INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH ~WEST AFRICA CASES
(ETHIOPIv.SOUTH AFRICA;
LIBEFJA v.SOUTH AFRICA)
VOLUME VII
1966
COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES D1J SUD-OUEST AFRICAIN
(ÉTHIOPIc.AFRIQUE DU SUD;
LIBÉRIAc.AFRIQUE DU SUD)
VOLUME VII The present volume contains the Oral Arguments relating to the
Preliminary Objections in the South West Africa cases. The proceedings in
these cases, which were entered on the Court's General List on 4 Novem
ber 1960 under numbns 46 and 47, were joined by an Ortler of the
Court of 20 May 1961 (South West Africa, Order of 20 May r96I, I.C.J.
Reports r96r, p. 13). Two Judgments have been rendered, the first on 21
December 1962 (South West Africa, Preliminary Objections, Judgment,
l.C.J. Reports r962, p. 319), and the second on 18 July 1966 (South West
Africa, Second Phase, J udgment, I.C.J. Reports r966, p. 6).
The page references originally appearing in the pleadings have been
altered to correspond with the pagination of the present edition. Where
the reference is to another volume of the present edition, the volume is
indicated by a roman figure in bold type.
The Hague, 1966.
Le présent volume reproduit les plaidoiries relatives aux exceptions
préliminaires dans les affaires du Sud-Ouest africain. Ces affaires ont été
inscrites au rôle généralde la Cour sous les n°• 46 et 47 le 4 novembre
1960 et les deux instances ont étéjointes par ordonnance de la Cour le
20 mai 1961 (Sud-Oue..t africain, ordonnance du 20 mai r96r, C.I.J.
Recueil r96r, p. 13). Elles ont fait l'objet de deux arrêts rendus le 21
décembre 1962 (Sud-Ouest africain, exceptions préliminaires, arrêt,C.I.J.
Recueil r962, p. 319) et le 18 juillet (Sud-Ouest africain, deuxième phase,
arrit,C.l.J. Recueil r966, p. 6).
Les renvois d'un mémoire à l'autre ont étémodifiéspour tenir compte
de la pagination de la présente édition. Lorsqu'il s'agit d'un renvoi
à un autre volume de laprésente édition, un chiffre romain gras indique
le numéro de ce volume.
La Haye, 1966. CONTENTS - TABLE DES MATIÈRES
PART IL ORAL ARGUME~TS
DEUXIÈME PARTIE. PLAIDOIRIES
. SI'.CTION A. ORAL ARGUMENTS
CONCERNING THE PRELIMINARY OBJECTIONS
SECTION A. PLAIDOIRIES
RELATIVES AUX EXCEPTIONS PRÉLIMINAIRES
MINUTÉS. PROCÈS-VERBAUX
Page
Public hearings held from 2 to 22 October 1962. . . 4
Audiences publiques tenues du 2 au 22 octobre 1962 5
Public hearing held on n December 1962 ••••. 16
Audience publique tenue le 21 décembre 1962 . • • 17
ANNEXES TO THE MINUTES, ANNEXES AU PROCÈS-VERBAUX
r. Argument of Dr. verLoren van Themaat (South Africa), 2 x 62 20
In~ro~uctory statement and recapitulation of Prelinùnary Ob-
Jections. . . . . . . . . . . . • ·. . . • . . . • . . . 20
South Africa's attitude conceming status of South West Africa
in general. . . . . . . . . . . . . . . . . . . . . . . 21
The \O~rt is free to r~consider or départ from previous Advisory
Optruons .... ....... ·. . . . . . . . . . . . 21
Compromise aspect of arrangement whereby C Mandates were
established . . . . . . . . . . . . . . . . . . . . . . 25
Irrelevance of the question of annexation . . . . . . . . . • 28
2..Argument of Mr. de Villiers (South Africa), 2-9 x 62 . • . • . 29
Analysis of rival contentions in regard to First and Second
Preliminary Objections . . . . . . . . . . . . . • . . . 29
Principles of treaty interpretation . . . . . . . . . . . . . 36
Effect of dissolution of the League of Nations on pre-existing
relationships in regard to the Mandate . . . . . . . . . . 64
The Court's 1950 Advisory Opinion should be reconsidered in the
light of new information . . . . . . . . . . . . . . . . 67
Mandatory's voluntay undertaking to report and account to
the Council of the League of Nations became incapable of per-
formance . . . . . . . . . . . . . . . . . . . . . . , 68
South Africa never consented to submit to United Nations
supervision regarding the Mandate . . . . . . . . . . . . 77
South Africa made Î1:clear that it had no intention of entering
into a trusteeship agreement . . . . . . . . . . . . . . 78
The Resolution adopted at the final Assembly of the League of
Nations contemplated other arrangements between the United
Nations and the Mandatory Powers . . . . . . . . . . . 84
· In negotiations between South Africa and the United Nations
there was no agreement.for United Nations supervision. • . 88X SOUTH WEST AFRICA
Page
Analysis of the reasoning in the Court's 1950 majority opinion 92
