. The State, through the operation of this legislation, is
in a positioii to exert pressure upon the Native population which
might create conditions of indirect com$ulsion similar in its effectsto
a system of forcefilabour for economicpzwfioses."
' G.A.ORes. 1245 1x111). 30 October 195G.A.O.R.2i3Sess.. Supp.No. 18at30
~A,7~z~,.
ECOSOC, O.K.,i6th Sess., Supp. No. r3, ,953, p. 75. para. 349. This and
other findings bytne Cornmittee with regard to pass lvws were made directly
applicable to SouthWest Afriea (Id.. p. 81. para 382)(SeeAnnex 6, Sec.(2).
paras. 382-86, at pp. 437-438 supra.)
' Id.. p75.para. 350.
' Id., para. 351. (Ltalicsadded.) RISPLY OF ETHIOPIA AND LIBERIA
473
In February of 1964, the Committee on Questions concerning
South Africa (a Coinmittee appointed by the Governing Body of
the international Labour Oflice) callecl for the abolition of pro-
visions regulating theentry of "Natives" into urban and proclaimed
areas and tlieir stay in siich areas, ;ind called for the abolition of
the pass system (in the form of the Natives (Abolition ofPasses and
Co-ordination of Documents) Act, 1952). The Conimittee also
called for the repeal of the vagrancy provisions contained in the
Natives (Urbaii Areas) Consolidation Act, 1945 .These recommen-
dations usere part of a Lirger program calling for an end of al1
legislation which involves any "formof direct or indirect compztlsion
to labozrr,inclzrding discrimi?uztionon grolinds of race in respect O!
trnvel and residence." 2
Although the recommended prograni is in terms applicable to
South Africa, the policies underlying the legislation to which the
Committee objected are !;imilarly implemented in the Territory. 3
As such, the recommcndations are relevant in al1significant respects
to the Territory.
(il )ECAL CONCLIJSIONS
Applicants reafirm the Legal Conclusions, set forth in the Me-
morials, ' that Respondent's policies and practices in respect of
security, equal rights anci opportunities in respect of home and
residence and protection of basic human rights, violate Respon-
dent's obligations toward the inhabitants of the Territory.
Such policies and practices constitute measures of implementa-
tion of tlie policy of apartheid, which in itself violates Article 2,
paragraph 2 of the Mandate, by reason of the fact that it allots
the status, rights, cliities,opportunities and burclens of the populn-
tion on the basis of membsrship in a "group," or colonr, rather tlian
on the basis of i~iclividualquality, capacity or potential.
The findings and concliisions of the Coinniittee on South West
Africa and of the I.L.O. Ad Hoc Conimittee on Forced Labour
confirm a generally accepted current international norm or stan-
dard, according to ahich Respondent's obligations should be mea-
sured and, as tlius measiired, should be adjudged by this Hononrable
Court to be incompatible with Respondent's obligations under the
Mandate.
- --
I.L.O. Annu: Proposad DeclnralioConccrniiig the Policy of "Apartheitheof
Republic ofSoulhAfvic~ (Feb.1964)p. 35. para. 74, cited p.qo6, footnote4,supra.
Id., pp. 34-35. para. 73. (Italics added.)
' See forexample. Proc. No. 29 of 1935 (S.W.A.). Sec6 (4). inThe Laws of
Soulh Wesl Africa 1935. Vol. XIV. p.152.as amended by Proc. No. 38 of 1949
(S.W.A.). Sec.2.in Thc Lawr ri/South Wcrl Africa 1949, Vol. XXVIII.p. 760;
Ord. No. 25 of 1954 (S.W.A.), Secs. 3 and TheiLawr O/South WertAfricn 1954.
Vol. XXXIII, pp. 736-41; Prac. No11of rgzz (S.\\'.A.). Sro.in The Lnws O/
South WertAfrica rgrg-rg22. pp. 751.52.
* 1. pp. 164.165. CHAPTER V
LEGAL BASIS AND LEGAL NATURE OF RESPONDENT'S
OBLIGATIOKS TOIVARD THE INHABITANTS OF THE
TERRITORY
In the foregoing sections of this Reply, Applicants have analysed:
(1) the nature of the Mandate, generally considered and as viewed
both by this Honourable Court andthe Permanent Mandates Com-
mission; ' (2) Respondent's policy with respect to the inhabitants
of the territory; ::and (3) Respondent's measures of implementation
of its aforesaid l~olicy.
Applicants now consider the legal basis and legal nature of
Respondent's obligations toward the inhabitants of the Territory,
as stated in Article z, paragraph n, of the Mandate.
Before turning to a demonstration of the legally cognizable
norms according to whicli Respondent's obligations under Article
2, paragraph 2, can and should he judicially determined, an oh-
servation is in order concerning Respondent's contention that
the Mandate as a whole has lapsed "and that Respondent is con-
sequently no longer subject to any legal obligations thereunder." '
As will be elaborated more fully below in Applicants' analysis
of Respondent's arguments with regard to the asscrted lapse of
Articles 6 and 7 of the Mandate, 5 Respondent's contention that the
Mandate as a wbole lias lapsed is based upon re-argument ofpoints
tivice previously laid before this Honourable Court; the first time
in the Proceedings leading to the Advisory Ocinion of rggo, and
the second time in the Proceedings in respect of the Preliminary
Objections hereiii. '
the Court, in its Judgment of
As has been pointed out above,
21 Decetaber 1062. reaffirmed the law of the case, as declared in
the Advisory 0>i&on of 1950, in the following tcrms, inter alia:
"The unariimous holding of the Court in 1950 on the survival
and continuing effect of Article 7 of the Mandate, continues to
reflect the C:ourt'sopinion to-day. . . . The validity of Article 7,
in the Court's view, was not affected by the dissolution of the
Chapter III, sut.ra. pp. 231-254.
Id.,sec.3.c supra, pp. 362.475.ra. pp. 260 to 327-
' II.D. 1.See penerallvII.DD. 165-256.
~nf;a. pp. 520-516., .A. --
Adwi~oryOpinion O/ IIJuly 1950:I.C.J. Rep. rg50, p128
' lud~menf. D. 314 REPLY OF ETHIOPIA AND LIBERIA
477
League, jus1as theMandnleas n wholeis still in /orcefor tlie reasons
stated above."'
Upon the premise that the obligations set forth in Article 2,
paragraph z, of tlie Mandate arc in forcc, together with the whole
of the Mandate, as the Court has hcld, there remain for coiisitler;l-
tion the questions whether such obligations are of a legal cliarac-
ter and, if so, whether they are justiciable, both of wvliichproposi-
tions Applicants affirm and Resyondeiit denies.
Respondent's arguments dealing with the legal principles iiivol-
ved in Applicants' Submissions regarding alleged breaches of the
provisions of Article 2, paragraph 2, of the Mandate are largely
subsumed uiider the heading "Statemcnt of the Law," set forth in
the Cozbnter-Memoriiil.Vol. IV, Chaptcr II.
As Applicants understand these argiiinents and their underlying
premises, both explicit and implicit, they niay fairly be sunimarizcd
for clarity of reply, by the six following propositions:
1. The Mandate assertedly creates no legal obligations jiisti-
ciable as between Applicaiits and Respondent, interms of the com-
promissory clausc contained in Article 7 of the Mandate;
2. Article 2, paragraph z, docs iiot, in any event, create or
enibody obligations of a legal natiire, but is assertedly a mcrely
political or inoral exhort;rtion; tliis argiinient Respondent sccks
to reinforce by reference to the gencr;ility of the terms of the Article;
3. Even if Article z be deemed to einbody a lcgal obligation, it
is asscrtedly one of a political character \\,hich should bc left for
determination by a political body ratlier than by a Court; and in
any event, Respondent argues coiiipliancc with the Article could
be judged by the Court orily upon thc basis of Respondcnt's good
or bad faith;
4. Even if the obligations iinder the Article werc justiciable,
tliere exist, Respondent insists, no legal iiorms or standards for
judging the actions which Applicants contend to be in \violation
thereof;
5. If any such norms or standards werc applicable, they woiild,
Advisary Opiniotrof rrJuly ,195 ;0I.C.J. Ilep1950, pp. 153. 334, 335. (Itnlics
uddcd.)
Respondeiit's contentions on both points are summarired as follows: (1)
"Reading i\rticle2 as a whole and in light of the provisions of Articl22 of the
Covenant .. .rroli+nils in raspoflsubjrci->nalier ivplaced on the full power of
administration and legislation granted by thearti..."(II, p. 387) (italics added.);
and (2) "if the Courtwere to deïide whether in fact a particular policy promoted
the 'well-king' of the inhabitants 'to the utmost', it would have to consider that
policy and weigh it against other policies which might be followed in an atteinpt
to achieve such a purposo.... The Court's function in so deciding would be one
whicli is, in its very nature, nota judicial o(Id.,p. 3g1.)
' 11,PP. 384-403.476 SOUTH WEST AFRLCA
Kespondent iinplies, be those govcrning as of the tinie the
hiandate was critriisted to Respondcnt; and
6. Even if curi:eiit standards existcd and wcredeemed applicable,
Kespondent's policy with respect to the inhabitants of tlic Tcrri-
tory is asserted to be in compliaiice with them.
*
* *
Consideration will he giveii to each of these six propositioiis in
turn, in order to demonstrate their insupportability.
I. Thc first proposition, viz.,, tliat the Mandate creates no legal
obligations bctween Applicants and Iiespontlent has already been
decided by this Honourable Coiirt in its Jzcdgment in respect ofthe
Preliminary Objections herein. ' licspon?ent's endeavour to re-
open and re-argiic'the Court's holding ~4th regard to the effective-
ness and scope of the cornproniissory clause in Article 7 of the
Mandate, already referred to, is niore Sullydiscussed below.
2. Iii Applicants' submissioii, Article 2, paragraph z, crcates
and embodics obligatioiis of a legal nature. notwithstandiiig the
generality of thi: terrns in which it is cxpressed.
In the Jz~dgmeltt of 21 December 1962, the Court rcjccted
Kespondcnt's contention, in support of its Third l'reliniinary
Objection, that Applicants "have no lcgal right or interest in
the observance by the Mandatory of its dutics to the inhabitants." 3
If, as the Court held, Applicants liavc sucli ;legal riglit or intcrcst,
it follows that liespoiiclent's obligations are of a legal iiature or,
at the ver- le&, inasniuch as the Court held that the Mandate
created legal ohlig;ltions betweeii the parties in respect of thc
application and intcrpretation of ils clauses, the Court should con-
strue such clauses as having a legally hindiiig character.
Respondent argues that Article z, paragraph z, becaiise of the
generality of its formulation, is rnerely "an expression of an idealis-
tic objective," and that it is of a "purely political character."
Respondent's interpretation of the scope of its obligations uiider
this Article reflects the same misconception, noted in other con-
texts in this Reply, s regarding the fiduciary nature of the Mandate
institution and the human ends sought to be served thereby.
The legally I:,inding, rather than mercly exhortatory character
of Article z, pai'agraph 2, is confirmed, inter alia, by its origins.
Lord hlilner'i. proposed draft "C" Mandate of 28 Jiine 1919
contairied the following formulation of Article z, paragraph z:
' Judgmenl.pp. 335-4'.
Infra,pp.520.546
' Ji'dgmenf. p. 343.
' II, p387.
Supra, pp. 231-254 aninfra, pp. 520-546 REPLY OF ETHIOPIA AND LIBERIA 479
"The mandatory Powcr .. . accepts the niandate to govern the
mandated territory . . . as guarantor of the well-being and the
development of its inhabitants."'
A iiew and strengtheneil draft was adopted by the l\liliier Com-
mission on 10 July 1919:
"The rnandatory Yoweragreesto increase,by al1means in its pozwer,
the material and moral well-being and the social progress of tlic
natives [of the Mandated Terntory]."z
The final draft from the Milner Comniission, approved on 5
August 1919, rephrased the clause as follows:
"The mandatory Power agreesto develop,as much as is in zts power,
the moral and material nell-being as well as the social progress
of the inliabitants subj~xt to this Mandate.")
The latter draft was sutimitted to the legalaclvisors ofthc Draft-
ing Conimittee of the Peace Confcrence, whose task was iiot to
change the substance of the wording, but to put the words in the
form of a legal obligation. The rcsult was a draft subinitted by the
Milner Commission to the Principal Allied and Associated Powers
on 24 December 1919:
"She Mandatory Power undertakes to promote to the utmost the
material and mor:~lwcll-beingand the social progressof the inliabi-
tants of the territory subject to tliis Mandate."'
The final draft of the &Iaiidate Agreement approved by the Coiiii-
cil of the League of Natioils on 17 December 1920 substituted the
word "shall" for the words "uridertake to."
The several drafts thus show a progression in the scope of the
Mandatory's obligation: from 1,ord Milner's original "accepts the
mandate . .. as guarantor of the well-being and the development
of its inhabitants" to the final formulation "shall promote to the
utmost the material and moral well-being and the social progress
of the inhabitants." It would seem evident that the founders of
the Mandate System were aware that basic legal obligations were
being imposed upon the Mandatories and were careful to produce
an acceptable wording.
President Wilson, in a statement to the Council of Four on 17
May 1919 said that
"The whole theory of mandates is not the tlieory of permanent
subordination. It is the theory of development,of pzcttingupo+tthe
mandatorytheduty of assistingin thedeveloPmentof thecountryunder
mandate, in orderthat it may be broughtta a capacity for self-govern-
ment and self-dependencewhich for the time beingit has not reached.
p. 330. (1934). (Italics added.)o,Recciedes Actesde lConférence,PartiVI A.
Id.,p.379 (Italicç added.)
Id.,p.407. (Italicç added.)
' [iprq] 1X Foreign Relations of the UniteSlales(Paris I'eaceConference)
655-j6 (1946). (Italiçs added.)480 SOUTH WEST AFRICA
and that tlierefore the countiies under mandate are candidates, 50
to say, for full membership in the family of iiations." '
That the Mandates, including the Mandate for South West
Africa, were conceived and esecuted as legnlly binding instruineilts
-as a whole and in each of their parts-is confirmed by the views
of the Permaiient Mandates Cominission, scholarly authority
and opinions of juclicial tribunals.
Thus, Quiricy Wright has stated:
"Tlie mandate texts or charters have beeii regarded by the Leaguc
and tlie mandatories as tlie fundamental law for the areas. Legis-
lation contrary to their terms has been criticized by the League
Council and usually considered void by the niandatory's own courts.
Tliey are, it is true, documents of iiiternational law, resting on
oi International Justice, but tliey are also the fundamental consti-
tution from vrhichinterna1 governing authority in the areas derives.
documents . . . are considered subordinate to the mandate texts, . These
by the Leagiie organs and also in most cases by the mandatories'
courts. They usually recite that document as tlie basis of authority,
are interpretcd in accord with it, and are void if in violation of it3"
Courts in the Alandûtcd and Mandatory areas have frequently
held that legislation within the 3Iandated Territories must be
consistent with the obligations of the Mandate cliarters. The theme
runs throughout these cases that the Mandate charter is the basic
ordinnnce for the Mandated Territory, thus positing their legally
binding naturc.
Thus, in the case of District Governor, Jer~lsalenz-JaffaDistrict
v. Miirra [1926]A. C. 321 (P.C.), [1925-19261Ann. Dig. 46 (No.~z),
the British Privv Council held, inter alia, that the Sumenie Court
in Palestine "wis fuliy justifie2 in entertaiiiing an argument as to
the validity of the Ordiilance [of the Government of Palestine].
The Ordinance was made under the authority of the Order in Couii-
cil of May 4, 1923, and if so and so far as it infringed the condi-
tions of that order in CounciI the local Court was entitled and in-
deed bound to treat it as void. Among those conditions usas the
stipulation that no Ordinance should be promulgated which was
repugnant to or inconsistent with the provisions of the Mandate,
and in view of this stipulation it was the right aiid duty of the
Court to esainine the terms of the Mandate andto consider whether
the Ordinance !vas in any way repugnant to those terms." '
IIIAttorizey-Ge,ternlv. Altshz~ler(Palestine Supreme Court, hlay
I~zN), 5a municipal by-lau. passed by the Local Council of Tel-
-
V id.at700. (Iiialiadded.)
Supra, pp.246-ajq.
' [1gz6] A.C.at327.e LeagueO/Nelions jiG-17 ('930).
[~gzo-~~~~L.E. I'alestine 283; [rgz7-1r)zS] Ann.Djj.(No. 33) REPLY OF ETHIOPIA AND LIBERIA 481
Aviv was held to be invalid ascontrary tothe provisions of the Man-
date since it tended to discriminate on the basis of religion.
In Winter v. Minister O/ Delence (South Africa, Supreme Court
(Appcllate Division), 13 Ilecember 1939)~ ' Chief Justice de Wet
stated that the power of administration and legislation of the Man-
datory "is given subject i:~ the ternis of the Mandate" and the
learned Justice went on to hold that the Proclamation of Emer-
geiicy Kegulations in question aere iiot "in conflict with the duty
to promote the well-being of the inhabitants of the territory."
Thus, the Court had no difficulty in deciding whether or not
legislation was consistent with the broadly for~nulated obligations -
ocArticle z, paragraph 2, of the ~andatë.
The Permanent Court of International .,usticc. in the Mavrom-
matis Palestine Concessionscases, * was concerned witli an alleged
infringement of Article II of the Palestine Mandate by the Man-
datory power bccause of the granting by the latter of various
concessions. Quincy \.lrright summed up the significance of these
cases by stating that the Permanent Court "evidently regards a
mandate as a document limiting the cornpetence of thc manda-
tory and susceptible of jndicial interpretation in ail its $arts. .. ." 5
Tlie fact that Article z, paragraph 2, is stated in general terms
does not in any degree modify, or detract from, its legally binding
character. On the contrary, the generality in which the obligation
is couched is consistent with, and indicative of, the institutional
and constitutional nature of the Mandates Systcm. Basic ordinances,
constitutions and charters are characteristically drawn in broad
terins, as befits their fundamental and dynamic objectives. Far
from depriving theni of a legal character, their generally stated
obligations endow them with an enduring vitality as standards to
be appliecl by orgaiis of government and, in many systems, to
be interpreted by the judiciary.
Thc Charter of the United Nations is, perhaps, the most note-
worthy example of interriational undertakings, lypically formn-
lated in general terms, the interpretation and application of which
may be. andhave been repeated subjects of judicial determination.
~ p
[rg40] SO. Afr.Rel>. App. Di\.. ~gq (1939): [rg38-1gqo] Ann. Dig. 44-46 (20).
Vd.. at 108: Iro?8-1aaolAnn..Die. atta&6.
opinion on nny legal question" obviously wouldbe deprived of its intent and impor-
tance if the phrase "legal question'' were interpreteto refer anly to specifically
formulated provisions Cf.,e.g, ?the case concerningCaiiditiorzO/Admissio>i ofa
Sfale10 hlernbership in the United NationsI.C.J.Rep. ir)q7-rgqS, p. 57 (advisory
opinion): the case cancerningColnpetence O/the Generol Assembly forfhrAdmission
of a State to the United NationsI:.C.J. Rep. 1950. p. 4 (advisory opinion); thecase
concerning Cevtain Ezfiensss of the United NalioI.CJ. Rep., 1962, p151 (advisory
opinion): and. most pertiiiïntlyto the Cases atbar, the case of the International
Status of South-West .4/riitself, IJ..Rep., 1950, p. izS (advisary opinion).qS2 SOUTH WEST AFRICA
Numerous other iuustrations are set forth in tne Separate Opin-
ion of Judge Jessup, in the Court'sJudgmentof 21 December1962. '
The context in which these illustrations are set forth does, it is
true, relate to the question whether Applicants' interest in the
interpretation aiid application of the Mandate in respect of the
inhabitants of the Territory is an interest of a legal nature. What is
significant for the purposes of the discussion here, however, is
the fact that many of the illustrations embody generally formil-
lated obligations, or sets of obligations, which provide for, or have
actually been the subject, of judicial interpretation.
Thus, Judge Jessup refers, iriterdia, to:
(a) The hlinoi-ities Treaties at the end of \Vorld War 1; illus-
trated hy the provision in Article II of the Treaty of St. Germain-
en-Laye, IO September 1919; and the same provision in Article
69 of the Peace Treaty with Austria, and Article 60 of the Treaty
of Trianon with Hungary.
(b) The Genocide Convention, which came into force on 12 Janu-
ary 1951, Article IX of which provides for subinission to the Court
of disputes betvveen the Parties relating to the "interpretation,
application or fulfilment" of the Convention, "including rhose
relating to the :responsibility of a state for genocide.. .."
(c) The Constitution of the International Labour Organisation
and conventions concluded thereunder. The gcncrality of the
obligations forrnulated therein, and made subject to judicial
interpretation, is exemplified by Convention No. 105 (Abolition
of Forced Labour, 1957). as to which proceedings of a judicial
nature have bi:en conducted, referable in each instance to the
International Ciiurt of Tu"ticeunder Article zqof the Constitution
of the I.L.O.
It is clear from the foregoing examples, to which many others
could be added. that interests and obligations of an economic.
political or hunianitarian nature are normally formulated in gen-
eral terms in instruments of an institutional or constitutional
nature. and that this fact does not de~rive them of a iusticiable
character.
The European Convention for the Protection of Hunian Kights
Judgmcnl, pp. 425-33.
2 Quoted id..p. 425; 1.Hudson, InlcninlianlLegislalia 312, 318-19 (1931).
J Quoted I.C.J. Rep., 19,. 426:78 UnitcdNotions T~eatyScrics278.282(1951).
The crimeof "genocide," as defined in Article Il of the Convention. comprises such
broadly formulatedacts, inler alas "cauçing serious bodily or mental harm" to
members of a group, "with intent to destroy, in whole or in part a national.ethnical,
raciaor religious gzoup. assuch."
4 Cited and quot*d iJudgmnl, pp. 426-28.
320 Uniled h'alio,~ T~~oly Sev292(1959).
Judgmsnt.pp. 427-28. REPLY CIFETHIOPIA AND LIBERIA 483
and Fundamental Freedoms ' embodying a comprehenaive clause
on non-discriiiiination, guarantees civil and political rights taken
from the Universal Declaration of Human Rights of the United
Nations. These include such broadly formulated rights as the right
to life, the right to liberty and security of persons, the right to
respect for family life, thi: right to freedom of thought, conscience
aiid religion, and many others. Procedures provided for remedy
in the event of violation include submission to the European Com-
mission of Human Rights. Following a decision by the Commission,
the issue may be referred to the European Court of Human Riglits
by the Commission or by a State Party concerned. 2
The Mandate for South West Africa, as was true of al1 Man-
dates, falls precisely witliin this category, as has been demonstra-
ted in this Reply.
In addition to the instruments of an international character
referred to above, Judgc Jessup similarly points out that, e.g., in
respect of the United States Constitution:
"Certainly courts can determine and have determined whether
particular laws or actions comply with general broad criteria such
as 'due process,' 'equal protection' and 'religious freedom' .. ..
There is no reason wli!~this Court should he unahle to determine
whether various laws :and regulations promote the 'material and
moral well-beingand the social progress of the inhabitants' of the
mandated territory."l
3. Closely related is Respondent's contention that the generality
of the obligations stated in Article 2, paragraph 2, of the Mandate
stamps them with a "political" rather than legal character, whicli
should be left for determination by a "political body." One aspect
of this proposition, as Respondent contends. is that, in the light
of the assertedly "l>olitical" nature of the Article, Respondent's
compliance therewith in any event could be judged by the Court
only on the basis of Respondent's "good or bad faith." '
The foregoing proposition, as formulated by Respondent, runs
as follows:
a. The decision whether a particular policy promotes the well-
being and progress of the inhabitants "can only be based on social,
ethnological, econoniic and political considerations." 5 It is "for-
'zr3 Unilcd NalionsTrenly Strie222 (1955). signed at Rome4 November 1950;
entered into forc3 September 1953. upon deposit of the tenth instrument of ratifi-
cation.
The Court has had before it two cases: Da BecV.rBelgiurn, European Court of
Human Rights. çer.A. No. 4 blarch 1962). involving an vlleged violation of
ArticleIO of the Convention gu;iranteeing the right to freedom of expression; the
Julyr1961).sinvolving alleged violatiofrthe right, guarantecd by Article 5 of the
Convention. of an accused persoii to be brought to trial "wilhin a reaslime."e
Judgmcnl, pp. 428-2g; relevant decisions ofthe United States Supreme Court
cited p. 428.
' See,e.g.II, p.3go.
' Id., p391.484 SOUTH WEST APRICA
eign to the essential nature and purpose of the Court to entertain
matters of a purely political character, and it is unlikely that the
authors of the Mandate intended that the Court should perform
such a function in the Mandate System.. . ." '
b. It was "in the nature of things impossible . . for the authors
of the Mandate to reduce the objective of promoting the well-
being and development of the iiihabitants of the Territory to a
sci-ies of specific injunctions or proliibitions, breaches of whicli
would be capable of objective determination. ..." 2 The formu-
lation of Article 2, paragraph z, in its context consequently indi-
cates "the objec1:iveto be pursued by the Mandatory, or the sflirik
with which he should be imbued, in cxercising his power of adini-
nistration and legislation." '
c. "IYhatever the Court niay think of the merits of a particu-
lar legislative or administrative act, practice, or policy, if it was
dcvised and performed or practised in the exercise of the hlanda-
tory's discretion with the botta /ide intention of beneiïting the in-
habitants of the Territory, it could iiot constitute a violation of
Article z of the Mandate." '
Applicants submit that the foregoiiig propositions are based
upon a false syllogism, which mày be stated as follows:
I. An obligation phrased in broad terms, such as promotioii
of well-being and social progress, is a "political" obligation;
2. Only "poli.tical" bodies should deal with such obligations;
Therefore: 3. Siich obligations are not justiciable.
The syllogistn is wrong in each of its parts and as a whole; the
proposition based upon it is untenable.
It is untenable, in Applicants' submission, in that it miscon-
ceives (a) the role of the Court in respect oftheMandates Systcm,
in particular; and (b) the true nature of the judicial process in
general.
(a) The role of the Court in affording judicial protection in the
Mandates Systern and its applicability to Article 2 of the Mandate
has been established as the law of the case. The Court, in its Jzidg-
meqtt of 21 Deceniber 1962, held:
"N'hile Article 6 of the Mandate under consideration prorides
for administi:ative supervision by the League, lirticle 7 in effect
provides, with the express agreement of the Mandatory, for judicial
protection by the Permanent Court by vesting the right of invoking
the compulsi>ryjurisdiction against the Mandatory for the same
of theematerial interests of the Members of their iiationals is of
II, p184.
Id.. p. 386.
' Ibid. (Italiailded.)
' Id.,p. 392. REPLY OF ETHIOPIA AND LIBERIA 485
course includedwithin its compass, but the well-beingand develop-
ment of the inhabitants of the Mandated territory are not less
important." '
The Court's attention is respectfully drawn to the discussion
of the role of the Court in the Mandates system, in the contest
of Applicants' reply to Respondent's re-argument in respect of
Article 7 of the Mandate.
(b) Applicrints turn nolv to an analysis of Respondent's rniscon-
ception of the nature of the judicial process, implicit in its propo-
sition that the Court shoilld leave to a "political body" determi-
nation of the obligation !;tated in Article z, paragraph z, of the
Mandate, even if such obligation is deemed to have a legal charac-
ter.
For the purpose of this analysis, Applicants will defer for sub-
sequent consideration' Respondent's contention that "there are
no norms of a legal (asdistinct from a political or technical) nature
for deciding on merit whether a Mandatory has or has not pro-
moted well-being and progress to the utmost." 5
As Applicants have dernoiistrated, courts have found no dif-
ficulty in dealing with political, economic or humanitarian issues,
even when formulated in general terms.
\Vhen passing upon issues of this character, courts-both inter-
national and national-customarily apply knowledge estracted
from experience, from social, physical and political sciences, and
froin al1 other sources frcim which man derives guidance in the
conduct of his life and relationships with others.
In municipal systems, courts do not hesitate to pass upon such
questions as the reosonableness of rates chargecl by enterprises
affected with a public intarest, fair or unfair inetliods of coinpeti-
tion, disputes concerning patents or copyrights, aiid countless
other coriflicts of legal claims in the conduct of Society.
Similarly, international tribunals have often derived their judg-
ments from sources, and upon the basis of considerations, which
Respondent would characterize as "social, ethnological, economic
and political."
Thus, in the case of the Cz~stoms RégimeBetween Germany and
' Judgmcnf. p. zg.The Court held accardingly that the dispute in the Cases at
bar "is a disputas envisaged in Article 7of the hlandate." (Ibid.)
Inl~a.. pp. 520-546.
' In Respondent's formulation, as pointedosuprn.p. 256. theCourtcanonlypass
upon Respondent's "bonn fidintention." whhateverthe Court "mzy think of the
merits" of Respondent'sacts.practicesorpolicies
' See discussioof Respondent's Proposition inira,pp. .+grjor.
are readily ascertainable anare.determinative of the issue joined with respectt.
to Articlez,paragraph 2,of the Mandate.
Siipa. pp. 480-48,.
' II, p. 39,.486 SOUTH WEST AFRICA
Azistria, ' the question before the Permanent Court was whether
a proposed cnstoms union was consistent with Austria's treaty
obligation to abstain from engagements which would compromise
hcr "independence". The Court gave an Opinion on a problem
which clearly involved an assessrnent of future political contin-
gencies.
In Lawless v. Ireland, the European Court of Human Rights
determined that an Irish Proclamation of 1957 was justified by
a "public emergency threatening the life of the nation," and that
the Irish Republican Army %vas "seriously jeopardizing the relations
of the Republic of Ireland with its neighbour."
The International Court has similarly applied concepts derived
from the natural sciences in cases such as Diversion of Water /rom
the Meuse ' and the CorfarCka7tnelCase.
The case of Jerusalem-Jafa District Governor v. Murra, cited
by Respondent as showing that "the functions of courts of law
do not normally extend to the realm of politics," held merely
that whether fair provision had been made for compensation for
expropriation, depended "upon principles of sound legislation." The
Judicial Commiltee of the Privy Council pointed out that the
Ordinance in question was subject to an Order in Council stipu-
lating that no Ordinance might he promulgated which uras incom-
patible with the Mandate. The Court stated explicitly that "it
\vas 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." '
-~-nondent a1:jocites ~-. Rosenne. "with reeard to the functions
of intérnational courts." In the paSsage qub'ied by Dr. Rosenne,
the learned anthor emphasizes, quite properly, that "the Court is
a court of justice and not of ethics or morals or of political ex-
~ediencv. Its function is to 'declare the law.' " ' With this. -P- A
plicant; fully concur.
In the Corlu Cha>zneZ Cnse, '0 the Court held that the obligation
incun~bent unon the Albanian Government to notifv the existence
of a minefiefcliii Albanian territorial waters was based "on cer-
tain gcneral and well-recognized principles, namely: elementary
considerations of humanity." l1In a Separate Opinion, Judge
'P.C.I.J.. Ser. A/B. No41 (1931).
2European Court ofHuman Rights, ser. A. No. 3 (r July 1961).
3 Id., p. 56.
' P.C.I.J.. Ser. A;So. 70 (1937).
'I.C.J. Rep. 1949. pp. 4.27-22 (rnerits); cf. FisheviCase.1 Rep.
pp. 127-26.
II, p.184.
[rgz6] A.C. 3Zr. 327 (P.C.).
9IRosenne. Thc Iiitarnntional Court of Jus62c(1957).
'OI.C.J. Rep. 194!,, p. q.
'1Id., p22. REPLY OF ETHIOPIA AND LIBERIA
487
Alvarez stated that the "characteristics of an international delin-
quency are that it is an act contrary to the sentiinents of humaii-
ity." '
It is, of course, in the highest traditions of courts in al1civilizcd
systems to draw upon humane, moral and political standards in
deriving the sources of law.
In the United States, Justice Felix Frankfurter, concurring in
Loz~isianaex rel. Francis v.Resweber, argned that
"a State may be found to deny a person due process hy treating
even one guilty of crime in a manner that violates standardsof
decencymore or less universally accepted . ..." 2
Justice Frankfurter stated further that "we cannot escape ack-
nowledging that it [the issue of 'cruel and unusual punishment']
involves the application of standards of fairness and jzrstice very
broadly conceived. They are not the n$filication of merely personal
standards but the im$ersonal standards of society which alone judges,
as the organs of Law, are empowered to enforce." '
In Brown v. Board of Edilcation, 347 U.S. 483 (1954 th. Supreme
Court of the United States found that separation of Negro school
children "from others of :similar age and qualifications solely be-
cause of their race generates a feeling of inferiority as to their
status in the community that may affect their hearts and minds
in a way unlikely ever to be undone," and that "whatever may
have been the exterit of psychological knowledge at the time of
Plessy v. Fergztson [1896 h,is finding is ampiy supported by modern
authority." '
Judicial process in civil I:iwsystems similarly draws upon humane,
moral and political standards as sources of law, and does so par-
ticularly where legal rights or duties are not explicitly defined.
Examples, derived from French jurisprudence, are the doctrines
of abus de droit, bonnes nloezlrsand ordre $ublic.
,,
z. - ... la doctrine moderne a énoncé la règlequ'une personne
du droit. La théorie dde l'abus du droit est devenue classique.bus
L'expressiona cours devant les tribunaux. II est fréquent devoir
l'un des plaideurs prétendre que l'autre a abusé deson droit. Des
travaux importants ont étéconsacrésdans la doctrine zi cette
théorie...."
"II. - La difficultévient ici de ce que la loi ne déterminepas
toujours d'une façon préciseles limites d'un droit. Lorsque le
que Ir droit ne compreiid pas certainesdroit. ildfcid~qui paraissent
pourtant inclusesdans xi définitionou sa nature. 1.3iurisprndence
1 Id., p45.
* 329U.S. 459, 469 (1947(Italics added.)
3 Id., p470.(Italics added.)
' Id., p494.488 SOUTH \\'ESTAFRICA
a étéaiiisi amenée à préciser lecontenu des droits, ce qui constitue
ilne tàclie dificile et suscite pour chaque droit une sériede contro-
verses." '
Similarly, witli regard to ordre Ptbblic:
"1. - La notion de l'ordre public est difficilà définir:elle vise
à reconnaître une force plus grande à une source ou à une règle
de droit. L'ordre public ne saurait, par exemple, êtreidentifiéavec
la loi impérative dont ni l'objet, ni la méthode, ni les caractères,
ni la sanction ne sont nécessairementd'ordre public. Il a pour objet
de faire trionipher les intérétsgénéraux de la sociétésur lesintéréts
particuliers, alors que la loi impérative peut viser à protéger un
intérêtprivé.D'autre part, tandis que la loi détermine l'impératif
selon une méthode généraleet abstraite, l'ordre public étant défini
concrètement par la contradiction que lui porte la source de droit
le menaçant, seul le juge peut procéder à cette détermination qui
suppose une comparaison entre deux sources de droit contraires.
Eii conséquence,l'ordre publica des caractères de relativité, puisque
sa détermination est actuelle à In coiitcidiction qui lui est faite,
de variabilité, car la sociétén'a point toujours les mêmesobjectifs
fondamentaux, et de gradation, pour que la sanction s'adapte niix
buts qu'il sauvegarde. .. ."
"IO. - L'ordre public a pour source principale la loi, car il est,
seloii les tennes mémesde l'article 6 du code civil, une manière
d'être dela loi. (Conf. Cass. belge, 9 déc. 1948, Pasicrisie 1948.
1. 699,)."2
Related to the foregoingdoctrine is that of bonnesmoeurs,author-
itatively described as follows:
"1.- Le droit entend consacrer un certain minimum de moralité
sociale et refuse de protéger les actes qui en sont dépourvus. La
notion de bonnes meurs, à c8téde celle d'ordre public, vient appor-
ter des limites toutes naturelles au grancl principe de la liberti:
contractuelle; par une prohibition générale édictéeen tête du code
civil, il est détendude porter atteinteà l'ordre public et aux bonnes
meurs (art. 6). Ces deux notions, qui ont les mêmeseffets,,sont
liées. maisdistinctes. Tous actes qui leur sont contraires sont illicites
par le lait niéme, sans avoir besoin d'être interdits par une dis:
position légale. Leur r61e est précisémentde compléter ce qui
échappe à la loi, pour donner des critères assez compréhensifs de
ce qui doit êtrejugéillicite.
2.- Le caractere moral de ce critère empêchede le définiren
termes juridiques. La jurisprudence se contente de le déterminer
relativement à chaque sorte d'application. La doctrine se réfère
assez vaguement aux règlesde la morale courante ou communément
admises. La conception des bonnes meurs est essentiellement
relative à un pays et à une époque, par conséquent variable avec
l'évolutiondis mŒurs et des idées.. . ."
"6. - Cette notion constitue un recours aux règles non écrites
' Dalloz. Encyclopédie de Droit Civil (Jurisprudcncc Gé*érolcDollo*), Vol. 1,
P. 2Id..Vol.III. p. 668. REPLY OF ETHIOPIA AXD LIBERIA
489
de la morale sociale pour suppléer à l'insuffisancedes regles juri-
diques. . .."'
It is readily apparent, therefore, that it is in the nature of the
judicial process in al1 systems to adjudicate upon issues in which
laws do not determine "~!'nnefaçon préciseles limites d'un droit,"
and that, in such cases, courts will draw from "règlesde la morale
couranteou commz~némeia zt mises."
The judicial objective, as in the cases.at bar, is the protection
of "les intérêtg séizéraild xe ln société si~rles intérêp tsarticzdiers."
It was precisely the general interest of the organized international
community in the promot:ion of the weiilbeing and social progress
of the inhabitants of hlandated Territories which the authors of
Article 22 of the Covenaiit of the League of Nations intended to
protect. Denialof alegal hisis upon which thiscourt may andshould
assure the achievement of this objective would, it is respectfully
submitted, reduce the "sacred trust" to an idealistic abstraction.
In respect of obligation:: of humanitarian objective, of wliich the
Mandates System is a classic example, it is instructive to consider
the human rights provisic~nsof the Charter of the United Nations
which, as an international treaty, clearly embodies obligations of
a legal cliaracter.
A penetrating aiialysis of the legal import of sucli provisions,
in particular Article 56, 3 has been made by Oscar Schachter,
Director, United Nations Legal Department. '
The analysis considers, irzleralia, whether the obligation is by
its "nature" capable of execution by the Courts-the same issue
raised by Respondent in respect of the obligations set forth in
Article n, paragraph 2, of the Mandate-in the following terms:
"As tliere is no esplicit provision in the Charter itself, or any
evdence [sic]of legislative intent, nhich would deprive Article 56
of self-operative effect, we are left with the question of whether the
obligation is by its 'nature' capable of execution by the courts. For
it has been assertedtliat. the pledgeto take action to promote respect
for and observation of humau rights is too vague and indefinite to
enable a court to give it practical effect ina coiicrete situation; and,
hence, that legislative measures are required in order that the
obligation might have the degree of precision and clarity necessary
for judicial action.
Id.,Vol.1, p. qgr.
Cf.Applicants' analysis,infro, {>p.520.546, of Reçpondcnt$interpretofthe
compromisçory clause in Article 7 of the Mandate. which would likcwise and for
the same reason,strip Artic22 of the Covenant ofits legal significance.
"All hfembers pledge thcmîelveç to take joint and separate action in coopera-
tion with the Organizatian for the achievement of the purpases set forth in Article
55." (Article 55 provides. infalin.forpromotion of "universal respect for. and
observance of,human rights and fundamental freedoms for al1 withaut distinction
as4t"The Charter and the Constitution: The Human Rights Provisions in American
Law." 4 Vanderbil!Law Rcview 643 (Aprilrggr).
Id.. at 655.490 SOUTH WEST AFRICA
"This point requires careful consideration. It is, of course, true
that the supremacy clause of the Constitution does not compel a
court to enforce a treaty provision which is so incomplete or indefi-
nite that it cannot be aDDliedin a ~articular case. ' It must also be
granted that the meanin'glofhumankghts andfundamental freedoms
is in many respects a subject of controversy and that even where a
particulai rigtit has been-generally agreedupon, it is by no means
clear just how far a court may go to promote its observance.
"These are certainly important considerations in determining
the extent to which the Charter obligation mav be deemed self-
operative; but. it does not foiiow from ?hem thatethere are no cases
at al1in which the courts may give effect to this obligation. There is,
in the first place, no ground for assuming that because 'human
rights and fundamental freedoms' are broad and elastic concepts,
American courts are for that reason unable to apply them in the
absence of leaislative definition. These conceots. as we have shown
above, do hG,e specific content based on thé charter itself and on
precedent and practice; the important and recoanized rights and
freedoms are no vaguer than an? number of welï-known ëonstitu-
tional and statutory expressions which have been left to the courts
to apply. Probably even more pertinent is the fact that the con-
cepts of human rights and fundamental freedoms are closely akin
to the basic rights and freedoms which American courts have
traditionally been required to define, in varying circumstances, for
the purpose 01determining the scope of constitutional protection." 3
Kespondent's contention that the obligations of Article z,
paragraph 2, evi:n if of a legal nature, are not appropriate for
judicial decision, but should be remitted to "political" bodies,
involves a dual f;illacy.
In the first place, it erroneously assumes that courts and judges,
if not unused to dealing with legal issues, the resolution of which
..
' "Thus. in Foster v. Neilson, 2 Pet. 253. 7 L. Ed. 415 (1829), thecourtconsidered
that the provision regarding ratification and conkmation of grants of land required
a legislative act for full effect. But it is interesting that this construction was later
ovemiled in United :States v. Percheman. 7 Pet. 51. 8 L. Ed. 604(1833). in which
it was held that the treaty itself ratified and confirmed the grants by its own force.
See also Cameron Septic Co. v. Knoxville.227 U.S. 39, 33 Sup. Ct. 209, 54 L. Ed. 407
(1913). which held tlie provisions ofa treaty on patent rigbts to lack the specific
terms necessary for judicial enforcement in a case involving individual rights."
[Footnote in original.]
"It cannot he said that a greater degree of precisionisrequirin a treaty provi-
sion than in an act of Congrcss.'' [Footnote in original.]
j "The Supreme C,>urthas often been required todecide whichfundamentalrights
are entitled to constil:utional protection. For examplçeeMissouri ex rd. Gaines v.
