Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa - Advisory opinion

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i I.C.J. Communiqué No. 53/32
(unofficial)

l The Sallowing informatio nrom the Registryof the International
Court of Justice has been comunicated to the Press:

The InternationaC lourtof Justicetoday (June ?th, 1955)

dellvered its AdvisoryOpinion u1 the mtter of the voting procedure
£0 be followed by the GeneraL Assemblyof the United Nations yi makkg
decisions on questions relat ing to reports and petitionsconcerning
the territory of South-West Africa ,

The Reguest for Advisory Opinion had been submitted to the Coud
by the General Assembly, which, on November 23rd,1954, adopted the
foUowing Resolution for this purpose:

IfThoGeneral Assemblx,

Having accepted, by resolution.449A (v) of 13 December 1950,
the advisam owinion of the Internationa Court of Justiceof
Il July 1956 Ah respect to South-West Africa,

Having regard, i.n particular, to the Court's opinion on the
generil question, nmely, %tkt South-West kfrica is a Territory
under the international Mandate assumed by the Union of South
kf rica on 17 De cember 1920 1, and tO the Court 's opinion on
question (a), narneiy, Ithat the Union of South kfrica continues
ta have the internationa lbligations stated in Article 22 of the
Covenant of the League of Nat ions and jn the Mandate for South-
West Africa as well as the obligation ho transmit petitions from
the inhabitants of that Territory, the s~pe~sary funchions to
be exercised by the United Nations, to which the annualreports
andthe petitions are ta be submitted, and the reference to the
Permanent Court of International Justice to be xeplaced by a
reference to the International Court of Justice, in accordance

wi'ch Article of the Mandate and Article 37 of the Statute 02
the Coud;',

Saving expressed, In resolution 749 A (VIII) of 28 Novernber
1953, its opinion 'that 7,hthoutUnited Nations supervision the
inhabitants of the Terri-tory are deprived of the irrternational
O supervision envisaged by the Covenant of the League of Nationsf
and its belief 1that it would not fulfil its obligation towards
the inhabitants of South-West Afxicaif it were not to assumethe
supervisor yesponsibilities with regard to the Territoryof
South-Wes tfrica. which were formerly exercised by the League
of Nations ,

Havb~ regard to the opinion of the International Court of
Justice that 'the degree of supervision ta be exercised by the

Ganeral Iisssmbly shozd not .. . exceed that which applied under
the Mandates System, and shouLdconform as far as posslble to
the procedure followed Ln this respect by the Councidof the
League of I\Tationsl and Ghat 'these observations are partiçdarly
applicable to annual reports and petitions ',

ha vin^adopted, by resolution 844 (IX) of 11 October 195.4,
a speclal mle F on the voting procedure to be follawed by the
General Assembly in taking decisions on questions relating to
reports and petit ions concerning the Territory of South-West
kfrica,

Having sdopted thiç de jn a desire 'Lo apply, as far as
possible, and pending the conclusion of an agreement between the

United ..,. United Nations and the Union of South Africa, the procedure
followed in that respect by the Council of the League of Nationst,

Considerine; th& sorne elucidation of the advisoryopinion
is desirable,

Reauests the Internationa lourt of Justice to give an
advisory opinionon the followipg questions:

(a) Is the following ruls on the voting procedure to be
followed by the General Assembly a correct interpretation
of the advisory opinion of the InternationaC lourt of

Justice of 11 July 1950:

'Dscisions of the General kssemtily on questions
relating to report+ and petitions concerning the
Terrihry of South-WesA tfrica shall be regarded as
important questions withir the nieaning of Article 18,
paragraph 2, of the Charter of the United Nations. ?

(b) If this hterpretation of the sdvisory opinion of the
CO-mt is not correct, what voting procedure should be 0
followed by the Cenerd Lssembly in taking decisions on
quest Zons relating to reports and petitions concerning
the Territory of South-West FLfica?"