Evidential data not before the Court in 1950 ._ . . . . . . . 97
The question whether the obligation to report and account
survived the dissolution of the League of Nations . . . . . 106
Refotation of the "principle of succession" in regard to super
visory fonctions . . . . . . . . . . . . . . . . . . . . no
There was no· agreement or intent to transfer supervisory
fonctions to the organized international community . . . . II5
No.~; of customary international law supports the "succes-
sion argument . . . . . . . . . . . . . . . . . . . . 122
Refotation of the assertion that an overwhelming number of
States Members of the United Nations consider the 1\fandatory
accountable to the United Nations . . . . . . . . . . . . 124
Effect of dissolution of the League of Nations upon the Mandate
seen as a treaty or convention in force: basic contentions. . 134
Distinction between continued operation of the Mandate as a
treaty or convention and continued existence of the Mandate
as an objective institution . . . . . . . . . . . . . . . 144
Effect of dissolution of the League of Nations in regard to
Article 7 of the Mandate . . . . . . . . . . . . . . . . 156
Judicial supervision was not a key feature of the Mandates
system . . . . . . . . . . . . . . . . . . . . . . . . 177
Equation of League of Nations membership with membership of
the organized international community is fallacious . . . . 179
The "principle of effectiveness" cannot be invoked to imply tacit
intent . . . . . . . . . . . . . . . . . . . . . 180
The "carry-over" principle is not applicable to Mandates 188
Summary of contentions . . . . . . . . . . . . . . 198
3. Argument of Mr. Muller (South Africa), IO-II x 62. 200
Third Preliminary Objection. . . . . . . . . . . 200
Sense of the word "dispute". . . . . . . . . . . 200
Possession of legal rights or interests essential to locus standi. 201
There is no dispute as envisaged in Article 7 of the Mandate . 205
The League of Nations Covenant did not provide for judicial
supervision in regard to the Mandate. . . . . . . . . . . 210
Neither the Covenant nor the Mandate provides for enforcement
ofthe Mandate through contentions proceedings. . . . . . 218
The Mavrommatis case . . . . . . . . . . . . . . . . . . 224
The Court's jurisdiction was not meant for supervision in the
interests of inhabitants of mandated territories . . . . . . 227
The material interests of Applicants are not involved. 237
Fourth Preliminary Objection . . . . . . . 239
When does a dispute become justiciable? . . . . . . 239
Subject-matter of the alleged dispute. . . . . . . . 240
Restrictions on the possibility of negotiations . . . . . . 241
Alleged violation of substantive provisions of the Mandate 250
Submissions by Dr. verLoren van Themaat (South Africa). 259
4. Argument of Mr. Gross (Ethiopia and Liberia),15 x 62. 261
Introductory statement. . . . . . . . . . . . . . . 261
5. Argument of Mr. Moore (Ethiopia and Liberia), 15 x 62 264 CONTENTS XI
Page
Evidence of wish to settle dispute by rule of law.. . . 264
Historical survey of :Mandate . . . . . . . . . . . . 265
Development of the Trusteeship System . . . . . . . 269
South Africa's report to the General Assembly for 1946. . 275
The General Assembly's request for an Advisory Opinion . 275
The Committee on ::outh West Africa . . . . . . . . 276
The Second Conference of Independent African States . . 279
Applications to the Court filed on 4 November 1960 . . . 279
6. Argument of Mr. Gross (Ethiopia and Liberia) (continued),
15-17 x 67 . . . . . . . . . . . . . . 281
The gulf between th,~positions of the Parties 281
The alleged "new fads" . . . . . . . 283
Analysis of the 1950 Advisory Opinion . 300
Respondent's de nov,)argument . . . . 3ro
Applicants' locus standi. . . . . . . . 316
The theory of "partial lapse" . . . . . 322
Reply to Third and Fourth Objections . . . . . 323
Submission of Governments of Ethiopia and Liberia 326
Questions putto the Parties by Members of the Court 326
7. Reply of Mr. de Villiers (South Africa), 19-22x 6z . . 329
References to earlier statements . . . . . . . . . . 329
Recapitulation of new information submitted . . . . . 331
The "general considnations" underlying the Court's Opinion in
1950 . . . . . . . . . . . . . . . . . . . . . . . . . 348
The principle of res judicata is not applicable to a previous
Advisory Opinion . . . . . . . . . . . . . . . . . . . 350
