Admissibility of Hearings of Petitioners by the Committee on South West Africa - Advisory opinion

The fallor~~L~~inforrmtian from the 13egistry of th? Lnteri~ational
Cou-rt oi Justice has beer cont:~l~.nicateto the Press:

The Internatlona 7ourt of Justice has to-day (~uae Ist, 1756)
de!-ivered its P+dvisory Om3in_i:jin thc case rviatitzg to the BdmZs~ib!~lity
of 5eari.ilgs of ~etitioneis by the Committee on South %est ASrj.ca of the
General Assemblyol the United iiztians ,

The Adiiisory Opinion was requ-ested by the Geneinal Açsemblywhich,
on Decem'aer 3rd, I-fiÇ5, ado-ted the following Resolution icir'tbis purpose:

'"The General iissernbI;<

Havuln bee~!~request eydthe Comniittee on South ?;!est!!fricü to
declde ~~îether or riotthe oral hearing of petitioners an nutters
rela.tiicgto the TzrriCorg of South Vest bfrica iç admissl.ble before
thait Coimittee (A/2913/~ad. 2) ,

the Comm.ittee, In General Assel;ibly resalution
1953, to exmjuie petitions as far as
* possible in accordmce with the procedureof the former Mmdates -
System,

Requeststhe hte:mational Court o' Justice to glve ZJ-advisory
opini~n on the folloi~rhg question i

'1s' it consistenG withthe advjsory opinior?.of the
InierRaLional Cou.rt of JusLiceof 11 July 1950 for the
Coml:.ittee on Scuth ?~BostALrica, established by Cheral

Assznbly resoliition 749 A (vIII) of 28 Novernbar 1753,
to grmt oral hearings to petitioners on rna%teimsralutkg
ta the Territory oi South :;Jesi Ifri~a?~~~

On receipt of the Ezquest for ailOpGlion, the Codrt gave an apport-
mity to Siates I'ie~~bers ofthe United i+Li.l;ionto piqesent tl-ieir views.
Tho C-overiment oi'the United Statzs of hlerica ai-d the C~~arr~l~ent of the
àepu.blic of Uhina submit-ked ;mit ieri s.tater~~ents,ail<?a rspresenta.tive of
th2 Gov¢rr;nen-t cf the IMited Iiinsdom of Great Eritain a~d Iqor-thern
IreLard made an ors1 statenient at a ;~ublic sitting of the Court. The
Secrctzry-Gmzral of the ünited Mations transmitted the docurierits likely
0 to throw light upon the question, together with a3 ij?trod.uc-t;ory note.

The Caurtl s Opînioil, sfhich was adopted by ekgl-it7r3kes 69 five? gave
an af2irinative aul~vfzrto the'cpzstion put to it. Two I'i'embers of the
Court - Judges [Tiniars!ciad. iljs-ümikov - while vetiilg in r'zvaur of th':
Opinion, appendeddeclarations thereto. Judge Sir Hersçh Lauterpacht,
who alsovoted for the OpfnTon, appended thereto a separate Oninion,
The five Members of the Court rilhovotec! agaulst the Advisory"&inj.on -
VicJ-Prcs ldent Blzdzwi and Judge3Easdeirmt , Ilsu 190, hmaild-Ugon and
l~loreno hintasla - z~;l,yend~:to the Opinion of the Court a joint '
dissenting opinion,
b + 9.

In its 0pini.0~~ the Court firstjndicatos its uliderstanding of Lie
question subr~~ittrvdto it. It unclerstands it as reletiilg to 'pcrsons who
have suhmltted ~qritten petitions to the Comibtee on Soiiih Is-est Africa,
in confcirnity w5.th iGs Rules 02 Procedure. It dso considers that it
relates not to thc authority of the Committee to grmt hearinzs in its
ovfi right but to the cLe.estionvrhether it is legally open to the Genesal
Assenibly to authorize the Cornittee to grant hzark~gs.

Th? Gerieral Asseinhly asks whether the gant of heairings ~rould be
consistent with the Adviüory 0-lnion delivered bg the Court in 1950.
In ornerta answerthat questfon, the Court mst hzve regard to the
rzrhole. ,.,whole of that Opinloa and its general purport and rnza~hg, It thzref ore
analysos the Opinion. Th? oprative part indicat 2s that the obligations
of the Mandatory continu? unUilpaired >rith this difference, that the super-
visory functions fornierly e-rcised by the Council of the League of Nations
are now to SE exercised by the United Mztions. Tha orgen now exerclshg .
these s~pervisory F;.nctions, that is, the General Assembl-y, is legally
qualified to carry out an effective aïld adequa.tesupervision of the
administration of the Xaildatad Territorg. In the reasoning on 'Aich the
Opinionis based, the Court imda it cl-eer that the obligations of the
Emdatory, including the obligetion to transet r-orts md petitions and
to 'submit to th3 supervision, rrere those whtch. obtained under the

$-andates System . These obligati.çrnsc 011-lnok be z,%elici.ed and conse-
quently tho dagres of supzrvisio 'o be o;:ercis-7 5.y the C-e~eral Assembly
s11ould not zxcilsd tliüt h hi ch-;:lied under the fi;andates System. Follaw-
hg its finding rsgwding the substitutioo nf th? Ceneral ilssembly for
the Cow,cil of the Leaguc of Fations Ui the exzrclse of supervision the
Court s-Lated tkat the degree of supervision should confom as far as
possible to ttti procedurzfollowed by the C0unci.l of the Leaguz of
Nations. But the necessitgfor supervision continues to exist: the
Charter presemresthc rights of States and peoplesunder cxisting
inta rnational agreementsw ,hich irplies the e:5s'cci?ceof a supervisory

organ. Frorn this analgsis of the Opinion of 1950, it 1s clear that its
permount purpose w.2~ to safegudrd the sacred, trust of civilization
through t hc maint~i;_p.nc of effective intemationd s~p~rvislo :u in
hterpreting ângr particular sentences in th? Opjnion, tt ba not pevmissible
Go attribute to Ghem a me,miig w'nich would not be In conformity with this
parmount purpose or with the opc-rativc partof the Ophion.