On receipt of the Req~est, the Coud had givenan opportunity to
the S4embers of the United Nations to submit their vims. The
Governments of the United States of >merica, of the Republic of Poland
and of India submitted witten statements, The Government sf Isrsel
and of the RepubLic of China, while net suhxitting written statements,
referred to the views expressed by their representative sn the General
,"lssemblyT .he Government of Yugoslavia indicated that i-b ms of the
opinionthat the question had been dealtkith exh2ustlvel yy the
AdvisoryOpinion of 1950. Lastly, the S~cretary-&r,eral of the United
Nationstransmitted to the Court the docm~-?t:~ likely to throw light
upon the question and an introduct ory note co-mentingoon these documents .
There were no ara1 praceedings.

In its Opinion delivered today, the Court ieplied' in the e
affi~mtl~e to the first questian put: the Rule set out in (5) of the
Resolution is a correctUiterpretation of the Opinion ~iven by the
Coürt 1950. This reply in2d~ unnecessa~y for the Court $0
consider the second question.

The Opinion of the Court given today was unanimous. Three Members
of the Court- Judges Basdevant, maestad and Lauterpacht - trhile
acçeptlngthe operative clause of the Opinion, reached their conclusions
on different grounds and zppended ta the Qpinion statementsof their
separate opinions. dnothsr Mernber of the Court, Judge Kojevnikov,who
also accepted the operative clause of the Opinion, appendedthereto a
de claration.

In its Ophion, the Court brier"1y states the facts leading up to
the Request for Opinion, In its Bdvisovj Opinion of 1950, it had said
that the Union of South Africa contii~ued to have the international
obligations binding upon it , in respect of the territory of South-West
i~frica, in accordance with the Covenant a£ the League of Nations and

the .. ..the Mandate for the territory, and that the supervisoqr functions were

to be exercised by the United Nations. That Opinion tsas acccpted the
sme year by the General Lssembly as a basis for supervision over the
administratio of the territory. Negotiations ensued between the
United Nations and the Union of South lLfrica, but these were unsuc¢essful.
In 1954, a Conmittee of the Ceneral ,ssembly drafted sets of des of
whtch one, Rule F (set out under (a) of the Resolution of Navember 23rd,
1954, above), related to the way in which decisions of the General
~ssembly trith regard to reports and petitions vrere to be mde. Lt is
\,rith regardto this Rule thatthe Court 1s Opinion has been sought .
The il,ssembly was primariljr concemed with the question tqhi;therRule F

carresponds to a correct interpretation of the follo~~,.ing passage from
the Opinion of 1950:

"The dagree of suwrvision to be exercised hy the General
Asssmbly should not theref ore exceed that which applied
under the MagdatesSystem, and should conform as far as
possible to the procedure followed in this respect by the
Coucil of the League af Nations."

Hav- thus defined the qgestion put to Tt, the Court cansiders

whether the firstpartof this sentenk ("~he degroe of supervisjon to
'ne exercised by the Generd Lssembly should not therefore exceed that
:hich applied under the Mandates Systeml1) ¢an be correctly interpreted
as extending to the votilig systei;ito be followed by the Generd
Lssemblywhen making decisions with regard to reports and petltions
concerning the territory of South-West hfrica, It cornes to the
conclusion thab the words'Ithe dsgree of supervisionu relate to the
extent of the substantive supervision and not to the marner in which
the collective will of the Geiieral :%ssembli ys expressed; they do not
relate to procedural matters. The first part of the sentence mcms
thak the General >Lssembly shodd not adopt such mthcds of supervision

or imposesuch conditions on the Iiandatory as are inconsistent with
the tems of the Mandate or with a proper degree of supervision
rneasured by the standsrd and the methodsa?plied by the Councilof the
League of Nstions, Consequently, Rule F cannot be regarded as
relevant to the Ifdegree of supertision" , and it follows thatit cannot
be cansidered as instituting a greaterdegree of supervision thzn that
tvbich was envisaged by the Court in its Opinion of 1950.