Reply to Applicants' arguments regarding the analysis of the
1950 Opinion . . . . . . . . . . . . . . . . . . . . . 351
Reply to Applicants' contentions concerning the de novo argu-
ment ......... , . . . . . • . . . . . . . . . 354
Applicants' contentions concerning "succession" and "carry
over" are not supported by any arguments on the merits . . 355
8. Rejoinder of Mr. Gross (Ethiopia and Liberia), 22 x 62 . . . . 358
Applicants have not attempted to introduce matters of a tenden
tious, politicalr Emotional nature. . . . . . . . . . . . 358
Respondent's request for reconsideration of the 1950 Advisory
Opinion is not supported by "new facts" or "new arguments" 359
The Courtis invited -toundertake an essentially judicial task.. 368
9. Answers to questiom, put by Members of the Court, 22 X 62. 369
Dr. verLoren van Themaat (South Africa) . . . . . . 36g
Mr. de Villiers (South Africa) . . . . . . . . . . . . . . 369
Mr. Gross (Ethiopia and Liberia) . . . . . . . . . . . . 379
Amendment of Subrrâssions of South Africa. . . . . . . . . 382
Reservation of right to submit conclusions by Ethiopia and
Liberia. . . . . . . . . . . . . . . . . . . . . . . . 382 PART II
ORAL ARGUMENTS
PUBLIC HEARINGS
held af.the Peace Palace, The Hague,
/rom 2 to 2;~Octoberand on 2r December r962,
(Preliminary Objections), the President, Mr. Winiarskipresiding,
and /rom I5 March to r4 July, 20 September to r5 November
and 29 November r965, 2r Marck and on r8 July r966 (Merits),
the President, Sir Percy Spender, presiding
DEUXIÈME PARTIE
PLAIDOIRIES
AUDIENCES PUBLIQUES
tenues au Palais de la Paix, La Haye, 2uau
22 octobreet le 2I décembrer962 (exceptions préliminaires),
sous lapré5idencede M. Winiarski, Président,
et du IS mars au I4 juiUetr965, du 20 septembre au I5 novembrer965,
le 29 novembre r965, le 2I mars r966 et le r8 juillet r966 (fond),
sous laprésidencede sir Percy Spender, Président SECTION A
ORAL ARGUMENTS CONCERNING
THE PR:ELIMINARY OBJECTIONS
PUBLIC HEARINGS
held /romztozz Octoberand onzI December z962,
the Pres:ident,Mr. Winiarski, presiding
SECTION A
PLAIDOIRIES CONCERNANT
LES EXCEPTIONS PRÉLIMINAIRES
AUDIENCES PUBLIQUES
tenues duz ,iu zoctobreet ZI décembrez96z,
sous la présidencede M. Winiarski, Président4 MINUTES
MINUTES OF THE HEARINGS HELD FROM 2 TO
22 OCTOBER AND 21 DECEMBER 1962
YEAR1962
THIRTY-FIFTH PUBLICHEARING (2X 62, 4 p.m.)
Present: President WINIARSKI; Vice-President ALFARo; Judges
BAsDEVANTB , AnAw1, MORENOQuINTANA,WELLINGTON Koo, SPmo
Pouws, Sir Percy SPENDER, Sir Gerald FITZMAURICE,KoRETSKY,
TANAKAB , uSTAMANT E RIVERO,JESSUP,MORELLI:Sir Louis MBANEFO,
The Honourable J. T. VANWYK,Judges ad hoc; M. GARNIER-COIGNET,
Registra,. '
Also presènt:
For the Governments of Ethiopia and Liberia:
The Honourable Ernest A. GROSS,Member of the New York Bar,
as Agent and Counsel:
assistedby:
The Honourable Edward R. MOORE,Assistant Attorney General of
Liberia,
Mr. Leonard S. SANDWEISSM , ember of the New York Bar,
as Counsel.
For the Government of the Republic of South Africa:
Dr.]. P. VERLOREN VANTHEMAATS ,.C., Law Adviser to the Depart
ment of Foreign Affairs, as Agent;
Mr. Ross McGREGOR, Deputy State Attorney, as Additional
Agent;
Mr. D. P. DE VILLIERS,S.C., Member of the South African Bar,
Mr. G. VAN R. MULLER,S.C., Member of the South African Bar,
as Counsel;
Mr. J. S. F. BOTHA,Department of Foreign Affairs, as Adviser;
Mr. F. D. TüTHILL,Department of Foreign Affairs, as Secretary.
The PRESIDENTopened the hearing and announced that the Court
was assembled to deal with the dispute between Ethiopia and Liberia
on the one hand and the Republic of South Africa on the other
concerning South West Africa. Proceedings in these cases were instituted
by two Applications filed in the Registry on 4 November 1960, one by
the Government of Ethiopia and one by the Government of Liberia.
Time-limits forthe filing of the first pleadings were fixed by an Ortler
of 13 J anuary 1961. Within the time-limit fixed by the Court for the
filing of the Counter-Memorial of the Governmen.t of the Republic of
South Africa, that Government filed certain Objections to the jurisdiction
of the Court. The proceedings on the merits were accordingly suspended
and a time-Iimit was fixed within which the Governments of Ethiopia
and Liberia might present written statements of their Observations and
Submissions on the Objections. These Observations were filed within the
time-limit prescribed and the case was then ready for hearing.