Canada, 305 U.S. 337.59 Sup. Ct. ~32.83 L. Ed. 208 (1938); Meyer v. Nebraska 262
U.S. 390 399, 43 Sup. Ct. 625,67 L. Ed. 1042 (1923); Buchanan v. Warley. 245
U.S. 60, 38 Sup. Ct. r6.62 L. Ed. 149 (1917); Tmax v. Raich, 239 U.S. 33, 36 Sup.
Ct. 7.60L.Ed. 131 (1915); VickWov.Hopkins, 1r8U.S. 356.6s"~. Ct. ro64. 30L.
Ed. 220 (1885) In acldition. the specific rights and freedoms enumerated in the first
ten amendments and in the Fourteenth Amendment, such asfreedom of speech. of
press. of religiour wonhip. freedom from self-incrimination. equal protection of
law. etc.. have been nlainly thesubject of judicialrathan legislative application.''
[Fwtnote in original.] REPLY OF ETHIOPIA AND LIBERIA 49'
depends largely on economic, political or sociologicalconsiderations,
at least tend to shy away from the intricacies of such matters.
Thns, Respondent asserts that:
"It is true that a particular provision ofa statute in municipal
law, or of a treaty in international law, could have the effect of
requiringa Court to venture on to one orother of these terrains."'
To the contrary, as has been demonstrated, a court, no less
than a political body, ventures on to such terrains whenever the
judicial duty is engaged to adjudicate upon legal rights and interests
of litigants with standing to invoke the competence of the Court.
The second fallacy is that, for reasons unexplained, Respondent
appears to assume that it is not as difficult for a political body to
deal with a generally stated obligation, or with one based upon
economic, social or political considerations, as it is for a court.
Human experience, both in respect of national and international
parliamentary bodies, belies such an assumption.
Finally, Respondent's contention that the Court should leave to
a political body determination of the "social, ethnological, economic
and political considcratio~is" 'underlying Article z, paragraph 2,
of the Mandate would have more weight if Respondent's violation
of the obligations stated therein were less patent and pervasive.
On the basis of considerations adduced in the ~Memorials, and
inthisReply, supra, l>ages:;60-475,Respondent'snegationof itsduty
to promote to the utmost the material and moral well-heing andthe
socialprogress oftheinhabitants of the Temtory by the systematic
application of the policy of apartheid, or separate development,
is so clear as to obviate any need for technical specialization or
political expertise, which otherwise might be called for in a close
case or marginal situation.
4. Respondent's fourth proposition (in the series which Appli-
cants have sought to formulate, in aid of a clear Reply to Respon-
dent's legal analysis of Article z,paragraph z) is that even if the
obligations stated in that Article were deemed to be of a legal
nature, and to be justiciable-both of which preniises Respondent
denies-no legal norms exist for judging the actions which Appli-
cants contend are in violation of the said Article.
It is apparent that the propositions thus formulated are inter-
related. Respondent's contention concerning the assertedly "polit-
ical" nature of the obligations of Article z, paragraph 2, is based
upon the erroneous premise that
"there are no normsof a legal(asdistinct froma politicalor techni-
cal) nature for decidingon ment whether a Mandatory has or has
not promoted well-hein!:and progressto the utmost."'
1II, p. 391.
Chapter V.
'II, P394.492 SOUTH WEST AFRICA
Accordingly, in demonstrating that such legal norms do exist
and are readily ascertainable, Applicants regard as relevant to
their demonstration the considerations adduced above, showing
that the obligations stated in Article 2, paragraph 2, are of a legal
nature and are jiisticiable. In tbis connection, Applicants reiterate
their contention that Kespondent's purported distinction between
"legal" norms, on the one hand, and norms of a "political or
technical" nature, on the other, misconceives the true nature of
the judicial process. As lias been shown, Courts customarily and
necessarily draw upon al1 sources relevant to a just disposition of
conflicts of legal rigbts or interests, and do not sliun the judicial
duty in the face of technical, political or other complexities.
* * *
Before turning to a demonstration of the existent and ascertain-
able legal norms governing Respondent's obligations pursuaut to
Article 2, paragraph 2, of the Mandate, Applicants consider it
important to make clear the precise nature of the alleged violation
thereof.
As set forth in the Memorials, 'Applicants contend that Respon-
dent's violation of its obligations under the said paragraph 2 of
Article 2 consist:; in a "systematic course of positive action which
inhibits the well-being, prevents the social progress and thwarts
the development of the overwhelming majority" of the inhabitants
of the Territory. In pursuit of such course of action, and as a per-
vasive feature tliereof, Respondent has, by governmental action,
installed and maintained the policy and practice of apartheid, or
separate development. In the language of the Memorials:
"Under apartheid,the status, rights, duties, opportunities and
burdens of tlie population are determined and allotted arbitrarily
on the basis of race, colour and tribe, in a pattern which ignores
the needs and capacities of the groups and individuals affected,
and subordinates the interests and rights of the great majority
of the people to the preferencesof a minority."l
The point of departure of an examination of the legal norms
relevant to judicial interpretation of Article 2, paragraph z, of
the Mandate may be taken from the contrasting contentions of
the Parties to the present Proceedings:
Respondent denies that
"the policy af separate development runs counter to modem con-
ceptions of buman rights, dignities and freedoms, irrespective of
race, colour orcreed."2
Applicants. on the other hand, insist that the allotment, by
governmental policy and action, of rights and burdens on the REPLY OP ETHIOYIA AAD LIBERIA
493
basis of membership in a "group," irrespective of individual quaiity
or capacity, is imperniissible discrimination, outlawed by legal
norms well established in the international community.
In the following analysis of the relevant legal norms, tlie ternis
"non-discrimination" or "non-separation" are used in their prev
alent and customary sence: stated ~iegatively, the terms refer to
the absence of governinental policies or actions which allot statiis,
rights, duties, privileges or burdens on the bnsis of inenibership
in a group, class or race rather than on tlie basis of individual
merit, capacity or potential: stated affirmatively, the terms refer
to governmental policies :rnd actions the objective of which is to
protect equality of opportunity and equal protection of the laws
to individual persons as such.
As is shown below, thei-c has evolved over the years, and now
exists, a generally accepted internatioiial human rights iiorm of
non-discrimination or noii-separation, as defined in the preceding
paragraph. Such a norm is evidenced by iiiternational uiidertakings
in the form of treaties, conventions and declarütions, by judicial
decisions, the practice of States aiitl coiistitutional and statutory
provisions by which suc11a noriii is incorporated into the body of
laws of States.
The existence and virtu:~lly universal acceptance of the norin of
non-discrimination or non-separation, as more fully described
below, gives a concrete and objective content to Article 2,paragraph
2, of the Mandate.
Such a norm of non-discrimination is, nioreovi:r, gencrally ac-
cepted as a minimrifn norm of officia1policy and practice on the
part of a government tonrard persoiis subjcct to its jurisdiction.
The obligation stated in Article 2, paragraph 2, of the Mandate
is to "promote to the ~itncostthe well-being and social progress of
the inhabitants. Failurc to apply the ntini?iztrn% norm, accordingly,
involves, n fortiori, failurc to comply with the more demanding
standard of the Mandate.
The sources which, severally and in their totality, comprise the
generally accepted norm, describecl above, and which impart
specific content and objective meaning to Article 2, paragraph 2,
of the Mandate are, for purposes of convenience, set out in enumer-
ated sections, as follows:
I.LEAGUE OF NATIONS PI~KIOII
As has been pointed out, 'as a consequeiice of the exercise by
the Permanent Mandates Commission of its function of super-
vision, there evolved over the nineteen-year pcriod of its existence,
a substantive content in respect of thc generally formulatcd obliga-
tion stated in Article 2, paragrapli 2, of the Manchte. Such a con-
tent was developed throiigh continuous application of general
' Supra. p. zgr. 494 SOUTH WEST AFRICA
criteria or nornis to specific situations involving Respondent's
policies and practices, as well as those of other Maiidatories.
In view of the manner in nhich such a content evolved, considera-
tion thereof in ihis Reply is given in the context of analysis of
Respondent's measures of implementation of its obligations to-
ward the inhabitants of the Territory. '
As evidenced by the standards which guided the Commission in
its work, Mandates were regarded, first and foremost, as what
would be described, in the universaily accepted current terminology,
as "human rights documents."
Althougli nunierous examples could be given froni tlie Comiiiis-
sion's proceediiil:s, several typical illustratiomay sufice.
Thus, upoii request of the Council of the League of Nat'ions,
the Commission. formulated certain "General Conditions which
must be fulfille(i before the Mandate Kegime can be brought to
an end in Respect of a Coiiiitry placed under thnt Kegime." The
report by the Commission, which was endorsed by the Council,
prescribed, anteralia, that:
"1. The mandated temtory 'must possess laws and a judicial
organization which wiUafford equal and regularjustice 10all.'
"2. 'The ne.bvState should ensure and guarantee the effective
protection of racial,inguistic and religious minorities.""
A noteworthy statement ivas made to the Commission by the
Right Honourable blalcolm MacDonald, then United Kingdom
Secretary of State for Colonies, the follo\\ing excerpt from which
is of particular1-elevancehere:
".. .rl']he well-being to which paragrapti I of Article zz of the
Covenant raferred did not simply mean material and physical
well-being,it meant the physical. mental and moral well-being of
the people, and, above all, Mr: MacDonald would have thought,
tlie latter. The mandate system was very much concerned with
the moral uell-being of aU peoples. Surely that term meant that
these peoples should be regarded as hauing an equal moral status
with any othsrfieoplein the world. and that they had certain funda-
mental right:;as human beings and as a people. They were equal
witli the otlier peoples who came under the mandates system in
their possessionof certain fundamental rights,d the wholepur ose
of the vkzndates system was that tlaose/%~ndamenlarlighls shodl"ot
be inferfned with in the stresses of the modern world, that they
should not be injured or destroyed by forces which werematerially
or physically more powerful than they were."'
Concern was often expressed in respect of Respondent's policies
or actions involving discrimination or separation on the basis of
membership in a race or group.
'See Chapter IV. ruprn.
P.DI.C.Min.. 3tSess.p. 279.(Itaiics added.)
P.M.C. hlin. 36Sess.,p.125.(Italics added.) REPLY OF ETHIOPIA AND LIBERIA 495
Thus, during one of the earliest Sessions of the Comrnission,
one of the Members observed that:
"from the general spirii:of the report [Respondent'sannual report],
itmight be inferred that there was a tendency ... to effect a
complete separation between the two races."
"The Chairman agreed with these observations." '
During the same Session,
"The Chairman [the Marquis Theodoli]enquired what were the
motives and what were the advantages and disadvantages of this
separation of the two races. Was it in the interests of the native
or of the white popuiation that this segregation was imposed?"
Following Respondent's reply,
"The Chairman enquired whether thi system could he reconciled
with the spirit of the mandate and the civilisingmissionwith which
the Mandatory was ent~usted."~
In more specific contc:xts, the Commission frequently made
inquiries or commented criticaliy concerning such rights, inter
alia, as participation in processes of government; freedom of
movement and secnrity of the person; discriminatory and repres-
sive labour legislation; aiid rights of land tenure.
The standards developetl and applied bythe Pernament Mandates
Comn~ission with respect to non-discrimination or non-separation
were entirely consistent and, indeed, identical with those which
were proclaimed or presci-ibed in other international contexts as
well.
Thus, the several Minorities Treaties which entered into force
following the First Worlcl War had features in common insofar
as concerns the developnient of an international norm of non-
discrimination. These wexe, in summary, the general protection
of fundamental rights, such as life and liberty without distinction
as to race; equality of treatment before the law; equal enjoyment
of political and civil right!;; and a rule preventing the States con-
cerned from barring persons from admission to public employment
or functions, or the exercise of professions because of race. ' An
example of protective c1;ruses is the Albanian agreement of z
October 1921, in force from 17 February 1922:
P.M.C. Min.,3rdSess.,D. 61.
' P.M.C. Min., 26th Sess., p. 5:" P.M.C. Min., 36th Sess., p. 18.
' P.M.C. Min., 4th Sess., p. 64; id79.p.
V.M.C. Min., 14th Sess., p. 104; P.M.C. Min..Sess.pp. 121-22.
P.M.C. Min., 5tSess.,p.178.
For the texts of therninorities seeL. of N. Doc. C.L.rro.1927.
1.Annex, in LangueofNalions Pt<b1%. rninorities (1920.33).496 SOUTH WEST .4FRIC.4
ARTICLE 2
"Full and complete protection of life and liberty will be assured
to al1inhabitants of Albania, ivithout distinction of birtli, nation-
ûlity, language, race or religion. . .
ARTICLE4
"Al1 Albariian nationals shall be equal before the law, and shall
enjoy the sarne civil'and political rights without distiiiction 3s to
race, language or religion. . ..
AI<TICLL j
"Albaiiian nationals who belong to racial, religious,or linguistic
minorities will enjoy the same treatment and security in law and in
fact as other Albanian nationals. . . .
ARTICLE6
".. . In towns aiid districts where there is a considerable proportion
of Albanian nationals belongiiig to racial, religious or linguistic
minorities, tlicse miiiorities will be assured an equitable share in
the enjoymeiit and application of sums which mûy be provided
out of public: funds under the State, municipal or other budgcts,
for educational, religious or charitable purposes."
The League [if Nations acted as the guarantor of thc rights
established by the Minorities Treaties.
Beyond the League system for the protection of minorities, the
norm of non-discrimination was given further impetus by private
bodies of notcd juridical or political standing. Thus in 1929, the
Iiistitut de Ilroit Interiintional adopted a Declaration of Inter-
national Rights of Rlan, which included the following provisions:
ARTICI.E 1
"It is the duty of eiery State to recognize tlie equal right of
cvery individual to life. liberty and property, and to accord to al1
l
within its territory the full and entire protection of this right,
without distinction as to nationality, sex, race, language, or reli-
gion. . .. i
ARTICLEIV 1
"No moti1.e based, directly or indirectly, on distinctions of sex, 1
race, langua~e, or religion empoarers States to refuse to any of l
their nationals private and public rights, espetially admission ta
establishments of public instruction, and the exercisc of the differ-
ent economic activities and of professions and industries.
ARTICLE V
"The equcility herein contemplated is,iiot ta be nominal. but
effective. Itexcludes al1discrimination, direct or indire~t."~
1 L.of N. Doc. C.L.110.1927.1.Annex, inLeagueof Nations Pub., 1.B.minorities
(1920-33) PP. 4-5.
2 Annuaire del'lnstifut Droi nferiiatiotzVol. JI, at 298-99(1929)rvnslated
in35 A~e?'icarrJourizalO/ Iizternafio+&nlLaw664 (1941). REPLY CiF ETHIOPIA AND LIBERIA
497
The significance of the Declaration was evaluated by Philip
Marshal Brown, shortly after its adoption, as follows:
"Suc11 a revolutionary document, while open to criticism in
terniinology and to the objection that it has no juridical value,
cannot fail, however, to esert an influence on the evolution of
internatioiial law. It marks a new era which is more concerned
with the interests and rights of sovereign individuals than with
the rights of sovereign states... "'
Iii 1936, the Declaration on the Foundations and Leading Prin-
ciples of Modern Internatia~nal Law nras approved by the Internatio-
ilal Law Association, the Académie Diplomatique Internationale,
and the Union Juridique Internationale. Article 28 of the Declara-
tion provides :
"Every State shall afford to every individual in its territory full
and complete protection of the right to life, freedom and property,
witliout any discrimination based oiinationality, sex, race, Ianguagc,
or religion."
In 1944, the Commission To Stucly the Organization of Peace,
in a report dealingwith the international safeguard of human rights,
recominended, i~zterdia, the establishment of a United Nations
Commission on Human liights, one of whose primary functions
"would be to seek avoidance of discrimination based on fortuitous
factors like race, religion, language, ses, or country of national
origin." 3
Although of insubstaiilial juridical value, thcse early forerunners
of the norni of officia1noti-discrimination on the basis of group or
race foreshadowed the generally accepted norm which attended
the establishment of the United Nations.
2. THE UÏITED NATIONS CHARTER
One of the most significant of sources for the norm of non-dis-
crimination is the Charter of the United Nations. The Preamble of
the Charter stipulates that one goal of the United Nations is "to
reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and wonien
and of nations large and small."
Article 1 (3) of the Charter provides that among the purposes
and principles of the United Nations is that of
"promoting and encouraging respect for human rights and for
fundamental freedoms for al1 without distinction as to race, sex,
language, or religion. . ."
Article 13(b) states, inbr alia, that the General Assembly shall
initiate studies and make recommendations for the purpose of
' 3giInternationaLaw24Association, Confercnce Re338 (1g36).26, rz7 (1930)
Fourth Report, PartIII,p.ig (1944).4g8 SOIJTH WEST AFRICA
"assisting in the realization of human rights and fundamental
freedoms for :anwithout distinction as to race, sex, language, or
religion."
Article j5(c) erlumerates as one of the tasks of the Organization
the promotion of
"universal respect for, and observance of, human rights and funda-
mental freedoinsfor al1witliout distinctionas to race,sex, language,
or religion."
Article 56 provides that "al1 Members pledge themsclves to take
joint and separate action in CO-operationwith the Organizatioii
for the achievement of the purposes set forth in Article 55."
Article 62(2) gives the Economic aiid Social Council the power
to "make recominendations for the purpose of promoting respect
for, and observance of, human rights and fundamental freedoms
for dl."
Article 76(c) states that one of the basic objectives of the Srus-
teeship System is
"to encourage respect for human rights and for fundamental free-
doms for >,1without distinction as to race, sex, language, or reli-
gion. . . .
Al1 of thesc provisions taken together inake inanifest the con-
Cern of the international community for the protection of basic
human rights; the most fundamental norm-iio~i-discrimination-
is repeated no 1~:;sthan four times. Thus, even though the Charter
does not make cxplicit the liuman rights and fundamental free-
doms of which it speaks, it does make clear that, irrespective of
the right in question, a fundamental norm lies at its base: ofticial
non-discrimination or1the basis of membership in a group or race.
The legal obligation of Member States not to discriminate or
distinguish on the basis of membership in a group or race (whatever
specific human right or freedom may be involved) is set out in
Article 56 of the Charter. 1
The legally binding character of the human rights provisions
of the Charter is confirlned by the highest scholarly authority, as
the following c:itations demonstrate: Judge Jean Spiropoulos
(when a Delegate to the United Nations):
"As the obligation to respect human rights $$-asplaced upon Member
States by the Charter, it followedthat any violation of human rights
was a violation of the provisioiis of the charte^."^
Judge Philip (:.Jessup:
"Since this book is written de lege ferenda, the attempt is made
throughoiit to distinguish between the existing law and the future
goals of the law. It is already the law, at Icast for Memhersof the
' See Schachter,op.cit sufira p489,faotnoteq. at 646-59.
G.A.O.R. 3rd S+:ss6th Comm., 138thmtg.,7 December 1998,p. 765. REP1.Y OF ETHIOPIA AND LIBERIA 499
United Nations, that respect for human dignity and fundamental
human rights is ohligatory. The duty is imposed by the Charter, a
treaty to which they are parties."'
Quincy Wright :
"Article 56 of the Charter in forni imposes obligations upon the
hfembers of the United Iuations. Thc word 'pledge' impliesobligation
and the reference to 'separate' action as distinct from 'joint' action
indicates that the Members are inclividually bound to act 'for the
achievement' of 'uiiiven,al respect for, and the observaiice of, human
rights and fundamental freedoms for al1 without distinction as to
race, sex, language or religion. . . .'
"[C]ommon sense suggests that 'separate actioii in cooperation with
the organization' implies, as a minimum, abstention from separate
action, such as enforcement of racially discriminating land laws,
whicli would oppose the purpose of the organization. . . .It is
reasonable to infer from the phrase 'in cooperation with the organi-
zation' that the Nembers, in fulfilliiig their pledge to take 'separate
action,' shall be guidesi by the purposes stated in the Charter
and by the more detailed interpretation of the meaning of those
purposes and the appropriate metliods for keeping them, which
organs of the United Nations have reconimended."
Paul Guggenheim :
"Différeiites dispositions admettent esplicitemetit que les Etats
so~~o tbligésd'accorder aiix individus qui dépendent d'eus les droits
fondamentaux. Un engagement forniel de ce geiire se trouve par
exemple àl'art. 55, littc,de la Charte. . . Cette obligation n'est pas
annulée, bien que sa valeur en soit certainement diminuée, par le
fait qu'elle ne contient pas de définition précisede ce qu'il faut
'entendre par 'droits de l'homme' et n'établit pas le catalogue des
droits h protéger." 3
C. Wilfred Jenks (quoting the human rights provisioris of the
Charter) :
"The princi@leof non-discriminatiofi has been internationully recog-
nizeii i+zthemost solemnform." '
James Brierly (in a discussion of the legal effect of the human
rights clauses of the Charter:
"[Slome even argue that the Charter clauses only contain a pious
injunctiori to co-operate in promoting respect for liuman rights and
do not im~ose anv leeal oblieation on members witli reeard to their
own natioials. ~he latter ar&ment seems in any event ;O go too far,
since a pledge to co-operate in promoting at least implies a negative
obligation not so to acl: as to undermine huma11 rights; for this
' A lTfoder>raw O/iVations91 (1948).
"National Courts and Human Rightr-the Fujii Case,"45 .Imerican Journal of
Infernationnl Law 62,70. 72 (1951).
' 1 Traitdda Droit irrterriatioriai!p301-02 (1954) (Itâlicsadded.)
' Humari Righfs stidInternational Labour Standards 74 (1960). (Italics added.)500 SOUTH WEST AFRICA
reason South Africa's racial segregationpolicies appear to be ozctof
harmonywith her obligations under the Charter." '
The statemenrs quoted above concerning the legal nature of
the human rights clauses of the Charter and the norm of non-dis-
crimination in tlie Charter are not exhaustive.
There is also :i body of case law which upholds tlie proposition
that the human rights provisions of the Charter contain legally
binding coinmitinents prohibiting Memher States from discrimi-
nating or distinguishing on the basis of race.
In Oyama v. California, 332 U.S. 633 (rqqs), a casc dealing with
the Alien Land Law of California, Mr. Justice Black, joined by
nfr. Justice Doui:las, said in a concurring opinion:
"There are additional reasons now why that law stands as an ob-
stacle to the free accomplishment of our policy in the international
field. One ofthese reasons is that we have recently pledged ourselves
to cooperation with the United Nations to 'promote . . . universal
respect for, and observance of, human rights and fundamental
freedom for al1 without distinction as to race, se?, language, or
religion.' How cari this nation be faithful to th% international
pledge if state laws which bar land ownership and occupancy by
aliens on account of race are permitted to be enforccd?"
A decision of lesser authority is that of Fujii v. Cnlifornin, '
decided by the District Court of Appeals of California. This casc
also concerns the Alien Land Law ofCalifornia. The Court quoted from
Articles 1, z, jj and 56 of the United Nations Charter, saying:
"A perusal of the Charter renders it manifest that restrictioiis
contained in the Alien Land Law are in dircçt coriflictwith the plain
tenns of the (Charterahovc quoted and with the purposes annoiinced
therein hy its framers. It is incompatible with Article 17 of the
Declaration of Human Rights which proclaims the right of everyone
to own property.
"Clearly such a discrimination against a people of one race is
contrary both to the letter and to the spirit of the Charter which, as
a treaty, is paramount to every law of every state in conflict withit.
The AlienLand Law must therefore yield to the treatyasthe superior
autliority. The restrictions of the statute based on eligihility to
citizenship, but which ultimately and actually are referable to race
or color,mustbeand aretherefore declared iintenable and unenforce-
able."
' The Law of Nalions z93 (6th ed. 1963). (Italics addeù.)
See.cg., staternents made before thc InternationLaw Commission iii1949
by Judge Roberto Cardova, Judge Vladimir ICoretsky, Cwrges Scelle, and Judge
Ricardo Alfaro, [~gqg] Yearbooof the Zntevnalionol Law Conzmission 148, 169-70.
See alsothe discusçion by Iauterpacht in Z~~feunalio~law and Human Righls
147-48 (1950).
' Id. at 649-50.
' 217 P.2d 481, relieari+denied, 218 P.zd 595 (1950). vacaled, 38 2dl.718,
zqz Id. at 488.952'1(reversing trial conrdifferent grounds). REPLY OF ETHIOPIA AND LIBERIA 501
It should be noted that in each of the above-cited cases, racial or
religious discriinination is regarded as a violation of, inter dia,
the humaii rights provisions of the Charter. The issue in the above
cases is not so mucli the bare denial of a right or privilege, as it
is the discriminatory denial of a right or privilege. The explicit
or implicit assumption tliat such conduct is incompatible with
the Charter, even thougli the hurnan rights and fundamental
freedoms referred to are not explicitly spelled out therein, confirms
that a legal norm of official non-discrimination is to be found in
the Charter of the United Nations.
Further evidence for the proposition that officia1 non-discrimi-
nation has become a generally accepted international human rights
norm is the Universcil Declaration of Htiman Rights, adopted by
the General Assembly in 1948 Article 2 of the Declaration States:
' k:i.i:i!~iiirriititlc.to ;,Il tlii: n~lits aiid frcédoniSL.Ifurrliin
tliiI)ccl:ir:ition,\iitlioiir tIiitin<.ti:in!kirid.siicli:irace.colotir,
sex, language, religion, politicalor other-opinion, national or social
origin, property, birtli or other status.. . ."'
The Declaration, which usas intended to supplement the state-
ment of Principles in Article z of the United Nations Charter,
was adopted by the International Law Commission in 1949 by
II votes to z.
Article 6 of the Draft 1:)eclaration provides:
"Every State has tlic duty to treat al1persons under its juns-
diction witli respect for human rights and fundamental freedoms,
without (listinction as to race, sex. language, or religion."
Each of the eleven Trust Territories Agreements contains a
provision which contribiites to the universal acceptance of the
norm of official non-discriniination, or non-separation on the hasis
of mernbership in a group or race. The various provisions are al1
~vordedwith reference to Article 76(c) of the United Xations Char-
ter. ' The general tenor of each of the provisions is a cornmitment
to administer the Territory in such a inanner as to achieve the
' G.A.O.R. 3rd Sess..Resolutions,at 71 (A/81o).
' See.G.A.O.R. 1stSess.,Part 2.Supp. No.a5.rnrn'n.Supp. No. io,nt8 (A/gz5).jO2 SOUTH WEST AFRICA
objectives of the Tmsteeship Systeni as set out in Article 76 of the
Charter.
The prohibition against racial discrimination was expressed most
clearly in the Agreement for the Territory of Somaliland under
Italian Administration. After reference to the Tmsteeship articles
of the Charter, Article 3(3) of the .4greement provides that the
Administering Authority shall "promote the social advancement
of the inliabitarits, and to this end shall protect the rights and
fundamental freedoms of al1 elements of the population withont
discrimination." '
Article 20 of the Agreement States that:
"The Administering Authority shall guarantee to the inliabitants
of the Territory complete freedom of speech, of the Press, of assem-
bly and of petition, without distinction as to race, sex, language,
political opinion or religion, subject only to the requirements of
public order."
Findly, Article 8 of the annexed Declaration of Constitutional
Principles provides that :
"The Administering Authority, in accordance with the principles
laid down in its own Constitution and legislation, shall guarantee
to al1inhabitants of the Territory huma11rights and fundamental
freedoms and full equality before the law without distinction as to
race. sex, lariguage, political opinion or religion."
Since the founding of the United Nations, there have been more
than thirty rcsolutions of the General Assembly specificaiiy con-
demning racial discrimination or segregation, whether in South
Africa itself, Soiith West Africa, or generally in Non-Self-Governing
Territorics. '
' G.A.O.R. 5th $,es.Supp. No. toat 6 (Alrzgq)
Id. at8.
Id. at io.
' Sec General Assembly Resolutions: 103 (1). rg November 1946, G.A.O.R.
1st Sess., Kesolutions at zoo (A/64); 328 (IV).2 December 1949. G.A.O.R. 4th
sess.. Resolutions ;at 41 (Alizj~); 395 (V2,December ig50. G.A.O.R. 5th Sess..
Supp. No. 20 at 24 (Nlr775); 511 (VI), 12 January 1952, G.A.O.R. 6th Sess..
SUPP. No. 20 at ig (Alz~ig); 616 (VII). 5 December ,952, G.A.O.R. 7th Sess..
supp. No. 20 at 8 (r\12361); 644 (VII).IO December 1952, G.A.O.R. 7th Ses..
%p. Xo. zo at 32 (A12361); 72' (VIII). 8 December 1953. G.A.O.R. 8th Sess..
Supp. xo. 17 at (8 (AIzGjo); 820 (IX), 14 December ,954, G.A.O.R. gth Sess.,
Supp. No. Zr at q (:\/zSgo); gr7 (X), GDecember 1955, G.A.O.R. 10th Sess., Supp.
xo. Ig at 8 (Aij116); 1016 (XI), 30 January 1957, G.A.O.R. rit11 Sess., Supp.
No. 17 at 5 (A13572); ri78 (XII). 26 Xovember 1957. G.A.O.R. 12th Sess.. Supp.
No. 18 at 7 (AI3So5); 1248 (>;III). 30 October ,958. G.A.O.R. 13th Sess., Supp.
No. 18 at 7 (Alqogo); 1328 (XI11). iz December iggS, G.A.O.R. i3th Sess., Supp.
Ka. 1s at 35 (r\l.$oqo);1360 (XIV). i7 Novemhsr 1959. G.A.O.R. 14th Sess..
SUPP. Xo. 16 at ?E (A/q354); 137.5(XIV), 17 November 1959, G.A.O.R. 14th Sess..
Supp. XO. 16 at 7 (A1435q); ,464 (XIV), 12Decembcr 1959, G.A.O.K. iqth Sess..
SUPP. NO. 16 at 35 (A14354); 1536 (XV), 15 Decemùer iy6o. G.A.O.R. 15th Sess..5O4 SOUTH WEST AFRICA
.\fricn iiiit;~ierpctii;itioiiof rncinl discriiiiiiintion :is hciiiji iiiion-
sii,:iit nitliII.,~,iiii:iplcs ~:~>iifiii<lttlitCIi.irtcr of tlie Uiiit<.d
S;,tioii;;tii;svitti11subli-atioii; ;ij;i\leniher St.itc of tlic I'nitcil
Sations,
"Recognizingthe need to eliminate discrimination in regard to
basic human rights and fundamental freedoms for al1 individuals
within the territory of the Kepublic of South Afnca without dis-
tinction as to race, ses, language or religion,
"Expressinf:thefirm conuictioxthat the policies of apartheid and
of South Africa areon aabhorrent to the conscience of mankind andlic
that therefore a positive alternative to these policies must he found
througli peaceful means. ..
"Urgently requests the Government of the Kepublic of South
Africa to cease forthwith its continued imposition of discriminatory
and repressive measures which are contrary to the principles anci
purposes of the Charter and which are in violation of its obligations
as a IIember of tlie United Nations and of the provisions of the
Universal Dedaration of Human Rights. . .."'
8. HUAIAN RIGHT SOVENANTS
The several articles of the Draft Covenant on Civil and Political
Rights, and of the Draft Covenant on Economic, Social and Cul-
tural liights, have been the subject of discussion in the Third
Committee of the General Asseinbly for many years, beginning in
1954. The Draft Covenants as a whole, intended to constitute
legally binding obligations, \vil1not he considered by the .4ssembly
itself until nll tlie articles havc been adoptccl by the Comniittee.
Neverthelcss the Committee has nlready, by overwhelrning majori-
ties, approved articles of the Draft Covenants which preclude the
applicatioii of the policy of apartheid.
Thus, paragraph I of Article 2 of the Drnft Covenant on Civil
and Political 1iil;hts provides:
"Each State Party Iiereto undertakes to respect and to ensure to
al1individuals within its territon. and subiect toits iurisdiction the
rigliis rccojinire~irithis ~ovcn;i;it. ivithoit di;tiiictibn of ;<iiykiii<l.
;ilch ns r:iiv, coloujeu, Iniigiiage.rcliàioii, politis:il ur other opiiiioii,
ii:~ti~,iiIr s~~:i:Irigii~,propvity, l~irttior ottwr stntus '?
The overriding weight attached to the norm of non-discrimina-
tion may be seen from the ivordiiig of paragraph I of Article 4
of the same Covenant :
"In time of i~ublicemereencv which threatens tlie life of the nation
1';irtiesIi~rctoiiinytake iiicnsiircs(lvmjiatirig froin tli?ir ol>li~.itiuiis
uiirlcr tliis Covcnant to tlie estent ;tricil\, reouire~lIn tlie esicciicic.s
of the situation, provided that such méasu;es are iot iiiconsistent
Arinex). RBPLY OF ETHlOPlA AND LIBERIA 5O5
witli tlieir other ob1ie:itions uiider international laxv and do not
involve discrimination solely on the ground of race, colour, sex,
language, religion or social origin."'
Article 24 of thc Draft Covenant on Civil and Political Rights
reads :
"Al1 persoris are equal before the law and are entitled without any
discrimination ta equal protection of the law. In this respect the
law shall prohibit any discrimination and guaraiitee to ail persons
equal aiid effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status."
Finally, Article 2, paragraph z, of the Draft Covenant on Econo-
tnic, Social and Cultural Rights provides:
"The States Parties hereto uiidertake to guarantee that the rights
enunciated in this Coveiiant will be exercised mithout discrimination
of any kind as ta race. colour, ses, language, religion, political or
other opinion, national or social origin, property, birth or other
status."
9. UNITEII ATI IONS DECLARATION ON THE E~~~A~INAT OFONA1.r.
FORMS OF RACIAL DISCRIMINATION
011 20 November 1963, the Eighteenth Session of the General
tlssembly unanimously adopted (Kespondent taking no part) the
Declaration on the Elimination of Al1Forms of Racial Discrimina-
:ion. ' The Declaration makes it clear that racial distinctions, be
they called racial discriiriination, segregation. separate develop-
ment, or aparlheid, are unacceptable.
' Adooted unanimouslv . .v the Third Committee at its iz6znd rneetine.i- Xo-
vember ;96,.(Ibid.)
Adopted by the Third Cominittee nt its ~ioznd meeting, 13 Xovember 1961.
by a vote of 72-0.5Text in Report of Third Comm. (A/gooo ,ara.98and Annex).
' Adopted by thc Third Cominittee at ita 1206th meeting, 10 Decemher 1962.
by a vote of86-0-5.Text iii Report of Third Comm. (A/53G5 ,nnex).
' C.A. Res. 1904 (XVIII), 20 November ,963.G.A.O.R. 18th Sess..Supp. No.
15 at 35 (45515).
' The first seven operative anicles of the Declaratioare particularlrelevant
to thecaçe at bar:
Arlicla r
"Discrimination betiueen human beings on the ground of race, colouror
ethnic origin isan offence to Iiurnan dignity and shallbe condemned us a
denial of the principles of the Chcrrter of the United Sationas a violation
of the buinan rights and fundamental freedoms proc1;iimed in the Universal
Declaration of Human Rights, as an obstacle ta friendly and peaceful relations
among nations and as a fact capable of disturbing peace and security among
peoples.
Arficlca
"r. No Statc, institutiongroup or individual shall make anydiscrimination
whatsoever in rnatters of human rights and fundamentalfreedoms in thc treat-
ment of persons. groups of persons or institutions on the grounds of race,
colour or ethnic origin.506 . SOUTH WEST AFRICA
Of particular relevance, insofar as Respondent's policies in South
\Vest Africa are conceriied, is Article z (3). This provision specifical-
ly prohibits the use of spccial measures of development as a justi-
fication for nllotting rights and burdens on the basis of member-
ship in racial groups. This js reinforceci by Article 5, which bans
racial discriminai:ion, segregation, separation and apartheid.
Although the Declaration on the Elimination of Al1 Forms of
Racial Discrimination does not in itself have legally binding force,
its importance is nonetheless great, as a solemn instrument attesting
"2. No State shall encourage, advocate or lend its support, through police
action or otherwise. to any discrimination based on race. colour or ethnic
origin hy any gi-oup, institution or individual.
"3. Special concrete measures shall be taken in appropriate circumstances
in ordei to secuie adequate development or protection of individuals belonging
to certain racial groups with the object of esçuring the full enjoyment by such
individuals of human rights and fundamental freedoms. These meaçures shall
in no circumstances have ns a consequencc the maintenance of unequal or
separate rights for ditkrent racial groups.
Ariidc 3
"1. Particular efforts shallbe made to prcvent discrimination hased on race.
colour or ethnic origin, eçpecinlly in the fields of civil rightaccess to citizen-
ship.education, religion, employment. occupation and hausing.
"2. Everyonr; shall havc equal accesî to uny place or facility intended for
use by tliï gerieral public, without distinction as to race, colour or ethnic
origin.
Articb 4
"All States shall take efiective measures to revise qoverninental and ather
public policies and to rescind laws and regulations ;hich have the effect of
creating aiid p<:rpetuating racial discrimination wherever it still exists. They
should uass legislation for ~~ohibitin~suïh discrimination aiid should take al1
approp;iate m<:asuresto Ambat th& prcjudices which lead to racial dis-
crimination.
Article 5
"An end sh:ill be put without delay tu governmental and other public
policies of rackil segregation and especially policies of ~parlheid. as well as al1
forms of racial discrimination and separation resulting from such policies.
Arlicle 6
"No discrimination hy reason of race. culour or ethnic origin shall be ad-
mitted in the <:njoyment by any person of political and citirenship rights in
his country. in particular the right to participate in electionç through universal
and equal suffrageand to take part in the government. Everyone has the right
of equvl access to public service in his country.
Article 7
"1. Everyone has the right to equality before the law and to equal justice
under the law. Everyone. without distinction as to race. colour or ethnic
origin.has the right to çecurity of person and protection by the State against
violence or bodily harm, whether inflicted by government aficials or by any
individual, group or institution. ~ ~
"2. Everyorie shall have the right to an effective remedy and protection
agaiiist aiiy discrimination he may suffer oii the ground of race. colaur or
ethnic origin with respect to his fundamental rights and freedoms through
independent niitional tribunals cornpetcnt tn deal Mth srrch matters.. .." REPLY OF ETHlOPlA AXD LIBERIA 5O7
to the general acceptance of the norm of non-discrimination in the
international conimunity.
IO. INTI~RNATIONA CO.NVENTION ON THE ELIMINATION JF ALI.
F0RhlS OF RACIAL ~~ISCRIMINATIO'I
In Resoliition 1906 (XVIII) of 20 Noveinber 1963, the General
Assembly requested the United Nations Commission on Human
Rights to give "absolute priority" to the preparation of a draft
international convention on the elimination of al1 forms of racial
discrimination. A draft' was adopted hy the Human IZights
Commission at its twentieth session, ending in Rlarch of 1964, and
a request was made tothe Economic and Social Coiincil to transmit
the draft to the General Assembly for consideration at its nine-
teenth session beginning in the autuinii of 1964.
U.N. Doc. E/CN.4/1..1og/Add.5 (16March 1964).
2 The general provisions of the Draft Convention most relevant, in terms of
Respondent's policies in South West Africa. arcas follors:
"The StatesParlierto lhir Conu~ntion.
"Considrring that the Charter of the United Nations is based on the principle
of the dignity and equality inherent in al1 human beings, and that al1 States
Alembers have pledged thcmselves to take joint and separate action in co-
operation with the Organiratian for the achievement of one of the purposes
of the United Xatioriç rhich iç to promotc andencourage universal respect for
and observance of Iiuman rights and fiindamental freedoins for al1 without
distinction as to race. sel. language or religion,
"Considoring thnt the Universal Declarntion of Human Rights pruclniins
that &IIIiuman beings are I,orii frec and equal in dignity and riglits and tliat
eveiyoiie is entitled to al1 the riglits and freedarns set out therein. without
distinction of any kind, in p;irticulur as to race, colour or nationa..origin.
"Conrerned by manifestations of racial discriminationstill in evidence in
some areasof the world and by governmental policies baced on racial superior-
ity or hatred, such as policies of npnrlhcid, segregatornseparntion...
"Hnuc ogrecd asfollows:
ArticlI
"1. In this Convention the term 'racial discrimination' shall mean any
distinction, exclusion, restriction or prefcrence based on race, calour, [national]
or ethnic origin which has the purpose or effcct of nullifyiorimpairing the
recognition, enjo~ment or exerciçe, onaiiequal footing.of human rights and
fundamental freedonis in the political. economic, social, cultural or any other
field of public life. [In this paragraph the expression 'national origin' does nat
cover the status of any perconsns u citizen oa given State.]
"2. Special measures takm for the sole purpose of securing adequate devel-
opment or protection of certain under-developed racial groupsor individuals
belonging to them in arder to ensure to such groups or individuals equal en-
joyment or exercise of human rights anrl fundamental freedoms shall not be
deemed racial discrimination.provided. however. that such measures do not.
as a cansequence, lrad to the maintenance of separate rights for different
racial groups and that they shall not be continued after the objectives fa1
which they were takcn have ken achieved.
Ariirlc II
"r. States Parties to the preseiit Convention condemn racial discrimination508 SOUTH WEST AFRICA
As with the equivalent articles of the Declaration on racial
discrimination, special emphasis should be placed on Articles I (2)
and III of the Ilraft Convention. They inake clear the Human
Rights Commission's view that Respondent's policy of separate
development, or nfinvtlzeid,is not acceptable to the world com-
munity.
II. INTERNAT~O~;A LI. BOURORGANISATION CONSTITUTION AND
CONVENTIONS
The principle of equality of opportunity and treatment was
formulated as follows in the Declaration of Philadelphia. adopted
by the Iiiternatic~nal Labour Conference in 19#, and incorporated
into the I.L.O. Constitution:
'. . . al1human beings, irrespective of race, creed, or ses, have the
right to purslie both their material well-being and their spiritual
developmerit in conditions of freedom and dignity, of ecorioniic
security and <:qua1 opportunity.. .." '
According to the International Labour Office, "this principle,
which, from the very beginning, has constituted one of the bases
for al1 the standard-setting activities of the International Labour
Conference, has been enunciated in greater detail in the Conven-
tion and Recominen~lation concerning discrimination in respect of
employment ancl occiipation. adopted by the Conference in 1958."