This interpretation is coniirmed by an exarnination of the
circmtances whichledthe Court to use the words jn question. In
its Opinion of 1950, it was Eecessav for it to say what were the

obligatioris binding upon the Union of South ;,frica. It found that
the obligations relating to the adxCinistration of the territary, and
correspondint go the sacred trust of clvfiiaation refcrred to in
Arkicle 22 of the Govenant, did not lapse on the àiçsolution of the
League of Nations. Bs to the obligations relating to supervision of
the administration, the Court, taking Ulta consideration the provisions
of the ChaAer, found that supervision shouldhenceforth be emrcised
by the General Lssembly, bih that it should not exceed that which
applied under the Mandates System. But the Court had not then had to
deal with the systern of voting, In recognizing that the cornpetence of

the Gencrzl 'kssembly ta exerciseits supervisoryfunctions i~as based on
the Charter, it implfcitly recognlzed that the decisions of that organ
in this connection mst be taken in eccosdance xith the relevant
provisions of the Charter, thatis, the provisions of Article 18. If
the Court had intended Lhat the lMts to the degree of supervision
should be understood to include the maintenance of the systern of voting
followed hg the Couricil of the League of Nations, it would have been
contradiekii~ its elf and running count er to the provis ions of the
Chrter. i'Lccordingly, the Court findsthat the first pad of the

sentence ....sentence mst be Lnterpreted as relabing to substantiv meattersand
not to the system of voting which was appliczble in the tirne of the
League of Nations.

The Court then proceeds to consider the second part of the sentence,
according to wl~ich the degree or" supervision I%hould conform as far as
possible to the procedure faliowed in this respct by the Council of
the League of Nationsn: does Rule F accordwith this requirement?
Whereasthe first part of the sentence relates ta substantive matters,
the second par% is procedural in charscter and the word I1procedure"

there used refers to those procedural st~ps whereby supervision is to
be effected. Butthe voting system of the General ;.ssembl yas not Ln
contemplatiow nhen the Court used these ~firords.Lndeedj the question of
conformity of the voting systern of Ghe General r*,ssemblwith that of
the Corncil of the League of Nations presents insurmoun-Lable difficultles
of a juridical nature, for the voting system of an organ is one of ibs
distulguishhg featwes. It is related ta iis composition and finctions
2nd cannot be t ransplmt ed upon anot her organ wtth out dis~egarding one
of the characteristic os th^ latter.

There is therefore no incompatibility between Rule F and the
@hion of 1950. It would, however, seern clear that, both in adoptkg
BBde F and in referring the question to the Court, the General Lssembly

was proceeding an the assumption thatthe Court had used the word
Ilpl-ocedure1I as includlng the votjng system. Even 30, the conclusion
would be the sm. In the Opinion of 1950, the Court had said that
the Gcnersl i'ssernbly derivcd its coinpet enct O exercissit s supervisory
functions from the Charter; it is therefore within the frariiewark of
the Charter that itmst find the rules governtng the making of its
decisians in connectio n ith thase functions. It would be legally
impossible for it, on the one hand, to rel~~ on the Charter in receiving
aiid.examiniizg reports aila petitfonç conccrning South-West iLrica and,
on the other hand, to reachneclaions relzting ka these reports and
petitions in accordance idth a voting system entirely alien to that
prescribed by the Charter.

As to the expression Ilas far as possibleIr, this was designed
Go allow for adjustmznts necessitated by the fact that the Council of
the League of' Haticlns was governedby an instrument different from
that h-hickgoverned the Gsneral i,ssemblg. For the kitter, in the matter
of determining how to make cleciçions relating to reports and petitions,
there was but one course open. It had before it ixrki¢le.l8 of the
Charter, whieh prcscribes the mcthds for takingdecisionç. The Ophion
of 1950 left the GencraL :ssembly idth kriicle 18 of the Charter as the
solelegal basis for the voting system applicable. It was on that basis
that Rule F as adopted. In adopting that Rule, it acted vrithjsi the
bounds of legal possibility.

Rule F therefore corresponds to a correct interpretatioo nf the
Opinion of 1950.

The Hague, June ?th, 1955.