Since the Court does not include upon the Bench any judge of the
nationality of the Applicants or of the Respondent, the former and the
latter indicated their intention to avail themselves of the right conferred PROCÈS-VERBAUX
5
PROCÈS-VERBAUX DES AUDIENCES TENUES DU i
AU 22 OCTOBRE ET LE 21 DÉCEMBRE 1962
ANNÉE1962
TRENTE-CINQlJIÈMS EÉANCE PUBLIQUE(2 X 62, I6 h)
Présents: M. WINIARSKI, Président; M. Ar.FARO, Vice-Président;
MM. BASDEVANT,BAIJAWI, MORENOQUINTANA,WELLINGTONKoo,
SPIROPOULOSs,ir Percv SPENDER,sir Gerald FITZMAURICEM , M. Ko
RETSKY,TANAKA,BUSTAMANTE y RIVERO, JESSUP, MORELLI,Juges;
sir Louis MBANEFO,M. J.T. VANWYK, Juges ad hoc; M. GARNIER
COIGNETG , reffier.
Présentségalement:
Pour les Gouvernements éthiopienet libérien:
M. Ernest A. GROSS,Membre du barreau de New York, comme agent
et conseil;
Assisté par:
M. Edward R. MOORE,Attorney General adjoint du Libéria,
M. Leonard S. SANDWEISSM , embre du barreau de New York,
comme conseils.
Pour le Gouvernement sird-africain:
Dr. J. P. VERLOREHVANTHEMAAT,S.C., conseiller juridique du
département des Affaires étrangères, comme agent;
M.Ross McGREGORS,tate Attorney adjoint, comme agent supplémentaire;
M. D. P. DEVILLIER:,,S.C., membre du barreau d'Afrique du Sud,
M. G. VANR. MULLER,S.C., membre du barreau d'Afrique du Sud,
comme conseils;
M. J.S. F. BOTHA,du département des Affaires étrangères, comme
conseiller;
M. F. D. ToTHILL, du département des Affaires étrangères, comme
secrétaire.
Le PRÉSIDENTouvr<! l'audience et annonce que la Cour se réunit
pour examiner le différend entre l'Ethiopie et le Libéria d'une
part et la Républiqw! sud-africaine de l'autre au sujet du Sud
Ouest africain. Ces instances ont étéintroduites par deux requêtes
déposées au Greffe le 4 novembre 1960, l'une du Gouvernement de
l'Ethiopie et l'autre du Gouvernement du Libéria. Les délais pour le
dépôt des premières pièces de la procédure écrite ont étéfixés par
ordonnance du 13 janvier 1961. Dans le délai fixé par la Cour pour le
dépôt du contre-mémoire du Gouvernement de la République d'Afrique
du Sud, ce gouvernement a présentécertaines exceptioàla compétence
de la Cour.En conséquence, la procédure sur le fond a étésuspendue
et un délaiimparti aux Gouvernements de l'Ethiopie et du Libéria, pour
présente_r leurs observationset conclusions sur les. exceptionsCes
observations ont étédéposéesdans le délai prescrit et l'affaire s'est
trouvée en état d'êtreplaidée.
La Cour ne comptant pas sur le siège de juges de la nationalité des
Parties demanderesses et de la Partie défenderesse, les unes et l'autre
ont notifié leur intention de faire usage du droit prévu à l'article 31,6 MINUTES
by Article 3r, paragraph 3, of the Statute. By an Order of 20 May r96I
the Court, consideting that the submissions of the Applicants were,
except in a few minor respects, identical and that accordingly they
were in the same interest, joined the proceedings instituted by the two
Applications and fi.xed a time-limit within which the Govemment of
Ethlopia and the Govemment of Liberia, acting in concert, might choose
a single judge ad hoc.
The Govemments of Ethiopia and Liberia have designated Sir Louis
Mbanefo, Chief Justice of the High Court, Eastern region of Nigeria,
and the Govemment of the Republic of South Africa has designated the
Honourable Jacques Theodore van Wyk, Judge of the Appellate Division
of the Supreme Court of South Africa.
Article 20 of the Statute of the Court prescribes that every member
of the Court shall, before taking up his duties, make a solemn declaration
in open Court that he will exercise his powers impartially and conscien
tiously. The President called upon Sir Louis Mbanefo and Mr. Justice
van Wyk to make this solemn declaration.
Sir Louis MBANEFO and Mr. Justice VANWYKmade their declarations.
The PRESIDENTplaced on record the solemn declarations just made
by Judge Sir Louis Mbanefo and Judge van Wyk and declared them duly
installed as judges ad hoc for the purposes of the present case.