The Convention is ah attempt to achieve the elimination of "any
distinction, exclusiori or preference made on the basis of race,
colour, sex, religion, political opinion, national extraction or social
origin, which ha3 th(: effect of nullifying or impairing equality of
opportunity or treatment in employment or occupation" (Article
I (1)). Article z of the Convention provides:
"Each Member for which this Con,~entionis in force undertakes to
declareand pursuea national policydesignedtopromote, by methods
appropriate Io national conditions and practice, equality of oppor-
tunity and treatrnent in respect of employment and occupation,
with a view 1.0eliminating any discrimination in respect thereof."
aiidiiiiilcrta:O pui,ue al1appropriatc means and wirhuiit dela) ~iolicy
ofcliminattill: r.lci3I(Iirrrimiiina11ils lorms.. .
A~ticleIII
"States Partiespaitic~larly condemn racial segregation and apartheid and
undertake to prevent, prohibit and eradiçÿte, in territories suhject to their
jurisdiction. al1practices of this nature."
I.L.O.Const., iinnex, art. II, pa6,.15 Uniled ~VafioncTrenty Sari36. 106
(1948). incorporatini: Declaration Cancerning the Aimî and Purposes oI.L.O.,
International LabourConference, 26thSess.Record O/Procccdingr621,622 (1944).
U.X. Doc. So. .4/AC.ri51L.zg ,oSeptember 1963.
' Convention Co!icernihg Discrimination in Respect of Employment and Oc-
cupation (ConventicinSo. III),in International Labour Conf4znd Sess.Recoyd
01Pro~eedings834 (rg58).510 SOUTH WEST AFRICA
(B) Charierof the Organizationof American States
The Charter, xrhich \vas signed at Bogota on 30 April 1948 and
entered into force on 13 Deceniber 1951, contains trro articles which
confirm the general acceptaiice of the norm of non-discrimination.
Chauter II of the Charter is entitled "Princivles". ancl contains
on~i Article 5 :
"The Americaii States reaffirni the following principles .. .
"j)The ilniencan States proclaiin the fundamciital rights of the
indi\,idual without distinction as to race, nationality, creeù or
sex.. .."
Article zg of theCharter, wliich is in Chapter VI1 ("Social Stand-
ards") contaiiis the following l~rovision:
"The hlernber States agree upon the desirability of developing their
sociallegislation on the followingbases:
"a) Al1human beings, without distinction as to race, iiationality,
sex, creed or social condition, have the right to attain material
well-being and spiritual growth under circumstances of liberty,
digriity, ecluality of ol~portunity, and economic security . . . .'
(C) AinericanDeclaratioiiuf the Kights a~tdDulies of .Mal%
The Declaration, which is the Final Act of the Ninth International
Confcrencc of A~nericaii States (1948). provides in Article II:
"All persons ;ire equal bcfore the law and have the riglits and duties
established iri this Declaratioii, without distinction as to race, sex,
language, crei:dor any other factor."
(D) Dralt Declaralionof the Iftleri~ntionaR l ights und Dulies of MUIL
Prepared by the Inter-American Juridical Committee, this
Draft Declaration of 31 December 1945provides, interdia, in Article
XVIII that:
"Al1persons shali be equal before the la\\. in respect to the enjoy-
ment of their fundamental rights. There shall be no privileged
classesof an!, kind whatsoever." '
Applicants submit that the gcneral acceptance of the norm of
non-discrimination on the basis of membership in a group or race
is of decisive relevance to the Cases at bar.
\I1liether or not the norm of non-discrimination or separation
on the basis of race has become a rule of customary international
law, it is submirted that as a generally accepted legal norni, non-
iigUwited Nal;ons Tveary Seric3,52-53 .0-62 (19.52).
43Aniericari Jour+$ofInfernational I.aw Supplemen133.134(1949).
"40 A>irericaaournnl ofInt~r~tnlionI-ow Supplement 93.gg (1946). REPLY OF ETHIOPIA AND LIBERIA
511
discrimination imparts a :specificand objective content to Article
z, paragraph z, of the Mandate.
First, it ~vouldseem clear that non-discriniinaiion on the basis of
race is generally considered to be a basic, fundarneiital, and mini-
?num right. Thus, for esarnple, Lauterpacht has written that "the
claim to equality before the law is in a substantial sense the most
fundamcntal of the right!; of man. It occupies the first place in
tiec''1ritten constitiitions. It is the starting point of al1other liber-
The 1ntcrnation:il Comiiiission of Jurists, in a Report published
in 1960, stated that the policy of apartheid is "contrary to gener-
ally acceptcd concepts of justice and principlcs of human nghts." 2
Given the basic and fundamental nature of the iiorm of non-
discrimination on the basis of group or race, it would seem evi-
dent that the violation of this rule by Respondeiit is ipso facto a
violation of Article 2, paragraph z, of thc Mandate agreement.
To faIl short of a basicminimum standard is alortiorilo fall short of
the more demanding standard and obligation to "promote to the
utmost" the welfarc of the inhabitants of South West Africa.
That the policy of apartizeidis contrary to the terms of the Man-
date has been stated repeatedly by the Geiieral Assembly of the
United Nations. 3
The International Coininission of Jurists espressed its support
of this deterniinatioii, adding that Article n. paragraph n, of the
Mandate \vas liniited by the "esplicit requirement" that the
Afandatory "shall proniote to the utmost thc material and moral
well-being aiid social progress of the inhabitants" of South West
Africn, and that
"... When full consideration is given to the nritiirc aiid extent of
the legislation pertaining to a@artiieid , liicli we have reviewed
above, thc impossibilityof reconcilingthc application of these laws
with the latter rcquirement becomesmanifestlyapparent." "
Applicants accordingly submit that, by undertaking a legal com-
mitnient to promote the welfare of the inhabitants of South West
Afnca "to the utmost," Icespondent has obligated itself, at the
very least, to carry out in the Lfandated Territory the generally
recognized minimum basic norm of non-discriniination on the
basis of membership in a group or race.
It is undoubtedly true that the content of international legal
noms regulating human rights and fundamental freedoms is in
many respects still in a state of evolvement. Neverthcless, certain
iiiinimal aspects arc clcar; undcr any conception of ciirrent stand-
ards, a policy so extreme in its discriminatory and repressive
Lauterpacht, An InlernatiorBillof the Rights of ~Wanri(1945).
Sauih Africa and the Rule of L91 (1960).
' See, e.g., C.A. Res. 1567 (XV) iS Dec.1960. G.A.O.R. rgth Sess.Supp.
No' Soillh Alriand 168Ruleof Lam SS (1960).5x2 SOUTH WEST AFRICA
character as npurtheid, must be found to violate even the most
minimal standards universally accepted (except by Respondent)
as governing the relations between a Statc and its subjects.
5. t\ttciitioti is now turned to the fifth in the series of Kespoiitl-
ent's propositioiis, which ~lpplicants have formulated in their
own terms in an endeavour to present to the Court a clear and
responsive reply to Kespondent's arguments. as understood by
Applicants.
The proposition in question, ivhich arises by implication rath~r
than esplicitly, embodies Respondent's apparent contention thüt
if legal norms existed for judging Kespondent's obligations under
Article 2,paragrilph z, of the l\lniidatc, they would he those govcrri-
ing ;it the time the Mandate was entrustcd to Respondent. '
Iii tlic light of the nature and purposes of the Mandatc in-
stitution, analyzed abovc, as well as the esplicit language of
the Article in question, thc untenability of such a proposition
appears to be self-evident.
The relevaiice of the evolving practice and views of States, gro\\.tli
of experience and increasing knowlcdge in the political and social
sciences, to tlie determination of obligatioiis bearing the nature
and purpose of theMandate in general, and Article 2, paragrapli 2,
tliereof in particular, far from hcing "obviously absurd," :is Re-
spondeiit siiggcsts, is of the very essence of the obligation itsclf.
Ilischarge of the obligation to puoii~utewell-being and social
progress iiccess:rrily involves coiitinuous, dyiianiic and ascending
growtli. The rcquirement that tlt+~osl efforts be directed toward
that end, adds both urgency and diniension to the undertakiiig.
The proposition, implied by Respondent, that its obligrition is to
be measured by its so-called "iirtentions" as of 1920 is inanifestly
inconipatible with, and repugnant to, the essence and purpose
of the obligation itself.
Indeed, by its very method of presenting its case to the Court,
Respondent reveals awareness of tliis fact.
Thus, in introducing an exposition of its policies. under the
Iieading of "Post-War Adjustments," Respondent avows that it
'III disputiiig Applicaiits' contention concerniiig applicability of the doctrine
of infimirriaidriiirespectofinterpretation of the Alandate in the lofcognate
provisions of the United Nations Charte(1pp. 104-108)Respondent argues:
"To asscrt. however, that a convention concluded i1945 can Lieused aç
an aid to asccrtain the intentions of the parties to a convention cancluded
between difierent states in igzo,is, in Respondent's subrnissooobviausly
absurd asnot to warrantscrious consideration." (II, p. 395.)
' SU~V~,PP. 231-2.54 REFLY OF ETHlOPlA AND LIBERIA 513
"did not set about its task of aclministering South West Africa
with a set of fixed and unalterable ideas, or with a policy based on
an inflexible politicalor economic philosophy." 1
Throughout the Chaptcr, the very title of jrhich concedes the
need for continuing "adjustments" of policy, Respondent refers
to asserted "adaptations" to changiiig needs, interests and circum-
stances in the Territory. hlost significant in this conteut, is Respond-
ent's purported explanation for the slo\ver, so-called "progress"
in the implementation in the Territory of a policy of separate
development, on the groiind that liespoiident assertedly wished
first to cstablish its "soundness in prxcticc in South Africa itself." 2
ripplicants have elsewhere iii this Reply acldressed themsclves
to the lack of merit in the foregoiiig contention; it is citcd here as
demonstratiiig Respondent's awareness-lrowever faultily it has
in practice discharged itr; obligations-that sucli obligatioris, in
their very nature, must be measurcd niid appraised in accordance
with changing and evolvirig social, ccoiioniic, scientific and political
experience, kno~vlcdgeand rec~iiircmeiits.
The practical necessity and wisdom of nl~plyingcurrerit standards
in interpreting obligations, such as tliose enibodietl in tlie Mandate,
are confirmed by the funda.mental or orgaiiic nature of thc Mandate
instrument itself, as well as tlic dynnmic aiid evolviiig character
of the rights of the inhabitaiits \\,hich it protects, and the correlative
obligations of the Mandatory which it cnjoins.
The view of the Perniaiicnt Alaiitlates Coriitiiissioii that the
Mandates were "the conçtitiitiond Inw of the territories iinder
mandate" has been deinonstrntcd. 3 The history of Article 22 of the
Covenant confirms the validity of siich a vicw. Xot only is the term
"mandate" itself significant in this respcct. but it was used syii-
onymously with "charter." Thus, Tvlarshal J. C. Smuts early
recommended that
" ... tlie degree of autliority, control, or administration exercised
by the mandatory state: shall in each casc be laid down by the
League in a special act or charter. .."'
All three of President \Vilson's Paris drafts of the Covenants
referred to "charter" in the same contest, as did the text agreed
upon by \Vilson and Lord Cecil on 18 Rlnrch 1919 and the draft
of 26 Alarch 1919 ,resentcd to the Drafting Committec.
The Mandate instrumerit shares, in conimon with al1 typical
charters, constitiitions and basic ordiiiances, genernlity in formula-
' II,p. 457and Chapter VII, $assir%.
Id., p. 476.
Supra, pp. 480-4s'.
' The Lengue ofNations - A I'rodicol Suggcstioti (igi8)c:ited in MiTher
Drafting of tCovenant,Vol.2, pp.23. 32(1~28).
DraftingComrnittec did not reflast an intention to change substance. (Ir,, Vol.
P. 47.)5'4 SOUTH WEST AFRlCA
tion and dynamic flexibility in application. The obligations created
by Article 22 of the Covenant and the Mandate must, accordingly,
be construed in the light of current standards, as determined by
contemporary kriowledge, conditions and reiluirements.
The highest jiidicial authority confirms such an imperative of
interpretation of the obligations created by the Mandates System.
Thus Judge Eustamante, in the Preliminary Objections phase
of the Cases at bar, stated in Iiis separate Opinion:
"An international Mandate is, by its very nature, temporary and of
indeterminate duration. Its duration is limited by thc fulfilment
of the essential purpose of the hlandate. that is to Say, by the com-
pletion of the: processof deuelopmentof the people under tutelage
through their acquisition of full human and political capacity." 1
In the Case of the Readaptation of the ArIauromnialisJerzbsnlem
Concessio?~~ (Jurisdiction) Judge Caloyanni, discussing the "full
powers" clause in Article II of the Mandate for Palestine, said:
"It is by rcference to the spirit of Article 22 of the Covenant of
the League of Nations that one finds the essential elenient under-
lying the Mandate from the point of view of the full powers in
question; indeed, il is upon theidea of 'dcuelopmentt'hat theprinci-
ples of Article 22 are mai7ilybased:whenever the exercise of the
full powers is therefore concerned, the Administration has an
obligationto 1:xercisethem, because in thedeuelopmentof thecountry
a greatdeal of ils missionand all its activitiesare cmnprised.It could
not be otherwise. having regard to the responsibility voluntanly
assumed by the Mandatory when accepting the Mandate." 2
The significance of the foregoing judicial references tothe neces-
sity for determining constitutional-type obligations in terms of
current and cleveloping norms is highlighted by the case of Brown
v. Board of Education, in which the United Statcs Supreme Court
held unanimoiis'ly that state legislation requiring schools to be
segregated on the basis of race violated the Fourteenth Amendment
of the Constitution of the United States, which assures to al1
persons the "equal protection of the laws":
"In approaching this problem, we cannot tum the clock back to
1868 when the Amendment was adopted, or even to 1896 when
Plessy v. Fergusonwas written. We must consider public education
in theliglzl01ils full deuclofmienatnd its firesenlplace in Amencan
life tliroughout the Nation. Only in this way can it be determined if
segregation in public schools deprives these plaintiffs of the equal
protection of the laws." 3
The central issue in the Browit decision is, of course, analogous
to that in the instant Cases, uiz. t,e question whether separation
' P.C.I.J.. Ser. A, Nrr (1927) (Judgment No. 10).p. gr (dissenting opinion).
(Italics added in part.)
347 U.S.483. 4'12-9(1954)(Italicaddd.) REPLY OF ETHlOPlA AND LIBERIA 515
of individuais, by governmental policy, on the basis of member-
ship in a group or race, is consistent with the weU-being and pro-
gress of the persons affected by such a policy.
As has been pointed out, ' the Brown case is relevant to Appli-
cants' contention that obligations are not deprived of a legal
character merely by reason of being forinulated in general terms,
nor do Courts hesitate to <:xercisetheir judicial function even when
issues, in Respondcnt's phrase, fa11also withiii "the realm of
politics." Nor do Courts fear "to venture ont0 one or other of ...
[the] terrains" of "social, ethnological, economic and political
considerations," ' even in complex and controversiai issues, in
which individual human rights are asserted against governmental
action or policy.
In the present context, the Brown case, as has been said, is
particularly iiiuminating in respect of the judicially perceived
necessity to interpret broadly-formulated, constitutional-type obli-
gations, on the basis of current standards, rather than on the basis
of the presumed "intentions of the parties" at the time the obliga-
tions were conferred and accepted.
The Supreme Court of the United States, in the light of experience
and insights which had evolved during a period not much longer
than thatin which the Mandate for South West Africa has existed,
unanimously rejectecl the earlier doctrine, announced by the same
Court. that governmental separation of races, on pretext of equality,
afforded to the individuals affected the "equai protection of the
laws." A governmental policy considered acceptable in 1896 has
now become impermissible in the light of change and experience.
Kepresentative of scholarly authority similarly confirming the
necessity for applying current standards in interpreting the obliga-
tions fixedby the Mandates System are the views of J.Stoyanovsky
and Quincy Wright.
Stoyanovsky concludes :
" . . . le systèmedu mandat est, essentiellement,un systèmedynamique,
un système d'évolutionp ;our enétablir lesprincipes, c'estl'évolution
elle-mime qu'il laut enuisager, et non fias un point statique quel-
conque." s
To the same effect, Wright States:
"Article 22 .. . seeksnot so much to definea status as to guide an
evolution.It attemptç not merely to provide for the transfer of the
temtories and for the gc,vemmentof their inhabitants, but for the
minationni...h. \Ve must attempt to define the status of theseer-
' Supra. p.487.
II, p184.
'Id..391.
' Ibid.
Lo Théoricgénérnlces mandats.intcrndionau 81 (1925)(Italics added.)5x6 SOUTH WEST APRICA
territories in i:ermsof the future as well as of the presen, and the
past." '
To similar effei:t is a resolution of L'Institut de Droit Internatio-
nal, adopted in 1931, \vhicli States:
"Les pouvoir!;conférés à 1'Etat mandataire le sont dans l'intérét
excliisif des populations sous mandat. Il est du devoir de I'Etat
mandataire di: favoriser le dévelopfieiizenp tolitique deces popz~latioizs
de masière à tendre versla rédtrctionfirogressivedu degréd'ai~Iori/i,
de coiitr6le ou d'adnzitlislrntioizexercéspar le ntandataire." *
Judicial and scholarly authority, cited above, demonstrates the
necessity of interpreting Respondcrit's obligations totvard the
inhabitants of the Territory on the basis of relevant and accepted
current norms. The character of such norms has also bccn
showii by refereiice to the practicc of States and to international
organizatioris, iiiternatioiial agreements, judicial decisioiis and
scholarly authority.
Applicants turn now to a dcmonstration that Respondeiit's
obligations must be measured on the basis of current standards,
upon the additional ground that, inasinuch as Respondent has
accepted the applicability of such standards by reason of its ratifi-
cation of the Charter of the Uiiited Nations, interpretation of
Respoiidcrit's obligations on the basis of standards prevalent iii
1920 \vould lead to an anomalous and intolerable result.
Article 73 of Chapter XI of thc Charter ' embodies obligations
which, as Respondent concedes, "may be in advance of wvhat\vas
current thought in rgzo." 4 There cari be no question as to the
validity of this proposition, in tlie light of the frequent application
and intcrpretation of Article 73, by United Nations resolutions and
actions since the inception of the Organization. 5
'\Vriglit, op. ci;., 500. (Italics added.)
Quoted in Pelicliet. Ln Perso?inlild Infcr+mlionole Dirfirtdes CollectivilCsous
Mondai zs--- fr~--,.
"rticle 73 provides, in part:
"Alenibers of the United Nations which have or assume responsibilities forthe
administration of territories whose peoples have not yet attained a full mcasure
of self-government recognize the principle that tlie interesof the inhabitants
of these territorieare paramount, and acrepi or a racred trust the obligafiori fo
firornofefo th6 14f!norl,ivithin the systeof international peace and security
cstablished by the present Charter, the mell-being of the inhnbifanls O/ there
ferriloriesaxd, Io fhis end:
"a. lo ensure, with due respect for the crrltrrmuf the peoplrç concernd.
fbeir polificnl. e,:onomic,social, and edtlcnfionnluduancenzent,fheir jus; frealrncnt.
und fheir profec,:ionagainst abuses;
"b. fo druelop self-governmetif10 fahe due accounf offhe polilical aspirafiotis
of the peoples, and lo assis; thenz in the progressive deudopinenfof fheir frcc
polifical irtslifufions, occording to the particular circumstaofeçacli territory
and its {xoples and their vurying çtagcsof udvancetnent. . .."
'11~.,,. <,->",,,.
' Thc CiiireilSüiicn; Fia3I.2jtr.rcdcioiiomlcss>çi~:iiiiIc~lucnriui~4vniiccnieiit
iiitlir territorics ttruugl, meaiires nar lurnierly ;ilililiodZI~iidarcd l'crrit.,ric>
ni auch Thus. cg.. al1 rec<.iiirneniinr inihese "elJ1. ul tlicCeiicr~l .\rseiiibly REPLY OF ETHIOPIA AND LIBERIA 5'7
It is not necessary, for the purposes of the present Proceedings,
to consider in detail the scope of Respondent's obligations under
Article 73 of the Charter, inasmuch as Applicants' Submissions do
not allege violations by Respondent of such obligations.
The point made 1)yApplicants in the present context is, insofar
as the provisions of Article 73 of the Charter may be in advance of
whatwascurrent thought in 1920, an interpretation of the Mandate
text in terrns of rgzo standards could result in the application of
standards short of the Charter (Article 73) standards. It coiild, in
principle, thus be found that Respondent had met the 1920 stan-
dards by policies and practices which nonetheless failed to rneet
the requirements of Article 73. Such a result is irnpermissible,
whether or not Article 7:3is legally applicable to blandated terri-
tories.
On the assurnption thit Article 73 is applicable to Mandated
Territories, in order to avoid conflict with the obligations of the
Charter, its standards miist govern insofar as the 1920 standards
fa11short of the Charter standards.
Article 103 of the Charter is designed to preclucle such a coriflict:
"In the event of a conflictbetweeii the obligations of the Alernbers
ofthe United Xationsunder the present Cliarterand their obligations
under any other international agreement, their obligations urider
the present Charter shall prevail."
Alternatively, if Article 73 is not IegaUy applicable to hlandated
territories, the relationship between the principles of Article 73 and
the principles of the Mandate nonetheless is extrernely close. The
two sets of principles are addressed to the same type.of problem
and subject-rnatter, and are strikingly sirnilar in language and
intent. ' The Leape of Nations liesolution of 18 April 1946,
provides, inter aliat, hat the League Assernbly:
"Kecognizes that, on the termination of the League's existence,
its functions witli respect to the mandated territones xviilcorne to
an end, but notes that Chapters SI. XII, and XII1 of the Charter
of the United Nations ernbody pnnciples corresponding to those
declared in Article 22 of the Covenant of the League. .. ."
Application of the standards of 1920 to the interpretation of the
Mandate, could, in principle, result in a finding that the standards
of Article 73 had not been met. The practical effect of such a result
and the nconornic and Social Council, aie equally applicable t<iNon-Self-Governing
Territories and independent nati,>nî; certain principles containcd in the Declaration
of Human Rights and in the drûft Covenants were drawn up specifically with
referenceto such territories; dependent territories participate in some Specialized
of thGenernlrH'elfnre 871-933 (1957).r elal.. Tha United Nafionr and Pvomofion
' This is the basis of Applicants' contention, 1, pp. 105-106t.hat the doctrine
of "in fia>naleria"is applicable as a guide to the construction of the Mandate and
of Articl22 of the Covenant of the League of Nations.
League of NationsOff.J..2x6 Ass., Sp. Supp. Noigqat58 (1946).j18 SOUTH WEST AFRICA
would be to establish three distinct sets of standards: those for
Mandates, those for other Non-Self-Governing Territories, and
those for Trusteeship areas. The lowest standards would be those
for the Mandates.
Nothing in the history of the system of international supervision
of the administration of non-independent temtories would justify
such a result. Nor is there anything in that history to justify a
contention that :r Mandated territory may properly be governed
by standards below those required of other Non-Self-Governing
Territories.
The use of currently accepted standards in the interpretation of
the Mandate charter, accordingly, becomes logically imperative.
Even if Article 73 were not applicable in all its particulars to
Mandated territories, the use of the old standards in interpreting
the Mandate texts would be equivalent to rewriting the League
Resolution of 18 April 1946 so as to Say that Chapter XI of the
Charter embodies pnnciples not corresponding to those of Article zz
of the Covenant. For such a result no justification can be found.
Precisely the same reasoning applies in respect of Articles 55 and
56 of the Charter, relating to the promotion of, inter alia,"obser-
vance of human rights and fundamental freedoms for al1 without
distinction as to race, sex, language, or religion."
It must be concluded, on the hasis of the foregoing, that the
norms, in accordance with which Respondent's obligations as
stated in Article z, paragraph 2, of the Mandate are to be judged,
are the relevant norms currently and generaily accepted, rather
than standards or criteria which may have been deemed applicable
or acceptable at t:hetime the Mandate wasconferred and undertaken.
6. Respondent's final proposition-in the series formulated by
Applicants as a iramework for this section of their Reply-is that
even if current standards existed and were deemed applicable,
Respondent's policy with respect to the inhabitants of the Territory
is in compliance with such norms or standards.
It is submitted, for aii the reasons set forth above in respect of
the nature and consequences of the policy of apartheid, or separate
development, as applied in the Territory, and on the basis of the
norms relevant l:o a determination of Respondent's obligations as
stated in Article z, paragraph 2, of the Mandate, that Respondent's
conduct has beeri and remains in violation of these obligations.
In Applicant's submission, the policy and practice of apartheid
is,ipsofacto, a violation of international law, in terms of Article 38,
paragraphs I (b) and (c) of the Statute of the International Court of
Justice. '
' The standard of "separate but equal" treatment of the inhabitants of the
Territory, which is asserted by Respondent to underlie the palicy of apartheid
(see II, 471).i~. in fact and in law. a standard which, in applicationand effect,
is "separate"und systematically unequal. as haç heen demonstrated in the Me-
morials. Chvpter V, and in this Reply. parrim. REPLY CIEETHIOPIA AND LIBERIA 519
The "international custom" outlawing discrimination and separa-
tion, as defined above,' together with the wide introduction of such
a norm into "the general principles of law recognized by civilized
nations," warrants a determination that the policy of apartheid,
which strikes at the heart: of the Mandate and of Article 22 of the
Covenant of the League of Nations, is a violatioii of international
law.
Even in the absence of such a determination, homever, it is
submitted that the policy and practice of apartheid, or separate
development, as defined and analyzed in the Metnorials and in this
Reply, violates Respondent's obligations, as stated in Article 22
of the Covenant of the League of Nations and in Article z, paragraph
z, of the Mandate, as measured by the relevant and generally accept-
ed legal norms and standards described in the Mernorials and in
this Reply. CIIAPTER VI
IZESPONDEKT'S VIOLATIONS OF ITS OBLIGATIONS
TO\VARD THE UNITED NATIONS
A. THE RELEVANTSUB.MISSIOXS
Applicant's Submissions relevant to contentions in tliis Chapter
VI of the Reply are as follows: '
"1. South West Africa is a territory under the Mandate conferred
upon His Britannic Majesty by the Principal Aliied and Associated
Powers, to hf: exercised on his behalf by the Government of the
Union of Soutli Africa, accepted by his Britannic Majesty for and on
hehalf of the Goirernment of the Uni011of South Africa, and con-
firmedby the 'Councilof the League of Nations onDecember 17,1920;
"2. the Union of South Africa contiiiues to have the international
obligations stated in Article22 of the Covenant of the League of
Xations and in the Mandate for South \Vest Africa as well as the
obligation to transmit petitions from the inhabitants of that Terri-
tory, the supervisory functions to be exercised hy tlie United
Xatious, to which the annual reports and the petitions are to be
submitted. ...
"7. the Union has failed to render to the General Assembly of tlie
United Xations annual reports containing information with regard
to theTerritory and indicating the measures it has taken to carry
out its obligations under the Mandate; that such failure is a violation
of its obligations as stated in Article the Mandate; and that the
Union has the duty forthwith to render such annual reports to the
General Asseinbly;
"8. the Union has failed to transmit to the General Assembly of
the United Nations petitions from the Territory's inhabitants ad-
dressed to tlie General Assembly; that such failure is a violation
of its obligations as Mandatory; and tliat the Union ha4 the duty
to transmit such petitions to the General Assembly;
"9. the Union, by virtue of the acts described in Chapters V, VI,
VI1 and VIII: of tliis llemorial coupled with its intent as recounted
herein, has zittempted to modify substantially the terms of the
Mandate, without the consent of the United Nations; that such
attempt is in violation of its duties as stated in Article 7of the Man-
date and Article 22 of the Covenant; and that the consent of the
to attempts cmthe part of the Union directly or indirectly to modify
the terms of the Mandate."
B. DECISIVE AND USDISPUTEDFACTS
Respondent does not dispute or deny Applicants' showing that
it has failed and refused, and continues to fail and refuse,
' 1. pp. r97-198. REPLY CIFETHIOPIA AND LIBERIA 521
I. to render to the General Asse~nbly annual (or other) reports
containing information with regard to the Territory and indi-
cating the measurcs it has taken to carry out its obligations under
the Mandate, and
2. to transmit petitions to the United Nations froni the inhabi-
tants of the Territory.
On the contrary, starting from tlie premise that "the Mandate
as a whole has lapsed," ' Respondeiit contends that its
". . . Obligationstoreport and accouut to, and submit to the super-
vision of, the Council of the League of Nations, lapsed upon
dissolution of the Leagueand haveno1beenreplncedbyobligationsto
sztbmit to the strpeniision of nny orgnriof the United Nations or any
other organizatio7tor body.2
As shown by the liistor!~of the Manclatc, 3Rcspondent lias actccl
in a manner consistent with the forcgoing contention and
". . . expressly disclaimj that its right of administration is baseà on
continued existence of theBfandate."'
C. I\NALYSIS OF LEGAI.BASIS AND XATURE OF RESPONDEXT'S
OBLIGATION TSOWARD THE UNITED NATIONS
Respondent's arguments in Book II of thc Counter-~Memorial
centre essentially ori two points: that the Mandate has ceased to
esist; and that Respondent, accordiiigly, has no obligation to
report to the United Nations for its :idministration of the territory
of South West Africa, or in any other manner submit to its super-
vision. 5
The Court held in 1950,in unaninious judgment, that the Mandate
cloes,as a matter of Iaw, continue to cxist: In 1950, the Court like-
wise ruled, two Judgcs dissenting, tli:it Respondent has an obliga-
tion to report to tlic United Rations for its administration of the
Territory of South West Africa. 6In 1955 and in 1956, the Court
rendered furtlier Opinions concerning the obligations of South
Africa under the Mandate. These several Opinions arc briefly
summarized in the Memorials. a
In the Proceedings leading to the Advisory Ocinion of 1950 ,he
Court had received Respondent's IV'ritten Statement and had
heard its Oral Stateinent thereon. In both, Respondent presented
arguments underlying its contention that the Mandate has lapsed
and that its obligation to submit to international supervision
likeulse has lapsed.
'11.PP. 97. 173.
Id., p. 164.(Italics added.)
'1,pp. 43-82; andChapters II andIII, passim.
'II, p174: seep. 244, iupvo522 SOUTH WEST AFRICA
In itsPreliminary Objections tothe present Proceedings, Respond-
ent reiterated tliese contentions and presented Arguments in
support thereof, both in written and oral statements. In its Jzddg-
ment of 21 Deceniber1962, 'rejecting the Preliminary Objections,
the Court indicated that it saw no reason to depart from its hold-
ing in the 1950 Aduisory Ofiinion.
The opinion of 1950 was, it is true, an Advisory Opinion and is
not, therefore, binding upon Respondent in the strict sense of res
jzidicata.It is also true that the Court's 1962 Judgment related to
the issue of competence, and did not constitute an adjudication
upon the merits of the dispute. As a practical matter, nevertheless,
lapse of the Mandate and lapse of the obligation to respond to
international supervision are issues which twice have been fully
presented to the Court by Respondent in written statements and
in oral statements in 1950 and in 1962. As a result, the Cozrnter-
Memorial is on t.hese issues an argument de %ove against the law
of the case.
It is in the nature of legal proceedings, and perhaps especially
so of a Proceeding before this Honourable Court, that the parties
are entitled to the fullest opportunity to be heard. Applicants can-
not, and do not, dispute Respondent's pnvilege to reassert in a con-
tentious proceeding that the hlandate, and the obligation to respond
to international supervision, have lapsed, even though the argu-
ments are the same as those twice before considered in 1q50 and
1962.ln rcasscrting thcs~.argunicnts. Iiu\vever,Rcspoiidcnt c;;~fronts
Applicaiits \\.ith tuo difficultics whicii mnv appropriarcly be iiien-
tioned at the oritset.
Because the arguments with respect to lapse of the Mandate and
lapse of international accountability already have been considered
by the Court, it is difficult to restate the arguments without cutting
across Opinions already given on the matter by Judges now sit-
ting on the casi:. Moreover, in re-arguing the law of the case as
declared bythe Court, the Counter-Memorial does not merely main-
tain positions inconsistent with several of these Opinions. In many
instances, Respondent singles them out for critical analysis.
Without snggesting that Respondent is not at liberty to proceed
in this manner, Applicants would prefer not to join issue with the
Counter-Memori~ dn its critical analyses of Opinions by members
of this Honourable Court. Itis one thing to maintain positions in-
consistent with Opinions expressed by Judges now sitting. Appli-
cants themselves will respectfully maintain views in this Reply
that may not always be consistent with al1 these Opinions. It is
quite a different thing to place such Opinions in controversy.
Applicants donot believe that any useful purpose would he served
by replying to wvhatthe Counfer-Memorin las to Say about them.
Furthemore, inasmuch asthe issues of lapse of the Mandate and
' Judgmcni. P. 334. REPLY OF ETHIOPIA AND LIBERIA
523
lapse of international accountability already have been presented
to the Court by the parties, it is difficult for Applicants to deal
with these issues without engaging in mere repetition of ar-
guments already made in the Preliminary Objections phase of
thesecases. The Counter-Mernorial repeats, often without rephras-
ing,' arguments already advanced by Respondent in the Prelimi-
nary Objectionsherein. Applicants deem it appropriate to refrain
in their Reply from a mei-ely mechanical repetition of the replies
previously given to Respondent's arguments. Applicants there-
fore venture asomewbat different approach to the task of present-
ing to the Court their arguments concerning this aspect of the
merits of issues in dispute.
Applicants consider that such a course may make the arguments
already advanced on both sides more meaningful by placing them
in a slightly different coritext. Applicants therefore endeavour in
this Reply to identify the nature and apparent explanation under-
lying differences between the parties. In this manner, Applicants
show that the parties reach divergent and mutually inconsistent
conclusions concerning interpretations of the relevant texts, be-
cause of essentially differing views in respect of the nature of the
obligation of international accountability.
Issues in dispute, relevant to Respondent's obligations toward
the United Nations, may be summarized as follows:
(1) The legal import and enforceability of the "sacred trust"
and "tutelage," as formulated in Article 22, parligraph 1,of the
Covenant of the League of Nations. This issue has been analyzed
herein. 2
(2)Continuing effectiveriessof the Mandate and of Respondent's
obligations thereunder. Respondent contends that such obligations
as it owed under the Mandate have lapsed,together with the assert-
ed lapse of the Mandate as a whole; at the same time, its rights
of possession and administration over the Territory are asserted
to have survived, on a theory Respondent has not sought to dis-
close. Applicants contend, to the contrary, that the Mandate is
in effect and that. in the words of the Court,
"To retain the rights derived from the Mandate and to deny the
obligations thereundercouldnot be justified."3
(3)Among the obligations which have lapsed, in Respondent's
submission, are those embodied in the compromissory clause in
Article 7 of the Mandate, and in Article 6 of the Mandate. It is
common cause that international accountability is of the essence524 SOUTH WEST AFRICA
of the Mandate.' Respondent contends that if, as it asserts, the
duty of international accountability lapsed with the dissolution
of the League, ir is "impossible for a Court to presume that the
authors of the fifandate would have intended it to continue in
existence. ..." Applicants, to the contrary, contend that inter-
national accountability niust survive so long as rights or powers
over the Territory are asscrtcd, as the Court has twice made clear. '
Applicants coiiteiid; furthermore, that the restrictive significance
attributed by Respondent to the compromissory clause would both
deprive it of meaning and would strip the "sacred trust" principle
of al1legal significaiice.
It \vil1readily be apparent that each of these interrelated sets
of conflicting coiitentions revolves about divergent major premises
concerning the essential role of accountability under the Mandates
System. Arguments in support of each of the points have been
presented by Respondent in two previous appearances before the
Court, and have twice been considered and rejected by the Court
in fundamental aspects. The siinilarity of the arguments previously
addressed to the Court oii the same issues is apparent, from a
summary thereof, which Applicants have set out in Annex 8,
herein, includirig a summary of the Court's holdings with respect
thereto. The Coiirt's attention is respectfully drawn to the afore-
said Annex, inciuding the conclusion thercof governing "the law
of the case."
* - *
The divergence of the viewsof the parties with respect tothe issue
of international accountability has been noted in Applicants'
demonstration that the "sacred trust" and the legal nature of
the "tutelage" principles of Article 22 of the Covenant imported
obligations of a legal nature, compliance with which is an interest
of the organized international community.
Respondent's contention that its obligations were merely contrac-
tua1 with the 1-eague of Nations and lapsed when the League
terminated is, of course, irreconcilable with Applicants' conten-
tion, already siistainecl by the Court, that the Mandate was a
"new international institution," and that an essential principle
thcreof was "the recognition of 'a sacred trust of civilization' laid
upon the Leagui: as an organizedinternationalcommunity."
In this section of its Reply, Applicants respectfully show that
I. Respondent's obligation, as stated in Article 6 of the Mandate,
II. p170.
2 Ibid.
'Supra. footnote3.p.243.
' rnt...p.547.
' Supra, pp.231.254(Ch. III).
Judgment, p. 329.(Italics added.) RRPLY OF ETHIOPIA AND LIBERIA 525
is in effect, and Responderit is accountable thereundcr tothe United
Nations, as the "organizr:d international cominiinity;" 1 and
2. The compromissory clause in Article 7 of the Mandate is in
effect, and the said clause, in nature and purpose, assures jodicial
protection of the legal interest of the organized international corn-
munity in respect of the "sacred trust."
I. Kes$ondent's obligation as stated in Article 6 of the mandate is
in eflect, and Kespondent is accoz~ntabletlterer6nderto the United
vati ionsas &lie"ovganized inter>~ationdcomntttnity."
a. ï'lzeLeagur:of Nations as the "organized
international comn~i6nity"
Several alternatives werc corisidered by thc autliors of the
Covenant of tlie League of Nations and of thc hlandates Systcni
in their search for agreement upon inethods of implcmentntion of
tlie legal obligation iiiherent in the "sacred trust" and "tiitclage"
principles of Article 22 of the Covenant.
Consideration of the origin and iiatiire of siicli altcriiativc
iiiethods is relevant to an appraisal of Respondcnt's obligations of
international accouritability and explain wiiy siich obligations
survived the dissolution of the League of Nations aiid continue
to esist so loiig as Respondcnt asserts or escrcises powers of
administration or possession, or any other rights whatever, witli
regard to the Territory.
One alternative was for the I.eague of N;~tioiisitsclf to assumc
direct discharge of the responsibility, creating for that purpose ;iii
international administration. In this manner, the organized iiitcr-
national community could have nssured, by its ourn direct action,
the u~ell-beingand social progress of the inhabitants of mandatcd
territories.
Another possibility, whicli was the one adoptcd, \vas to entrust
administration of the territories to a Power, undcr a mandate to
discharge on behalf of the org:rnized international community a
triist with ;eg:ird to the wcll-being and social progress of thc
iiihabitants.
Varions combinations of the foregoing alternatives likewise urere
coiisidered.
Thus, the League might h;ivc assumed nuthority over a territory,
but desigiiate a State or :States to carry out thc task undcr the
League's direct instructioris. Altcrnatively, such a territory coiild
have been entrusted to a maiidatory, subject only to loosc and
occasional inquiry on the part of the Leaguc.
General Smuts \vas among those who started froiii the premise
that direct authority and control over the colonial possessions
' Ibid.
* The legalnature of such priiiciples is denionstrin Chapter III. p231,
sufirn.526 SOUTH WEST AFRICA
should be placed in the League of Nations. In a pamphlet pub-
lished on 16 December 1918. entitled "The Leagzceof Nations: A
PracticalSuggestion,"elaborating his ideas for international control
of colonial areas in Africa and Asia, 'General Smuts recommended
that "any authority. control or administration which may be
necessary in respect of these territories and peoples, other than
their own self-determined autonomy, shall be tlzeexclusivefunction
of and shall beve.stedin theleagueof nations and exercised by or on
behalf of it." His plan envisaged the right on the part of the
League of Nations "to delegate its authority, control. or administra-
tion in respect of any people or territory to some other state whom
it may appoint as its agent or mandatery [sic] . . .."
In the draft Covenant for a League of Nations prcsented by
President Wilsori at the Peace Conference, a Mandatory would be,
in effect, an agent of the League of Nations. The League would
assume the guardianship of inhabitants and would commission
mandatories to exercise such guardianship for it. President Wilson's
first Paris draft adopted almost intact the plan for a mandate
system proposed by General Smuts in Dece~nber, 1918.
Thus, it provided:
"Any authority, control, or administration whichmay be necessary
in respect ofthesepeoples orterritoriesother than their ownself-deter-
mined and self-organizedautonomy shall be the exclusive function
of and shall be vested in the League of Nations and exercised or
undertaken by or on behalf of it."
It further provided:
"It shallbela~.vfulforthe Leagueof Nations to delegateits authority,
control, or administration of any such people or territory to some
singleState or organizedagencywhichit may designate and appoint
as its agent or mandatory. .. ."'
The first Pari:; draft of President Wilson further provided:
". . . the degree of authority. control, or administrati0.nto be exer-
cised by the mandatory State or agency shali in each case be
explicitly defined by the League of Nations in a special Act or
Charter which shall reserve to the League of Nations completepower
of strpmision andof inlimaleclmtrol ...". 5
In his second Paris draft, President Wilson included similar
provisions and provided in addition:
"The object of al1such tutelary oversight and administration on the
part ofthe League of Nations shall be to build up in as short a time
as possible out of the people or tenitory under its guardianship
' South West Africawas notincluded.
Smuts, The Leope ofNotions: A PrnclicnSuggestion14 (1919).
Id., p17.
' II Miller. The GraffingIhe Covennnl88 (1928).
Id.. p88.(Italics added.) REPLY OF ETHIOPIA AND LIBERIA 527
a political unit which can take charge of its own affairs, determine
its own connections,and chooseits own policies." 1
The plans of both Gener:il Smutsand President Wilson, according-
ly, were based upon a concept akin to tutelle, as niade clear by the
latter's references to "tiitelary oversight" and "guardianship."
President \Vilson's proposal, however, envisaged "complete power
of supervision and of intimate control" on the part of the League,
with the objective of self-determination, or at least self-manage-
ment, "in as short a time as possible."