How w%s the yucst,ion of the grmt of oral kezrings deal't rzritduring
Gha régime of the Lzague of IJa.t,ions? Thc tcxts do not rcfer to hoarings
and no hearings were evergrantcd. Bor, howevur, do the texts refer to

"Lhe ri@ of petitlon, ajlin~ovatlan which lms nevei-thzless intmduced' by
the Council of the Leaguz to rznd~rits ~upc~vlsory functions more
effectivs: it wzs coixpetent to do so, and it would aLso hava hem
cornpatent to authorize the Pvmwiont Mandates Commissionto grant hearings,
had it Sem fit to d-O so,

In this connexion, it t~d bzcn contended that the Opinion of 1950
was htendod to cxpxsç the vietrUiat the Mandakos Systcm and the dcgrze
of superrrision must be deemcd Go have been crystallizzd, so that th^
Genoral ~sscmbl~ ' o~ld not do wjrthing ~nrhlch the Couici1 had i10-actually
uone, evcri 12 it hacl authority to do it. That as not the case, There is no- a
thhg .k.theOpinicn of 1950 or in thc relcvarit te;:ts thkit cm bie constwziad

es in my w2y rcstrfcling the authority of the Genoral Xssonibly ta less
than that conf crrsd on the Gouncilof the Loague of B~:tions , It was
proper for the Court to point out, in its O?iilion of 1950, th& the
Genoral Assemblycould nui; enl-argc Lts ~~uthority, bu;; L11eCourt wcs noL
c+ed upon ta dctvrrnins whether thc Crznerd Asscmbly cai1l.dor cou-Ld nat
e::ercise powers which the Gouncf-i of Lhc Lcaguc had possess~dbut for th2
e-uercise of which no occasionhad arison.

Rdiance had slso bcen placvd on the sentencz in the Opinionof 1950,
b the effect that the degrce of supervision to, be enzrcisac! Iriy the
&nerd Assernbly should fiot exeed th& v~hich applled mder t1-iMadates

Systûm, and it had ncen suggcsted that the grmt ol hearings would
involve such an excess ir!thc degrc? of supervision. Bat;,in the present
circuïïstances, in ~h-içlzthe Conmittee on South Mest Xrica is vmrking
without the assistsicc of the Tbfidztory, hearings might enahle it to be
in a bztter position to j~tdge the r~erits of pctitions. Tliat, howevcr,
5s in the interest of the Ilandatory as ml1 as of the proper vnrklng of
the Fmdatas Systcm. It canot thcrof ore be prcswned that the grant of
hoarings incresscç the burdea uponthe Tiandatory. idor is it possible
O intzqret the sentence in th¢ Opinion of 1750 rc;Pe~-rod to above as
being intended to restrict th3 activity of the GeneraP Assembly to
mea9ur2.s *...
. .nisasures which had zctually been applied by thr: League of Tktions, Tl12

contaxt of the scntenceFs egainst sueh a construction, as is the Opinion
given by the Court In 1955.

The Court lastly notes tiat, by reasori. of t:ie lack of coaperatiion by
the Phdatory, the Cornittee on Soi;th l:!cstdfrica has been constralvted ta
rnake provision for allern$iivz procedure for th3 receipt2nd trsatnent
of petitions. The particular qaestien tiihichhas bzen su-bmittcd to the
Colzrt arose out of a,sitv.aLiori in whic11 the IJandatorg ha,s riiaintained its
re;'uçal tri assis% lizgiving effzcl; to the qpinioi~ of 11. July 1950, md to
CO-operatle witb the Ünitec? Nations by the subfiission of rsports,and by the

transnissio nf pet5tiolls iiz ccnfomity i&th the procedurc of tGe Maridates
Systrvm. This sortaf silfiation was provided. for bjrthe sktement b the
Court" Opinion of 1950 that the dzgce of supervision to be exvrclsed bg
the General Assenibly "shoald coniom as Ear 2s possible to the procedure
followed in this respect by the Cowicil of the Lzaguz of Kations .ll

Tn conclusion, the Court holds th& Ttwould not Se &consistent
with its Opinion cf :1 Ju.1~ 1950 for tne Generd Assernb1.y to authorize a
~rocec"ure for ths grant of oral hearhgs 5y the Cormittee en South 'des%

Âfr5ca to petitioners ui~o hnd alreacly submitted nirctten potikions :
provided that the Gencral Açsm-bly was ça'cisfizd that 5~ch a chrse was
necessary for the iziaintenance of effective inYeriational supervision of
the admin?-stration of th3 ImIadatod Serritory.