The President regretted to say that Judge Cordova, who is prevented
by the state of his health from being present at The Hague, would be
unable to sit in the present proceedings.
He noted the presence in Court of the Agents of the Parties and their
Counsel and declared the oral proceedings open.
He called upon the Agent for the Govemment of the Republic of
South Africa.
Dr. VERLORENVANTHEMAAT made the speech reproduced in annex 1
and asked the President to call upon Mr. de Villiers.
The PRESIDENTcalled upon Mr. de Villiers.
Mr. DE VILLIERSbegan the speech reproduced in annex 2•
The Court rose at 6°.30p.m.
(Signed) B. WINIARSKI,
President.
(Signed) GARNIER-COIGNET,
Registrar.
THIRTY-SIXTH PUBLICHEARING(3 X 62, I0.30 a.m.)
Present: [See hearing of 2 x 62; Vice-President Alfaro was absent.]
The PRESIDENTopened the hearing and stated that Vice-President
Alfaro would be unable to be present, for reasons of health. He called
upon Mr. de Villiers.
Mr. DEVILLIERSbegan the speech reproduced in annex 3•
(The hearing was adjourned from r2.50 p.m. to 4 p.m.)
Mr. DEVILLIERScontinued the speech reproduced in annex \
The Court rose at 6 p.m.
[Signatures.]
1See pp. :zo-28. 1 Seepp. 36-64.
2See pp. 29-36. • See pp.64-76. PROCÈS-VERBAUX
7
paragraphe 3, du Statut. Par ordonnance du 20 mai 1961, la Cour,
considérant que les condusions des Parties demanderesses étaient, sauf
sur quelques points mineurs, identiques et que dès lors elles faisaient
cause commune, a joint les instances introduites par les deux requêtes
et a fixéle délaidans lequel le Gouvernement de l'Ethiopie et le Gouver
nement du Libéria pourraient désigner d'un commun accord un seul
juge ad hoc.
Les Gouvernements de l'Ethiopie et du Libéria ont désignésir Louis
Mbanefo, Chief Justice de la High Court de la région est de la Nigéria,
et le Gouvernement sud--africain a désignél'Honorable Jacques Théodore
van Wyk, juge à l'App~llate Division de la Cour suprêmed'Afrique du
Sud.
L'article 20 du Statut prescrivant que tout membre de la Cour doit,
avant d'entrer en fonctions, prendre en séance publique l'engagement
solennel d'exercer ses fonctions en pleine impartialité et en toute cons
cience, le Président invite sir Louis Mbanefo et M. van Wyk à prononcer
cette déclaration.
Sir Louis MBANEFO et M. VANWYK prononcent leurs déclarations.
Le PRÉSIDENTprend acte des déclarations qui viennent d'êtrepro
noncées par sir Louis M;Janefo et par M. van Wyk et les déclare installés
en leurs fonctions de juges ad hoc en la présente affaire.
Le Président a le regret d'annoncer que M. C6rdova, juge, empêché
par son état de santé de venir à La Haye, ne siégerapas en cette affaire.
Il constate la présence à l'audience des agents des Parties et de leurs
conseils et déclare la prncédure orale ouverte.
Il donne la parole à :•.'agentdu Gouvernement de la République sud
africaine.
M. VERLORENVANTHEMAAT présente l'exposé reproduit en annexe 1
et demande au Président de donner la parole à M. de Villiers.
Le PRÉSIDENTdonne la parole à M. de Villiers.
M. DEVILLIERScommence l'exposéreproduit en annexe 2•
L',iudience est levéea r8 h 30.
Le Président,
(Signé) B. WINIARSKI.
Le Greffier,
(Signé) GARNIER-COIGNET.
TRENTE-SIXIÈME SÉANCE PtJBLIQUE(3 X 62, 10 h 30)
Présents: [Voir audience du 2 x 62; M. Alfaro, Vice-Président, absent.]
Le PRÉSIDENTouvrn l'audience et annonce que M. Alfaro, Vice
Président, ne pourra pas assister à l'audience pour des raisons de santé.
Il donne la parole à M. de Villiers.
M. DEVILLIERScommence l'exposéreproduit en annexe 3•
(L'audience, suspendue à 12 h 50, est reprise à 16 heures.)
M. DEVILLIERScontinue l'exposéreproduit en annexe 4•
L'audience est levéeà I8 heures.
[Signatures.)
1 Voir pp.20-28. 3 Voir pp.36-64.
2 Voir pp.19-36. • Voir pp.64-76.8 MINUTES
THIRTY-SEVENTP HUBLICHEARING (4.x 62, ro.30 a.m.)
Present: [See hearing of 3 x 62.J
The PRESIDENTopened the hearing and stated that Vice-President
Alfaro's state of health still prevented h1m from tak1ng part in t~e
hearing. He called upon Mr. de Villiers.