The British "Draft Convention Regarding Mandates," on the
other hand, proposecl a plan whereby so-called "vested territories"
would be entrusted to States which would be "invested with al1
powers and rights of a sovereign government," but which would
"report annually to the League of Nations on al1 matters relating
to the discharge of their obligations" under the Convention. 3
The British draft also provided for the establishment by the
League of a commission
"toassisttlieLeagueintlie supervisioiiofthe maitdator~States. .. ." '
The draft was accompanied by a Note suggesting, inter alia,
a preamble in which the p.xrties would recognize
". . . that the League of Nations rnust be regarded as the guardian
of the settlement thus amved at, and in al1matters not so finally
settled, as Trustee forthe peoplesof the territories. . ."
O The second paragraph of Article 22 of the Covenant emerged
and crystallized from a fiill considerntion by the authors of the
System of the various alternatives thus put forward. In the final
text, three concepts-trust, tntelage, and mandate-were inter-
woven. These concepts underlie and explain the niethod adopted
for effectuating the Mandates System.
It is necessary at the outset to point out the fallacy in Respon-
dent's contention that tut~:lagewas merely intended in a "broad,
metaphorical sense," Sand that themnndatzim concept "could hardly
have been known to the PéaceConference as a whole." '
Such a comment is impossible to reconcile with the insistent
repetition of the terms by the wartime leaders and their wide
public discussion by authorities, as noted above in this Reply.
There is little room for doubt that the concept of trttst incorporated
in the Covenant was an adaptation to the needs of the Mandates
System of the same concept in municipal legal systems.
Id., p104.
Id., Vol.1.pp.106.07.
Id.,p.ro7.
' Ibid. (Italics added.)
' Id.. p108.(Itdics added.)
' Ibid.103,
supra. pp.234-242.528 SOUTH WEST AFRICA
This is not to suggest that the term "mandate" is used in the
same sense as iri such systems, iior that the law of "trust," as
developed in tho domestic field, was incorporated as such into
international law.
International law devclops by adaptation into its system of
legal relationships aiid concepts having their origin in municipal
law. Thus, development of the rules of international law relating
to international agreements surely owes much to the law of con-
tractsin clomestic systems. In thcir references to common and civil
law concepts of trust and mandate, Applicants proceed from the
point of departure not that the Mandates System incorporated rules
of domestic law ;rs such, but that this ncw international institution
adapted to its own purposes and necds analogous concepts of
muriicipal systenis. l
The concept of trust ii~\~olvesessentially a splitting between
"control" and "l~enefit." The trustee is put in a position where he
controls the trust, yet must use it for the benefit of another.
That the concept is familiar to Respondent's legal system is made
clear by a noted scholar, as follows:
"The trust ofEnglishlaw . . .isbut onespeciesofthegenus'trust'.
As the very word indicates, the characteristic feature of the tnist is
iiot the division betweenlegal and equitable owiiersliip-this is the
specific device employed by English law to achieve the purposes
of the trust--but tlie separation between thc control which owner-
ship gives and the benefitsof ownership." @
Dean Halilo, pointing out that the essence of the concept is
separation betrv1:en"control" ancl "benefit," concludes:
"there caii be but fewcivilian systems that do not have someforin
of trust or trust-likeiiistitutions."3
Although civii law systems do not favour the concept of alimited
ownership, in the sense of the common law distinction between
"equitable" and. "legal" ownership of a trust res, it is clear that
such a distinction is "in no way essential to an effective law of
trusts." '
Hence, when clistinguished from common law concepts of property
intercsts, the concept of trust is universal.
Thus, Professor Lepaulle points out thatthe concept of trust does
not rest upon the common law distinction between legal and equit-
able estates, but is a broader principle, which he formulates as
l
Individual OpinionofiJudge Lauterpachtain the CasCnncerni~giNorwegian Loans. in tlie
that, when internalionallaw on a subjectis not sufficiently abundanto permit
generalizatian"soniehelp may justifiahlbe sought in applicable generul principles
of lawas developed in municipal laiv." (I.C.J. K1957,p. 56.)
Hahlo, "The Trust in South African Law.'' 2 Inter-American Law Revicw
229-30 (1960).
' Id., p. 241.
' Lawson, .4 Coi+irnoLowyer Lookr al theCivi law 203 (1953). REPLY OF ETHIOPIA AKO LIBERIA
529
follows: "l'essence dutrust n'est pas, nous croyons l'avoir déniontrk,
une forme nouvelle de propriété: c'est l'affection à un but déter-
miné." '
He concludes, as do Dean Hahlo and Dr. Lawson, that the triist
concept is consistent with the legal institutions of civil law countrics,
because it rests on a concept of tlivision bctween control and bcneht,
which is farniliar to them.
Adaptation of the concept of trust, as thus understood in al1
civilized inunicipal legal systems. \vas particularly appropriate to
the objective of assuring the legal obligation to protect and promote
the well-heiiig and social progress of inhabitants of mandated
territories.
It provided a solution for tliose who opposed vestingin the Lcague
of Nations direct operational control of the territorics, whether
by control citlier by its own administration or by delegaiion to n
State as, in effcct, itsoperating agent. The solution involved vcsting
of respoiisibility in the organized international commnnity, with
"ccouiital~lc administration in the hands of a mandatory under
trust."
The inandatory would administer the territory, not for its own
benefit, but for that of the inhabitants. It \vas the soleiiinity of this
undertaking which justified tlie characterization "sacrcd," whicli
was ncithcr cynical nor merely figurative rhetoric.
It is, undoubtedly, thi:; intention to split benefit froin control
uphichnccounts for the holding of the Court that
"To retain the riglits deriveà iroin the Mandate and to dciiy the
obligations thcreunder ~:ouldnot bc jostified."
Surely, the worcl "justihed" is intcnded in a legal, rather than
rnerely nioral, sense; the i-eason wliy sucli a posture is unjustificd
is precisely because it claims benefits for the trustee, ~vhercas
Respondent, under the Niandate, was given control only for the
benefit O/ the inhnbitnittsof the Territory.
IVhen the concept of tnist is seen as ;rsplitting between control
and benefit, the legal nature of "tutclage" becomes obvious. "The
trust is but one of several institutions in which there is a splitting
between control and benefit. Other esa~nplcs that imrnediately
corne to mind are tlie various forrns of giiardianship and the nd-
ministration of an irisolveilt or deceased estate." The distinction
betwccn trust, as an institution, and other similar institutions, is
the degree of control accorded to the trustee. In the Common Law,
the trustee is given the rnaximnin control possible, whicli is ail
estate of ownership. In the Civil Law, a guardian would generally
-
' Lepaulle, Traild Thdoriqueet Pratique der Trusts 354 (~93~).
Id.. ChapterS, passiin.
implied approvalinJudgrrtent,p. 333. I.C.J.Rep. 1950.p. 133; rcpeated. with
* Hahlo, p. 241, cited 528. lootnote2,supra.53O SOUTH WEST AFRICA
be given, not owiiersliip, but lesser forms of coritrol over the proper-
ty of the ward. After exaininiiig the degree of control vested in a
trustee, Professor Lawson comments:
"But if you are still dissatisfied with the protection afforded to the
you can make hiin owner and give the trustee limited
~",:,"~~?~kanagerncnt. This is uot at al1inadmissible in the Civil
Law, for it takes place evcry day where guardians and executors
are conceriied." '
\Vhethcr the control bc liinited ta powcrs of managemerit, as
in the case of guardian, or whcther it bc as extensive as legal
ownersliip, as iii 1:hecase of a common-la\\, trttstee, it is to be excr-
cised not for the benefit of the pcrson in control but for the bene-
fit of another. From this basic di\~isioii bctu~een control aiid bcne-
fitflow two consequences: thcrc mtist be an accounting coiiceriiiiig
the exercise of tlic control; there must be supervision by a public
authority.
The trustee is generally reqiiired to account for the exercise
of his control over propcrty in the Common Law systein.
"In maiiy states trustees, nt least trustees acting under a will, are
under a duty 1:oaccount in court before they are discharged. In some
states it is tlit: duty of trustees to render ail ziccounting in court nt
periodic intervals. In soiiie states if a trustcc fails to render an
accoi~iitiiigin court, the court can on its own motion cite him to
render an accounting.. .The refusalof a tmstee to makean accountiiig
is a ground frir his removal." 2
Comments, such as the forcgoing, conceriiing the Law of trusts
in the United States arc indicative of the importance of thc duty
of accounting usually, inciinibeiit upon a trustee. Lepaulle cinpha-
sized the rolc pkiyed by Courts in the supervision of the trustee:
"Le trust vit à l'ombredu Palais de Jzlstice yrri lui a$porte à ln /ois
le conseilet le coiztrôle." 3
"A guardian of the property of a person who is under an incapacity
is a trustee in the broad sense of the tem. He is under a duty to liis
ward to deal with the property for the latter's benefit. Like a trustee,
a guardian is a fiduciary." '
Even though he is not a tmstec in the strict sense of tlic tcrm,
a guardian is under a duty "to render accounts from titnc to
time, usually annually." 5 In the United States,
". . . courts of equity often retain a general jurisdiction over the
persans and estates of infants, though, as a rule, the matter of
guardianship is exclusively delegated by statute to the probate
court or other similar tribunal." 6
' Lawson. p. 203, citedp. 528.ioatnote 4. supra.
Scott,Th8 Law >fTrt<rLr\.'ol. II. 1289 (2nd ed.,1956).
Lepaulle. 1)207. citedp. 529. footnote I,supvn. (Italicadded.)
Scott,op. cif.Vol. 1. p. 70.
* hladden. Handbook of Ue Low of Perrons orrdDomerfic Rclalions508 (~931).
Id.,p. 461. RIIPLY OF ETHIOPIA AXD LIBERIA
531
The practice in civil law countries is to specify in codes a re-
quirement of accountiiig applicable to guardians. Thus, Articles
469, 470 and 471 of the French Civil Code require accounting on
demand froin the family council for tutors other than the father
or the mother, and final ;iccounting at the end of the tutelage for
al1tutors. Inasmiidi as the re<luirement is dictated by public policy,
the tutor cannot by agreement in advance avoicl the requirenient.
In speaking of the law of France and in Quebec on this point, Rodys
States:
"La reddition de coiit#tcest e7ieobligationque la loi impose an tzrletrr.
NUI fie ##artI'en dispelrser à l'auaitce, ce serait coiitrnire à l'ordre
p<cblicet airx principes esserttielsde la ttrtelle.'
Codes of a nuinber of Latin American countries explicitly pro-
vide that the duty of accounting by the tutor cannot be avoided,
for the reason that such duty is ail expression of piiblic policy. 2
Judicial supervision of the tutor in some form is usual in civil
law countries. Speaking oi the role assumed in the matter by the
French courts, a treatise States:
"Ce recours de caractèrr:co~~tentiez~ xboutit h faire du tribunal le
véritable arbitre souver:iindc In tutelle." 3
In a number of States of Latin ..\iiierica, the tiitor riiay act
only after appointment by judicial decree. ' In sonic of thesc
States, administr:ttive as well as judicial supervision is provided. 5
In the contest of the problcm presented by the colonial issue
at the Peace Conferencc, the institution of guardiaiiship readily
suggested itself as a nicaris of providing legal protection for the
inhabitants of the territorics to be placed under m;lndatc. lieliance
was explicitly placed upoii accounting and supervision as incans
ofinsuring an effective splitting betweeii control anclbenefit, exactly
as in the case of trusts in municipal systems.
Contrary to Respoiident's contention, 6tutelage was a uiiiversal-
ly accepted concept, designed for the protcction of persoiis "not
yet able to stand by themselves." 7 Delegates to the I'cace Confcr-
cnce from States outside the common-law systeni were familiar
with the institution of ttlleileor tutelage; those from comiiion-law
jurisdictions found it convenient ta express the principle of guar-
dianship in terms of "trust," mhich ran through the British and
United States proposals foi-the disposition of the colonial issue.
' Rodys, Cours Eldmenlaire de Droit Civil François cfCanadien 56 (1956).
Ex., Argentina. arts. 385. 414. 458. 459; Chile. arts4x5; Xexico. arts.590.
600.
' Colin & Capitant, Cor'rs Eldmentaira de Droit Civil Français, \'c!1. p. 590
(1947).Cf. Lepaulle, ascitcdp. 5:p. footnote 3,supra.
' Ex., CivilCodes of: Argentin;,arts.388, 399; Chile.art.373; hlexico.art 498;
Panama. art. 268: Peru, art.346.
' E.g., Civil Cades of: Argeritiiin, ar381, 491-494; Panani=. art.2.55.
II, p.ro3.
' Covenant of the League of N;rtions, Article22.para. I.532 SOUTH WEST APRICA
In short, the institution of "guardianship" in domestic law, just
as the coiicept of "trust," \vas adapted to the iieeds of the organ-
ized internationalcommunity, in accordance with the international
legal objective sought to be achieved in the Mandate System.
The third concept embodied in Paragraph (2) of Article22 of the
Covenant was that of mandale.
Situations in lvhich this concept previously had been used in
international practice are surninarized in theStudy ofthe Mandates
System published by the League of Nations in Ig4j '.The Study
points out tliat Great Britain took over protection of the Ionian
Islands in 1815 under a "mandate" conferred by Kussia, Prussia
and Austria at the Conference of Paris of ISIS. Moreover, the
intervention of France in Lebanon in 1860 to protcct thc Christian
population of that country \vas based on a "mandate" from the
Great Powers. Other instances giveii in the Study indicatc an in-
ternational connotation of the concept of "inandate," prior to the
drafting of the Covenant.
In adtlition to the cases citeclin theStudy is the plan for goverii-
ment of the Sanioan Islands, offered by a special three-power com-
mission in 1899, according to which Great Britain, Gerinany and
the United States would concur in the appointment of an adviser
to the Governnient of Sarnoa. This adviser ivas to act as a man-
datory of the three Powers, charged with the duty of maiiitaining
peace and protecting the interests of foreign subjects in Saiiioa.
The implication of these historical antecedents is that a "maii-
date" ans an authorization or direction given by States to another
State to act for them and in thcir stead. The concept of mandate
reflectcd in such historical antecedents is analagoris to, though
not the saiiie a:., the concept omandatunt in Civil Law.
In Roman La\\ ,he mandate, originaily, was a gr:ltuitous con-
tract. "Rlandate is a contract whereby one persoii (mandator)
gives aiiother (rnandatorius) a commission to do something for
him ivithout reward, and the other accepts the commission."'
A mandate is not necessarily gratuitous in the modern civil la\\.,
but in otlier respects resembles what it was in Roman law. Al-
though sometimes translated as "agency," and iised to create agen-
cy, it is not, in principle, an agency as sucli. A mandate is, in
essence, conferrnent by one person upon another of responsibility
for management of designated transactions. 5
In the period immediately preceding the Peace Conference,
however, the word "mandatory" in the international field had, in
'Sirpra.pp.233.237and242.
The illondafcsSysiem rorigin-Principkr-A$$Iicop.cil., pii-iz, supra.
' lr899Foreign RelatioO/the Unilrd Sfafer. pp. 614,632.638.64.53-55.
657-659(1901).
' Lee, Elemenld Roman Law 327(ist ed.1944).
Code.ec.8.gart. 1984of the French Civil Code and art.oi thChilean Civil REPLY OF ETHIOPIA AND LIBERIA
533
any event, acquired a special meaning in the context of the colo-
nial issue.
Whereas in municipal law systems it is in the nature of a coii-
tract of "representation," in the context of the discussions lcading
to the Covenant of the League and the Mandates System, the tcrm
"mandate" served to provide a formula of compromise betwccn the
Wilson-Smuts proposals that "authority, controlor administration"
should be the "exclusive function" of the League, l or should be
under the Lcague's "complete powcr of supervision and of inti-
mate control," and, on the other hand, proposais, such as the
British, which favoured :Lmore broadly delegated authority over
the mandated territory.
Under these circumstances, the miinicipai law concept of "man-
date" could not have been, and was not, imported literally into
the System. The term, rather, was employed as a descriptive one,
set alongside "trust" and "tutelage"; it made clear that the "tu-
telle" was not vested in the League, yet the tutor, or trustee, was
responsible and accountable to the League of Nations as the or-
ganized international commiinity.
Applicants conccive, with respect, that it was in this sense and
for this reason that the Coiirt correctly stated in the Advisory
Opinion of 1950 that
"The League was not . . .a 'mandator' in the sense in which this
term is used in the national law of certain States,"
and that
"The 'Mandatc'Iiad orily the name in cominon with the several
notions of mandate in national law." 3
In proposals made with a view to ensuring legal protection for
inhabitants, the word "niandate" was used to indicate that a
colonial powcr was not entitled to administer a colonial possession
as beneficial owner. Rather, it would receive a commission, or
"mandate," to administer the tcrritory solely for the benefit of
the inhabitants. Heiice, the term "mandatory" had come to be
synonymous with "non-annexation."
Notwitlistanding differences in terminology, al1formulas rejectcd
proposals for annexation. .In its first meeting on 23 January 1919,
the Council of Tcn agreed to hear territorialclaims before allothers.
On 24 January 1g19, Prinie Minister Hughes of Australia, General
Smuts of South Africa and Prime Minister Massey of New Zealand
presented their claims for annexation of former German colonies.
On 27 January, Japan advanced her request for annexation of
the former German Pacifc Islands north of the Equator. On
'SUPI=. p.526 (Smuts).
Ibid. (Wilson).
' Aduisory Opinioofrr Jfdy 1950;I.C.JRep. 1950p. 132.534 SOUTH WEST AFRICA
28 January 1919 the French Colonial Rlinister claimed the right of
annexation of Gorman Equatorial )\frica.
President Wilson opposed annexation, ' and the conference
approached a breakdown. President Clemenceau, however, ex-
pressed sympathy for the position of President \Vilson. Reversing
tiis Colonial Minister, he aniiounced that France \vas willing to
niake concessioiis. Conciliatory statements also were made by
Lord Balfour and by Lloyd George.
The principal difficulty of the British Dominions in accepting the
mandates was the principle of the open door, embodied in both the
British draft and the draft proposed by President Wilson. Anstralia
\vas particularly intent upon the maintenance ofa closed door policy
with respect to trade and immigration in German New Guinea. 3
The Covenaiit did not embody the plan of President Wilson,
under which the League of Nations itself would have directly
administered th(: Mandate. or done so through a State as its ad-
ministrative ageiicy. Instead, the Covenant vested responsibility
in the organized international community to assure that mandator-
ies would proniote the well-being and social progress of inhabitants
of mandated territories.
Paragraph 2 cifArticle 22 mnkes clear that the use of the mord
"tmst" in the first paragraph, meant "tutelage." The interest of
peoples not yet able to stand by themselves were declared to be
a responsibility of the organized international community, as then
re~resented hv the Lea~ue ou Xations.
1riasiniicli:istlic I.cnguc\r.:isiivt iii\.c:\lit1ilircct aiithoiir!..con-
trol or :i<lininisti.ationuvtcr tlic inhabit:iiitof iiiantlatud tc?rritoricj,
the mandatories could not act asn~entsof the Leamie.Thev werecom-
missioned to exercise, on behalf oY tfe organized intcrnakonal coni-
niunity, a tutelage of peoples iiot yet able to stand by themselves.
The function of administrati\re supervision as distinguished from
direct administration, accordingly, devolved upon the Leaguc as
the then existing body politie of the organized international com-
munity. Such super\.ision, as Respondent concedes, was "an in-
tegral portion of the Mandate System," ' in the light of its central
feature: the splitting of control from benefit.
Respondent's conception of the relationship between itself and
the League (as the organized international community) as one of
mere contract, likewise misconstrues the nature of the interest
See pp. 236-24~~526-527 supra.
*[1919] Foveign Rclalionofthe United Stoles. Vol. III (Paris Peace Conference).
PP.7Scott. OfjicrnlHistwof8Australta in the lVnrof rgr+-1918, Vol. XI. pp. 763-
89 (1938); Lnthani. The Significa+lof the Peace Conference/rom an AusIrolian
Foin1 of View11-1::(1920).
' II, p169.(So much so. indeed. thatinKespondent's submission.the Mandate
asa whole cannot be deemed to have survived without such supervision.] (Id..
PP. '73-174.) ROPLY OF ETHIOPIA AND LIBERIA 535
of a public body, in any system of law, in the proper performance
of a trust or tutelage obligation. The public body, mhethcr adminis-
trative or judicial, perforins such a functioii not to serve an interest
of its own, but to serve a public interest. The beneficiaries are, on
the one hand, the ward or other person protected and, on the othcr,
the organized community, whose interest it is to assure protection
of thosc "not yet ablc to stand by ttiemselves."'
Similarly, in the Mandates Systcm, the Mandatory was assigned
the fuiiction of exercising guardianship and of reporting its accom-
plishments for the beneiit of the peoples conceined. The League
was to examine such reports in order to ensure the protection and
promotion of the iiiterests of the inhabitants. Hence, the Manda-
tory and the League served, respectivcly, the interest of peoples
not able to standby theniselves and the interests of the organized
international community, in seeing to it that such peoples wcre
adequately protected.
The acting Secretary-General of the League of Nations put the
matter clearly :
"Co-operating in the fulfillmentof their respective tasks, iinder the
searchlight of public opinion, the mandatory administrations and
the organs of the League of Xations have, in general. ensured the
application of the principles enunciated in favour of the natives and
of thecomnt<cnito yf nations."
No other interpretatiori of the nature of the mandates would
be consistent \%<ththe principle of promoting the welfare of the
peoples concerned which, in the urords of a leading authority
"... is the real lieart of the system. . . . Only the native-welfare
part of the mandate system \vas accepted as universally valid."'
The exercise of the fiinction of Mandatory necessarily was
linked to the League, as the sole organization then existing able
to receive reports and suporvise the administration of the territories
through a Commission established by it for that purpose. The words
"on behalf of the League" indicated that the League and its mem-
bers were parties in interest to the Systcm. The French text is more
accuratc than the Englisli text in stating that Mandatorics were
to exercise the tutelage "rizcnom de LnSociété."
The conipromise in paragraph z of Article zz consisted in the
surrender by President \!'ilson of his plan to vest in the League
direct administrative responsibilities for the inbabitants. Instead,
the Rlaiidatory would act "on behalf," or "in the name of," the
League of Nations. The <:ompromise did not surrender the prin-
ciple of the "sacred trust," nor produce a situation "close to aiinex-
' Covenant ofthe League of Nations, Artic22,pura.I.
Nations Pub. 1945.VI.fA.:1)(Italics added.)cs-Applica tio6n,(Lengue of
' Hall.Mnridnter,Deprnde>zcirand TrustccrbiPr65(rg+S).536 SOUTH WEST AFRICA
ation," asResporident contends. The Mandates System,rather, in-
volvecl adaptation of the institution of guardianship, familiar to
al1municipal law systeins, and termed the resnlt "mandate."
An analysis by Fauchille of the tme significance and effect of
Article 22, paragriiph z, of the Covenant fully confirms the foregoing
interpretation. '
M. Eauchille's comments appear to Applicants of sufficient rel-
erance and importance to warrant extensive quotation, as follo\\~s:
"C'est dans le texte mêmede l'article 22 du pacte qu'il faut
chercher la nature juridique du mandat international. Or ce texte
indique d'une manière trèsnette les deus traits qui le caractérisent:
io Le mandat est une tutelle. z0 II s'exerce au nom de In Société
des Nations. En déclarant que le mandat international est une
tutelle, l'article zz a introduit dans le droit des gens une notion
qui n'était jusqu'alors connue qu'en droit privé. Constituant une
tutelle, le mandat présente un caractère personnel beaucoup p!us
au'uri caractère territorial: ce n'est pas la vrotection du territoire
;lacé sous mandat, c'est la protection des pêupleshabitant ce tem-
toire que le mandataire doit assurer. La tutelle, en effet. est donnée
à la personne mêmedu mineur, et si le tuteur a des pouvoirs sur les
biens de celui-ci,c'estseulement envued'enprotégerlapersonne. .. ."
"En droit privé, la tutelle impliqiie une mainmise complète sur
la personne du vuni.le. celui-ci ne peut rien faire: c'est le tuteur
qiii: le i,~prisi:nt:iiit. a:i53 1)l:ice.IICIIest dc inGr~ie en priiicipc
~l;insle iiiand;ii international: Ir iii;iiidatairc :i..,iiiiicI'ndminiitratiuii
iiiterriioirc I:iiis 1'intér;de ceux [lui I'li:il)iterit..". .
"La seconde notion essentielle du'inandat international est que
1'Etat désigniipour aclininistrer un autre peuple n'agit pas en son
propre nom, mais uniquement 'en qualité-<le-mandataire, au nom
de la Société des Xations': il ne possède vis-à-visdes peuples dont il
a la charge qu'une autorité délégziéL e.a situation juridique du
mandataire r:st ainsi absolument différente de celle d'un Etat
colonisaicur i'cst cn effet t.n ..(,IIiioiii pcrsoiincl <,tioiis s;isouvvrai-
ilet6qu'utie piii;îaiicc ;idniini>rrSCE ter~iioires<:<~I<)iii.?eu.ecti'c:it
II' tir de devoir IIIU~IIlion ititre d'olilicntion iiiridiquc. cn nï
icnant comme aue de ses seuls intérêts.odei~' nI., exercer une
mission de civilisation sur les peuples arrierés. Les régions sous
mandat n'appartiennent pas au contraire au mandataire. elles lui
sont seulemêi;tconfiéesen vue d'une gestion conforme nus intérêts
des habitant:; en acceptant d'exercer le mandat 'au nom de la
Sociétédes Xations', le mandataire s'impose des obligations, pour
une missiondecivilisation. vis-à-vis de lacommunautéinternationale,
comme le tuteur en contracte en acceptant la tutellc. Ce ne sont
pas des droits que le mandataire acquiert. mais ce sont des devoirs
qu'il assume, et ces devoirs sont juridiquement sanctionnés, car,
comme le tuteur, il doit en rendre compte. . . . "
"Création anglo-saxonne,car les principaux inspirateurs en furent
le généralSinuts et le président Wilson, l'institution du mandat
' Fnuchille. Trait9e Droit International PTuobmleic r, ze Partie. pp.820-24
(1925). REP1.Y OF ETHIOPIA AND LIBERIA
537
international offre une réelleanalogie avec le système des lrirstees,
qui est en vigueur eii Grande-Bretagne et aux Etats-Unis. Le
d'autrui. La constitution d'un trustpeut avoir lieu en termes exprèse
oii résulterde I'inteiition des parties oii de l'effet de la loi: nul ne
peut devenir truslecsans sa volonté.Le degréde soins qu'un trtrstee
doit apporter h l'exécutionde son trust est celui d'un homme
d'affaires ordinaire prudent dans l'administration dc scs affaires
semblables: un tvtbsleene peut pas faire de profit personnel siir le
trzrst.'
b. The United Nations as the "organizedinternational commtinity"
Applicants have demoristrated that, in the \vords of Fauchiiie,
quoted directly above,
,'
Les régionssous mandat n'appartiennent pas au contraire au
mandataire, ellcs lui sont seulemeiit coiifiéesen vue d'une gestion
conforme aux intéréts deshabitants; en acceptant d'exercer le
mandat 'au nom de la !Sociétédes Nations', le mandataire s'impose
contmunautéioinlernalionab,comme le tuteur en contracte en accep-
tant la tutelle."
The obligations of the hlandatory, since the dissolution of the
League of Nations, have been and are now owed to the United Na-
tions as the organized "commzrnauté internationale."
Under the Rlandate, Respondent wns entrusted with power of
administration and legislation over the Territory, on the basis
that it was not to benefit thereby, but \vas to promote to the ut-
most the well-being and :;ocial progress of the inhabitants of the
Territory. Article 6 of the Mandate obliged Respondent to make
to the Council of the League of Nations aniiual reports, containing
informationwith reg:lrd to the Territory and indicating thc iiieasures
taken to carry out its obligations. The Council of the League of
Nations was empowerecl to supervise the observance of such obligat-
ions with the assistance of a Permanent Commission which would
receive and examine the annual reports and advise the Council in
respect of its supervision of the RIa~idate.
Kespondent contends tliat its obligations to report on its ad-
ministration of the Rlandate andthe riet of the League to super-
vise and verify its observance of these obligations, were undertakings
of a contractual character. It argues th:it the obligation to report
and the right to supervisi: were intended to give practical effect
tothe \vords "mandatories on behalf of the League" in accordance
with the principle of "mlrn.datum,"\%,hichis a contractual prin-
ciple. The suggestion is tbat the League delegated authority to
the mandatories and received in exchange their promise to report.
to the League and to submit to its supervision. On this basis,
' Fauchilleop.cil.pp.822.824.
Supvn,p.536,footnoto I.
' Op.it..p.823 (Italiçsndded.)538 SOUTH WEST AFKICA
Respondent coiitends that on dissolution of tlie League, the notion
of "mandatories oii behalf of the League" fell, and with it Res-
pondeiit's underf.aking to report and to submit to international
supervision.
Applicants submit that tlie meaning ascribed by Respondent to
the phrase "Maridatories on behalf of the League," in paragraph
2 of Article 22 of the Covenant distorts its intended significance
and effect.
Applicants have shown that the League of Rations was not vested
with direct administrative responsibilities over "peoplcs not yet
able to stand by themselves." The proposa1 of President \Vilson
to that effect was not adopted. Hence, the League could not dele-
gate to mandatories a power it did not possess; the provisions for
reporting to the League and supervision by the League were in-
tended, in the cense put forward in the British proposais, as a
commission, or mandate, from the orgaiiized international commun-
ity, which had assumed responsibility of a legal nature with re-
gard to the tutelagc of certain peoples. In order to ensure effective
supervision, it w:~snecessary to require accouiiting to tlic League of
Nations, in its capacity as the only cxisting institution through
\\,hich the organized internationalcommunity at that time could act.
Applicants already have demonstrated that it was iiiherent in
the nature and purpose of the Mandates System that powers of
administration and legislation over mandated territories were
entrnsted to Mandatories solely for tfie purpose of promoting the
well-beirig of peoples not yet able to stand by theinselves and pre-
paring them for self-determination.
Reporting by the Mandatory and supervision by the League
were incorporatcd in paragraphs 7 and 9, respectively, of Article
22 of the Covenaiit as necessary corollaries of the fiduciary charac-
ter of the mandates. Inasmuch as the Mandatories werc entrusted
with responsibilities toward peoples not yet able to standby them-
selves, solely for their benefit, it was neccssary to verify that such
responsibilities were discharged fully and fairly.
As has likewise beeii demonstrated, in the concepts of trust
and tutelage, adapted froin analagous municipal law systems, the
obligation of a trnstee or tutor to account to public authority
is not an obligaf:ionresting upon contract. The obligation is found-
ed upon public interest and public policy; the community is
rcsponsible, in the last analysis, for the proper care of wards and
others who are beneficiaries of tutelage.
Similarly, the duty of international accountability in the case
of Mandates wa:;imposed in order to protect the public interest and
responsibility of the organized international community in the
promotion of the well-being and social progress of the inhabitants
of territories under Mandate. The international cominunity, as
shown above, had uiidertaken such responsibility, and maiii- REPLY i3F ETHIOPIA AND LIBERIA
539
fested such interest, in paragraph I of Article 22 of the Covenant.
It follows that, in performing its supervisory function with res-
pect to Mandates, the League of Nations \vas, in the words of this
Honourable Court, acting iiot as party to a contract, but "as an
organized international coinmunity." '
The United Nations hn.srcplaced the League of Nations as such
"organized international community," and Iiespondent's obli-
gation of international accountability, accorditigly, is owed to
the United Nations in that capacity. No other result woiild be
consistent with the fact
". .. that each Mandate under the hIandates System constitutes
a nem international institution, the primary, overriding purpose of.
which is to promote 'the well-beingand developinent' of the people
of the territory iinder Mandate." *
Consistently \\rith the foregoing, and as \vas to be expected in
the light of such "ovcrriding purpose" of the Mandate, the proceed-
ings at the period of thc <lissolution of the League of Nations and
the organization of tlie Uiiited Nations, manifested tlie clear in-
tention of al1 concerned to preserve and assure proper discharge
by the organized intcrriational community with rcspect to its re-
sponsibilitics towartl the inhabitants of mandate11 territories.
The facts concerning :such proceedings have twice been fully
presented to the Court. l'hc Court has held that
". . . obviously an agreement was.reacbed among ail the Memhers
of the League at the Assemblysession inApril 194G to continue the
with reference to tlie obligations of the Mandatory Powers andoperable
therefore to maintain the rights of the Menibers of the League,
notwithstanding the dissolution of the Leagne itself." 3
The Court's holding, it is submitted with respect, is to be read
in the light of its further holding that
"The findings of the Court on tlie obligation of the Union Govern-
ment to submit to international supervision are thus crystal clear.
Indeed, to exclude thi? obligations connected with the Mandate
would beto excludethe very essenceof the Mandate." '
The foregoing holdings, together with the holding that "the Man-
date as a whole is still in force," 5 constitute the law of the Case. "
As has been sho\iTn, and as is obvious from the history of the
Mandate since the inception of the United Nations, that Organi-
Ibid.ent, p.329.
Id., p. 338.
' Id., p. 334.
' Id., P. 335.
No "new factç," or other relevant rvidence, are addiiced by Respondeto
justify reopeninorrcconsideriiig of issues twice previously pi-csented to the Court
an' Supra, ChapterII.pl>.222-230:1.pp. 43@. SOUTH WEST AFRICA
540
zation has consistently maintained its right and duty to exercise
supervisory authority over the Mandate, and such a position has
reîlected the virtually unnnimous expression of the organized in-
ternational comrr~uiiity.
Thus, by overwhelming majority, the General Assembly, in
resolution 749 (VIII) of 28 November 1952,declared that "without
United Nations :;upen.ision the inhabitants of the territory are
deprived of the international supenrision envisaged by the Covenant
of the League of Nations." The resolution further states that the
United Nations "would not fulfil [sic] its obligations towards the
inhabitants of South West Africa if it were not to assume the super-
visory responsibilities with regard to the Territory of South West
Africa which were formerly exercised by the League of Nations." '
The views of the organized international community, thus clear-
ly cxpressed and consistently maintained, are obviously entitled
to weight in detcrmining the nature and purpose of the obligations
to which they relate.
2.The CompromissoryClansein Article 7 of theMandate is in efect,
and the said Claziseassures the j~idicialprotectionof tlzelegalinterest
of the organized inler?zationalconzmzrnityin respect of Ihe "sacred
trzhst."
Respondent's contentions concerning the coinpromissory clause
of the Mandate illuminate the contrasting views of the parties
in respect of th,? legal nature and scope of the "sacred trust."
As is shown below, Kespondent's contention that the compromis-
sory clause has lapsed and that, in any event, it does not extend
to the judicial protection of the interests of the inhabitants of
the Territory, strips the "sacred tmst" of its significance.
Respondent's contention with respect to the assertedly limited
scope of the compromissory clause no doubt is essential to its
argument that the lapse of Article 6 of the Mandate collapsed the
Mandate as a whole. Uiiless Respondent succeeds in showing that
the compromissi~ry clause is so inconsequential in purpose and
consequence as, in effect, to be de nziltimis in the scheme of the
Mandate, Respondent obviously cannot carry its contention that
the Mandate as a \irholehas lapsed by reason of the asserted lapse
of Article6.
The clause, set out in Article 7 of the Mandate, provides for
reference to the Permanent Court of International Justice of dis-
putes "relating i:othe interpretation or the application of the pro-
visions ofthe mandate."The text raises the question, twice present-
ed to and adjutlged by the Court: what are the provisions of the
Mandate, as to which disputes concerning interpretation or appli-
cation are properly referable to the Court?
G.A.O.R. 6th ScssSupp. No. rîat26 (A12630).
II, pp175 8. REPLV OF ETHIOPIA ASD LIBERIA
541
The relevant Mandate provisions include Articles z, 3, 4, 5, 6,
and the first paragraph oi Article 7.Article z defines tlie powers of
the Mandatory in the Territory, explicitly requiring that the Man-
datory shall proinote the material and moral wcll-bcirig and the
social progress of the inliabitants of the Territory. In Article 3,
the slave trade is prohibited; likewise the trafic in arnis and am-
munitiori; likewise, thesupply to the"natives" of intoxicatingspir-
its and beverages. Article 4 prohibits the military training of
"natives," except under certain conditions. Article 5 insures
freedom of conscience and the frec exercise of al1forms of worship.
Article 6 requires the Mantlatory to report on measures taken by it to
carry out its obligatioiis under the previous Articles. The first
paragraph of Article 7 prohibits the unilateral modification by the
mandatory of the terms (ofthe Mandate.
In order to fail within thc scope of the comprorriissory claiise,
a clispiite with the RIandatory niiist, therefore, concern compliance
on the part of the hlandatory witli its duty to proniotc the IveIl-
being and social progrcss of the inhabitants to eiisiire that they
arc not enslaved, to protect thcm from traffic in arms aiid aniiiiuni-
tion, to deny them into:<icating spirits and bevcragcs, to draft
thein for military service only as pcrniitted, to ;Lssuretlieir frec-
doin of conscience and worship, to report on the discharge of its
obligations to theiii, aiid to rcfraiii from uni1ati:r:ll modification
of the tcriiis of its ob1ig;itioiis. liespondent, on the otlicr hancl,
coiitcnds that, at least as to certaiii of tliese obligations, t\pplicants
have no standing to submit to the Court a dispute coiiccrning their
interprctatioii and applic;itioii. liespondent argues thxt a dispute
with respect to their application aiid interpretation does not in-
volve a legai interest; that Applicaiits do not have, aiid inay not
assert, a legal interest in the well-being and the social progress of
inhabitants of the Territory. 111other ivords, Respondent contends
that it is under no cognizable legal responsibility for tlie proper
performance of its obligation toward the inhabitants of the Terri-
tory. The legal untenability of this contention has been nnalyzed
above.
What is more dircctly relevant in this context, however, is
that Respondent's contention renders the comproinissory clause
meaningless.
In an effort to avoid so patently absurd a result, Respondent
suggests that there are, in the Mandate, provisions wh'ichdo not
deal with the interests of the inhabitants, and that the compro-
missory clause has meaning, bccause it may be deeined applicable
to this type of provisioii.' The difficulty with the suggestion
is twofold.
First, there arc no orga.nic provisions in the bIaiidate that do
riot deai in some manner with the interests of the inhabitants. The
II. p. 386; .p. 1898.542 SOUTH WEST AFRICA
prohibition against the building of niilitary bases and fortifications
in Article 4, is, inter alia, incidcntal to the general prohibition
against the improper use of the inhabitants for military purposes. '
It is obviously dcenied to be in the interest of the inhabitants to
preclude Respondent from making a military base of the Territory.
Article 5, assurin: eiitry and travel to foreign missionaries, mani-
festly is incideiita.1to the Article's general guarantcc of freedorn of
conscience and wsrship for the iiativcs.
Secondly, as the Court has alrcady hcld, the phrase "any dispute
\rhatever" clearl:: refers to disputes concerning interpretation or
application of any and al1 provisions of the hfandatc.
Applicants submit that the scope of the compromissory clause,
thus detcrrnined by the Court, makes clear that it is the inter-
national comniuriity of States whicli has a legal responsibility for
the protection of inhabitants of tlic Tcrritory. Under the scheme of
the ilfandate, certain States inembers of the community, such as
Applicants hcrciri, accepted the rights and dutics of membership in
the "organized body," ' representing the international community,
by becoining members of such organized body-formerly thc
League of Nations, iiow the United Nations.
Among the riglits and duties thiis accepted by Applicants, isthat
of submitting for adjudication by tliis Honourablc Court a dispute
conceriiing Kespondcnt's conduct of its obligations loward the
inhabitants of the Territory.
Respo~ident's iiiterpretatioii of the compromissory clause does
riiore thaii deprive the clause of mcaning; it puts into issue the
basic nature of the Mandates Systern. It sceks to transniute the
concept of "sacred trust" into a nioral principle, rathcr than one
of legal effectiveiiess.
Respondent bises its constructioii of the clause upoii the com-
promissory claus?s as formulated in "B" Mandates. In contrast to
the "C" Mandates. the organic provisions of which are concerned
with the well-being and social progress of the inhabitants of the
Temtory, "Bu Mandates coiitained two types of provisions; one,
like the "C" hlandates, dealt with the dutics of the Mandatory
with respect to the well-being of the inhabitants; the others gave
to nationals of Iflembers of the League of Nations certain rights,
including particiilarly so-called "open cloor" rights, ensuring them
equality of treatment in economic rnatters.
The compromissory clause, which was first introduced by the
United States in connection with the drafting of the "B" Mandates,
made clear the legal distinction between the two types of provisions.
One paragraph of the draft provided that, if any dispute arose
regarding the iriterpretation or application of the provisions of the
Mandate, such dispute would be referred to the Permanent Court
' See p.553, inf~a.
Judg>ne?ip.343.
' Id., p346. I<EFLY OP ETHIOPIA .AND LIBERII~ 543
of International Justice. .4nother paragraph of the draft likewise
provided that, if natioiials of Members of the Leaguc of Nations
\vere denied rights granted to them in the l'faridate, they conld
similarly refer such disputes to the Court. '
Hence, the legal intcrest of 3 Member of the League coiiceriiing
the manncr iii which tlic Mandatory was discharging its obligations
under the Mandate towartl the inhabitants was distinguished from
the legai interest of a national of a Member of the Leabne with
respect to the rights b~anted to him.
When the United States proposed the foregoing compromissory
clause to the Milner Commissioii, ivhich \vas preparing tlie draft
Mandates, no objection was raised to the division of the clause iiito
the t\ro aforementioncd paragraphs. It \\,as uiidi:rstood that the
distinction \vas required by the presence iii the draft "B" Mandates
of two diffcrent types of logal interests. The French Delegatc and
Lord Blilner, howcvcr, objected to perrnitting nationals of Rlcmbers
of the League individually to institute proceedings against a Manda-
tory for infractions of the rights given to them in thc Mandate.
In the vie\!, of Lord Miliicr, proccedings involviiig the rights of
nationals of Meiiibcrs of thc Leagnc should bc institutcd only hy
the States of their ~iationality. Lord Cecil thereupon proposed a
modification of the sccond paragraph of the cornpromissory clausc.
As modified, it providcd tliat "States menibers of the League of
Nations, may also, ciiibclialf of thcir subjects or citizens, bring
claims before tlie Court" :for infractions of the rights granted to
their nationals.
Accordingly, alttioiigli the compromissory clause proposcd for
the "B" Mandates remaiiied divided into tmo liaragraphs, iii cach
case, a Statc Membcr of thc Leape could iiistitute proccedings in
the Permanent Court of International Justice.
011 Io July 19x9 thc Commission approved the version of the
second paragraph of tlie clause, as amended in accordance with
Lord Cecil'ssuggestion. Uii1.1tihc first and second paragraphs of the
clause were incorporatccl in tlie draft "B" blandates. and both
remained in the draft whcii a~~roAAd bv the Milner Commission
oii 5 August 19x9.
Far from the foregoing history supporting Respondent's conten-
tion that the coin~romissorv clause in the "C" Mandates does not
mean what it sais, on thg'very same days, g and ro Jiily 1919,
that the Alilner Cominission prepared and approvcd the incorpor-
ation in the draft "B" Mandates of the aforesaid first and second
paragraphs of the clause, the Commission proposed and approved
the incorporation in the draft "C" Mandates of only the first
' Coriférencedc lPoix. 1919-rgzo, RecmidesArles delCoafdrerice.Partie VI
A 1.Id., P349.4).
rd.p. 350.
' Id., Pp402-03, 40651-1 SOUTH JVEST A~T.'HICA
paragraph of the clause. In other words, the Commissioii inserted
merely theparagraph dealing with the interest of a Statc Member of
the Leaguc concerning the manner in which the Mandatory dis-
charged its ob1ig;ltionstoward the inhabitants of the Territory. '
The significance of this action is likewise clcar from the record.
Japari was pressing for inclusion in the draft of the "C" PIaiidates
of "open door" rights for its nationals. The answcr, as Lord Cecil
put it, was that "the stipulations of the C mandates [apply] only
to the interests of the natives." It was repeatedly stressed during
the discussioii that "the sole obligations of the [Cl Mandatory
Po~verare those ,whichconcern the protectioii of the natives."
There \vasno need, therefore, and it would have becn incongrnous,
to insert into the compromissory clause ofthe draft "Cu htandates a
paragraph dealing with the interest of Alembersof theLeagueconcer-
iiing the dischargc by the Maiidatory ofits obligations withrespect to
their iiationals. .\IIthat was required was a clause dealing with the
interest of Mcmbers of the League concerning the discharge by the
Mandatory of itc obligations toward the inhabitants ofthe Territory.
Accordingly, only the first paragraph of thc clausc was incorpo-
rated in the final draft of the Mandate for South West Africa wheriit
was alqxov~d by the Milner Commission on 5 August 1919.
Not only does the forcgoing history corifirm thc obvious textual
meaning of the clause; it also makes clear the understanding that
the clause vestcd in Members of the Leaguc a right to subinit to
the Court a dispute concerning the discharge by the Maiidatory
of its obligations toward the inhabitants of a Maiidated Territory. '
Thecontrastingvie\vsof ApplicantsandlZes~)oiidcnt,asthe~-emerge
from the forcgoing aiialysis of the latter's coritcntions in respcct
of the compromissory dause may fairly be sun~mar~zeca ls follo\vs:
111Applicaiits' view, the drafters ofthc Coveiiant iiiteiided to give
legal effectto thi: coiicept "sacred trust." The dcsign \vas assumption
of legal responsibility on the part of the international community
with regard to designated inhabitants of Africa and Asia. The
exercise of such rcsponsibility, insofar as concerned the inhabitants
of South West Africa, was entrusted to Respondcnt, A member of
the community, by becoming a filember of the League, accepted the
right and duty to assure that Respondent exercised this responsi-
' Id.. p336.54.356.
' Id., p. @S.
' The significance of elirnination of the second paragraph of the clause in the
"B" Mandates is not relevant to the issues in dispute here. It is suficient to note
that the question arosein the firsnlnvrommotisCase, although in the context
of an "Y rnther than a "B" Mandate; The Court was divided as to whether
Greece could institute a proceeding for violation of a ronetof its nationals
that the action brought by Greece would have been propor, in the view of al1r
concerned, if tdislmtehad involved a proceeding for violation hy the Mandatory
of its obligations toward the inhabitants of the MilandatodTe(Mauronimalis
Case.P.C.I.J., SeA, So. 2 (~gzq).) REPLY OF ETHIOPIA AND LIBERIA 545
bility. The clause thus gave effect to the purposes of the Covenant.
In Respondcrit's vien, to the contrary, "sacred trust" imparted
a merely moral obligation; the intcrnational coininunity assuined
no legally cnforceable responsibility for urcll-being and progress
of the inhabitants coricerned. A inenibcr of the coinm~inity, by
becoming a Aleinber of the League, acquired a merely moral in-
terest in the treatnient accorded the inhabitants of the Territory.
Insofar as the organic provisions of the Alandate relate to the
treatmcnt of inhabitants nfthe Territory. the compromissory clause
served no purpose and is legally meaningless.
In order to avoid the clear and iiatural mcaiiing of the text of
the compromissory clause, Respondent asserts that the drafters
could not have iiitendcd to subject it to judici;~l proceedings with
respect to the discharge of ils obligations to inhabitaiits, for two
reasons. One is that, otherwise, the clausc would open Respondent
to aniultiplicily of ~>roceedings.'Secondly,iriasinui:h asthe claiisehas
becn invoked only oncc iii the history of the Mandates, it could not
have been intciided to pcrmit the institution of such proceedings.
Compromissory clause:; are to be found in many multilateral
agreemcnts. ' All hold in theory a possihility of multiplicity of
proceedings. Soine arc rarely irivoked, iii;~sniuçh as compliancc
with obligations is, forturiately, the rule ratlier thaii tlie exception.
It does not folIo\\. that such clauses do not nieaii what they Say.
Respondent advances t\vo additioiial thcses to support its coiiten-
tion. Onc is that 1Zespondt:nt'sobligationstoward tlie inliabitantsare
political oreclinical, rathcr than legal obligations; hcnce the drafters
could not havc inteiided to have them deterniincd by judicial pro-
cess.' Applicants have alreacly analyzed thc rcasoning underlying
such a thcsis, and subniit that it is unteiiable. At bcst, it begs the
question of thc proper interpretation of thc clear t.cxt of the clause.
Respondeiit argues also that if its obligations toward the inhab-
itaiits were covcred by the clause, the Permancnt Court would
have been in a position to overrule decisions of tlir: Council approv-
ing the manner in which the Mandatory performed its obligations;
the drafters could not have intended this result. 6This also begs the
issue. It assumes that thi: obligations of the Alaiidatory mere not
legal in nature, heiice that they were for the Council to decide
rather than for thc Court.
In making provision for judicial action with respcct to a Man-
datory, the drafters of the Mandates System acted in accordance
with a general and salutary policy of reliance upon international
judicial process. Thc coml>romissory clause in the Minorities Trea-
' II, pp1g1-,g2546 SOUTH WEST AFRICA
ties is significant in this respect. It indicates that there was nothing
unique in the inclusion in the Mandate instruments of a clause
permitting a Member of the League to submit to judicial deter-
mination the concluct of a Rlandatory with respect to thc inhabitants
of a mandated tsrritory.
The exercise of the right of judicial recourse unas, it is true, re-
stricted to States. on the Council of the Leage, in the case of the
Minorities Treaties. The effect of the clause was nevertheless the
same, inasrnuch as such clauses afforded judicial protection to the
treatment of niini,rities,'just as Article 7 affords such protection to
the inhabitants of the Territory.
The Covenant of the League itself expressed a policy of reliance
upon iiiternational adjudication in Articles 12 and 13. Article 12
requiredblembersof theLeaguetosubrnittocitherarbitration,orjudi-
cialsettlement, ortheCouncilof theLeague,anydisputebetween them
likely to lead to "a rupture" andin no casetoresort to war until three
months after the award of the arbitrators, or the judicial decision,
or the report of the Council. Such a general policy of reliance upon
judicial process may cxplain the absencc of aiiy indication in the
legislarive histor:y of the Mandates System that any of the parties
concerned questioned the inclusion of the compromissory clause.
In conclusion, Respondent's interpretation of the compromis-
sory clause reflects Respondent's assumption, discussed clsewhere
herein, that the Mandate has lapsed, that the Mandate was, in
effect, "close to annexation" and that it is vested with "day to
day ... attributes of sovereignty" over the Territory.
D. C~WCLUSION
As this Honourable Court has held:
"The unanimous holding of the Court in 1950 on the survival and
continuing effect of Article7 of the Mandate, continues to reRect
the Court'sopinion today. Nothing has since occurred which would
warrant the Court reconsidenng it. Al1important facts were stated
or referred to in the proceediiigs before the Court in 1950.. ..
The validity of Article 7, in the Court's view, wasnot affected by
the dissolution of the League, just as the Mandate as a whole is
still in force for the reasons stated above3"
Applicants submit, with respect, that the foregoing holdings
constitute the Law of the Case and that nothing has occurred since
the Court's Judgment of 21 December 1962 which wodd warrant
the Court's recoiisideration of that Judgment.
-
' See.for examplc:~.Article rz of the Treaty Betiveen the Principal Allied and
Associated Poivers and Roumania, 9 Decernber 1919.traguc ofNotions Teaty
Seriss 337. 343, 345 (1921). and Article 7 of the Declnration Concerning the Protec-
tionof Minorities in AlbanzaOctaber Igzr,9 League of Nalirms Treaty Series
'75Supra. p240.
' Judgmeni. PP3.j~339.548 SOUTH WEST AFRICA
exercised by the League of Xations whicli the United Nations has
specifically assumed." '
"lt is cleal.. therefore that whereas the United Xatioiis assumed
none of the 1.éague8s functions or powers with respect to inandates,
and whereas the League recogiiized tliat its owii functions in that
res~ect have come to an end. there could be no continuation of
obfigations under the mandatés towards the Unitcd Nations. The
mandates. aiid in particular the Mandate for South-West Africû,
must, therefore, necéssarilyhave ceased to exist as legally enforceable
instruments."
"But if.. . in spite of the considerations which 1 have advanced,
it sliould nevertheless be held that the Mandate has contiriued to
exist, 1 would submit that there could scnrcely be found a more
appropriate set ofcircumstanceson tlie basis of wliich the doctrine of
rebzrssic slanlibriscould be invoked. It being clerir tliat the United
Xatioiis lias neither succeeded to, nor assunied, the functions of the
League of Xations relating to the Alandates System, certain essential
elements of that System must necessarily have ceased to t:xist in
consequeiiceofthe dissolution oftheLeagile.. .Allthesecircumstaiices
indicate a change of so radical a nature in the application of,and in
the nietliod of implementing, the Mandates Systein, that the Union
Governrnent would, in my submission, be fully justiîied in claiming
that they are no longer bound by the terms of thc Mandate." '
In its Aduisor.~OPi:rio+t of II July 1950, the Court coiisidered and
disposed of the foregoing contentions as follo\\~s:
In respect of the Mandates System, tlie ;Court Iield that "two prin-
ciples were consiclered to be of paramoiint importance: the principle of
non-annesation and the principle that the well-being and development
of snch peoples fom 'a sacred trust of civilization.' " '
In rcsliect of tlic iilr:3iiingof tlic \vurd "iiianci:iiijry," tlie court iaiii:
..1le igic 1 I I . .. n 'iii.iii,l~tur'in tlic sciisc in \i.IiicIitlii*teriii is
usrd in [II<n:itiorialI:i\vof i:eit>in St.ir~s . . Tlic '\l.tii~I:tt~'liacloiiI\.the
name in common with the several notions of mandate in national 1a;v."
The Court held furtlier: "The Union Government was to exercise an
international furiction of administration on behalf of the Leûgue, with
the object of promoting the well-being and development of the inliabi-
tant4 " 6
The Court, iiirespect of the effect of tlie dissolutioii of the League, held:
"For the above reasons, the Court has arrived at the conclusion
that the Geiieral Assembly of the Vnited Nations is legally qualified
to exercise the supervisory functions previously exercised by the
League of ?'ations with regard to the administration of the Terri-
' Id..p. 76.
Id.,pp. 76-77,
Id..p. 288.
* Aduisory Opinion of rr July 1950, I.C.J.Rep. 1950. p. izY,at i31(Internalionol
Siatus ofSoulh-IVerlAfrica).
"d., p. 132.
lbid. REPLY OF ETHIOPIA AND LIBERIA 549
tory, and that the Union of South Africa is under an obligation to
subniit to supervision and control of the General Assernbly and to
render annual reports to it."'
Thc Court held explicitly that the mindate had not lapsed, saying:
"It is now contended on behalf of the Union Governrnent that this
Mandate lias lapsed, becausa the Lcague has ceased to exist. This con-
tention is based on a misconception of the legal situation created by
Article 22 of the Covenant and by the Mandate itself." The Court added:
"If the Mandate lapsed, as the Uiiion Governrnent contends, the
latter's authority would equally have lapsed. To retain the rights
derived frorn the hlandate and to deny the obligations thereunder
could not be justified." :'
The Court, referring to the obligations established in the Mandates
System for the benefit of inhabitants, held:
"l'hesc obligations represent the very cssence of the sacrcd trust
of civilization. Their raison d'are and original object remain. Sirice
their fulfilrnent did not depend on tlir: existence of the League of
Nations, they could not be brought to an end merely because this
supervisory organ ceased to exist. Xor could the right of the popula-
tion to have the Territory administered in accordance xviththese rnles
depend tliereon." +
3. THE PICELIMINAR OYBJECTIOSS
In the Preliminary Objectionsherein, Respondent re-argued the basic
issues previously argued, and ~vhichwere decided by the Court in its
Aduisory Opiniolz of 19jo.
In respect of Article 22 of the Covenant, Respondent contended:
"The urording of the Article as a whole, as well as its historical
background, suggest strongly that these references to 'trust,' 'tute-
lage' and 'hfandatory' were not intended to bear technical legal
rneanings, by exact or close analogy to municipal law institutions
of tri~sl,tutelngeand mandatum."
To the same cffect. Res~ondent added:
"11 seeins ttien tliat w1i1t $1.35said in tlic op~niiig p3rngraplis of
.Article?? co~icer~ii~i i ':;.i<:rctrust' :ind 'fulc>l:igeiniist I>crex:ir-
Oeil ;iîbeiiit! descrintivt of the idcalistic or 1iiriii:iiiit.iriniiobiecii\.cs
involved in-the mandates systern, and tliat the reference to 'manda-
tories on behalf of the 1,eague' is to be iinderstood as affording a
broad indication of the rnethod whereby those objectives would be
sought to be attairied." 6
Res~ondent also contended:
"The source and origiri of this obligation to report and account
was contractual, the Mandatories becorninp houn- thereto by their
Id., p. 137.
2 Id., p. 132.
4 Thid p. 133.
'1, p.301.
Id., PP301-302. SOUTH WEST AFRICA
550
agreement to the hlandate instruments," 1 adding that "by nature
and content, too, the obligation and the right correlative thereto
were of a purely contractual or 'personal' nature, as distinct from
'real' rights and obligations."
With respect to the dissolution of the League of Nations, Respondent
argued that
". . . the League of Nations and al1 its organs ceased to exist,
and it accordingly became impossible for any Mandatory to comply
with the obliration that had been imposed upon it by the Mandate
agreements ti) report and account to the Council of the League, or
with the sub~idiary obligation to fonvard petitions to it from inha-
bitants of the Temtory."
To the sanie effect: "Respondent submits that the Court wiUin
this case, for the reasons advanced above, conclude that Respon-
dent's obligation, derived from the Mandate agreement, to report
and account to, and submit to the supervision of,the Councilof the
Lea ue of N.rtions, lapsed upon dissolution of the League and has
not%een replaced by any similar obligation to submit to the super-
vision of any organ of the United Nations or any other organisation
or body." '
Respondent concluded its Firsl Preliminary Objectionwith the con-
tention that: ".. . [I]n the sense that the mandate was in the time of the
League of Xations a treaty or convention, it had lapsed and was no
longer in force witliin the meaning of Article 37 of the Statute of the
Court," Tandinsisted that the dispute was not with "another member of
the League of Nations,'' that there was no "dispute" in the sense inten-
ded by Article 7 of the hlandate; and that there had been no "negotia-
tions" in the sense required by that Article.
4. JUIXMENT ON THE PRELIMINARO YBJECTIONS
. -
In iis Juiigmcn: O/ 21 Ucc~mbcr1962.the Court rcferred to its .-ldvisor)~
Opiniotr o/ 19j0, and relected Kcjpoiiden~'~contentions in a11respects.
In its Cor<irl?r-.lloizoria(,liriporidcnt rciter;itt.s a11argiiriients pre-
viously iiinde iii!lie I'rocredingj Ienrliiigto tlie dliuisurv OprtrioO/ rg.50
in slipport of its I'reliiiiinary Objections Iicrcin.
Responderit contends: "It seems then, that what was said in the
opening pariigraphs of Article 22 conceming a 'sacred trust' and
'tutelage,' must be regarded as being descriptive of the idealistic or
humanitarian objectives involved in the Mandate System, and that
the referencc to 'hfandatories on behalf of the League' is to be under-
stood as affording a broad indication of the method whereby those
objectives would be sought to be attained."
Respondent lil<ewisereiterates its contention with respect to the con- 1
cept of Mandate!;: i
1
1Id.. p.104,
1Id., p.105.
Id.. p.138.
'Id.. p.148.
II, p.104, cf.Rcspondent's identical language in 1,pp301-302. REPLY OF ETHIOPIA AND LIBERIA 55I
"The Mandates System, whilst also containing provisions in
accordance ivith the 'sacred trust' and 'tutelage' ideals, sought to
overcome this aeakness and uncertainty b tlie introduction, in
accordancc with the mandatum concept, oi>intemational accoun-
tahility in the form of League supervision." '
It further argues:
to the notion of 'Mandatories on behalf of the League.' were those given
requiring report and accountability to, and thus supervision by,
the Council of the Leah~e. ..."
On this premise, Respondent concludes:
"In the result, the (lissolution of the League brought about not
only a cessation of the notion of 'Mandatories on behalf of the
League,' but also of al1 provisions wherehy practical effect was
sought to he given to that notion. ..." 3
Respondent argues that there is no hasis for "rejecting the prima
lacie conclusion that the mandatory's obligation to report and account,
tdissolution of the Lengue." f'nction of fonvarding petitions, lapsed on
Responderit concludes, oii the basis of its analysis of actions taken by
tlie League of Nations and hy the United Nations:
"These statements show unmistakahly a general understanding
amongst hlembers of the United Nations that no supervisory
functions regarding hlnndates . . had heen taken over, and thus
refute any suggestion oiageneral tacitintentiontothecontrary.. ..''=
Iience that "the hlandate as a whole must be held to have lapsed conse-
quent upon the lapse of the htandatory's obligations of report and ac-
countability to the Council of the League." 6
Respondent adds:
"A contention that the hlandate as a whole bas lapsed has, on oc-
casions in the past, resulted in the raising of the further questions
whether, in such event, Repondent would have to rely on a basis
other than the Mandate as such for a right or title to administer the
Territory of South West Afnca and if so, what the basis would be." '
Denying that this is an issue within the ambit of the present case,
Respondent avers that it "does not claim, but on the contrary expressly
disclaims, that its right of administration is based on continued existence
of the Mandate." 8
In its argument with respect to lapse of the hlandate as a whole,
Respondent reiterates the contentioiis advanced in support of the
Preliminary Objections. It ;myes that the present dispute is not one
' II, pIri.
' Ibid.p170,
' Id..p.124.
Id.,p.148.
Id..p. 173.
' Ibid.
Id.,P.174. '552 SOUTH WEST AFRICA
betaeen "members of the League," that it is not a "dispute" in the
legal sense, and that there have been no "negotintions."
Respondent repeats al1 arguments advanced in the Preliminary
Obieclionsiii suppoit of its contention that the AdvisoryOpinion of 1950
is not controlling and that it should be reconsidered and reversed.
Respondent re-asserts that "newly discovered information," allegedly
not placed before the Court in 1950, would have led tlie Court to a
contrary result.
All siich assertedly "new facts" were placed before the Court in the
Preliminary Objections ancl in liespondent's Oral Arguments thereori.
The Court nonetheless reafiirmed its AduisoryOpinion and, in the words
of the Court:
"All important facts were stated or referred to in the proceedings
before the Court in 1950." '
Accordingly, no purpose mould be served by showing, as Applicants
suhmit, that Respondent's reiteration of the alleged "new facts" add
nothing "new."
5. THELAW OF THE CASE
On the basis of the foregoing, it is submitted that the contentions of
Respondent in respect of tlie lapse of the Mandate, or any of its pro-
visions, are res jzidicata by virtue of the Judgment on the Preliminary
Objections.
If not res jirdicrrta, technically speaking, by virtue of the Aduisory
Opinion of rgjo, they are nonetheless ras jzidicata rvithin the broad
meaning of the doctrine, on the basis of the Advisory Opinion. The.
rationale of the doctrine is that there ~nust be an end to litigation.
Respondent has nowre-argucd the same points three times. Its arguments
have been iii some cases identical to, or a mere repetition of, tliose
advanced in 1950 and considered by the Court then. It is fair to Say
that Respondent has had its day in Court on these issues.
If the Opinion of 1950 is not res judicata, it is at least the la\\, of the
case, hence precedent, in the sense thatthe Opinion ought to be followed
in the interest of the reliance to which Opinionsof this Honourable Court
are entitled, particularly when reaffirmedby a Judgment in a contentious
proceeding.
Applicants do not contend that the Court is bound by a rule of prece-
dent. It is submitred, however, tliat ail judicial systems favour giving
effect to prior holdings of the same Court, in the absence of overriding
reasons to the contrary. This is true both in the civil law and common
law, although each system achieves the sqe result through diffcrent
processes.
Precedent "operates as a sigii of impartiality and objectivity in the
legal system, and helps to lift the adjudicative process above the imme-
diate controversy." In following precedent, a Court 'hot merely uses
precedent, but creates it as well; objectivity is built upon objectivity;
source upon sourc~:." 2
'Judpme~~t.p. 334.
Kaplan and Katzenbach. The PolilicolFoundalionr of Internalio>zoLaw
258 (i96i). CHAPTEK VI1
RESPONDENT'S VIOLATIONS OF ITS OBLIGATIONS BOTH
TOWARD THE IKHABITANTS OF THE TERRITORY AND
TOW.4RD THE UNITED NATIONS
il. RESPONDENT'S VIOLATIONS OF ARTIC 4I01: THE ÏVANDATE
I. Statentent of Law
Respondciit has given a narrow meaning to the "military clausc"
contained in Article 4 of the Mandate by the use of dictionary
definitions and its own assertions. ' A narrow meaning is, however,
inconsistent with a. the broad purpose of the military clauses in
tlie Mandates Systern, LI. the plain meaning of the clause on its
face, and c. thc interpretation of the inilitary claiises by the Per-
manent 3Iaiidates Commission.
a. The military clauses had a broad general purpose and the
terms thereiri cannot be narrowly interpreted. Their basic princi-
plc was ". . .the completc: neutralisation of mandated territories
intheevent of war, wliether the mandatory is bclligerent or not."
Their language is sweeping and categorical. Respondent clualifies
this, Iiolvever, by stating that tlie clause ". . .was probably ...
intended ta prcvcnt the Alandatory from using the Maiidated
Territory as a base of nggression,by training large Native amies, or
by establishing military or naval bases in the Territory," aiid,
secondly, by stating that there is "no doubt that a Mandatory
was to be entitlcd to train the inhabitants of a Rfandated territory
(incliiding the Natives) for the defcncc of that Ma+cdrztedterritory,"'
since "the dnty-and the right-to defend the Territory, is that
of Respondent ...." 5
IVith respcct ta the first: qualification, that military bases must
somehow be relatcd ta aggressivc designs, .4pplicants submit that
the purpose of the Mandate is to benefit the inhabitants of the
Territory and that even though military and naval bases, or forti-
fications, may have no pi-escntly intended offensive purpose-at
least as unilatcrally defined by Respondent-they are inconsis-
tent with the Mandate because thcy are siisceptible of offensive
use. The Court should not be asked to evaminc the subjective at-
titude of a particular govcrnment at a given moment of time in
order to ascertain the chara.ctcr of the violation. \Vhat the Afandatc
and Article 22 of the Covr:nant prohibit is thc "establishment of
' "Consequently. failing thepurpose of utilization for operations or a campaign.
actualor prospective. ayforce oanarmy, a place cannot be snibemaintained
as a military navalbase."IV, p. 50.(Italics omitted.)
' Stoyanovsky. Ln thdorie gdndrnlder mondofs ittlcrnationou174 (1925).
quoted in P.M.C. Min., 7thSess.. p. 157.
' IV, p. 48.
' Id.p. 48.Forfurther discussioftliis poisee Annex gsec(i).p. 565.infra.554 SOUTH WEST AFRICA
fortifications or rnilitary and naval bases." not merely the formu-
lation of aggressi-veplans or purposes for their use.
Respondent's second qualification, that Respondent has aUright
and duty" to defend the Territory, is wholly out of keeping with
the nature and substance of the Mandate institution, and ignores
the basic relatioiiship between the Mandatory and the League of
Nations. The objective of the military clauses being the "complete
neutralization of mandated territories in the event of war," 'the
primary safeguard for such territories did not reside in the strength
of the Alandatory, but in the system ofcollective securityestablished
by the League. As Duncan Hall wrote in Mandates, Defiendencies
and Trz~steeshifi , ... the Mandate System was designed tofunction
inside the gene~al framework of a collective security which it
was assumed would preserve peace." As has been elsewhere des-
cribed in this Reply, the Mandates System was founded upon a
new, dynamic concept of collective responsibility. ' Itis consistent
with this that tlie League should bear the ultimate responsibility
in the event of an attack upon a Mandated Territory severe enough
to overwhelm tlie native forces which would have been trained
for "interna1 police and the local defence of the territory." In ad-
dition, the framers of the "A" Mandates felt that it was necessary
to insert specific language to permit the "A" Mandatories so much
as to transport their own forces in the Mandated Territories. "
Finally, Respondent attempts to exclude military training camps
from the definition of "military base," referring to "considerable
permanent militas. forces stationed within [the] boundaries [of
practically al1the African territoriesunder Mandate]," yet failing to
point out that siich forces were almost entirely composed of natives.
Al1 of the other "African territories under Mandate" were under
"B" Mandates, the language of which prohibited the Mandatories
from organising ". . . any native military forces in the territory
except for local police purposes and for the defence of the terri-
tory." ' Respondent's whole argument s becomes strained as soon
as the word "native" is added to al1 of Respondent's assertions
concerning "permanent military forces."
For the reasons given, it is submitted that the intention and the
result was to frame the prohibition against military bases in broad
and sweeping language.
1SUPIO.footnote 2,p. 553.
2See Articler, andArticles 8-17. of the Covenant of the Leagueof Nations.
3Hull. Mondales, Dependencicr and Tvuslecrhi69 (3948).
See Chapter VI of this Reply. rupla.
5 Forfurther disiussion otthis poinsee Annex 9, sec.(2)p. 565,infra.
IV, p. 50.
' P.M.C. Min.. 7tSess.,p. 157.
'IV, p.51.
9 With respect to the question and answer given in the 18th Session of the
concentrationofn";he battalionin reserve"wasola "native militaryforce" kinge
trained precisely for the purpopermitted. (P.M.C. Min.. 18th Sess.. p. 34.) REPLY OF ETHIOPIA AND LIBERIA 555
b. Since the language of the mandates expressly recognized that
natives of the Mandated Territories may be trained for police and
defence purposes, and sirice it is obvious that such trained natives
(or, in the case of the "E:" Mandates, such "native military forces
in the territory") must be hased sornewhere, obviously the correct
reading of the provision respecting bases and fortifications is tliat
it is inapplicable to natives trained for the permissible purposes. '
The distinction between the objectives of the first and second
sentences of Article 4 is that natives who have been given military
training only for purposes of police and local defencedo not threaten
the neutrality of the Mandated Territory, either as a possible base
of aggression or serving othenvise to attract military attack from
outside, either for offensive or defeiisive purposes. Nor are they
available for service in the armed forces of the Mandatory. Onthe
other hand, military or naval bases established by the Mandatory,
or any fortifications erected thereby, for whatever purpose, in-
crease the Mandatory's offensive capability, thereby serving as
targets for capture or for exploitation by other Powers.
Finally, the discussions cited by Respondent in the Council of
Ten demonstrate a preoccupation with the raising of large African
armies. Such "great arniies" could hardly have been raised with-
out the creation of bases. If the prohibition on military bases had
beenconsidered tobeaPPlicabletonativeforces, the discussions recited
on pages 49 and 50 (IV) of Respondent's Counter-Mernorial would
have been wholly unnecessary. The prohibition on military bases
could not, thercfore, have been considered as heing applicable to
native forces.
This conclusion is in keeping with the obvious purpose of Article
4, which was to effect ". . . the complete neutralisation of mandated
territories in the event of war. ..." 3
c. The views of the Permanent Mandates Commission on the
military clauses demonstrate with singular clarity the common
assumption that they were intended to be scrupulously adhered
to and vigorously enforced. ' A broad interpretation of the phrase
. ...further discussion of this poinsee Annex g, sec. (3)p. 566.infra.
IV, p. 49.
- ' Stoyanovsky. p. 174, cited p. 553, footno2.supvn;cited in P.M.C. Min.. 7th
se'sSee,cg..the Memorandurn I>y M. Van Rces. "What is the Miiitary Organisation
Allowed inTerritoriesUnderBar.dChfandatesf" (l'.&l.C.Min.. 7th Sess.. pp. 156-58).
The following year, a Report by Mr. Freire d'Andrade, "MilitarOrganisationof
Territoriesunder B and C Mandate." was appended asAnnex 4 to the Minutes
of the 9th Session (P.M.C. Min.. 9th Sess., pp. 193-95). and itssecondsentence .
stated:
"Ar regards fortificationand militaryor naval bases, the position is quite
clear: the mandatory Powi:r may not establish any military or naval bases
norerect any fortifications in the mandatedterritory.'(Id.. p193.)
Similarly. the first of hlr. d'Andrade's four conclusions was that "the Mandatory
dated territory."anynaval or military base or erect any fortifications in the man-556 SOUTH WEST AFRICA
"military or naval base" is consistent with this, as weIl as with
the great concern shown by the Commission from 1932 to 1935
with respect to rumours that Japan had constructed a naval
base in one of the islands under Mandate. '
In the debates on the alleged Japanese naval base in the Pacific.
the Chairman (Ala.rquis Theodoli) ".. . emphasised that the appli-
cation of an extremely important principle of the mandates was
involved.. ." \\hile questioning the representative of Japan
(Rlr. Ito), AI. Rappard asked him if he could,
"state that he knew from a reliable source that no establishment
existed in the South Sea Islands tliat could be calleda naval base?
"The Chairn~anstated that he was anxious that there shonld be
no ambiguity ionthis point.A naval base might not be self-evident
since liarbour works permitting of the entry of ships could be used
by submarines. He preferrecl therefore to ask M. Ito to state quite
frankly whethi:r the works undertaken wereintendedonly tofiromote
mercantilenaviption." '
The sweeping approach of the Commission ("no establishment
... that cozild be c:alleda ?taval base") is even more strikinglreflec-
ted in the Minutes of the 28th Session, where again Mr. Ito of
Japaii ws being questioned about the Pacific Islands:
"The Chainnan drew attention to Chapter XVII of the report
relating to military clauses (page93 of the report). The terms of
this chapterviere extreniely definite, and the Chairman asked M.
Ito to confirni that the infercnce was that there was not a single
soldieror a siibglesailor helonging to the navy in the entire territory
uizdermandati:.
"M.Ito replied that there was not in the entire territory a single
soldier orsailor on the active list. The policemen wereoften former
non-commissioned officersof the army.
"The Chairman requested the Commission to take note of this
great satisfaction.'tatement. which it would certainly record with
This question, posed in 1935, well illustrates the problem pre-
sented in the Cases at bar. Applicants respectfully contend that
the only meanin): which mny be given to the second sentence of
Article 4, in the context of the Covenant and of the purpose and
scope of the Mandates System, is the broadest possible interpreta-
tion consistent with complete neutrality of the Mandated Territory.
The evil the injunction against bases and fortifications aimed at pre-
venting was clearly the destruction of moral and material well-being
' P.M.C. Min.. zznd Sespp. 114-15P;.M.C.Min.,28th Sess.pp.134, 138.
P.M.C. Min.aznd Sess.p. 115.
' Ibid.(Italics added.)
' P.M.C.Min..28th Sess.p.. 134.(Itnlics added.) REPLY OF ETHIOPIA AND LIBERIA
557
of the inhabitants of the MandatedTcrritories, andthe thwarting of
their social progress, by siich Territories in any manner becoming en-
gaged in hostilities. The remedy was to place a ban on the construc-
tion of fortifications andthe establishriieiit of bases. The evil \vassuffi-
cicntly great and the reinedy siifficiently sweeping that, taken in
conjunction with the system of collective responsibility and security
expressed by the Mandates System and the League itself, narrolv
dictioiiary definitions of "inilitary base" are \\rholly inconipatible
with the interpretation laid upon such terni by the Permanent
Mandates Co'mmission and inconsistent with the entirc thrust of
the Mandates System.
Respondent has given, on its part, three definitioiis froiii "well-
known dictionarics," one of which is dated 1880. ' Respondent's
;rrgunient is that "a comiiion fcaturc of these definitions is that a
base is soinetliing utilised by a force or ail army for the purposes
of operations or a cainpaign" and that, thcrefore, if an iristnlla-
tion fails to possess such a feature, it fails to be a base.
Respondent has, in effect, limited the mcaning of the terni "mili-
tary base" to coincide with the esistencc of a state of war, silice
neither "operatious" nor a "campaign" caii truly be saitl to csist
other than in wartime.
On the other hand, ttic 3l;riidatcs coiitain 110 language whicli
can be iiiterpreted as proliibitiiig inilitary installntions oicly IL
time of war. In fact, the reverse is triic. Tlie purpose aiid :ipplication
of Article 4 is obvioiisly in time of pecrce;Ltiine of pence, inoreover,
whicli was viewed, at least by the iiiore optiinistic foiiiiders of
thc Lcaguc of Nations, a:; a pcriii;iiicnt state of the world. It is a
distortioii of the clear la~iguage and intent of Article 4 to argue
that the terni "military base," as used in al1 "B" and "C"
Mandate agreements, referred only to operntio?tsor cnmpniglzs,"ac-
tual or prospective."
For the reasons advanced, tlpplicants submit that a broad aiid
flexible meaiiing must be given to the term "military base" in
Article 4. Such interpretation \vould be fully consistent with the
test ad\raiiced by Applicants in their Memorials, namely that "the
type of facility, its location, armaiiient, equipment, orgaiiization
and placc iii the Union's adniiiiistrativc hierarchy and chnin of
command determine whether it is n iiiilitary base or fortificatioii'"
2. Statemerct O/ Facts
a. Kegiment Wiildhoek
The Burgher Force established by Proclamation No. n of 1923
(S.W.A.) and the Burgher Force established by the Burgher Force
' IV, p. 50.
Id. p.50.(Italics omitted.)
Far further discussion of this point. sre Ag,esec.(4). p. 567, inlru.
infra. p18,.For further discus:ji01 this pointsee Annez 9,sec.(5). p.567,558 SOUTH WEST AFRlCh
Proclamation, No. 19 of 1927 (S.W.A.), ' both appeai ro be dif-
ferent in nature and in purpose from the wartime First South West
Africa Infantry Battalion, and from the South West African In-
fantry and its successors, the Regiinent Suidwes-Afrika and Regi-
ment Windhoek. There appear to have been no South African
military personni:l in command of the pre-war Burgher Forces.
The Administrator assembled the burghers for inspection and
rifle practice; the Administrator had the power to cal1 them up
for service; the Atlministrator appointedtheburghers' officers.Train-
ing appears exclusively to have consisted of riflepractice, and for this
purpose the burghers were summoned by the Adrninistrator. In
the case of the 1927 Burgher Force, it was commanded and con-
trolled by a Chiaf Commandant appointed by the Administrator. '
Not only has the nature of the activity and the equipment
changed since Respondent's Reports for the year 1925 ' and for
the year ~gzg but the chain of command and administrative po-
sition have also :ipparently been seriously altered since 1939.
Respondent admits that, in 1964:
".. . the Regiment is a part of the South AfricanArmouredCorps
of the Citizen Force, which forms an integral part of the South
African DefenceForces, and admits that . .. at present this Regi-
ment consistr;of 20 officersand 221 other ranks. .." 'O
It is submitted that the growth of Regiment Windhoek in its sev-
eral forms since 1946, its incorporation as "an integral part of
the South African Defence Forces," its establishment as part
of the South West Africa Command of the defence establishnieiit
of the Rcpublic of South Africa, and its corresponding place
in the Republic's administrative hicrarchy and chain of com-
mand, constituti: a violation of Article 4 of the Mandate. This
' IV. p. 54, fwtnote2, and p. 55.
Id.. p. 56.
' Id.. PP. 54-55.
' Id.. p. 55. andAnnex A,p. 64.
' Vide Itespondent'r statement, id., p. 56, para. 4: "The defence organization
described ahove remained unchanged until 1939. hlilitary training never developed
to a point beyond rifle practice and during the years ,931 to 1935 financial eon-
siderations led toa<:uttailmenteven of that. The Burgher Forcewas never called
up for military trainingand during the period 1936 to ,939 its organizationcame
to aVide Respondent's statement,."id., p. 57, para. 7: "The Regiment [Windhoek]
is... equipped with what are internationallyknawn. and used. as light reconnais-
sance vehicles. uir., ;irmoured cars."
' Id..... . . -. -ara.2.
' Id.. Annex A, p 64.
' Applicants here recall the last sentence of their second paragraph in the
"Statement of Law" contained in 1. p. 181: "The type of facility, its location.
armament, equipment, organization and place in the Union's dminislraliva hier-
orchy and chain of i:ommnnd determine whether it is a military base or fortifica-
tion." (Italics added.)
laIV,p. 56. Forfttrthediscirssjo~ othis @nt. seeAnnex g,sec.(6).p. 568, injrn. REPLY OF ETHlOPIA AND LIBERIA 559
entire development has taken place since the dissolutioii of the
League of Nations, ' witli benefit of supervision neither by the
League nor the United Nations.
1s it possible for Respondent to confirm that "... there [is] not
a single soldier or a single sailor .. .in the entire territory under
mandate," and to reply "that there [is] not in the entirc territory
a single soldier or sailor on the active list?" To the contrary,
Respondent's Minister of Defence, Mr. J. J. Fouché, made the
following statement in the South Africaii Senate oii 28 March 1960:
"Greater mobility, armoured protection and increased striking
power have been given ta twelve of the infantry units at strategic
placesin the formof Saracens [armoured cars]. TheseCitizen Force
units, together with the two Mobile\I7atcheswhich are organized
as Saracen units for interna1secunty, form a shock element in the
Army." '
The nature of the training of this "shock element" is not known,
but some indications cxist that it is closely concerned with riot
control.
"Subsequently, in July 1960. it was reported tliat frightened
residents of the old location had streamed to thc iniinicipal offices
ta register for Katutura on hearingthe noiseofgunsin a mockbattle
carried out by the Windhoek Regiment. Part of the exercisebeing
taught some 150 of the Active Citizen Force whicli is contained
in the Regiment washow to throw cordonsaround a riot-torn area
and how to use the latest methods for dealing with rioters." '
In conclusion, with respect ta Regiment Windhoek Applicants
would remind the Coiirt th:it Respondent isapplyingits own narrow
and inappropriate definition of "military base" ta the Regiment
in order to conclude that there has been no violation of Article 4.
Applicants reaffirm the broad thmst of the langiiage of Article 4
as illustrated in Part 1 of this Chapter and reiterate their own
articulation of the proper clements for coiisideration:
<<..The type of fncility,its location, armament, equipment, organi-
zation and place in the linion's administrative hierarchy and chain
ofcommanddeterminewhether it isa military baseor f~rtification."~
In view of the broad priiiciples of the Mandates System and the
correspondingly strict standards of interpretation outlined in
Part 1 of this Chapter, there is little room for doubt that Regi-
ment Windhoek, in its present form aiid strength, in organization
' Commencing on exactly the datof the dissolution resolution18April 1946;
see Respondent's footnote 6, IV. p. 56.
P.M.C. Min., 28thSess.p. 13.1cited p. 556. supra.
' South West NEWS.23.Jiily 1960. ascited inG.A.0.R. 16Sess.S.W.A. Cornm.,
Supp. No. 12 at 23(A14q57).
' 1,p. 181.560 SOUTH WEST AFRICA
and in operatiori, iii\~olves the maintenance of a "military base,"
\+rithin tlie meaning of Article 4 of the Mandate and is consequently
in violation of the obligatioris thereuiider.
b. Swakofimzcnd and Walvis Bay
With respect to the military landiiig ground in the S\+~~kop-
mund District, Applicants accept liespoiident's geographical es-
plaiiation. '
It is relevant, however, to note that the apparently continua1
build-up and reinforcement of military strength in Wal\ris Bay is
in itsell a violation of the Mandate. The addition of substantially
greater iiiilitary and naval elemcnts to \Val\.is Bay is, in rela t'ive
terms, the "esta.blishment" of a base silice the Mandate \vas con-
ferred aiid/or since the dissolutioii oftlie League of Nations. Further-
more, ll'alvis Bay must,in a military scnse, be considered to be "in"
South West Africa, inasmuch as it is completely surrounded by
territory subjec.t to the Mandate aritl ricccssarily depends thcreoii
for essential services, transport, cominunications and supplies,
iiiclnding water. The central purpose of the rnilitary clause and
the iiiteiit of the framers of tlie Rlandate, nioreover, \vas the coin-
plete neutralization of the Territory aiid the protection of the in-
habitants frorn :ittack provoked, inter alia,by the presence of inili-
tary or iiaval bases. This purpose has been increasingly fnistrated
by the apparently continuously inteiisified military rcinforccmeiit
of \Valvis Bay.