· Mr. DEVILLIERScontinued the speech reproduced in annex 1•
(The hearing was adjoumed from 12.55-p.m. to 4 p.m.)
Mr. DEVILLIERScontinued the speech reproduced in annex 2•
The Court rose at 6.25 p.m.
[Signatures.]
THIRTY-EIGHTH PUBLICHEARING(SX62, ro.30 a.m.)
Present: [See hearing of 3 x 6z.]
The PRESIDENTopened the hearing and called upon Mi-.de Villiers.
Mr. DE VILLIERScontinued the speech reproduced in annex 3•
(The hearing was adjoumed from r p.m. to 4 p.m.)
Mr. DE VILLIERScontinued the speech reproduced in annex 4.
The Court rose at 6.20 p.m.
[Signatures.}
THIRTY-NINTH PUBLICHEARING(8 X 62, 10.30 a.m.)
Present: [See hearing of 3 x 62; Judge Koretsky was absent.]
The PRESIDENT opened the hearing and announced that Judge
Koretsky also would be unable to be present at this hearing for reasons
of health. He called upon Mr. de Villiers to continue his speech ..
5
· Mr. DE VILLIERScontinued the speech reproduced in annex •
(The hearing was adjoumed from 12.55 p.m, to 4 p.m.)
Mr. DE VILLIERScontinued the speech reproduced in annex 6•
·!he Court rose at 6.20 p.m.
[Signatures.}
FORTIETH PUBLICHEARING(9 X 62, ro.30 a.m.)
Present: [See hearing of 8 x 62.]
The.PRESIDENTopened the hearing and called upon Mr. de Villiers.
Mr. DE VILLIERScontinued the speech reproduced in annex 7•
(The hearing was adjoumed from 12-45 p.m. to 4 p.m.)
Mr. DEVILLIERSconciuded the speech reproduced in annex 8•
The Court rose at 6.35 p.m.
[Signatures.]
FORTY-FIRST PUBLICHEARING (ro X 62, ro.30 a.m.)
Present: [See hearing of 8 x 62.J
The PRESIDENTopened the hearing.
Dr. VERLORENVANTHEMAAT asked the President to be good enough
to call upon Mr. Muller, who would deal with the Third and Fourth
Preliminary Objections. · .
1 See pp.·76-93. 5 See pp. 138-154.
2 See pp. 93-109. 6
3 See pp. 109-125. See pp. 154-169.
4 8 See pp. 169-184.
See pp. 125-138. See pp. 184-199. PROCÈS-VERBAUX
9
TRENTE-SEPTIÈME SÉANCEPUBLIQUE(4 X 62, IO h JO)
Présents: [Voir audience du 3 x 62.J
Le PRÉSIDENT·ouvre l'audience et annonce que l'état de santé de
M. Alfaro, Vice-Préside11t, ne lui permet toujours pas de prendre part
à l'audience. II donne la parole à M. de Villiers.
M. DE VILLIERScontinue l'exposé reproduit en annexe 1.
(L'audience, suspendue à 12 h 55, est reprise à 16 heures.)
M. DE VILLIERScontinue l'exposé reproduit en annexe 2•
L',mdience est levée à I8 h 25.
[Signatures.]
TRÈNTE-HUITIÈMES~AJ'.'TP CUEBLIQUE(5 X 62, IO h JO)
Présents: [Voir audience du 3 x 62.J
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
M. DE VILLIERScontinue l'exposé reproduit en annexe 3.
(L'audience, suspendue à 13 heures, est reprise à 16 heures.)
M. DEVILLIERScontinue l'exposéreproduit en annexe 4.
L'audience est levée à I8 h 20.
[Signatures.]
TRENTE-NEUVIÈME SÉANCEPUBLIQUE(8 X 62, 10 h 30)
·Présents: [Voir audience du 3x 62; M. Koretsky, absent.]
Le PRÉSIDENTouvre l'audience et annonce que M. Koretsky lui aussi
ne pourra pas assister· à l'audience de ce matin pour raisons de santé.
Il donne la parole à M. de Villiers pour la continuation de sa plaidoirie.
M. DE VILLIERScontinue l'exposé reproduit en annexe 5•
(L'audience, suspendue à 12 h 55, est reprise à 16 heures.)
M. DE VILLIERScontinue l'exposéreproduit en annexe 6•
L'.iudience est levéeà I8 h 20.
[Sig_natures.}
QUARANTIÈME SÉANCE PUBLIQUE (9 X 6z, 10 h 30}
Présents: [Voir audience du 8 x 62.J
Le PRÉSIDENTouvre l'audience et donne la parole à M. de Villiers.
M. DE VILLIERScontinue l'exposé reproduit en annexe 7•
(L'audience, suspendue à 12 h 45, est reprise à 16 heures.)