In Juiie of 1961 the South African Miiiistcr of Defence iiiade the
following statenicnt in Parlianient:
". . .Tlie nia.iidate provides that no iiaval bases anclniilitary strong-
liolds iiiav be established in the teriiiorv. This r>rovisiorirefers to
pcrmancit bases and strongliolds. TlieUsJ>irit d those provisions
wils Iionoured in peace-time. The South African Governincnt,
however, has a responsihility in rcg;ird to the defence of the terri-
tory. Tliat is admitted in tlie mandate by implication. In view of
what is happening in South West Africa aiid in the adjoining terri-
tory, arrangements are being made at present to protect South
\\'est Afric;~ against any threat from beyond its borders. The
Governmenl:would be neglectiiig its duty ifit did iiot take immedintc
action in case of any such threat. These measures will not continue
forlonger than isregarded as essential for thedefenceof theterritory.
The Government is taking immedinte steps to provide the necessary
iiiilitary force inalvis Bay, an area ruhich, although it is being
administered as part of South West, is republican territory wliere
the Government is entitled to take any steps consistent witli its
own sovereignty. Furthermore, the South African Navy pays
'Applicnnts point outhowover.tliat Government NoticeNo. 636 of 1958(S.A.)
was egregiously wiong.since such Government Soticowas published on 3 Octobcr
1958 andsinco the proclamatioofthe separate magisterial distrof\Valvis Bey
was Sec Part 1of this Chapter. pp. 553-557, supro.sand7). REPLY OF ETHlOP1.4 ASD LIBERIA 561
periodical visits there to enable us to keep the necessary supervision
over the territorial waters and the coastline of South \\'est Africa.
Arrangements have also been made for flights along the coastline
and for observations to be made along the nortliern border ofthe
territory, by aircraft of tlie South African Air Forcc." '
At page 13 of thc Rcport of the Coinmittee on South West Africa
concerning the iinplcn1erit;~tion of General Assembly Kcsolutions
1568(XV) and 1596 (XV), it was reported that:
"The port of Walvis Bay had bcen completely transformed into
a full-time military opi:rational base and [the Committee] had been
informed that ail additional gamson of 1,500 troops was expected
in South \$'est Africa in a few weeks."
\Vithout the safeguard of adequate administrative sul~crvision,
the presence of a large military and naval base such as \Valvis Bay
entirely within the Maiidated Territory, with an indeterminate
and undetermined cffect on the surroiinding area and its inhabit-
ants, is in violation of Article 4 of the Mandate, as is al1the more
clear in the light of the general considerations adduced bcl~w.~
c. clirstri$s
Finally, with respect to the tcmporary rnilitary camp and the
natural surface strips refcrrcd to at 1,page 182,' Applicantsrciterate
their concerri that thcre has been a violation of both the spirit
aiid the letter of Article 4 of the Mandate. Kespondent statcs
that the landing strip at Ohopoho in the Kaokoveld " .. . is one
of a few landing strips ;~t various places in South \Vest ilfrica
which are nsed ... intcrinittently by aircraft of the South African
Air Force."
Even if Respoiidciit's iiarrow definition of "inilitary base" ' is
cinployed, it is clcar tliat airfields which are mnintainetl for use
by military aircraft aiid available for such use at any tiine, are
places which may be "utilised . .. for the purposes of operations
or a campaign." Even if such use may be characterized as being
R. ofS.A., Parl. Deb., HotrsO/Assembly. 1st Parl., 1stSess.(weekly cd.,1961).
duty-and94-7the right-toatdefend the Territory.m[asbeing] that of Rcspoiident". ..
ivho is responsible nat only fur the maintenance of order in the Territory, but nlso
for its aafety"(IV,p. '47,para.4)wl~ich lias been dircusçed, supra, in PaItof this
Section. In this connection, its significant that Respondent lias never presented ta
the United Sations aiiy inforrr,atioconceniing an alleged "threatfrom kyond
itç borders."nor invoked the protection of the United Nations.
G.A.O.R. 16th Sess.. S.\\'.i\Comm., Supp. No. zzA at i3 (1\/4926).
Additional information supplements the conclusion that increased military activity
is taking place in Walvis Ray, fi,r which see Annex 9,sec. (7).p. 570.infra.
See sec.d. of this l'arz. p.562, infra.
* Discussed in Respondcnt's Counler-Mernorial. IV,pp. 58-Gr.
Erroneously spelled "Chohopoho" in IV,p. 59.
" ~-~~~.
' Id.,p. 50.
Ibid(.Italics oniitted ipart.]562 SOUTH WEST AFHICA
but "iiitermittent and occasional," as long as there has been intent
to clear such airstrips in part for such military use and as long as
there rcmains an intent to use such strips ancl to maintain them
thcrefor. thcrc ha:j been a clearviolation of Article 4 of the Mandate
(even under Respondent's narrow formulation), sincc such strips
are admittedly utilized in the present for operational piirposes and
may at any timc be used for the purposes of a campaign. '
The fact that these natural surface strips, or any airstrips, arc
capable of serving both administrative civil aircraft and the South
Africaii Air Force illustrates the necessity for administrative super-
vision by the United Nations. Givcn adequate administrativc
supervisioii of R~?spondent's activities, civil and military, in tlic
Territory, therc niight be no objection to the maintenance of these
airstrips for tlieir proper civilian administrative purpose. Absent
such supervision, howevcr, thcrc is no way of determining the
charactcr or the ;amount of use of these facilities by Respondcnt's
niilitary air forces..As a conscquence, Rcspondent may iiot be hcard
to Say that to place a ban on al1 such airstrips is unreasonable.
So long as Respondent fails to recognize the administrative super-
visory authority of the United Nations, while at the same tiine
maintaining airslrips, such maintenance tnust bc considercd in-
compatible with Respondent's duties under Article 4 if the purposc
and use of such airstrips in is any degree directed toward military
ends (as Respondent concedes).
d. Mililary Activity in General
There appears to be little doubt conceriiing Respondent's ever-
increasing rnilitary activity in the Territory. The Committec on
Implementation was informed in 1961 that:
".. . The South African defence line on the border of South West
Africa and Arigolanom consisted of over 4,000soldiers,South Afri-
can aircraft pltrols in the areas of Ohopoho,inthe Kackoveld [sic].
and in the Caprivi Strip bases, and a MobileForce from Potclief-
IZspondent does not specify how many çuch strips there are,nor does it give
a clear ideaof what "intermittenand occasional use" might amount to. In addition.
Reçpondent admits that:
time be made aiquaintedt Swith the landing strips within the Territor50 as
to be able to perform the responsibilities which rest upon Respondent in
respect of delence, internal securiand rescue operations in the Territory."
(IV: P. 59.1
Applicants do not quarrel with "interna1 security and rescue operations in the
Territory," but maintain that Respondent'ç misconception of its duties with
respecttodefence ofthe Territory has led it iiiaodirect violatioof Article 4 of
the Alandate. (See 1';Irof this Section. supra: cf. the statement by Respondent's
Minister oi Defence, p. 559 supra.)
Sec Chapter VI, supra, p.520.
With respect ta Respondent's reference (in IV, pp. 60-61t.theunauthorired
"Joint Statement" purported to have heen releajed hy the Chaiman and Vice-
Chairman of the Special Committee on South West Africa on 26 May 1962, see
Annex g.sec. (8).p.570. ittfrn. REPLY OF ETHIOPIA AND LIBEKIA 563
stroom (Transvaal) patrolling in co-operation with the Portuguese
soldiers." '
Great expansion in the school cadet corps of the Territory was
announced on 10 April 19153 a,d as froni I April the Territory had
thirteencadet divisions(four having been formed at the endof hlarch) ;
such divisions were to be trained in the art of drilling and shooting,
and a hitherto unnoticed form of paramilitary force or organization,
presumably also integral parts of the South African DefenceForces,
entitled "Commando units," are beiiig trained in the use of Bren
guns. 3
In three resolutioiis at its Seventeentli Session, the Geiieral
Assembly of the United Nations:
r. ". ..Urgejd] the Government of South Africatorefraiii frori~:
"Using tlie Territory of Soutli \?'est Africa as a base for the
accumulatioii. for interna1 or exterilal purposes, of arms or armed
forces. .. ."'
2. "Not[ed] wifh increnseddisquiel the progressive deterioration
of tlie situation in South West Africa as a result of the rutliless
intensification of the policy of npartheid,the deep emotiorial resent-
ments of al1African peciples,accompanied by the rapid expansioii
of Soutli Africa'smilitary forces,and tlie factthat Europeans, botli
soldiers and civilians, are being armed and militarily reinforced
for the purpose of oppressing the indigenous people, al1 of wliich
create an increasingly explosive situation which, if allowed to con-
tinu~, will endanger international peiice and security. . . ." s
3. "hTolje~l]with the ~:rauestconccrnand regret that South Afri-
can riiilitary troops stationed in thc Territory have been considerü-
bly reinforced, and that the local police,aided by the military forces,
have raided Native homes, locntions and reserves in searcli of
evidence of political activity and to clear urban areas, \%,hichare
regarded as European, of passless Xatives. . .."
Consequently, Applicants contend that Respondent's admitted
practice of maintaining an indeterminate number of landing strips
which may be. and are, used by military aircraft of the South Afri-
can Air Force, coupled with the increasing build-up of military
strength in Walvis Bay, taken together with the apparently ever-
increasing ainount of milittiry activity by cadet corps and "Com-
mando units" in the schools, communities and countryside of the
Territory, joined witli Regiment Windhoek, have created a situn-
'G.A.O.R. 16th Seçs.. S.W.A. (:omm., Supp. No. I~A at 13 (A14926).
The Windhoek Advertirer,ro i\pril 1963.
' Id.. 25 April 1963: it is not cleapreciselywhat such "Commando "nits"
consist ofSee Anne* 9. sec. (6). p. 568, infra.
' G. A. Res. 1805 (XVII), 14 December 196". G.A.O.R. 17th Sess.. Supp. No.
17at 38 (AI5z17).
G.A. Res. 1702 (XVI). ~g December 1g6r.G.A.O.R. 16th Sess.. Supp. No. 17
at 3C.A.IRes. ,703 (XVI). 19December 1961. id. a40.564 SOUTH WEST AFRICA
tion where there is the equivalent of a series of military bases or
potential military bases in the Territory, or. at worst, where the
Territory itself aiid its "\VhiteH inhabitants have become armed and
CO-ordinatedto the extent that the Territory has been transformed
into a "military base" within the meariing and intent of the Cov-
enant and the hiandate. These conditions have been reflected in
three recent resolutions of the General .4ssembly and constitute
a clear violation of the letter and spirit of Article 4 of the Mandate. SUPPLEhlENTARY MATERIAL WITH RESPECT TO
RESPONDENT'S VIOLATIONS OF ARTICLE 4 OF THE
hfANDATE
(1). The implication contained in this assertion relates to non-native
inhabitants of the Mandateil Territory. With respect to the discussion
in the Council of Ten cited by Respondent as authority for its propo-
sition that there is "no doubt that a hlandatory was to be entitled ...
etc.," Applicants submit that such discussion related only to (a) the
military training of the natives for police and defence;and (b) raising
native armies in the event of a general war, and also point out that the
discussion was, at best, singularly opaque.
After the conversation cited by Respondent, there seems to have been
manifest confusion on the part of the Secretariat as to the meaning of
the statenrents made and the conclusions reached (if any). In Baker,
CVoodrowWilsotz altd M70rldSettlement,there is the following commen-
tary on the interchange among Messrs. Clemenceau, Lloyd George, and
Wilson quoted by Kespondeiit: '"It was not surprising that, as a result
of this col-oa.v2.the secretariat should have been ouzzled as to wbat
was really meant."
It was at least clear, how~:ver,that the interchange did not hear the
meaning ascrihed thereto hy Kespondent, and that it was concerned
with the raising and training of native troops; the presence, raising, or
training of troops otlier than native was neither anticipated, suggested,
nor discussed. (It would seeni ohvious that there was no need to discuss
it, since the restriction on rnilitary and naval bases and fortifications
would logically place a clear limitation on the presence of troops other
than native; see p. 555, supra).
(2) Quincy Wright wrote in Mandates U~tderthe Leagtreof Nations :
"Thoueh lreauirements as to restrictions on the recriiitink! of
natiros ii manjated territories] assure the natives against milsary
exploitation in the inten:st of the mandatory, donbtless the interest
ofthird States in the disarmament of the mandated areas was an
even more important reason for their inclusion in the Covenant and
the mandates. This is less true of the military provisions in A man-
dates. While the mandatories for Palestine (art. 17)and Syria (*.
2) are permitted to organize local military units only for pollce
and defense of the territory, they nre not forbidden to secure local
financial assistance and trnnsportation for their omtt forces in the
territones. The Iraq treaty (art. 7) contemplates British assistance
to Iraq military forces." 3
Duncan Hall wrote as follows:
"The 'A' mandates-Palestine and syria-do not preclude the
use, with the consent of the mandatory, of local forces for defense
IV, pp.48-49.
Baker. Woodrow Wilson and World Scttlcmcn4z8 (~gzz).
'i.V"ght, fifandafeUwder th8 Lsague ofNafions 472 (rgjo).(Italics udded.)566 SOUTH WEST AFRICA
of the territory outside its actual frontier. The mandatory could
maintain ftis own armed forces in the territory, and use railways
forces and the carriageof fuel and supplies."ssa'e of his armed
Even if there were. argnendo,a duty and right to defend the Tem-
tory, it must necessarily be limited by the terms of the Mandate; this
was tme in al1 "B" and "C" Mandated Temtories. since the military
clauses in aiiof üie "B" and "C" hlandates u.ere essentiaiiy uniform
(with the exception of the additional provisions relating to the extra-
territorial use by France of native troops raisedin hfandated Territory,
contained in Article 3 of the htandates for the French Cameroons and
for French Togol:ind, which have no bearing on the present discussion).
Such "duty aiid right" to defend the hlandated Territory had, then, to
be performed, and exercised, witltorrtestablishing military or naval bases
and withorrterecting fortifications; the language of the military clauses
is too clear to permit of any other constmction. (The texts of ail "B"
and "CMhlandates prohibited the establishmelit of military or naval
bases and the ercction of fortifications, mithouiaizy exceptionfor police
or defence.)
(3) Essentially, there must have been three possible trains of reasoning
wliich could have occurred to the framers of the hlandate language.
Although there is no record of their deliberations on this point, the ques-
tion of the iiico~npatihility of the two propositions contained in the
"R" and "C" Mandates must have arisen: and,if in fact it did not arise,
the most reasonable interpretation possible must in any event be placed
on the Article. These three trains of reasoning are:
(i) bases and fortifications are forbidden, even if their purpose
is solely to assist the training of natives for police and local de-
fence;
(ii) basesand fortifications are forbidden, except that a facility
for training natives for police and local defence work, even though
similar to a base or fortification, is excluded from such prohibition:
or
(iii) bases and fortifications are forbidden, and no facility whose
pnrpose is to assist the training of natives for police and local de-
fence is considered to be such a base or fortification.
Of these, the first is unacceptable because it creates an interna1 limi-
tation upon the effectiveness or upon the accoinplishment of certain of
the express perniissible aims of the training of natives. The second is
unacceptable, sirice express language ought to be adduced to produce
aresult which is so clearly an exception to the language of the Mandate.
The third possibility is the most likely, and the only reasonable, ex-
planation. It accommodates the affirmative nature of the exclusion
with respect to training natives, and at the same time stands in obe-
dience to the absolute negative prohibition on bases and fortifications.
The very concept:of "military" or "naval" bases suggests, in context, the
familiar patterns of European troops and ships, based in the BIandated
Territory for training, development, or operations. This interpreta-
'Hall. MandaLer,Dependenci~s and Trusleeship 68(1948)(Italics added.) REPLY OF ETHIOPIA AND LIBERIA 56?
tion is reinforced by the juxtaposition, in the "Bu Mandates, of the
language permitting certain "nnliue n~ilitaryforces" with the language
prohibiting bases. Lastly, the word "establisli" suggests, in the context
of the times, (a) an outsidi: agency or a force entering the Mandated
Territory from outside and becoming established; and (b)a condition per-
manent in nature and related, in scope, to objectives other than tlie
objectives permissible for the military training of the natives under the
"C" Mandates or the maintenance of native miiitaiy forces under the
"B" Mandates.
(A) Kesvondent's contention that "... the sole critenon av~lied to
è&h fac&ty [by Appiicants] appears to be thefact ... that 'it's'pnrpose
is not ~olice vrotection or interna1 secuntv' " ' is whollv incorrect.
~~>~>lis:;iintsssert III;<[;iiiy confiiiioii ini the part uf 1<ejpoRd-l:ij to
ttie standards :.yplieclIO tlie facilities examiiied, I>Lr.ejol\,edby refer-
cncï to tlie cuiicliiJin!: s:iitiric~. of :\vvlii31its' "Stiitement of I..i\r."
at 1,page 181. - .*
Since al1 of Respondent's military facilities exclude members of tlie
"Native" population of the Territory (a fact learned from Respondent's
Counter-Mernorial), all of such facilities must then be scrutinized in
the light of tlie second sentence of Article 4 and in the broad scope of
the last sentence of Avvlicants' "Stateinent of Law." Even if the imme-
diate reason forpart &kpplicants' previous formulation bas fallen away,
Respondent cannot deny that a generally reasonable cnterion for
determinine whether installations are miiitarv bases is. in fact. whether
the$ are iiGciided solely foi "police protection or interna1 sec&ity."
Applicants fail to understand how Kespondent can complain about
Applicants' partial application of a nnrrow criteriori. ' In fact, .4ppli-
cants have been encouraged by Respondent's argument to reiterate
and repeat thc far broader criterin of Applicants' last sentence in tlieir
"Statement of Law."
(5) Quite apart from this compelliiig argument, Applicants are not
in the least prepared to accept a restrictive definition of "military base''
which is limited to the "opeiations or campaign" ofa "force or ail army."
In fact, other definitions of the term "military base" are:
(a) Gaynor, The Na? Military and Naval Dictionnry 32 (1951):
"base-A locality from which operations are projected or snpported;
the term may be preceded by a descriptive word such as 'air' or
'snbmarine.' to indicati: its primary purpose."
(b) The'Coltcise Oxford Dictionary of Cnrrent English 95 (4th
ed. 1958) :
"hnrr .
"1. That on which anythiiig stands or depends, support;
bottom, foundation, pnnciple, groundwork, starting point. ...
"6. (Mil.) tolvn or other area in rear of an army where
drafts, stores, hospitals. etc., are concentrated (also pase] of
operations)."
' IV,pp. 51-52.
Id.. pp. 4852.54. 55and 515
Id.. pp5'33, para" 13-r6. REPLY OF ETHIOPIA AND LIBERIA
569
"The meeting unanimously voted for the establishment of a
local unit, subject to the approval of the C.D.M. management.
"A committee was elccted to proceed with organisationül work
pending the management's decision." (Italics added.)
Applicants must confess that they cannot yet conceive clearly the
exact nature of Regiment Windhoek. ' On the one hand, Respondent
(a) admits that the Regiment's "administrative headquarters" are at
Windhoek. On the other Iiand. Respondent (b) denies "that the Regi-
ment is stationed at Windhoek." ' Finally, Respondent (c) States that
"only a small permanent force administrative staff . .. is permanently
statioiied at Windhoek." ' These statements seem to imply the foilow-
iiig conclusions (in order), which may or may not 1i;~vcbeen correctly
inferred by Applicants:
(a) Regiment Windhoek's field operations and other headquar-
ters are at a place other thaii Windhoek;
(b) the Regiment is, in fact, "stationed" at a place other than
IViiidhoek; and
(c) a larger group is either (1) from time to time "stationed"
at Windhoek, or (2) "permanently stationed" elsewhere.
Applicants are also confused by Respondents' statement that there
is an "administrative headquarters" at Windhoek, taken together with
Respondent's statcment that tliere is a "training camp in Windhoek." 5
The two concepts do not appear to inesh, yet Respondcnt has not des-
cribecl ariy possible interrela.tionship wliich they miglit have. Both the
phrases "administrative headquarters" ancl "training camp" imply
that there exist other elements of Regiment Windhoek, such as "tacti-
cal" or "field" headquarters. and an "operational" or "active" camp.
Applicants are equally confused by Respondent's statement that
"the Citizen Force recruits of the Regiment are ordinary civilians of
South West Africa," Gince al1inilitary recruits would initially appear
to be, of necessity, civilians. Finally, Kespondent's statement that "for
the major part of the year, therefore the camp is not used for military
training purposes [sic]" 7 introdiices several ambiguities; it may be
equally interpreted to mean tliat "the camp is used for training purposes
otlier tlian military" or that "the camp is used for purposes other than
military or training."
With respect to Respondent's statement (IV. p. 57) that Regiment Windhoek
is not an armoured unit (supporled by the assertion that "Regiments are grouped
for convenience"), Applicants find it difficult to decide in what categary Regiment
\Vindhoek might pioperly fall. The determinative factor would seem to be its
possession of armoured cars.Applicants find it difficult to imagine what reasonable
classification the Regiment miglit bear. other than that of being "an armoured
that itiçactiially a unit of infatitry. artillery. sioraengineen.hardly be argiied
IV,p. 56.
' Ibid.
' Ibid.
'Ibid.
Ibid.
' Ibid.57O SOUTH WEST AFRICA
(7) (a) "The Secretary for Defence in South Afnca hlr. J. P. de
Villiers has been publislied as saying: 'that the territorial sea area
within three iiautical miles of the coast, between latitude 23degrees
42 niinutes South has been proposed as a training area for the
defence. The area can be rouglily described as stretching from a
point half a rnile south of the mouth of the Swapo-river to a point
eleven miles south of the Walvis Bay Harbour.' The recent erec-
tion of heavy artillery dong the Coast of this particular area has
attracted much attention. . . ." 1
(b) " 'Ten miles out into the semi-desert but within the boun-
daries between South Africa owned Walvis Bay and mandated
South West Africa is parked some 30 centurion tanks, 25 armed
cars (including Saraceiis), zo anti-aircraft guns, 26 field guns and
45 troop carriers. They are painted desert brown, and are hard to
count againsi: the background of the sand. Among them are dunes
lurk armed guards [sic]; try ta get nearer and one pops up from
behind a sandhill and waves n rifle. There are 500 trainees in the
Camp nearer the town. hlany more are in other Camps.' "
(c) "A Heirculestroovcarrier of the South African Air Force lan-
ded at Windhoek yeste;day with a number of trainees and members
of the hlobils \Vatch on board.
"The trainees were en route from Pretoria to \Valvis Bav where
they will undergo desert training.
"Colonel I'ienaar who accompanied them, told reporters that
he could not comment on the activities of the members of the Mo-
bile Watch. The flight wns 'an ordinary one.' He added: 'Nothing
particular in it. At Pretoria it is dry and you have hnd sufficient
rain for seven years.' " 3
(8) With respict to Respondent's reference ta the unauthorized
"Joint Statemeni:" purported to have been released by the Clid,irman
and Vice-Chairman of the Special Committee on South West Africa on
26 May 1962, ' A.pplicants do not feel required to reply other than by
quoting the letter of transmittal of 3 August 1962, from the Chairman
of the Special Coinmittee for South West Africa to the Chairman of the
Special Committee on the Situation with regard to the Implementation
of the Declaration on the Granting of Independence to Colonial Coun-
tries and Peoples. of which the third paragraph reads:
"You will note that this report [of the Chairman and Vice-Chair-
man, reproduced immediately following, as Part II of A/5212]
makes no mention of the alleged joint communiqué issued by the
South African Govemment on 26 May 1962. This, as explained by
the Chairmen of this Special Committee, is due to the fact that the
alleged comrnuniquéwas not an officia1act of this Committee nor
Material in sin,:le quotes from The Windhoek Aducrtiser of r January 1963.
es cited in a Memorrindumsubmitted to the Secretary-General of the United Nations
bv SWANU and SWAPO: reorinted in So. Camm. on Im~lementation. Pctitias
ai 6 (AIAC. 1ag1Peï.215) (1964.
as "....'-'&'Ae Desert Tanksand Guns," The Star, Johannesburg, rq May 1962.
'The Windhoek .4duertisc*,2April 1963
' IV, pp.60-61. para. 15. REPLY OF ETHIOPIA AND LIBERIA 57I
of the Chairman thereof, nor has anyone beeii authonzed either
by this Special Comniittee or the General Assembly to enter or
join in such a commiiniqué. This Committee, therefore. does not
consider or recognize said commuiiiqué as anything officia1or of
any binding effect wh:itever." '
This "Joint Statement" hxs been dealt with elsewliere in tbis Reply. 2
1 G.A.O.R. 17th Ses~.. SpCamrn. on S.\V.A.. Supp. Xa.rz at3(Abzrz)
f See pp.225-226, supra.572 SOUTH WEST AFRICA
B. RESPOSDENT";VIOLATIONS OF ARTICLE 2 (1)OF THE I\~ASDATE
AXD ARTICLE 22 OF THE COVENANT
In Submission j, -4pplicants request the Court to adjudge and
declare that:
".. . the Union, by word and by action, in the respects set forth
in Chapter VI:II of this Memorial, has treated the Territory, in a
manner inconsistent with the international status of the Territory,
and has thereby impcded opportunities for self-determination by
the inhabitants of the Territory; that such treatment is in violation
ofthe Union's obligationsas stated in the first paragraph of Artic2e
of the Alaidate and Article 22 of the Covenant; that the Union
has the duty forthwith to cease the actions sumrnarized in Section C
of Cliapter VI11 Iierein, and to refrain from similar actions in the
future; and tlrat the Union has the duty to accord full faith and
respect to the international status of the Territory . . '"
The bases for this Submission, as set out in Chayter VI11 of the
Menzorials, are: (1) the avowed intentions of Respondent, and
(2) acts of Respondent inconsistent with the international sta-
tus of South \\'est Africa. Such acts include (a) general conferrai
of Respondent's citizenship iipon inhabitants of the Territory; '
(b) inclusion of representatives from South West Africa in the
South African Parliament; 4 (c)administrative separation of the
Eastern Caprivi Zipfel from the Territory; 5 and (d) the vesting
of South West Africa Native Reserve Land in the South Africa
Native Trust, and the transfer of administration of "Native"
affairs to the Respondent's Minister of Bantii Administration and
Developinent. 6
It is submitte<l by Applicants that Respondent, in treating the
Territory in a nianner inconsistent with the international status
of a AIandated area, has at the same time and by reason of such
treatment, impeded opportunities for self-determination by the
inhabitants of South West Africa.
' 1,p. 198.
Id.. pp. 184-195.
Id.. pp.go-rgz.
' Id., pp192-193.
Id. .p. 193.194The caption ofsubsection c. of the Mcnto(1p. 194)refers
to "Id.. pp. 194.195.ographical error which shauld properly read "the Temtory."574 SOUTH WEST APRICA
under which the inhabitants of the Territory may progress toward
self-determination of the future status of the Territory.
Applicaiits turri now to a consideration of each of the foregoing
propositions.
a. Respondent's 9urpose ov motive to incorporate or annex the
Territory, in derogation of its separate international legal status,
clearly appears from the record herein; in decisive respects, indeed,
such a purpose is conceded in Respondent's own avowals.
Thus, Responderit explicitly asserts that:
".. .the AlandateforSouth West Africagave eflect to a compromise
arrangernciit whicli involved, inter dia, that C hlandates were,
in theirpractical efiect, not far removed from aniiexation." '
XIoreover, according to Respondent:
"... The day to day exercise ofthe attributes of sovereignty thus
vcst in Respondent, and the powers of Respondent in the fields
of administration and legislation are practically .aswide as that
of a sovercignpower inregard to its own territory."
The essence of sovereignty has been defined as including "the
power to do everythiiig in a State without accountability ...."
Respondent does, it is true, assert that the "only limitations
which fetter or cc~iidition"its pourers in the Territory are the "spe-
cific prohibitions contained in the Mandate" and the "duty to
'prornote to the ittiiiost the material and iiioral well-being and the
social progress of the inhabitants of the territory."' '
Taken at face ,value, this statement appears to concede that the
Mandate is still in existence, and that Respondent recognizes its
duties of international accountability and the reviewability of its
performance of the Mandate obligations. In fact, Respondent has
devoted a substantial portion of its Counter-Me~noria l toan attemp-
ted demonstration that the Mandate "lapsed in toto upon disso-
lution of the Lcague of Nations." This is, as has been shown, the
premise upon which Respondent has in fact conducted itself with
regard to the Territory andits inhabitants, at least since November
1448. when Resi~ondent referred to "the 4reuiotcsMandate. since
eijiied."
Moreover, Respondent has devoted a substantial portion of its
Cozrnter-Memorial to an alternative contention that its "former
obligations to report and account to, and to submit to the super-
' II, p. gr.
IV, p.69.(Italic; in original.) (Respondent does not offer an indication of the
respects. if any. in which "day to day" exercise of sovereignty difiers frornyear to
Vear exercisof the sameoreroeative.)
' IV. o. 60. ~ic:iona+ 1568(4th'ed.. iggr)
1d:,11.ip.i65-156.
Respondent's Subrnissian (aid., p. 257.
' 1,o.47. REPLY 01: ETHIOPIA AND LIEIERIrI
575
vision of, the Council andthe League of Nations, lapsed upon disso-
lution of the League and have not been replaced by any similar
obligations relative to supervision by any organ of the United
Nations or any other organization or body."' This proposition,
moreover, is one which ha:: guided Respondent in its conduct to-
ward the Territory and its inliabitants, at least since November
1948.
In the light of these contentions and this practice, there is a hol-
low, and indeed cynical, aspect to Kesponderit's characterization
of the "proliibitions" of the Mandate and its "duty" thereunder,
as constituting a "fetter or condition" upon its "day-to-day cx-
ercise of the attributes of sovereignty" over the Territory.
Responderit does, it is true, aver that its policies in the Ter-
ritory are carried out "in the spirit of the Mandate,"z but thr:
spirit which movcs IZespondcnt in this respect is unilaterally
detined, and remailis iinaccounted for, unreviewed aiid unreviewable.
Sovereignty circumscribed by such e "fetter" surely is indistin-
guishable from the unfette:red kind.
Respoiident's claim of the day-to-day attributes of sover-
eignty over thc Territory reîlects a posture which Iiespondent
lias tnaintained with regard to its riglits and powers under the
Mandate, from its incepticiii.
The records of the Perinanciit Mandates Commission disclose
its constant effort to assert the separate internatio~~ol status of
the Territory in the face of Respondeiit's insistence that the Man-
date was in "practical effect, not far renioved frorn ailnesatioii." 3
Two illustrations viril1sufice to deinonstrate theestent of difference
between the Coinmission aiid Respondent in this respect.
Thus, the Commission notccl a statcment made by Geueral
Smuts before the Soutli African Parliament in which the General
had said:
". . 1 do not think it is necessary for us to arinex South-West
to the Union. The mandate for me is enough, and it should be
enough for the Union. It gives the Union such complete power of
sovereignty, not only administrative but legislative, that we need
not ask for anything inore." '
A member of the Commission, Mr. Orts, commented upon the
General's stateinent as folli~ws,inter alia:
"the declaration of General Smuts was of interest in so far as it
explained certain decisioiîsof the maridatory Power-for example,
regarding Statc lands and more particularly the railways-of which
the legitimacy had beeri contested by the Permanent Mandates
Commission.The Government of South Africa Iiad maintained tliat
the railways of South-West Africa existing at the tirne at which
Respondent'sSubrnissian(b),11, p257.
' IV, p92.
' Quoted in P.X.C. Min.9th Sess.p.33.576 SOUTH WEST AFRICA
the mandate had beeii conferred upon it had been Iianded over to
the Union iri 'full dominion.' This conception \\?as contrary to
the opinion of the Commissioiiand of the Councilof the League of
Nations. If the idea, which \vas a totally false one, prcdoininated
in Soutli Afri':athat thcrc \irasvery littlt: differenccbetween annes-
atioii and the mandate, then this view was explaiiied. If the inde-
pendence of South-\\'est Africa were recogriized, the railivays
wouldcertainly belongto South-M'estAfricaandnot to tlie Union." '
On another occasion, disagreemeiit arose betweeii the Commis-
sion aiid Respondent over the terms of a boundary agreement with
Portugal, in whiaihit was statecl that Respondent "possesses sover-
eignty ovcr the Tcrritory of Sorith-JVest Africa . .. lately under
the sovereignty of Germ:~ny."
111a report ti, the Lcaguc Couricil conceriiing tlie niatter, the
Coiiitnissioii stai:ed that "thc parallel drawn iii the [trcaty] be-
tween the sovereignty assuriicd by the Governnicnt of tlic Union
of Soutli Africa over the territory in question aiid the sovcreignty
over th;~t territory previously licld by Gerinany, seems to iinply
a claim to legal relations betwen the mandatory Power and the
territory it adriinisters iinder its mandate, which arc iiot in ac-
cordancc with che fundaiiicntal principles of tlic iiiaiidates sys-
tem."
Respondent's curreiit contention that the Mandate (no\\,asserted
to have lapsed .in tolo) ws, in any evcnt, "not far removed from
anncxation" thiis reflects its coiitiriuing and loiig-staiiding posture
of dcnial to th<: Tcrritory of a scparate iiitcrnatioiial status.The
conclusion is inescapable tliat Respondent's purpose arid motive
lias becii, aiid remains, that of incorporating or anncxiiig the Tcrri-
tory, in violation of its obligation as stnted in Article 22 of the
Covcnaiit of tho League of Nations and Article z of the Mandate.
b. Respondent's policies and acts, enuineratcd in the iMerr~orinls ,
andas more fully described below, give practical effect to Respon-
dent's explicit and implicit avo\\-als of purpose, cited above.
Such policies and acts, including its rejection of international
accountability and its iiisistence upon the right to govern the
Territory on the basis of an iiiireviewable discrctioii, constitute
ipso facto, and rvithout regard to Respondent's motive or purpose,
a violation of Respondent's obligation to respectthe sepurate interna-
tional statt6sof the Territory.
r. Confernient of Sonth Africuit Citizei~ship
Conferment of South African citizenship upon the inhabitants
of the Territory has the inescapable legal and practical consequence
'Id.. p.34.
3 P.;\l.C. Min., riSess.pp.$rgg, 204:and cf.P.M.C. Min., 14tSess..p.116.
' 1,pp. 190-195. REPLY OF ETHIOPIA AND LIBERIA
577
of identifying the Territory and the Repuhlic as a single political
entity. As the Permanent Mandates Commission, in its proposals to
the League Council in 1922, recognized:
". .. It is important, in order that the principles laid down in
Article 22 of the Covenirnt may be respected . . that thc native
iiihabitants of B and (:mandated territories should be granted a
national status mholly distinct from that of the nationals of the
mandatory Power." '
The Commission's policy iii this regard was subject only to the
limited exception, tliat it was:
". . . open to mandatory Powers to which B and C mandated
territories have been entrusted to make arrangements, in con-
formity witli their own laws, for the individztaland purely uolr~nlary
acquisition oftheir nationality by inhabitants of these territories."2
The League Council adopted a resolution 3 explicitly providing,
inter alia:
"The status of the native inliabitaiits of a mandated territory is
distinct from tliat of the nationals of the manliatory Powcr and
cannotbeidentifiedthere~aithbyanyprocesshavinsgeneralapplication."
In accordance with the proposals of the Permanent Mandates
Commission, the resolution left it open for inhabitants of such
temtories volt~ntarily to ohtain naturalization fn~m a mandatory
Power.
Respondent concedes that the South African Citizenship Act4
coiifers South African citizenship upon the inhabitants of the
Mandated Territory, but contends that what the Council of the
League really objected to, in the cited resolution "was a particular
manner of conferment of nationality, and not the tact of conferment
of nationality by itself." Respondent also argues that "if individual
inhabitants could 1egitim:rtely acquire the natioiiality of a Man-
datory, a de facto position could arise where a large number of, or
even all, the inhabitants could be endowed with such iiationality." '
It is submitted tliat noither of these contentions is consistent
with the essential purpose of the resolution which, in the words
of the Permanent Mandates Commission quotetl abovc, was to
assure that in accordance with the principles of Article 22 of the
Covenant of the Leaye of Nations, inhabitants of the Territory
"should be granted a national status whoily distinct from that of
the nationals of the mandatory Power."
' P.I\l.C. ali2nd Sess.p. GS.
Ibid.(Italicsadded.)
* ActgNo.44 of1949,Sec.2 (2)asamended. South African Citirenship i\rnendment
Act.Act No. 64 of,961,Sec.2.a:;amended. Commonwealt RhelationAct,.4ct. No.
69 of 1962.Sec. 29.
= IV. p99. REPLY OF ETHIOPIA AND LIBERIA
579
Upon consideration of the views of the Comniission Chairman,
the Permanent Mandate; Commission itself, and of the League
Council, it would seem apparent that Respondent's conferment of
South African citizenship upon the inhabitants of South West
Africa in 1949, by a pmcess "having general application," is a
violation of the basic premises of the Mandates System, and a
violation of the duty to respect the separate international status
ofthe Territory.
o. Inclusion of Represe?ttativesfrom South West Africa
in theSozcthAfrican Parlianzent
Inclusion of representatives from South West Africa in the South
African Parliament is another act wliereby Respondent violates the
duty to respect the sepamte international status of the Mandated
Ter~itory. Respondcnt denies that participation by South West
African representatives (al1 "White"), in al1 matters hefore
the South African Parli;iment, is inconsistent with the interna-
tional status of the Territory. Respondent contends that it, "as
a sovereign state, has full authority to aliow anyone it wishes
ta participate in its Government," ' that the United Nations has
permitted similar arrange~nents in the past, and that opportunities
for self-determination are not thereby impeded.
The actual attitude of the United Nations on the matter is
refiected in findings of the Cornmittee on South West Africa. Thus,
in 1954, a report stated, inter alia:
"The Committee,while reserving its opinion on the strictly legal
aspect of this question, believes that any representation of the
Territory of South West Africa in the Union Parliament and its
continued representation therein by Union nationals of Europcan
descent is likely to pre:judicethe development of the Tcrritory as
a separate political entity."
Respondent quotes 3 from a 1956 report of the same Committee
the c"mment that the Conimittee could
. .. conceive of circiimstances in which representation of a
Mandated Territory in the legislative institutions of theandatory
Power might be of certain advantage to the inhabitants, rifter due
consultation with thetn and witltpropersafepards for theirspecial
status,as a means of extending to them political and parliamentary
experience and an opportunity to take part in inaking the laws
under wtuch they live, especially if it were not fensible for the
Territory to have a legislative organ of its own."
These qualifications are not, however, present in the instant
case, as the Committee i1:selfmade clear in the balance of the
paragraph from which Respondent quotes the above excerpt :
IV, p102.
G.A.O.R. gth Ses.. S.W.A. Comm., Supp. No. 1at 16 (A12666).
' G.A.O.R. 11th Sess.. S.W.A. <:ornm.. Xo.p1%at8 (Al3151)(Italics added.)90 SOUTH WEST AFRICA
"It [the Coinmittee] is unaware, however, of any such motive in
this case. The: existinr arrange.,nts are indeed of such a nature
:lito 1i;,\.e~cliidcd eittier tlic coii,iiltntion or the rcprcsciiration
of the I;irgest scctioiiuf tlic po~iiilntioii,:rndili;.tici:tion inor iii
nc~~lol on..rruiiitici for i)oliticnlcdui:itioii. 'l'lic'Territor\.. fiirtlier-
who represeiit the Territory in the Union Parlirrment have a voice
and a vote there not only in matters relating to the Territory, but
in al1matters affecting the Union itself in which the Parliainent is
competent. This latter fact appears to the Committee to imply an
assumptioii by the Union of sovereignty over the hlandated Terri-
tory-that soiereignty which spokesmen of the Union Government
have in fact claimed on the Union's behalf." 1
The Committee's views in effect reaffirm the vie\r.s earlier es-
oressed bv thc Permanent Mandates Commission oii the same
sui>ji:ct.
'l'hc issiic of ^artici])ati<,ii of rc)ircsciitativvs of tlic 'l'crritory
in Resi~ondenr's k';~rli;inii.iitarujc frcou~.ntl\~in the C~iiiinii>si<rii's
proceehings. Thus, during deliberations O; a proposal by the
Territorial Legislative Assembly that the Serritory be recognized
or treated as Respondent's "fifth province" (-a key clement of
which proposa1 was the issue of parliamentary representation 2-)
members of the Commission objected in the following terms:
". . .[III effect weregiven to the motion of the Legislative Assembly,
South \\'est Africa would share in the sovereignty of the mandatory
Union ofts Soiith Africa and would have a share in the expression the
of tlie willofthe mandatory Power . . .." (CommissionerRappard.)
". . . [I]f Soiitli West Africa were incorporated politically in the
Union of South Africa and thus shared in the latter's sovereigrity.
it would mean that the obligations and part of the charges of the
South African Commonwealth would devolve upon South West
Africa, which would be contrary to the maridate." ' (Commissioner
Merlin.)
". . . [Tlhe v<:ryidea of the incorporation of the territory of South
West Africa iii the Union waç contrary to the mandate. That
territory indeed was treated as a minor and had been placed forthat
reason under mandate. The situation could not be aitered, uuless
Soutli West Africa were declared to bave attained its majority.
If South West Africa were incorporated in the Union, that ivould
create the paradoxicai situation of a minor participating in the
sovereignty of the State under whose guardianship it had been
placed, becaiise the resolution of the Legislative Assembly of South
West Africa said that South West Africa would be represented in
the House of Assembly of the Union of South Africa and the Senate
thereof. Thal mas quife contrary to the presext status of the terri-
tory. Seeing that the population of South West Africa included
' Ibid.
' Propoçal quoted in P.M.C. Min.. 26th Sess., p. 50.
' Id., p.164.
' Id..p. r65. REPLY OF ETHIOPIA AND LIBERIA
581
about 300,000 native:;, it waç doubtful whether that territory
could be declared to have attained its majority and be given an
independent status ... ."' (CommissionerSakenobe.)
In the light of thesc foregoing views of responsible organs of
hoth the United Nations and the League of Nations, opposing
inclusion of representatives from South West Africa in the South
African Parliament (particularly when taken together with general
and automatic conferment of Respondent's citizenship upon
inhabitants of the Territory), it is snbmitted that such a policy
defeats Respondent's duty to respect the separate international
status of the Territory. It is accordingly a violation of Article
zz of the Covenant of the League of Nations and of Article z, para-
graph 1, of the Mandate.
3. Administrative Separation of the Eastern Caprivi Zipfel from
the Territory
Administrative separation of the Eastern Caprivi Zipfel from
the Mandated Territory by Respondent is another act which,
Applicants submit, violates Respondent's duty to respect the
separate international status of the hlandated Territory.
Respondent's explanation of the reasons underlying transfer
of administration of the Eastern Caprivi Zipfel from the Adminis-
trator of South West Af:rica to the South African Government 2
centres on its assertion that "ever since the inception of the Man-
date, it has been found impracticable to administer the area
from South West Africa."
In Applicants' submission, and conceding that the Eastern
Caprivi Zipfel is not readily accessible from the rest of the Ter-
ritory, Respondent has taken unjustified and improper advan-
tage of an exceptional situation. In support of such submission,
Applicants refer to the "General Conditions which must be ful-
filled before the Mandate Regime can be brought to an End in
Respect of Country placed under that Regime," approved by the
Council of the League of Nations on 4 Septemher 1931. after
referral by the Permanent Mandates Commission. '
In the Memorials, Applicants cite, and accept as their own, the
view of the United Nations Cornmittee on South West Africa that
such separation is likely to prejudice General Condition (b), uiz.,
that the Mandated Territory "must be capable of maintaining its
territorial integrity and political independence."
Respondent contends that the said General Condition was
"intended to arise for consideration only when it is proposed to
'Ibid. (Italics added.)
Proc. No.147 of,939 (S.A.:l,cited in IV, p. rio, footnote 5.
' IV,p..II.
' P.M.C.Min., 20thSess.p. 228.
Citedin 1p. 194.footnoteI.582 SOUTH WEST AFRICA
bring the RIandatory régime in respect of a particular territory
to an end by th<:grant of independence. It would, for example,
have no application in a case where the Mandatory régime in
respect of a territory is terminated by lawful incorporation of
that territory in another independent State. ..." ''
It seems clear, however, that the said General Condition
is applicable throughout the course of the development of a Man-
dated Territory, and not merely in connection with a proposal to
bring a Mandate régimeto an end.
Moreover, the General Condition is applicable even in a
situation in which a llandated régime ended by lawful incorpor-
ation, inasmuch as such incorporation must be the result of a
free exercise of the right of self-determination, implying a choice
among several alternatives, one of which might be independence.
Irrespective of tlie ultimate choice by the inhabitants of a Man-
dated Territory, the Territory must, prior to such choice,"be cap-
able of mainiaining its territorial integrity and political indepen-
dence."
Administrative. separation of the Eastern Caprivi Zipfel neces-
sarily prejudice:; this Condition, at least in so far as the area
itself isconcerned. Even if problems of accessibility make admin-
istrative separation expedient, it is incumbent upon Respondent
to take other steps to preserve the territorial integrity of the
Mandated Territory ris a whole, and to develop the "sense of
territorial consciousness among al1 the inhabitants" which is
required by the United Nations. Such a responsibility is implicit
in the undertaking of the Mandate itself.
Far from taking measures, the Proclamation of transfer provided
that, theiicefonvard,
". .. tlie Eastern Caprivi Zipfel shall cease to be adrninistered
as a part of 1:hefilandated Temtory of South West Africa. .. ."
The Permanent Mandates Commission ceased to function in the
year ofthe adoption ofthe foregoingProclamation. and thus the Com-
mission had no opportunity to consider or express viewsthereon.
Respondent's :failure to take any measures designed to preserve
the territorial iritegrity of the Mandated Territory as a whole,
Respondent's total legal separation of the Eastern Caprivi Zipfel
from the Territory, and Respondent's annexation of the area, must,
in -4pplicants' cubmission be regarded as elements in Respon-
dent's plan to incorporate and annex the Territory as a whole.
By such actions Respondent has failed and refused to respect the
separate international status of the Territory. thereby violating
Article 2 of the Mandate and Article 22 of the Covenant of the
League of Nations.
' IV, p115.
Proc. No. 147 of1939,(S.A.) in The Lawr ofSoutWest Africn.1939, Vol.
XVIII. p. 28. REPLY OF ETHIOPIA AND LIBERIA 583
4. Vesting of SoutiaWest Africa Native Reserve Land
in the South Africa Native Trzut
Vesting of South West Africa Native Reserve Land in the South
Africa Native Tnist is a fourth measure which, it is submitted,
violates the duty to respect the separate international status of
the Mandated Temtory. '
As a justification for such a measure, Respondent cites the views
of Commissioner van Reas (as stated in 1923), on the question of
ownership of property within the Mandated Territory, the views
of the Legal Section of the Secretariat on the same problem, 3
and the Resolution of the Permanent Mandates Commission of
7 July 1924. as later endorsed by the Council of the League. +
In Applicants' submis!;ion, the foregoing malce it abundantly
clear that property within a Mandated Territory may not be owned
by a Mandatory Power in the same legal sense that a State may
own property subject to its own sovereignty. Thus, Commissioner
van Rees commented that :
"the mandatory State is merely the governor of a territory which
does not belong to it. ... This consideration excliides the possibility
of the territory being regarded as legally the property of the manda-
tory Power and, consequently, as part of the Mandatory's terri-
tory.
"That which has been handed over to the mandatory State ...
has been handed over t:ohim as governor and not as State; conse-
quently, there bas beeri no final alienation and rio real rights have
been acquired by that State. . . ."5
M. van Rees concluded by stating that :
"Whatever may be the extent of the legislativecompetence of the
Mandatory, there would appear to be no doubt that he could not
deduce from that competence the right to take advantage of it
so açto malte the wholeorpart ofthe territory his ownproperty . . ..
". . . [N]o enactment by those [mandatory] Powers can make
any portion of the territories under their administration form part
of the State lands of the mother-country." 6
The Legal Section of the Secretanat came to a similar conclusion:
". ..the right over lands and other public property has not become
a right of absolute ownership such .asthat which the State possesses
over State domains in its own territory." 7
Finally, the Resolution of the Permanent Mandates Commission
' The legislativo and administrative actions by which thiç measwas effected
are described in IV, p126-128.
Id.,pp. 122.123.
"d., p."24.
' Id., p125. (Text of Reçalution found in P.M.C. Min., 4th Sesp.157.)
' Id.,PP. 222-23.d Sess., 221.
' P.M.C. hlin.. 4th Sessp.164.$34 SOUTH WEST AFRICA
adopted on 7 Julÿ 1924 and subsequently endorsed by the Council
of the League, stated that Mandatory I'owers do not possess:
,'
... any riglit over any part of the territory under mandate other
than that resulting from their having been intrusted with the
administratiori of the temtory." '
The South \V(:st Africa Native Affairs Administration Act of
1gj4 (which Act vested the South West African Native Reserve
Land in the South African Native Trust), is by its terms in conflict
with the conclusions of the Legal Section of the Secretariat to the
effect that Respoiident acquired no "right of absolute ownership"
of lands and othi:r public property in the Territory. Thus, Section
5 of the Act provides:
"(1) Notwi1:listandiiiganything to the coiitrary in any law con-
tained the Governor-General may, by proclamation in the Gazette
and in the O#icinl Gazetteof the territory, with the approval by
resolution of both Houses of Parliament, rescind any reservation
of or setting apart of any land or area referred to insub-section(1)
of section {ozrr,or of any portion of such land or area, subject to
land of at least an equivalent pastoral or agricultural value being
forthe soli:use aiid occupation of natives.in force in the territory,
"(2) Any land or area in respect of wliichthe reservation or settirig
apart isrescindedinterms ofsub-section (1)sliallbecomeunalienated
State property and may be dealt with as such, and the provisions
of sub-section(1) of section forrrshall apply to any land reserved or
set apart in pursuance of the provisions ofsub-section (I)."2
The po\r7er,rescrved to Respondent by the terms of Section 5 (2)
above, to reserve or set apart landç in the Territory and treat them
as "unalienated State property" is, ipso facto,a violation of Respon-
dent's duty to respect the temtorial integrity of the Mandate.
Such rescrved power must, in addition, be appraised in the light of
Respondent's refusal to submit its policies and acts in rcspcct of
the Territory to international review, supervision or accountability.
For the foregoing reasons, Applicants subrnit that the measures
here cornplained of must be regarded as elements of Respondent's
plan to incorporate and annex the Territory into the Republic.
5. Transfer of Administratioit of "Native" Afairs to the
Soz~thAfrican Minister O/ Uantn Administration
and Development
Finally, Applicants submit that the transfer of administration
of "Native" affa.irs to the Minister of Bantu Administration and
Development is inconsistent with Respondent's duty to respect the
separate internat.ional status of the Mandated Territory.
' P.U.C.Min. 4th Sess.p. 157.
Act Xo. 56of 1954.Sec.5,Slatuler of lhr Union of Soulh Africa 1954. 563. REPLY OF ETHIOPIA AND LIBERIA 585
Respondent seeks to jiistify this measure on the grounds that:
". . . transfer of the administration of Native Affairs from one
organ, or agent, of the State to another can in no way affect the
international status of the Territory, and, also, that it can in no
way amount to iiitegration not permissible in terms of the Mandate.
It is submittecl, furthermore, that the choice of the organ, or agent,
through which the adniinistration of Native affairs isto be conducted
is a matter which lias, froin the very inception of the Mandate,
lain entircly in the discretion of Respondent." '
Applicants submit that. the transfer of the administration from
the Administrator to the South African &finister of Bantu Adminis-
tration and Develo~ment s-rnifies more than a mere chanee of
agent.
The measurc should be viewed as merely one of many measures
identifying the Tcrritory and the Republic as a single political
entity. As found by the United Nations Coinmittee on South West
Africa, such transfcr "forms part of the process and policy of
progressive political inlegration of the Territory with the
Union. .. ."?
Moreover, such transfer is clearly designed, again in the xvords
of the Committec on South West Afnca, to
". .. bring about as complete an assimilation of 'Native' policies
iii the Union [now Republic] and the Territory, taken as a whole,
as the Union Govemnient may wish to achieve. The Committee
recognizes that the Uiiion Government might have been able to
bring about this assimilation [of policy] by leaving powers in respect
of 'Native' administration in the haiids of the Administrator, as its
agent. The Committee had hoped, however, that with the consti-
tiltional and political development to which the people of the
Territory arc erititled, the Administr;~tor's powers in this field
by fully resprescntative, executive and legislative organs to bed
established in the Tenitory. . . .[Hlis presence in the Territory
and the authority vested in him forthe management of its affairs
are capable of serving and should serve to the internationalcommu-
nity, to which the Union Government is responsible, as a symbol
of that Government's respect for the special status and the integ-
nty of the Territory." '
For the foregoing reasons, Applicants submit that, in itself and
viewed as one of many measures (described in the Mernorialsand
in this Reply) by which Respondcnt has manifestcd its intention
to incorporate and annex the Territory in derogation of its separate
international status, the transfer of administration of "Native"
affairs from the Administrator of the Territory to Respondent's
lllinister of Bantu Administration and Development is a violation
' IV, p.120.
G.A.O.R. iithSess., S.\V.AComm., Supp. No. iz atII (A/3'5i).
' Ibid.gS6 SOUTH \VEST AFRICA
of Respondent's obligations as stated in Article 22 of the Covenant
of the League of Nations and Article z of the Mandate. '
c. The policies and meaçiires above described are severally,
and in their totality, inco?ttpatiblewithRespondent'sduty to promote
conditionsunderwhichtheinltabitarrts O/ the Territory may progress
townrd sel/-deterfiinatio~t.
Such policies and measures, particularly in the light of Respon-
dent's denial of international accountability, violate the territorial
integrity of the Mandate and its political independence. The thmst
and effect of suc11measures is to foster disintegration of the Terri-
tory and its political dependence upon Respondent.
It is self-eviderit that such a state of affairs is incompatible with,
and fmstrating <if,progress of the inhabitants toward self-deter-
mination. It is to the contrary, consistent only with Respondent's
avowed purpose and manifest plan to treat the Mandate as "being,
in effect, close t:o annexation," 3 and in line with Respondent's
explicit disclaimer :
". ..that its right ofadministration isbasedon continued existence
of the Mandate." '
For al1the foregoing reasons, Applicants submit that the Respon-
dent's policies and acts, described in Chapter VI11 of the Memorials
constitute a violation of its duty to respect the international status
of South West Africa and to promote the socialprogress ofthe inha-
bitants of the Territory, including their progress toward self-deter-
mination and, accordingly, violate its obligations as statedin Article
22 of the Covena.nt of the Leaye of Nations and Article z of the
Mandate agreement.
'Respondent's ccntinuing purpose to carry out to the fullest extent its plan
for incorporationnd amexation of the Territory is confirmed by its endorsement
of the principles of the Odendaal Commission, cited supro, p. 3x3.Among its
of the South \'estsaAfrica Administration concerned with "Native"yaffairs behes
transferred to the direct cantrol of Respondent's Govemment. thus placing under
such control al1 matters affecting the ovenvhelming majority of the inhabitants of
the Territory.
' 1.P. 195.
II, p15.
* Id., p.174. IlEPLY OF ETHIOPIA AND LIBERIA
Applicants reaffirin their contention ' that Respondent's policies
and actions complained of in the ~Memorials,c~onstitute an att.empt
on the part of Respondent unilaterally, and without consent of the
United Nations, to modify the terms of the iflandate.
On the basis of.the dernonstration made in the Memorinls, and
elaborated in this IZeply, that Respondent has admittedly dealt
with the Territory as if it \verevested with "day-to-daysovereignty"
thereover and that Respondent has denied obligations of inter-
national accountability while at the same time asserting rights of
administration and possession, Respondent's policies and actions
refect its premise that the Mandate has survived. but only to the
extent necessary to give Respondent the colour of a claim to the
Territory.
No more drastic or effective "modification" of the terms of the
Mandate is iniaginable than one \\,hich disclaims duties while
asserting rights.
IZespondent misconstrues Applicants' Submission 9 as being
limited to n complaint that Respondent is, or has been "motivated
by an intent to modify the terms of the Mandate." '
As Applicants have made clcar, Respondent's violations of the
Mandate in this, as in other respects, do not turn upon the question
of "good or bad faith," or subjective motivation. Respondent is
presumed to intend the reasonably predictable consequences of
its acts. In this sense, intention is implicit in Respondent's conduct
and Respondent has conducted itself with regard to the Territory
in a manner consistent only with a Mandate the terms of which
would be utterly incompatible with those of the Mandate in issue.
1,p.r96.
Chapters V, VI. VII, and VI11
' 1.p.198.
' IV,p. r3G. CHAPTER VI11
Upon the basis of the allegations of fact in the Memorials,
supplemented by those set forth herein or which may subsequently
be adduced before this Honourable Court, and the statements of
law pertaining thereto, as set forth in the Memorials and in this
Keply, or by such other statements as hereafter may be niade,
Applicants respei:tfully reiterate theirprayertliat Court adjudge
and declare in accordance with, and on the basis of, the Submissions
set forth in the Mentorials,' which Submissions are hereby reaf-
firmed and incorporated by reference herein.
Applicants fui-ther reserve the right to request the Court to
declare and adjcldge in respect of events which may occur subse-
quent to the date of filing of this Reply.
Applicants fui-ther reiterate and reaffirm their prayer that it
may please the Court to adjudge and declare whatever else it may
deem fit and proper in regard to the Meniorinls or to this Reply,
and to make al1necessary awards and orders, including an award
of costs, to effectuate its detcrniinations.
Agents for the Government Agents for the Government
ofEthiopia: of.Liberia:
(Signe4 TESFAY E GEBRE-EGZY (Signed) NATHANBARNES
(Signed) ERNESTA. GROSS (Signe4 ERNESTA. GROSS
The Hague, 20 June 1964 OUSEI<C'ATlOKS COK(;ISRNlSG THE ~IIE:IIOKII:\'L)U.II OS
THE RECOAl.\lESlI.ATIONS OF 'l'HE CO.\IJlISS1OS OF THE
EKOL'll<\' IYTO SCJL'l'1.1 \\'ES'l' .AFl<lCA r\FFz\ll<S
In thc .llc~noru~rilrrrn~siil>mittcas ":\nn,:x A" to tlic .,'~<pp/orior/O
Ihe Cu~rrrlcr-.lle»iurr~~/l,iccl~oiidcnt t!xprr.jscJ tlie intcritioii uf tl~c
C;ov~r~i~iiviiiti.lirilil: tilt! ~kli<leiic\.of tli*ji: Pro~~>e10. defcr. i>rlzr
alia, decisions "on'any of the reéommendations concërning the Coiisti-
tution of Homelands as self-governing areas."
Respondent also stated tliat:
". . . Until tlie [instant] case has been concluded, the Governmeiit
will therefore refrain Irom action which may be regarded-even
theoretically-as detrimental or prejudicial to the alleged rights of
the Applicant States, or which may unnecessarily aggravate or
extend the dispute before the Court."'
Respondent has iievertheless indicated its intention to proceed with
certain measuresof implemeiitation of rccommendatioiis of thc Odendaril
Commission Report, and siich measures include the following which
clearly depend, inter alia, upon the basic premises of apartlieid: 4
(1) IV, p. 204, Sec. 7 (b) (v):Irrigation Scheme for Orange River
Settlement for "Coloured" farmers [paras. 422 and 1476 A. (IO)].
(2) Page 205,Sec.8 (a) (i): 700miles of roads as interna1 coiinect-
ing links in "non-White" areas (to be administered by the Depart-
ment of Bantu Administration and Development) [paras. 1370 and
1509 (W.
(3) Pfge 207,Sec.9 (b) :Assisting aiid encouragin tgein.abi..nts
of the non-White" areas in prospecting for an exploiting the
mineral occurrences in s,uchareas [para. 1481 (g)].
(4) Page 207, Sec. IO (a)-(/) :Industrial development, witli the
assistance of the Bantu Investment Corporation, of:
(a) livestock, canning factory, and hides [para. 1482 (k) (i)];
(b) furniture factory in Ovamboland [para. 1482 (k) (ii)];
(c) der:ortication of jute in the Okavango [para. 1482 (k) (iii]j
(d) exploitatioii of salt pans in Ovamboland [para. 1482 (k) (iv 1,
(e) "Native" handiwork and home industries [para. 1482 (k)(v)];
(1) a clothing factor). in Ovamholand [para. 1482 (k) (vi)].
(5) Page 207, Sec. II: Provision of experimental farms, demon-
stration farms and trainine facilities for "non-White" -.rouDs
[para. rz83(10)-(12), (14). (I~YI.
(6) Pages 208-209, Sec. 12: Provision for (1) more advanced and
--
Approved by a resolution of the House of Assembly of the South African
Parliament on 8 hlay 1964 (Supplemert10 1lrcCounier-Mcmorial,IV, p. rg7. par1).
iMcmoro>rdum. Sec. E, para. zr (id.p. 214).
' Inethe following description iif rneasofeimplernentation, the page references
given in italics areto Supplemcnl IotheCounler-hlemorial.the sectional references
immediately following (also in italics) are to sections Mcmorandum eantained
therein, and the relevant paragr;iph referenco to thOdeiidaal Commission Report
follow. in brackets. a brief description of the relevant measure of implernentation.jgO SOUTH WEST AFRICA
greater niimber of schools, hostel facilities and facilities fortraining
of teachers (applying "mainly to the areas of non-White groups");
and (2) giving effect to the Commission's recommendations con-
ceriiingthe extension and improvement of the nature of the educa-
tional services ("particularly for the non-\Vhite population groups":
this being in accordance with the policy on "Native" Education)
[(1) paras. 1os:3-54: (2) paras. rogj-971.
(7) Page 209, Sec. 13: Erection of at least twenty new hospitals
and clinics ("for the non-\mite groups") [paras. 893, 896. 899, 901,
902, 904 and i)og].
(8) Page 21:0, Sec. 14: Purcliase of "\VIiite"-owncd fanns "in
contemplated non-whitc homelands." (Cl fourth sentence under
"Homelands," iii Sec. 21 at p. 23; fourth full sentence on p. 24;
".. . [the Government] shares the view that there shoiild be no
uiinecessary tlelay in taking the next steps in regard to [making
available to certain non-White groups]" "considerable additional
portions of the Territory, including areas riow owned by white
perçons . .. "'1'
(9) Page210, Sec.14: Purchase of (1) Welwitschia township and
townlands and (2) Gibeon township and townlands [(I) para. 337;
. . . - ,-.
O / 5 O c 14. Piiriliasc of fnrnii n6;cs.i~iryfor tlic Irri-
~~111011 Ç~ttl~iit<!iit011 th<, Or:~np: lii\,c:rfor ''(loloure<l' f;irriicr>
I':in nrtliiiar\. scttl.:iiiiSC~ICIIIC~for nccJ\. itiirlritriil Cnlouretl l)c,r-
sons") [para.u4nz].
(II) Pages:zro-211,Sec.15: Appointment ofCommittee ofExperts
Iwhose tcnns of reference are "to enauire into and submit a report
on al1 the practical problems to be'taken into account whetLthe
rearrangemcnt of administrative and financial relationships are
considered") (italicsadded) [para. 2361.
(12) Page 211, Sec. 16: Making funds available for "coloured
housing and sommunity centres [para. Ijog (41.
Under Section 1) of the Memorandum("Matters on whicli the Author-
ities concerned will take their own decisions"), Respondcnt has likewise
'A survey of thefarms referred toin the OdendaolCommissionReportwill readily
show the extent of passible implcmentation. The paragraphs of the Report naming
the ("Whiteu-owned! farms to bepurchased, and the total hectareage of suchfarms.
are: para. 326(b) (II): Ho. 15.531: para.339: Ha. 1,872,794.42r6: para. 353: Ha.
126,181.q002: para. 388: Ha. 73,789.6j20: and para. 395: Ha. 1,234,951.9122-
The combined hectereage of the Weltwitschia and Gibeon ("IVhite") township
and townlands (pars. 337 and 393) is 8z,gzo.3. The total "\Vhite" land to be
purchased is then Ha. 3,406~r68.686 or (at Ha. 1.wo=3.86 square miles) 13.147
square miles. This ic joz square miles more than the eombined areas of the States
of Connecticut and New Jersey (5,009 and 7,836 miles. respectively), and 169 and
1.368 square miles inore tlian the ares of The Netherlands and Belgium (12,978
and 11.779 square ntiles. respectively).
For the decision with resDeCt to the construction and extension of sixteen
,Suppletnenr ro theCo,t>t,tr-ilrniiri~lIV, p ">O,;lf"ce.initliisç0niiecuo:i.tlieclii-
cu..i.i, iiittreliiesr to the imtenri;..mi1it:trs usr oi airfields in the 'l'erritury.5g2 SOUTH WEST AFRICA
Such possible implications and consequences of the Memorandum
are underscored by Respondent's esplicit endorsement of
".. . the main features of the [the Commission's] argument and
recommendations as an indication ofthe general course to be adop-
ted in the next phaseof the development of South West Africa.. .."'
With specific rrference to the Comniission's proposals for partition
of the Territory, Respondent nnnounced also that it
". . . endorses the view that it should be the aim, as far as practi-
cable to develop, for each population group its own Homeland, in
which it can :ittain self-determination and self-realization."
' hftmoratrdunrSec. zr (id.p,213). ANNEX II
SUPPI-EMENTARY MATERIAL CONTAINING ADDITIONAL
VIEWS OF SOUTH AFRICANS IYITH "FIRST-HAND
KNOWLEDGE" OF RESPONDENT'S POLICIES
('Supplemelztulto excerptsqz~otesupra, pp. 280-293.)
(1)"White"South Africans
(a).ScholurlyAuthorities
(i ) Dr. Leo Marquard, a historian of Afrikaiier origin, living in
Cape Towii, in a Presideiitial address to the Council of the South Afri-
ça11 Institute of Race Ke1at:ions:
"Our problem is fundainentally the same as that of any other col-
nial power; how to terminate colonialism reasonably and peacefully.
Our problem is not unique unless we want to make it so. Nor is the
solution unique. It is to renounce political power over colonial sub-
jects. For Europe, this talces the form of withdrawi~igpolitical author-
ity; for us it miist take the form of sharing political authority with
power is involved.ct...But in both cases, a renunciation of political
"The task of those who have discarded the glooiny creed of apart-
heid which is, in plain English, perpetual colonialism, is perfectly
clear. It is no les than 1.0persuade South Africa to see colonialism
for what it reallyis: to tell her tliat the cost of ending it will be enor-
mous; but it will not be measured iii pourids, shillings and pence-it
\vil1be measured in the renunciation of pride and political power; to
tell her that it willnvolve the painful process of liherating al1South
Africans, white and non-white, from the colonial chains that are
holding her down.
"As a liberal South tlfrican, a republican burgher by birth, 1 can
only plead that you throw everythiug into this task of bringing
white and non-white to~ether before it is too late..." '
(ii) Report of Academicians, Jurists and others, opposing the "Ex-
tension of University Education Act of 1959" (proliibiting education
of "Whites" and "non-Whii:esMin the same university):
"The open universitie:j declare that legislative enforcement of
academic segregation on racial grounds is au unwarranted inter-
fereuce with university autonomy and academic freedom. These
are values which should not he interfered with. Save with the utmost
circumspection; and the onus lies upon any government which con-
templates such interfererice to iustify its pr-po-ed action clearly
and-irrefutably.
"The open universities 'believe that the policy of academic non-
South Afri~a'r Colotiini Po25-26 (rq5.i)594 SOUTH WEST AFRICA
segregation provides the conditions under which the pursuit of truth
may best be furt.hered; and that it has promoted interracial harmony
and understanding. They are convinced that to impose academic
apartheid upon them would deprive the South African community
as a whole, botb white and non-white, of a service which has proved
beneficial....
"It should be noted, first, that ever since the days ofvan Riebeeck
the white settlers and their descendants in South Africa have been
dependent on the services of non-white labourers, with the result
that whites and non-whites have become intermingled to such an
extent that coroplete territorial separation is beyond the bounds
of possibility... South Africa cannot now be transformed into a
iiumber of separate uniracial States. It isa single multiracial state.
"Secondly, there are two distinct 'established traditions' among
white South Africans as to how a multiracial state should be or-ani-
zed. ...
"The policy of the two open universities in admitting non-white
studentsstems from one of the established South African traditions-
the one moreover which is more in accord with the values of Western
civilization. .."'
(iii) Dr. Leo Kiiper, formerly Professor of Sociology, University of
Natal; presently l'rofessor, University of California (U.S.A.):
"...Apartheid is an exclusive or tribal ethic with the familiarempha-
sis on one's own group as the people: the Arikaners are die volk,
the chosen of Grod,with a heavenly mission in Africa. Therc is also
the familiar double standard of morality. Apartheid idealizes the
white man and debases the non-white; it offers the former unbounded
opportunities and the monopoly of the developed industrial wealth
of the country, ~vhileit carefully restncts the life-chances of non-white
and compensati:s for this restriction with the illusory promise of
opportunities in areas still to be developed. Within the white group
apartheid emphasizes solidarity, respect for person and property;
outside the white group, it compels separation and denies personal
and"Inoaebroad way, the conflict between the races in South Africa is
a conflict between the exclusive ethic of apartheid and the universal
ethic of democr,acy.The non-whites are moving away from caste and
tnbalism, while the whites are moving towards these systems; the
non-whites incn:asingly give their allegiance to a universai ethic, the
whites proclaim an exclusive ethic."
(iv) Dr. P. V. :Pistorius, Professor of Greek, University of Pretoria
(Afrikaans-mediurn) :
"The probleni of human relations has overtaken us. We have to
accept the hard. inescapable fact that the Bantu and the Europeans
are together in this country and together tbey will remain. They
must either solve their problems or perish, and the solution of those
problems cannot be one-sided. The whites alone cannot solve them.
Bantu nationalism of today, of which we are to a large extent theng
' TheOpenU+l>riv~i insSouitAsfric5-6,30-31 (1957).
* PassiveReristan,:eSouth Afric 10 (1956). REPLY OF ETHIOPIA AND LIBERIA 595
creators, it is folly to suppose that a white parliament, a white church
or a white Sabra can unilateraliy prescribe the fate of the Bantu. We,
the whites and the Bantii, must reach agreement on the most funda-
mental and basic aspect:; of our lives, in the sphere of Our national
ideals, economic iriterests, political aspirations aiid whatever other
sphere there is that is basic to modern man, and we have to realize
that we have no platforrns on whicli to meet. No responsible com-
mittee would hire its hall for a meeting of whites and Bantu because
the chances are that the hall would be wrecked by those who object
to mixed gatherings. Only a small fraction ol the white population
can speak or understand a native language. We live in the same
country, work in the same factory, meet in the relation of master
and servant in the same house,face the samc comnion doom of eitber
living together or perishing together, and yet we are strangers, il1
at ease when we attem~t to discuss anvthine bevonL . , ordinarv
task of the day. Wlien anative clergyman for once preaches in a white
church, it is a political incident of the areatest interest. Pictures
are taken, resolÙtions pa.ssed, protests made, letters written to the
Press! Even the highest university degree or the most erudite learning
and culture would not givc the native the right to enter the lowliest
white home as a guest, iiot because of the animosity of that white
family, but because it is iiot done. It is not our tradition. It has been
our tradition to close the doors and the doors are closed. How closed
they are!" '
(b) ReligiozisLeaders
(i) Kev. Trevor Huddleston, C.R. (Soiith African Anglican); pre-
sently Bishop of hlasasi, Tanga.yik.:
"... There has beeii little imagination iiithe planning and none at
al1 in the approach to a community-conscious town in a place such
as Orlando [Township outside Johannesburg]. It is a 'location'-a
'place for natives'-that is the South African ideal: an abstraction
which will serve its purpose and which will be conveniently forgot-
ten. It is a 'locatiori' inanother sense also-a 'place' which to-day is
and to-morrow can be elsewhere. That the people living in it should
care where they live, or have a love for their homes, or dream dreams
of having somewhere to spend their old age: that is a secondary con-
sideration. In the eyes of Dr. Venvoerd it is not worth considering at
all, for it is undesirable. 'TheAfrican is in the town to work. That is
he must go to the Reserves. 'The apartheid policy' he said, 'is one ofhen
getting the natives to grow from their own roots out of their own in-
stitutions and from their own powers. It iç a policy of gradua1 devel-
opment through mother tongue and oxcn environment, to bring the
natives to literacy and usefulness in their own circle.' And soalthough
there are to-day millions of Africans in the urban areas, and of those
millions, hiindreds of thoiisands who have been born and bred there:
the town is not and must not be their home. Although their labour is
the foundation of the whi>leSouth African economv and forces them
into daily contact with the industrialized society'of Western man.
their future is in their past, 'in their own circle,' in the tribalism that596 SOUTH WEST AFRICA
the white man has done his best to smash to bits and that inigratory
labour destroys more swiftly than anything else could." '
ii) hlembers of the Catholic hierarchy in South Africa, Archbishop
RlCCannof Cape Town and Archbishop Dennis E. fiurley of Durban,
have roundly criticized Kespondent's policy. For example, in January
1964 Archbishop I-Iurley declared, in the Iloerrilé Mcmorial Lecture,
that none of the four coiiditions required for tlie "just implementation"
of Bespondent's policy was being fulfilled or showed any likelihood of
being fulfilled:
"There will b<:no consultation with the parties most deeply affect-
ed with a view 1.0obtaining their consent.
"Xo independent arbitrator will be called in to see that there is a
proportioiiate share of sacrifice.
"And finally there is no guarantee of a protection of rights during
the time of tran!;ition.
"Elemeutary justice demands that the consent of al1 parties bc
sought and obtained to a policy which can have such faï-reaching
repercussions on tlie residential and economic rights of people."
(c) Political Leaders
(i) 11s. Helen Suzmau, Member of Parliament; former lecturer in
Economics, University of the Witwatersrand (commenting in Parlia-
ment on the project for"self-government" in the Transkei [supra,p. 3121) :
". . .If one looks at the Assembly (of the Transkei) you see that 64
of the mcmbers are to be nominated and 45 are to be elected. \t1hat
is the value of one-man one-rote in an assemhly of that kind? As 1
say, under Proclamation 400 what sort of free election is there going
to be? Even for those 45 elected members. So much for satisfying the
political ambitions of the Africans inside the Transkei. Hom much
less will this satisfy the political ambitions of those outside the Trans-
kei. Have hon. mcmbers forgotten that the urbanized Africans are
the most Westernized and most advanced of our African people?
Do they seriously think that postal votes in the Transkei are going to
satisfy the aspirations of those people? What absoliite nonsense, es-
pecially, Sir, as this is meaut to be the substitnte for al1claims to al1
normal civil rielits within the Re~ublic of South Africa! . . .
". .. [The actiral goal of the ~ii] is not sovereign independence or
self-eovernment but . . . to turn the entire African po~ulation into
one iast migrarory labour force with no claims on in) permanent
rights in the so-called White areas of South Africa.. . .
". . .This solves.nothing. Sir. It will not alter in any way the basic
stmcture of the Black/\Vhite relationship-except to worsen it because
racial grievances build up with every drastic measuré which comes
into being. Thei-efore 1 Say that this plan is doomed to failure before
it starts. \Vhat is more, Sir, the Government knows it is doomed to
failure and that is why it is building up this vast Defence Force,
not to protect lis from extemal agression, but to protect us against
interna1 -isings.. . .
'Naught /orYour Conifort53-54 (1956).
As quoted inThe Star, Johannesburg,weekly editiun,2s January 7964. p. S. REPLY CIE ETHIOPIA AND LIBERIA
597
"... 1 want to point out tliat 14 years is the halfuay point between
the Government's getting into power and 1978, the magic year; the
magic year when somebody is going to press a button and al1the Afri-
cans who have been streaminginto the towns will turn back and streain
back to the reserves again. So we have 14 years to go. Wliat have we
achieved in the past 14 yenrs? Have we even, Sir, achieved what the
Prime hlinister called an 'irninedinte forcing down in the curve of iiiflux
into the towns'? Kot even tliat, Sir...there are ~,ooo,ooomore Africans
in the towns than there were ten years ago. ..." 1
(i) S. Plargaret Balliiiger, Representative of "Africans" in the
House of Assembly, 1q37-1q60 (commenting on .4ddress of l'rime
&finister Venvoerd, quoted in II, pp. 465 ff.
"... The thing that bothers me is not only is there nothing new in
what the hon. the Prima Minister has told us this Session-except,
ofcourse,his intention to abolish Kative representation in this House,
and that is onlv new in i.ime and not in intention ... but . .. he is~ ~-
endeavouring to support this thesis by equating his ownactions to
those of Great Britain in raaard to Uasutoland. 1think it is bad enouah
to have a policy, the justrce of which nobody can see, not even Kis
sickening to have that supported by the sort ofargumentswhichexpose
us to the ridicule of even moderately well-educated people. This
sitiiation is really becoming quite absiird. ..."
(d)~otarnalisis
The !;ln?(Johannesburg) :
"Few advocates of apartheid really believe the day will ever come
when the 'White' areas of South Africa will be totally denuded of
Africans.
"It has, however, been a cornfortahle myth which the Govemment
understandably has beenloatli toshatter too mdely. Butits cultivation
gives rise to dangerous illusions, and at the Xationalist Party con-
gress in Pretoria this week, the Minister of Bantu Administration.
Mr. Nel, felt it necessary to go further than any of hi5 colleagues in
the past to disillusion the whole-hoggersand put an end to false hopes.
"Quite categoncally ha said he did not believe the time would
ever come when there would be no Africans in the IVhite areas. And
in a further concession to reality he said something else which should
be self-evident but which is too often obscured hy the mists of ideol-
ogy: 'We will never be able to get along completely without them.
Our mines and industries woiild come to a standstill.'
"The most important implications of this somewhat belated admis-
sion is that the urban African population can no longer be regarded as
transitory. And since it i!; here to stay provision inust be made for
it on the understanding that there are millions of men, women aiid
children who have broken with a tribal past and look ahead to a
future divorced from the reserves.
"The Tomlinson Commission estimated that unless the drift from
' R. O/S. A.. Pnrl. Deb, Hor'scO/Asse+nbly, 2nd Parl.2nd Ses. (neekly ed..
1963Li.ofS. A.. POIL.Deb.Housa O/Aascmbly, izth Parl.. 2nd Sitting (weekly ed..
1959).Col.88.5gS SOUTH M'ESTAFRlCA
reserves was slowed down or stopped, there would be 21 million Afri-
cans living in urban areas outside the reserves in theyear zooo.Even
if tliat fieure is halved. the fact em~hasizes that this and not the
situationUin the reservfk is the heart Ôf Soutli Africa's race prohlem.
Even within the elastic framework of separate development, provisioii
must be made t<igive these people a pÔlitical outlet ât least-cornpar-
able to that planned for the Bantustans.
"hlr. Nei's recognition of their permanence should now be trans-
lated into action for treating thein as such. Even in the world of
apartheid it is not possible to eat one's cake and stiü have it." '
(2) South African "Natives"
(i) IZobert Sobukwe, former Lecturer. University of the Witwaters-
rand; President. l'an-Africanist Congress (sentenced upon conviction
of leading protestç against the "Pass Laws"):
".. . Freedom ok the Africans means freedom of everyone, inclnding
Europeans in this country. People will live and he governed as indi-
viduals, and not as sectional groups. We reject apartheid and so-
called multi-racialism. Multi-racialism is pandering to European
arroeance. a i~iethod of safemardin~ white interests. The loeical
meaGing of multi-racialism is-propor~onal representation, anduim-
plies basic differences between national groups ... and that the best
We believe that everyone'prepared formof to accept and give loyalty to ...
Africa is an African." 2
(ii) Phyllis Ntantala, writer:
"Widowhood--a life of void and loneliness ...thisis the daily lot of
tens of thousands of African women whosehusbandsare tom away from
them to go and work in the cities, mines and farms-hushands who
because of the rnigratory labour system cannot take their wives with
them and, because of the starvation wages they receive, are forced
to remain in the work centres for long periods-strangers in a strange
land-but equally strangers at home to their wives and children. ..." '
(3) South African "Asiatics"
(i) Nana Sita, trader in Pretoria since 1913 (sentenced in 1962
upon conviction for refusal to move from the honse and shop, occnpied
by him for 39 years, which was "proclaimed" within a "White Group
Area") (statement to the Court during trial):
"lt is known to this Honourable Court that we Indians had no
saying in the passing of the Act since we do not possess the vote.
At no time were we ever given an opportunity ta present Ourobjection.
Tlie Act had tieen passed and promulgated not only without Our
consent but in the face of the unaiiimous opposition of Our people. ...
"The Government has from time to time declared the Act as the
corner-stone of the Apartheid policy. In order to bring that policy
' "The End of a Blyth," The Star, Johannesburg, weekly edition. 14September
'963.
' "The JVidows of the Reserves."2tAfriço1South, No. 3, g.(Apfil-June ,958). REPLY CIE ETHIOPIA AND LIBERIA
599
to fruition separate areaj are being proclaimed in practically every
town and citv in the couritrv. In doine so. in mv o~inion. the Govern-
ment desiresto achieve two ohjects:guccess of tAe Apartheid policy
and the total economic ruination of the Indian com~nunitv.This would
oblige its members to leave the country 'on their own accord.'
"... Implementation of this policy against us through the Act brands
us as inferior people in perpetuity,degrades Ourself-respect as human
beings, condemns us as uncivilized barbarians having no culture and
no spiritual background, thereby deriding Our serene philosophy
and way of life. The 13 million Non-Europeans of South Africa-
African, Indian and Coloured-are branded as untouchables. My
conscience and my religious training obliges me to resist such a
doctrine with al1 the force my mind and body is capable of. This
mucb for the Apartheid policy of the Government." '
' DIFriedmann (ed.)I Will Slill Be Moued: Refiorts trom Soulh Afric18,pp.
19,20 (1963). ANNEX xz
SUPPLEAIENTARY AIATERIAL COXTAINIXG ADDITIONAL
\'IE\VS OF CONTEMPORAR1' SCIENTIFIC AUTHOKITIES
(Sacpplententalto excerptsquotedsupra, pp. 305-312.)
(i)Dr. Clyde Kluckliohii, late Professor of Psycliology, Harvard Uni-
vers:~:
. . Therr is iio evidence whatever that the genes wliich deteriniiic
skiii color or Iiair form are correlated with genes influeiicing temper-
ament or mental capacity."'
(ii) Dr.G. M.Morant, University of London:
". . .Evidcnci: provided by tests of mentalcharacters alsoappears to
givc strong mpport to the hypothesis that al1 inen have basic
mental qualitics of the same kind." 2
(iii),M. E. llorgaut ilotecl:
Ouoi au'il en.soit. cette 'Intelligence ~ratiaue à vocation techniauc'
est diversement répartie entre les populations examinées, avec
d'asscz sensil-,lesdiffbrences. mais sans Que l'on puisse dire:
(a) que les U!ancs en soient mieux dotésque les Soirs
(b) que certaines populations autochtones soient d'une supériorité
écrasante sur d'autres. . . ."'
(iv) Dr. Juan Comas, National Autonomous University of Mexico:
"Tlterezs no scienlificbasis wltalsoeuerfor a general classification
of races according to a scale of relative superiority, and racial
prejudices and myths are no more than a means of findiiig a scape-
goat ivhen the position of individuals and the cohesion of a group
are threatened."'
(v) Report of Paiiel of Social Scientists conrened by the United
Nations Educational, Scientific and Cultural Organization, July 1950:
"According to present knowledge there is no proof that the
groups of mankind differ in their innate mental charactcristics,
whether in respect of intelligence or temperament. The scientific
evidencc indicates that the range of mental capacities in al1ethnic
groups is much the sa~ne."~
' A4irrorforMan 125 (1949).
The Sigtiificance ofIiacial Diflerences 39 (1952). Otto Klinebeof,the Uni-
versityof Paris, alsoargues thvt racial diKerence in innate capacity iç contradic-
ted by the cvidence.Cl.Race and Psychology, p.17(1951). Professor Dr.Alejandro
Lipschutz ofCliile aiEfirtoothat there can be no objective measurementof biolo-
gical worth. See El Indoamericonismo y el Problema Racial eti las Awidricas 97
(194"Note sommaire surquelques coinparaisons psychologiques entre des populations
Africaines.81algachi:s et Eumpdennes," g Rnine de Psyclrologic ApplipudeXo. 1
p. 28 (January 1959).