M. DE VILLIERStermine l'exposéreproduit en annexe 8•
· L'audience est levéeà I8 h 35.
[Signatures.]
QUARANTE ET UNIÈMESÉANCEPUBLIQUE(IO X 62, 10 h 30)
Présents: [Voir audience du 8 x 62.J
Le PRÉSIDENTouvre l'audience.
M. VERL.OREN.VAT N3EMAATprie.le Président de bien vouloir donner
la parole à M. Muller, qui traitera de la troisième et de la quatrième
exception préliminaire. '
1 Voir pp. 76-93. 5 Voirpp. 138-154.
i Voir pp. 93-rn9 .. 6
3 Voir pp. 109-125. 7 Voirpp. 154-169.
8 Voir pp.169-184.
• Voir pp. 125-138. Voir pp.184-r99.IO MINUTES
The PRESIDENTcalled upon Mr. Muller.
Mr. MULLERbegan the speech reproduced in annex 1•
(The hearing was adjoumed from 12.55 p.m. to 4 p.m.)
Mr. MULLERcontinued the speech reproduced in annex 2•
The Court rose at 6.25 p.m.
[Signatures.]
FORTY-SECONP DUBLICHEARING (II X 62, 10.30 a.m.)
Present : [See hearing of 8 x 62.J
The PRESIDENTopened the hearing and called upon Mr. Muller.
3
Mr. MULLERcontinued the speech reproduced in annex •
(The hearing was adjourned from I p.m. to 4 p.m.)
Mr. MULLERconcluded the speech reproduced in annex \
The PRESIDENTasked the Agent for South Africa whether he desired
to read the submissions of his Govemment.
Dr. VERLOREN VANTHEMAAT read the submissions of his Govemment,
reproduced in annex 5. .
The PRESIDENTasked the Agent for Ethiopia and Liberia when they
would be able to begin their address.
Mr. GROSSreplied that the Applicants would be prepared to commence
their responsive statement on Montlay, 15 October.
The PRESIDENTannounced that the next hearing would take place on
Montlay, 15 October, at 10.30 a.m.
The Court rose at 6.r5 p.m.
[Signatures.]
FORTY-THIRD PUBLICHEARING (15 X 62, 10.30 a.m.)
Present: [See hearing of 8 x 62; J udges Wellington Koo and Morelli
were absent.]
The PRESIDENTopened the hearing and announced that Judges Wel
lington Koo and Morelli would be unable to sit. He called upon the Agent
of Ethiopia and Liberia.
Mr. GROSSmade the speech reproduced in annex 6 and asked the
President to call upon Mr. Moore.
The PRESIDENTcalled upon Mr. Moore.
Mr. MooRE began the speech reproduced in annex 7•
(The hearing was adjourned from 1 p.m. to 4 p.m.)
Mr. MooRE concluded the speech reproduced in annex 8•
The PRESIDENTcalled upon Mr. Gross.
Mr. GRoss began the speech reproduced in annex 9•
The Court rose at 6.25 p.m.
[Signatures.}
FORTY-FOURTP HUBLICHEARING (r6 X 62, 10.30 a.m.)
Present: [See hearing of 3 x 62; Judges Koretsky and Morelli were·
absent.]
1 See pp.200-213. 6 See pp.261-263.
2
3 See pp. 214-229. 7 See pp.264-277.
See pp. 229-245. s See pp.277-280.
• See pp. 246-259. 9See pp. 281-292.
~ See pp. 259-260. PROCÈS-VERBAUX II
Le PRÉSIDENTdonne la parole à M. Muller.
M. MULLERcommenct, l'exposéreproduit en annexe •
(L'audience, suspendue à r2 h 55, est reprise à 16 heures.)
M. MULLERcontinue l'exposéreproduit en annexez.
L'audience est levée à I8 h 25.
[Signatures.]
QUARANTE-DEUXIÈM SÉANCEPUBLIQUE(II x·62, IO h 30)
Présents: [Voir audience du 8 x 62.]
Le PRÉSIDENTouvre l'audience et donne la parole à M. Muller.
M. MULLERcontinue l'exposé reproduit en annexe 3•
(L'audience, suspendue à 13 heures, est reprise à 16 heures.)
M. MULLERtermine l',!xposéreproduit en annexe 4•
Le PRÉSIDENTdemande à M. l'agent de l'Afrique du Sud s'il désire
lire les conclusions de son gouvernement.
M. VERLORENVAN TnEMAATdonne lecture des conclusions de son
gouvernement reproduit,~s en annexe 5•
Le PRÉSIDENTdemande à l'agent de l'Ethiopie et du Liberia quand il
pourra commencer sa plaidoirie.
M. GROSSrépond que les demandeurs seront prêtsà commencer leur
plaidoirie en réponse le lundi 15 octobre.
Le PRÉSIDENTannonce que la prochaine audience aura lieu le 15 oc
tobre à ro h 30.