' Racial AfylhsIO (1951). (Italics in original.)
5 UWESCO "Statemcnt on Race." in Whai is Race? Evidciice/rom Sci~~ilislr
79 (1952). REPLY OF ETHIOPIA AND LIBERIA 601
(vi) L.C. Dunn and T. Dobzhansky, of the Department of Zoology of
Columbia University (U.S.A.) testify:
". . The differences between the so-called 'race psychologies' are
deterniined by the cultural differences to an extent assuredly
greater than they may be influenced by biological heredity. Further-
more, psychic differences between individuals are certainly much
greater than tlie average differences betxveen nations or races."'
(vii) Arthur Ramos, of tlie University of Brazil:
" 'Superioridades' e 'inferioridades', em relacâo aos tipos for-
madoreg, quando ocori:em, estao ligadis a fatôrei de ordem-social e
cultural, e nadi têma ver com O aspecto hiolbgico de mestiçage~n."~
[" 'Superiority' ancl 'inferiority,' in relation to the resulting
patterns, when they occur, are linked to social and cultural factors
and have notliing to do witli the biological aspect of race-mixture."I3
(viii)Dr. Claude Lévi-Straiiss, Collhge de France (discussing contri-
butions to ivoi-ld civilization by varions races and cultures):
". . .If their contributions are distinctive-and there can be
little doubt that they are-the fact is to he accounted for by geo-
graphical, historical, and sociological circumstarices, not by special
aptitudes inherent in the anatomical or physiological make-up of
the black, yellow, or white man."4
(ix) Dr. Juan Comas:
"In comparisons of the position of the white and Negro races
today tliere is a tendency to assurne the inferiority of the latter
from the fact that their economic, political and cultural evolution is
far behirid that of the whites. This, however, is not due to an
'innate racial inferiority,' but is purely the result of circumstances
and duc to the régime of exploitation under which almost al1
Negroes live today as a result of white colonization and of the exis-
tence, if not of slavery in law, of conditions equivaleiit to it in
pra~tice."~
(x',Similarly. M. Leiris, of the Muséede l'Homme, Paris, argues that
. . Race prejudice only began to develop . . with the opening
of the period of coloiiial expansion by the European peoples, when it
becomes nccessary to excuse violence and oppression by decreeing
the inferiority of those enslaved or robbed of their own land and
denying the title of man to the cheated pcoples . . . ."
". . Racial prejudice is not innate."6
(xj! Dr. A. Cryns:
. ..The sum total of the research cited seems to indicate that a
definite effect of certain environmental factors upoli test perfor-
mance cannot possibly be denied: for instance, education has
'Heredity, Race and Society (34 (3d ed. 1957).
Introduyüo d A>ilropologia Llrasilei360, Vol. II (1947)
'ibid. [translation].
' Race and History 6 (1452).
Racial hlylhs24-25 (1951). A. Lipschutr ternis this practice ''racial hyl>ocrisy"
canismo y el Probiema Racial en las Américas 75(1944).argumentsSeeEl Ilrdoameri-
Race and Cult<cre41-43 (1~51).602 SOUTH WEST AFRICA
coiisistently the effect ofimproving African intelligence test scores."'
(xii) Dr. Anthony Richmond:
"Racial cla!;sifications take no account of cultural differences
between groups of people. There is no necessary coi?nexionbetween
race aiid. for example, language, nationality, or religion. These are
cultural traits whkh are-thé conseauence of environmental iii-
fluences. So al:jo are most e~~ressions'oftemperament and person-
ality. Intelligence, which most psychologists believe to be deter-
mined more by lieredity then by environment, appears to show a
normal curve of distribution in al1races. Where the average perfor-
mance of Europeans appears to have been superior to the average
performance of non-Europeans this is alrnost certainly due to the
difficulty of creating satisfactory tests of intelligence which are
independent of culture. In any case, almost al1such investigations
show tliat some noii-Enropeans far exceed some Europeans in
intelligence and vice ~.ersa."~
' "African Intelligence: A Critical SurvofCross-cultural IntelligenResearch
'n Africa South af the Sahara.57 /ottrnoiofSociaPsychalopy,No. 2.p.299 (1962).
The Colour I)robli:rA:~iwdy a/Raciai Relaliiin16-17 (1061cd.). LIST OF THE RELEVANT DOCUMENTS
1. Documents of the United Nations
A. Resolutions O/ theGrlnerulAsse?izbly
I. G.A.O.R. 1st Sess., Resolutions (A/64)
2. G.A.O.R. 3rd Si:ss.,Resolutions A/81o)
3. G.A.O.R. 4th Si:ss.,Kesolutionç [A/Iz~I)
4. G.A.O.K. jth S~:SS.S ,upp. NO. 20 (A/177j)
j. G.A.O.R. 6th Sess., Supp. No. 20 (A/~II~)
6. G.A.O.R. 7th Sess., Supp. No. 20 (A/2361)
7. G.A.O.R. 8th Sess.. Supp. No. 17 (A/2630)
8. G.A.O.ll. 9th Sess., Supp. No. 21 (Alz8go)
9. G.A.O.R. 10th Sess., Supp. No. 19 (A/3r16)
IO. G.A.O.R. 11th Sess., Supp. No. 17 (A/3572)
II. G.A.O.K. 12th Sess., Supp. No. 18 (A/3Yoj)
12. G.A.O.R. 13th !;ess., Supp. No. 18 (A/409o)
13. G.A.O.11.14th !;ess., Supp. No. 16 (A/43j4)
14. G.A.O.R. I5th Sess., Supp. No. 16 (A/4664)
15. G.A.O.R. 15th Sess., Supp. No. 16A (A/4084/Add.1)
16. G.A.O.R. 16th Sess., Supp. No. 17 (A/~Ioo)
17. G.A.O.R. 17th Sess., Supp. No. 17 (A/5217)
18. G.A.O.R. 18th Sess.,Supp. No. 15 (A/5515)
B. Reports of thelrusteeship Council
I. G.A.O.R. 3rd Sess., Supp. No. 4 (A/603)
2. G.A.O.R. 4th Ssss., Supp. No. 4 (A/933)
3. G.A.O.R. 5th Sess., Siipp. No. 4 (A/1306)
4. G.A.O.R. 6th Sess., Supp. No. 4 (A/1856)
j. G.A.O.R. 7th Sess., Supp. No. 4 (Alzrjo)
6. G.A.O.R. 9th Sess., Supp. No. 4 (A/2680)
7. G.A.O.R. 10th Sess., Supp. No. 4 (A/2933)
S. G.A.O.R. 11th Sess., Supp. No. 4 (A/317o)
9. G.i\.O.R. 12th Sess., Supp. No. 4 (A/3595)
IO. G.A.O.R. 13th Sess., Supp. No. 4 (A/3822.ilol. II)
II. G.A.O.R. 14th Sess., Supp. No. 4 (A/q~oo)
12. G.A.O.R. 15th Sess.. Supp. No. 4 (A/qqoj)
13. G.A.O.R. 16th Sess.. Supp. No. 4 (A/4818)
14. G.A.O.R. 17th Sess., Supp. No. 4 (A/jzo4)
C. Reports of theCo~nmittee on Informationfrom NOIL-Self-Gouei-PZ;%#
Territories
I. G.A.O.R. 6th Sess., Supp. No. 14 (A/1836)
2. G.A.O.R. 9th Sess., Supp. No. 18 (A/2729)
3. G.A.O.R. 10th Sess., Supp. No. 16 (A/zgoS)
4. G.A.O.R. 11th Sess., Supp. No. 15 (A/31z7)
5. G.A.O.R. 12th Sess., Supp. No. 15 (A/3647)
6. G.A.O.R. 14th Sess., Supp. No. 15 (A/~III)
7. G.A.O.R. 15th Sess., Supp. No. 15 (A/4371)
D. Reports of theCommitteesonSouth WestAfrica
1. G.A.O.R. 9th Seris.,Supp. No. 14 (A/2666)
2. G.A.O.R. 11th Sess., Supp. No. 12 (A/~I~I)604 SOUTH ~VEST AFRICA
3. G.A.O.R. 12th Sess., Supp. No. 12 (A/3626)
4. G.A.O.R. 13th Sess., Supp. No. IZ (A/3906)
j. G.A.O.R. 14th Sess., Supp. No. IZ (A/~I~I)
6. G.A.O.R. 15th Sess., Supp. No. rz (A/4464)
7. G.A.O.R. 16th Sess.,Supp. No. 12 (A/4957)
8. G.A.O.K. 16th SESS.S , upp. NO.IZA (A/4926)
9. G.A.O.R. 17th Sess., Supp. No. 12 (A/jzrz)
E. Resolrdion:;of the Security Council
1. S/43oc~ , April 1960
2. Slj386, 7 August 1963
3. S/5471, 4 December 1963
F. Meetings of the Security Coilncil
I. S.C.O.11.13th year, 1oj3rd mtg. (S/1'\'.10j3)
2. S.C.O.R., 15th year, Rjznd mtg. (Ç/PV.Sjz)
3. S.C.O.R., ~jth year, 854th mtg. (S/PV.Sj4)
4. S.C.O.R., 18th year, 10jz11dmtg. (s/PV.~ojz)
j. S.C.O.lZ.,18th year, 1055th mtg. (S/PV.IO~~)
G. Itecovdsof the Fourth Committee
I. G.A.O.R. 15th Sess. (A/C.~/SK.III~) (1960)
2. G.A.O.K. 16th Sess. (A/C.4/507)(1961)
3. G.A.O.12.17th Sess. (A/C.4/SR.1380)(1962)
4. G.A.O.11.18th Sess. (A/C.4/Sl2.1461)(1963)
H. Recovdsof tlieSbecial Political Committee
1. G.A.O.R. th Sess. lA/SPC/SR.So) (1458)
2. G.A.O.R. ~ith Sess. (A)sPC)SR.~~~)' (igig)
3. G.A.O.K. 16th Sess. (A/SPC/SR.z7j) (1961)
4. G.A.O.R. 17th Sess. (A/SPC/SR.31.334. 336) (1962)
j. G.A.O.R. 18th Sess. (A/SPC/SR. 390) (1963)
1. Kelated Docarmentsof the United Nations
I. ECOSOC,O.R., 16th Sess., supp. No. 13 (1953)
-. G.A.Ci.R. 1st Sess.. Part. z. .UDD.A.. -,(Trust Territories
Agreements)
3. G.A.Ci.I1.3rdSess.,6thComm., 138tlimtg.,7Dec. 1948.p.765
4. G.A.Cl.R. 4th Sess , Rep. of the Int'l Law Comm., Supp.
No. Io (A/gzj)
j. G.A.Cl.12.5th Sess., Supp. No. IO (A/lzgq)
6. G.A.Cl.R. 5th Sess., Rep. of Sub-Comm. on Education in
N.S.G.T.'s, Supp. No. rj (A/r3og/Add.r)
j. G.A.O.R. 18th Sess., Sp. Comm. on Colonialism (A154461
Add. 2)
S. G.A.O.R. 18th Sess., ~zogth mtg. (AlPV.1zog) (1963)
g. G.A.Cl.R.18th Sess.,Sp. Comm.on Implementation, Petitions
(A/AC.~og/Pet.zrg)
IO. Progress of the N.S.G.T.'s Under the Charter (ST/TRI/SER.
A/Ij/Vo1.2)
II. Z'rogressof the N.S.G.T.'s Under the Charter (ST/TRI/SER.
AI15lVol.3)
rz. Rel)ertory of Practice of United Nations Ovgalzs, Vol. 4,
p. IO(I (1955);Supplement No. 1,p. 191 (1958) REPLY OF ETHIOPIA AND LIBERIA 605
Ij.
16.
II. Documents of the League of Nations
A. Minutes of the Pennane*itMandates Commission
I. P.M.C. Min., 1st Sess., p. 6
2. P.M.C. Min.,2nd Sess., pp. 66, 86
3. P.M.C. Min., 3rd Sess., pp. 61, 104-05,221-23, 293
4. P.M.C. Min.,4th Sess., pp. 63, 64, 79, 151. 157, 164
5. P.RI.C.Min., 5th Sess., pp. 18, 145, 178
6. P.M.C. Min., 7th Sess., pp. 156-58
7. P.N.C. Min., 8th Sess., p. zoo
S. P.ùI.C. Aiin.,9th Sess., pp. 193.95
g. P.1I.C. Min., 10th Sess., p. zn
IO. P.3I.C. Min., 11th Sess.. pp. 166-67, 199, 204
II. P.M.C. Xin., 14th Sess., pp. 104, 116
12. P.M.C. Afin.,15th Sess., pp. 121-22, 170,204, 276
13. P.M.C. Min., 18th Sess., pp. 34, 135. 136
14. P.M.C. Min., 20th Sess., pp. 196. zoo, mg
15. P.M.C. Min., zznd Sess., pp. 114-15
16. P.M.C. hfin., 26th Sess., pp. 50. 52, 115. 164
17. P.M.C. hlin., 28th Sess., pp. 134. 138
18. P.M.C. Min., 34th Sess., pp. gr, 130
19. P.M.C. Afin.,36th Sess., pp. 18, 39. 125, 206, 207, 279
B. Related Docunients of the Leagz~eof Nations
1. L. of N. Doc. C.L. 110. 1927. 1. Annex, in League of Nations
Pub. I.B. minorities (1920-1933)
2. League of Nations, Of. J., ~1st Ass., Sp. Supp. NO. 194
(1946)606 SOUTH WEST AFRICA
3. Leagile of Nations Treaty Series, Vol. 5, pp. 337. 343, 345
(1921): Vol. 9, pp. 175, 179 (1922)
4. Article22 of the Coveiiant of the League of Nations
5. The Mandate for German South West Africa
III. Documents of'the International Labour Organisation
A. International Labour Conference
1. International Labour Conference, 26th Sess., Record of
Procee,iings(1944). pp. 621, 622
2. International Labour Conference, 42nd Sess., Record of
Procedings (1gj8). p. 834
B. Report of ihe Ad Hoc Cornmilteeon ForcedLabour, Studies and
Reports (New Senes) No. 36 (U.N.Doc. E/2431) (1953)
C. Report of the Committee on Questions ConcerningSoutli Africa,
G.B. 15S/z/j (International Labour Conference,158th Sess.,
Geneva (1964),Annez ("An I.L.O. Programme forthe Elimi-
nation of 'Apartheid'iii Labour AIatters in the Republic of
South Africa.")
IV. Republic of SiouthAfrica
A. Legislative Acts and Proclaamntdons
1. Act NO.39 of 1930
Amended by Act No. 39 of 1932
Amended by Act No. jo of 1949
.4mended by Act No. 44 of 1955
Amended by Act No. 42 of 1959
2. Act NO.30 of 1941
Amended by Act No. 27of 1945
3. Act No. 36 of 1949
4. Act NO.44 of 194g
5. Act NO.5 of 1951
6. Act No. 27 of 1951
Amended by Act No. 60 of 1955
6a. Act No. 47 of 1953
7. Act ?;O.51 of 1956
8. Act Wo.56 of 1954
g. Proclamation No. 173of 1956
IO.Act No. 8 of 1959
II.Procl;lmation No. 271 of 1959
12.Act No. 64 of 1961
13. Proc1:imationNo. 7 of 1961
14. Act No. 64 of 1962
15.Proc1:imationNo. 202 of 1962
B. Excerpts /rom debatesin the Pnrliame$ztof the Republic of South
Africa
1.Senatedebates
a. 10th Parl., 4th Sitting (weekly ed., 1951). Cols. 2893-2894
b. 11th Parl., 2nd Sitting (weekly ed., 1954). Cols. 2598-2599,
2606-2607,z618-2619 REPLY OF ETHIOPIA AND LIBERIA 607
2. House of Assembly debates
a. 9th Parl., 5th Sess. (weekly ed., 1948). Col. 1670
b. 11th Parl., 1st Sitting (weekly ed., 1g53), Cols.3576, 3577,
3580,3555, 3586
c. 2nd Parl., 1st !Sitting(weeklyed., 1958).Col.3805
d. 12th Parl., 2nd Sitting (weekly ed., 1g5g), Cols. 61-6j
e. 12th Parl., 2nd Sitting (weeklyed., 1959).Col.88
f. 12th Parl., 2nd Sitting (weeklyed., 1959). Col.6174
g. 1st Parl., 1st Sess. (weekly ed., 1961).Cols. 7394-7395
h. 2nd Parl., 1st Sess. (weeklyed., 1962),Col. 92
i. 2nd Parl., 2nd Sess. (weekly ed., 1963). Col. 242
j. 2nd Parl., 2nd Sess. (weekly ed., 1963),Cols.2384-2389
k. 2nd. Parl., zncl Sess. (weekly ed., 1963)~Col. 8518
C. Reborts and ~Memoranda
I. Report of Native Economic Commission 1930-Ig32 (U.G.
22/1g32) (1g32:1p ,. 101,para. 694
2. Departmental Commissionon Native Edz<cationReport, paras.
3. Soczal and Economic Plnnnzng Council Report No. g: The
Native Reserveoand their place in the Economy of the Union
of South Africa (U.G.3211g46)(1946),p. 3, para. 13
4. Report of theNative Laws Commission1946.48 (U.G.2811948)
(1948),P. 19. para. 28
5. Social and EconomicPlanning Council ReportNo. 13: The
Economic and SocialConditions of the Racial Groufisin Sozdth
Africa: (U.G.5311948)(1948),p. 108,para. 162.
6. Report of the Commzsszon on Native Education, 1949-1951,
paras. 235,763,773. 924 (U.G.5311951)(1951)
7. Snmmary of the Report of the Commission for the Socio-
Economic Deveiopment of the Bantu Areas within the Union
ofSouth Africa: (U.G.6111955)(1955)
8. Report of the Commission of Enquiry on Separate Training
Facilities for l'Jan-Europeans at Universities, p. 27 (1955)
'. Education /or South Atvica. The 1461 Education Panel
First ~e~o;t, pp. 1,56 (196~)
IO. Report of the Ci~mmissionof Enquiry into the Teacking of the
Oficial Language and the Use of Mother Tongue as Medium
of Instruction in Transkeian Primary Schools, pp. 14, 17-20,
R.P. 22 (1963)
II. Report of the Cmîmmissionof Enquiry into South West Africa
Aflairs 1962-1963(OdendaalCommission Report)
12. Memorandnm, ::gAprilrg64
V. SouthWestAfrica
A. Proclamations, Ordlizancesand Gouernment Notices
1. Proclamation No. 25 of 1920
Amended by Proclamation No. 32 of 1927
Amended by Ordinance No. 3 of 1962
2. Proclamation No. 34 of rgzo
Amended by Proclamation No. 19 of 1923
3. Proclamation Mo. II of 1922608 SOUTH WEST AFRICA
4. Proclamation No. 16 of 1926
Ameiided by Ordinance Xo. 19 of 1960
j. Proclamation Xo. 15 of 1928
6. Proclaination No. 29 of 1g3j
Ameiided by Proclamation No. 36 of 1949
7. Proclarnation No. 30 of 1935
S. Ordiirailce No. 12 of 1936
Amended by Ordinance No. 15 of 1946
Amended by Ordinance No. 25 of 1957
Ainended by Ordinance No. 20 of igjg
9. Proclarnation No. 56 of 19j1
10. Ordinance No. zj of 1954
II. Government Xotice No. 33 of 1gj6
12. Government Xotice Xo, 26 of 1957
13. Governinent Notice No. 42 of 1957
14. Government Notice No. 122 of 1957
Ij. Government Notice No. 126 of 1957
16. Ordinance No. 2 of 1962
17. Ordinance No. 27 of 1962
18. Proclaination No. 84 of 1963
B. OtherDocume~itsof Sonth West Africa
I. filemorandzlm of Education Policy Adopted with Reference to
Report:;of Commissions of Enquiry RegardiiigEuropeans and
Noit-Eirropenns Appointed in 19j6 and 1958, p. 29 (1960)
2. S.W.A. Administration, Estimates Dtrring the Year Eflding
3rst iMarclt,1964 (1963). pp. 6, 47, 49, 50. 52
1'1.Related Docunients
A. Books
I. Allpor:, The va tite f Prejudice, pp. 470-71. 472 (1954)
2. Asher et al., Tlte United Nations iznrl IJromotion of the
GeneralVVelfare,pp. 871.933 (1957)
3. Baker. VVoodrowWilson and World Settlemeitt,p. 428 (1922)
4. Reer, African Questions nt the Paris I->eaceConfevence,
PI'.424-35 (1923)
Keiitwich, The Mandates System vi (1930)
Berger, Eqi~alityby Statute, p. 186 (1952)
Black'r Law Dictiotzary,p. 1566 (4th ed., 19j1)
Krierly, Tlte Law of Nations, p. 293 (6th cd., 1963)
Callan, .4lbertJohn Luthuli aitd the South Africatt Race
Coitflict,pp. 57-58 (1962)
Carter,Tlte Politics of Ineqirality, pp. 416-17 (1956)
II. Clark, Prejudice aiid YozrrCltild, p. 47 (2nd ed., 1963)
It. Clyde, Japaii's Pncific iW(~~zdatep,p. 204-05 (1935)
Colin & Capitant, CoursElémentairedeDroitCivil Français,
\'01.1.P. 590 (1947)
Comas, Racla1Afyths, pp. IO,24-25 (1951)
CoizJéreiicde la Paix, 1919.1920, Recueil des Actes de la
Conférence, Partie VIA, pp. 330, 336. 342, 349, 350, 354.
356, 379, 402-03, 406,408 (1934) REPLY OF ETHIOPlA AND LIBERIA Gog
16. Cowen,The Fonndations of Freedom, p. 35 (1961)
17. Dean and Roseii, A Manual ofIntergrofrpRelations,pp. 59-60
(1963)
18. de Kiewict, A History O/ SoutlzAfrica: Social andEconomic,
Ilp. 19-20.24, 242-43 (1941)
19. de I<iewict, Thi: A~zatonzyof South Africaii Misery, pp. 25,
47-49. 54. 55. 77 (1956)
20. Dosey, The Indz<strialColozrrBar in Sor6tkAfrica, p. zoo
(1961)
21. Ilunii and Dobzhansky, HereiliLy,Race und Society, p. 134
(3d Cd.1957)
22. E~~cyclopédid ee Droit Civil-Dalloz (Pans), Jirrisprude~rce
Générule Dalloz (1951). Vol. 1, pp. 29, 491; Vol. III, p. 668
23. Iiagaii, Our Responsibility: A Discussion of Soirth Africa's
Racial Problems, p. 47 (1960)
24. Iiaucliille, Traité de Droit Inter~iational Public, Tome 1,
ne Partie, pp. 820-24 (1925)
25. [1899] Foreign Relations of the United Slates, pp. 614, 632,
638, 640:48,,65:1-55,657-59
26. [iq18] Porezgn Relations O/ the United States, Vol. 1, Supp.
Ï;p. 407
27. [rgrg] Foreign Relations of the United States (Pans Peace
Conference), Vol. 1, pp. 407, 761: Vol. III, pp. 718-28,
738.48. 741, 758-71.785-95.797-608; i7ol.Ir,p. 700; Vol.IX,
PP. 555-56, 700,
28. Ganji, I~zter~inttonaPlrotecliorof Ht~ma~R t iglits,p. 271(1962)
zo. George. The Trirth about the Peace Treaties, Vol. 1, p. 118
' ('93s)
30. Goldiiig, The ColoureilMalt Speaks, p. 3 (1952)
31. Guggeiilieiin, 1TraitédeDroit i~zleriiatio~zaplublic, pp. 301-02
(1954)
32. Hailey, As African Szcrvey,pp. ~-3-G4,166, 169, 428, 434,
764, 1386 (3d e~~.1 .957)
33. Hall, Ma~zdates,Dependencies and Trzcstceship,pp. 31, 65,
68. 69 (1948)
34. Horrell, A Decade O/ Bantn Edzrcation,pp. 142, 147 (1964)
35. Huddleston, Nairghtfor YorrrComfort.pp. 53-54 (1956)
36. Hudson, International Legislntion, 1'01.1, pp. 312, 318-19
37. International Commission of Jiirists, Soirth Alrica and tlre
Rnle of Law, pp. 37, 77. 80, 88, 91 (1960)
38. Jenks, Hiimari Rights and I~ilentalional Laboirr Standards,
39. Jessup, A Modern Law of Nations, p. I (1948)
40. Joshi, Unrest in South Afvica, vii (195 8)
. 41. Kaplan :rnd Katzenbach. The Political Foundations of
International Law, p. 258 (1961)
42. Keet, The Ethics of Apartheid, pp. 14, 18-19 (1957)
43. Klineberg. Race and Psychology, p. 17 (1951)
44. Kluckhohn, Mirror for Man, p. 125 (1949)
45. Kuper, Passive Resistance in SozrthAfrica, p. 210 (1956)
46. Latham, The Significance of the Peace Conference/rom an
Australinir Point of View, pp. 11-12 (1920)610 SOUTH \\'EST AFRICA
47. Lauterpacht, An International Bill of the Rights of &fan,
P. "5 ('945)
48. Laiiterpacht, I7clernationalLaw and Human Righis, pp. 147-
48 (l~ii0)
49. L~\YSOII..A Common Lawyer Looks al the Civil Law, p. 203
50. Lec. Elements of Roman Law, p. 327 (1st ed., 1944)
51. Leiris, Race altd Culture, pp. 41-12 (1951)
52. Lepaulle, Traité Théoriqueet Pratique des Trusts, pp. 207,
354 (1934
53. Lévi-Strauss,Race utcdHistory, p. 6 (1952)
54. Lipschutz, El Indoamericattismo y el ProblémaRacial en las
Aw'riias, p. 97 (1944)
55. Lugard, The Drral maid datein British Tropical Africa,
P. 454 ('922)
56. Luthuli, Let Afy PeopleGo: An Autobiography, pp. zoz. 245
(1962)
57. alaccrone, Race Attilctdes in Soc~thAfrica: Historical, Ez-
perim~:ntaland PsyclzologicalStudies, pp. 107-108, 129-130.
261 (1957)
58. hlargalith, The Internntionnl Mandates, p. 13 (1930)
59. hlriclvcr, The TVebof Government,p. 428 (1947)
60. hIadd(:n, Handbook of the Law of Persons and Domestic
Relntions, pp. 461, 508 (1931)
61. TltejnandatesSystem :Origiit-Pri~tciples-App pl.6, atiot&,
23 (1945).League of Nations Pub. Xo. 1g45.i'I.A.I
62. 1larai:j. Tlte CapeColotrredPeople 1652.1937. pp. 5-8, 13-16,
63. Marquard, South Africa's Colonial Policy, pp. 25-26 (1957)
64. Mattliews, Social Relations itcn ComrnonSotith African So-
ciety, pp. 17,21 (1961)
65. Millcr. The Draftiic,oO/the Covenant, Vol. 1,pp. 27, 41, 4,
47. 106-107,108, 109: 1'01.II, pp. 35, 88,104, 153, 589, 655
66. Molteiio,The Betrayal of Natives' Representation,p. 15 (1959)
67. Morarit, The Significance of Racial Differences,p. 39 (19jz)
68. Mphahlele, The Africa~zImage, pp. 33-34 (1962)
6% Ortiz, El Enfaico de las Razas, pp. 264-67 (1946)
70. Paton, The People Wept, p. 44 (1958)
71. Pelichet, La PersonnalitéInternatioitale Distincte desCollecti-
vit& sozisMandat, pp. 29-30 (1932)
72. Pistorius, No Further Trek, pp. 38-39 (1957)
73. Rarnos, I~ttroduçao à Antropologia Brasileira, Vol. II, p. 360
("47:l
,4. Richmond. The ColotirProblern:A Studv of,Ra.ial Relations.
pp. 1617 (1~61ed.)
75. Rody:;,CoursElémentairedeDroitCivil Français etCanadien,
P. 56 (1956)
76. Roserine, The Internatiottal Court of Justice, p. 26 (19.57)
77. Roskxm, Apavtheid and Discriminntion, pp. 55-58,87 (1960)
78. Saenger, The Social Psychology of I'refudice, pp. 240. 271
(r963:1 REPLY OF ETHIOPIA AND LIBERIA 611
79. Schapera, The Khoisan Peoples of South Africa, pp. 27-31.
80. Schreiner, Closer Union, pp. 28-29 (2nd ed., c. 1961)
81. Sclireiner, Kealism in Kace Relations, pp. 17, 20 (1962)
82. Scott, Oficial Ifistory of Australia in the War of 1914.1918,
Vol. XI; pp. 763-89 (1938)
83. Scott, II The 1.a~ of Trusts. p. 1289 (2nd ed. 1936);Vol.1,
84. Seymour (ed.), TheIntimale Papers ofColonelHozise,Vol. IV,
pp. 192-200(1926-1928)
85. Smuts, Africa and Some World Problems, pp. 94, 96, 98,
86. Smuts, The League of Nations-A Pvactical Suggestion,
PP. 14, 27-28 (Ig18)
87. South African Institute of Race Relations, A Survey of
Race Relations in South Africa (1962),p. 219; (1963),p. 75
88. Stoyanovsky, L.aThéoriegénérald eesmandats internationaz~x,
P. 81 (1925)
89. Suchrnan, et al., Desegregation: Some Propositions and
Research Sugge:;tious,p. 37 (1958)
go. Tatz, Shadow and Substancein SozithAfrica, p. 148-49(1962)
gr. Thompson, The Unification of South Africa, 1902-1910,
Pp. 114, 116. 1.33(1960)
9'. Tillrnan, Anglo-American Relations at the Paris Peace Con-
ferewceof 1919p ,p. 61, 87 (1961)
93. Tohias, The Afeaning of Knce, p. 22 (1961)
94. Tumin, Desegregation: Resistance andReadiness, pp. 22,
168-69 (1958)
yj. van der Horst, Native Laboiir in Sonth Africa, pp. 319.322
(1942)
96. van Renshurgh, Guilty Land, pp. 138-39 (1962)
97. \Vall<er,A Hisi'oryof Sonthern Africa (3d cd., 1957)
98. Williams, Rednction of IntergrozifiTensions, pp. 73-75 (1947)
99. Williams and :Ryan, Schools in Transition, p. 247 (1954)
IOO.Wright, Mandates Under the Leagzle of h'ations, pp. 158,
472 500, 516-17 (1930)
B. Periodicals,JournaiS, etc.
1. 24American Journal ofInternational Law (1930),pp. 126,127
2.35 American Journal of International Law (1941).p. 444
3. 40 American ,Journal of International Law Supplement
(1946), PP. 83, 99
4. 43 American ,Jozcrnal of International Law Supplement
('949). PP. 133, 134
5. II Annuaire de l'Institut de Droit International (1929).
PP. 298-99
6. Arendse, Contact,19 April 1963,p. 1
7. Blumer, "Research on Race lielations: United States of
America," International Social ScienceBzilletin No. 3 (1958).
P. 432
8. Besson, L'Afrique Française (I~zI), p. 14612 SOUTH WEST AFI~ICA
9. Brookes, "South Africa and the \Vider Africa, 1910-1960."
27 Racc:RelationsJourital, No. 1, (January-àlarch 1960),p. 8
IO. Cachalia, "The Ghetto Act." Africa Sozcfh,Vol. II, No. I
(0ctobi:r-December 1957).p. 39
II. Clark, "Desegregation: An Appraisal of the Evidence," 9
Journal of Social Issues (1953).pp. 71-72
12. Cooppa.n,Contact,6 February 1960. p. j
13. Cryns, "African Intelligence: A Critical Survey of Cross-
cultural Intelligence Research in AfricaSouth ofthe Sahara,"
57 Jou'.nal of Social Psychology, No. z (1962), p. 299
14. Curtis, "Windows of Freedorn," Round Table (Deceniber
I~IS), pp. 27-28
15. de Blatik, XII1 Africa Digest, No. 3 (December 1963). p. 81
16. Deutsch, "Some Perspectives on Desegregation Kesearch,"
The Ro!eof theSocial Sciencesin Desegregation:A Symposium
(1958).P. 5
17. du Plessis, "The New Era and Christian Cailing Regarding
the Bantu in South Africa," DelayedAction: An Ecumenical
PVitness/rom the Afrikaans sfieaking Churclr(n.d. [1g60])
18. Fraukel, "The Tyranny of Economic Paternaiism in Africa:
A Studv of Frontier bleiital.t.." su..lement to OPtima
(~eceniber 1960),p. 49
19. Friedman, "South Africa and the Commonwealth," Looking
Outwards: ThreeSouth African Viewpoints (1961). p. 7
20. Friedniann (ed.), I CVillStill He Moved: Reports /rom South
Africa (1963), pp. 18, 19,20
21. Friedniann, "The Huiigry Sheep Look Up," The Spectator
(23 February 1962), p. 234
22. Hahlo. "The Trust in South Africa I.aw." 2 Inter-American
LUW Review (rg~o), pp. 229.30, 241
Kelly, "The Politics of Racial Equality," 24 New Zealand
Journal of Public Administration No. 2 (1962), p. 32
Kerr, "Political Relations Between Advanced and Back-
wards Peoples," in Grant, Introdrrction to the Stzcdy of
International Relations, p. 179 (1916)
AlacQuarrie, "The New Order in Bantu Education," Africa
Soilth :go. I (October-December 1956). pp. 40-41
Maslow, "Prejudice, Discrimination. and the Law," 275
Annal:; of the Americau Academy of Political and Socznl
Science 12, 16-17 (1951)
27. Alason,5 Race No. 4 (April 1964).p. 96
28. Morgaut,"Note sommaire sur quelques cornparaisonspsycho-
1ogiqui:s entre des populations Africaines, Rlalgaches et
EuropCennes," g Revue de Psychologie Appliquée, No. 1
(January 1g5g), p. 28
29. Nixon, "Law, Race Relations, and Social Change in the
UniteclStates," 22 RaceRelationsJournal, No. r (1955).p. II
30. Ntantala, "The Widows of the Reserves," Ahica South,
No. 3 (April-June 1958), p. g
31. Oliviei, "The League of Nations and Primitive Peoples," in
Leagua of Nations Pub. Series, p. 13 (1918)
32. Potter, "Negroes in Canada," 3 Race (November 1961),p. 54 REPLY OF ETHIOPIA AND LIBERIA
613
33. Raab and Lipset, "The Prejodiced Society," in Raab (ed.)
Americaii Race Relations Toduy (1962),pp. 48-49
34. Rose, "The Influence of Legiskation on Prejudice." in Rose
(ed.), Race. Prejz~diceand Discrimination (1951). p. 546
35. Schachter, "The Charter :rnd tlie Constitution: The Humai]
Rights Provisions in American Law," 4 Vanderbilt Law
Review (hpril 1951). pp. 643, 646-59
36. Sneesby, "The Vernaciilar iii Bantu Education in the Unioii
of South Afric:i," 33 OverseaEducation No. 2 (July rg61),
P. 75
37. Africa South (,July-Septeriiber ~gjg), pp. 24-25
38. Thompson, "Fifty Years of Union," 27 Race Relatiorts
JozcrnnlNo. z (April-June 1g6o). pp. 66-67
39. van der hlandi:re, 54 Bzrlletin de la SociétéBelge d'Etudes
et d'Expansio7i369 (1926)
40. IVilsoii, "The Early History of the Transkei and Ciskei,"
African Stsdies. \'ol. 16, No. 4 (rg~g), pp. 167-79.
41. Wilsoii, "The l'rinciple of hIaintaining tlie Reserves for the
African." Race Relations l"urnd. No. I ~"anuar~v-Alarcli
1964, PP. 8-9
42. Wright, "National Courts and Human Rights-the Fujii
Case," 45 Amt:rican Jour?tal of Intentational LIIW (1~51).
pp. 61, 70. 72
C. Lectzcresai:d Addresses
I. Cowen,Liberty, Eq:<alily,Fraternity-ïoday: The Alfredand
M'inifred Hoerrilk hlemorial Lecture, pp. 4, 35-36 (1961)
2. de Kiewiet, "Academic Freedom," the Second T. B. Davie
hlemorial Lecture, delivered in the University of Cape Town
on 26 July 1960, p. 18 (1961)
3. hlatthews, African Awakening and the U+iiuersities:The
Third T. B. Davie Memorial Lecture Delivered in the Uni-
versity of Cape Town on 15 August 1961, p. 2 (1961)
4. Schreiner, Presidential Address to the South African Iiisti-
tute of Race I;:elatioiis: Soiath Africa-United or Divided.
PP. 6.7 (7964)
5. Centlivres, Thomas Be~tjamirzDavie: The First T. B. Davie
hlemorial Lecture Delivered iii the University of CapeTown
0" 7 May '959. P. 7 (1961)
6. Souvenir of a Visit, Printed on the authority of Mr. Speaker,
Cape Town (~gOo),pp. 7-8
7. Education, onhIr.22.Auystlare1959, hroadcast on the South
Africaii Broadcasting Corporation, 23 Atigust ,1959 (state-
ment quoted by Dr. A. B. Xuma in a paper delivered ta tlie
hleeting, 17-20January 1961, p. 6, by courtesy of the Newsl
Department of 1.heSouth African Broadcasting Corporation,
Johannesburg)614 SOUTH WEST APRICA
D. Newspapers
I. van der Ross, "Coloured Viewpoint," Cqbe Times, Cape
Town, 23 February 1961, p. IO
z. The Financial Mail, Vol. X, No. 15 (13 December 1963).
p. 887.
3. The Ob.server, ond do 18 November 1962
4. Legum. "Tearing a Country Apat," The Observer,London,
25 April 1963
5. Legum, "The Roots of Violence," The Observer, London,
5 hfay 1963
6. Uys, "'TheGolden Limb," The Spectcitor,London, 3 January
1964
7. The Star, Johannesburg, 14 May 1962
S. TlzeStar, Johannesburg (weekly cd., 14 Septernber 1963)
9. The Star, Johannesburg (weekly ed., p. 7, 18 January 1964)
IO. The.St~a, Joliannesburg (weekly cd., p. j,25 Jaiiuary 1964)
II.'The Windhoek Advertiser, j July 1960, p. I
12. The W:lndhoekAdvertiser, z April 1963
13. The Wi~tdhoekAdvertiser, IO April 1963
14. TlzeW:indhoekAdvertiser,6August 1963
15. The Windhoek Advertiser, 12 November 1963
Special Rq>orts
1. 39 Int(2rnational Law t\ssociation, Conference liep. (1936).
P. 33s
2. Commission to Study the Organization of Peace, Fourth
Keporl: (1944)~Part. III, p. 19
3. UNESCO "Statement on Race," in VVhatis Race? Evidefïce
from Scientists (~gjz), p. 79
4. Reporl: of Academicians, Jurists and others, The Open
UiziversitiesiizSoztthAfrica (1957)~ pp. 5-6, 30-31
j. Hewson (cd.), Cottesloe Consultntioiz: The Report of the
Consultation among South Africnn ~VlemberChz~rchesof the
VVorldCozuzcilof Churches,p. 7 j (1i.d.[1961])
F. Miscellanenus
I. Parliainentary Dchates (Lords), 212 H.L. Deb. (5th Ser.)
684 (1'358)
z. Britisti Information Services Rele*e No. T. II of 23 March
1961 TABLEOFCASES
I. Conditious of r1dmisr:ion O/ a State tu iWember.~Izip in the United
Nations, I.C.J. Iiep. 1947-1948 (Advisory Opinion)
2. Corfu Channel Case, I.C.J. Rep. 1949
3. Conzpetenceo/ the Ger~ernA l ssembly /or the Admission of a State to
the United ~Vatioizs,I.C.J. liep. 1950 (Advisory Opinion)
4. International Status O/ South-West Africa-Pleadings, Oral
Arguments and Dociiments
5. International Status of Soutlz-West Afric~z, I.C.J. Rep. 1950
(Advisory Opiiiion)
6. Fisheries Case, I.C.J. Kep. 1g51
7. Sontlz-WestAfrica-iToting Procedure,I.C.J. Rep. 1955(Advisory
Opinion)
8. Admissibility of hearings of petitioners by the Committeeon South-
West Africa, I.C.J. R.ep. 1956 (Advisory Opinion)
g. Case ConcerningNorwegiun Loans, I.C.J. Rep. 1957
IO. Certain Expenses of the United Nations, I.C.J. Rep. 1962(Advisory
Opinion)
II. South West Africu Cases (Preliminary Objections), I.C.J. Rep.
1962
1. ~Wavrommatis Palestine Concessions Cases, P.C.I.J., Ser. A,
Nos. 2 (1924).5 (Igz:i), and II (1927)
2. Customs Régime Retween Germany and Az~stria, P.C.I.J. Ser.
A/B, No. 41 (1931)
3. Diversion of Water fvom the Meuse, P.C.I.J. Ser. A/B, No. 70
(1937)
1. District Governor,Jemsalem-Jaffa District v. Murra, [1926]A.C.
321 (P.C.), [19~5-1926]Ann. Dig. 46 (No. 32)
2. Attorney-General v. dltshuler, [1gzo-zg33] L.R. Palestine 283,
[1g27-1928]Ann. Dig. 55 (No. 33)
3. Jolley v. Mainka, (Eiigh Court 'of Australia). [1933-19341Ann.
DieW .No. 20)
4. Winter v. Minister O/ Defence [rgqo] So. Afr. Rep. App. Div.
194 (1939)~[1g38-1940]Ann. Dig. 44-46 (Ko. 20)616 SOUTH WEST AFRICA
5. Lawless v. Ireland, European Court of Human Rights, ser. A,
No. 3 (I .fiily 1961)
6. De Becherv. Belgit~m,European Court of Human Rights, ser. A,
No. 4 (27 ldarch 1962)
D. ~IUNICIPAL LA.#CASES
1. Strauder v. West Virgiriia,Io0 U.S. 303 (1879)
2. Lottisiana exrel. Francis v. Resweber,329 U.S. 459 (1947)
3. Oyama v.(:alifornia, 332 U.S. 633 (1948)
4. Fujii v. C'Jifounia,217 P.zd 481 (1950)
j. Brown u. .Boardof Educztio?~,347 U.S. 483 (1954)
Reply of the Governments of Ethiopia and Liberia