L'G:udienceest levéeà IB h I5.
[Signatures.]
QUARANTE-TROISIÈM SEÉANCEPUBLIQUE(15 X 62, 10 h 30)
Présents: [Voir audience du 8 x 62; MM. Wellington Koo et Morelli,
absents.]
Le PRÉSIDENTouvre l'audience et annonce que MM. \Vellington Koo
et Morelli, juges, sont empêchésde siégeraujourd'hui. Il donne la parole à
l'agent de l'Ethiopie et du Libéria.
M. GROSSprésente l'exposé reproduit en annexe 6 et demande au
Président de bien vouloir donner la parole à M. Moore.
Le PRÉSIDENTdonne la parole à M. Moore.
M. MooRE commence l'exposéreproduit en annexe 7•
(L'audience, suspendue à 13 heures, est reprise à 16 heures:)
M. MooRE termine l'ex.poséreproduit en annexe 8•
Le PRÉSIDENTdonne la parole à M. Gross.
M. GROSScommence l'exposé reproduit en annexe 9•
L',iudience est levéeà r8 h 25.
[Signatures.]
QUARANTE-QUATRIÈM SEANCEPUBLIQUE(16 X 62, IO h 30)
Présents: [Voir audience du 3 x 62; MM. Koretsky et Morelli, absents.]
• Voir pp. 200-2r3. 6 Voirpp. 261-263.
2 Voir pp. 214-229. 7Voir pp. 264-279.
3 Voir pp. 229-245. 8Voir pp. 277-280.
4 Voir pp. 246-259. tVoir pp. 281-282.
5 Voir pp. 259-260.12 MINUTES
The PRESIDENTopened the hearing and called upon the Agent. for
Ethiopia and Liberia. _
Mr. GRoss continued the speech reproduced in annex 1•
(The hearing was adjourned from 12.55 p.m. to 4 p.m.)
Mr. GROSScontinu{;d the speech reproduced in annex 2•
The Court rose at 5.40 p.m.
[Signatures.]
FORTY-FIFTH PUBLIC HEARING (17 X 62, 10.50 a.m.)
Present: [See hearing of z x 6z; Vice-President Alfaro, Judges Koretsky
and Morelli were absent.]
The PRESIDENTopened the hearing and announced that J udge
Spiropoulos was unwell and would be unable to sit that morning. He
called upon the Agent for Ethiopia and Liberia. ·
Mr. GRoss concluded the speech reproduced in annex 3•
The PRESIDENTannounced that two Members of the Court, Judge
Basdevant and J udge Sir Percy· Spender wished to put questions to
the Parties. He asked the Registrar to read out the question put by
Judge Basdevant.
The REGISTRARread the question put by Judge Basdevant and
reproduced in annex 4.
The PRESIDENTcalled upon Sir Percy Spender.
Sir Percy SPENDERput the questions reproduced in annex 5•
The PRESIDENTasked the agent for South Africa when he would be
ready to present bis oral reply.
Dr. VERLORENVAN THEMAATsaid be would be ready on Friday
moming. The answers to the questions, however, migbt take some time
and he would know only on Friday wbether additional time would be
necessary.
The PRESIDENTtook note of tbat reply and said that, provisionally,
the nex_thearing would be fixed for Friday, ro.30 a.m.
The Court rose at I2.]5 p.m.
[Signatures.]
FORTY-SIXTH PUBLIC HEARING (19 X 62, ro.50 a.m.)
Present: [See hearing of z x 62; Judge Morelli was absent.]
The PRESIDENTopened the hearing and announced that Judge
Spiropoulos was unwell and would be unable to sit that day. He called
upon the Agent for the Republic of South Africa to make his oral r~ply.
Dr. VERLORENVAN THEMAATasked the President to call upon
Mr. de Villiers.
The PRESIDENTcalled upon Mr. de Villiers.
6
Mr. DE VrLLIER~began the speech reproduced in annex •
. (The hearing was adjourned from 12.55 p.m. to 4-20.p.m.)
Mr. DEVILLIERSconcluded the speech reproduced in annex 7•
1 See pp. 292-306. 5 See pp. 326.328.
z See pp.306-317. 6 See pp.329-345.
3 See pp.3r7-326. 7 See pp.345-356.
• See p.326. PROCÈS-VERBAUX 13
Le PRÉSIDENTouvre l'audience et donne la parole à M. l'agent de
l'Ethiopie et du Libéria.
1
M. GROSScontinue l'exposé reproduit en annexe .
(L'audience, suspendue à 12 h 55, est reprise à 16 heures.)
M. GROSScontinue l'exposéreproduit en annexe 2•
L'audience est levée à IJ h 40.
[Signatures. J
QUARANTE-CINQUIÈM SEANCE PUBLIQUE (IJ X 62, IO h 50)
Présents: [Voir audi,~nce du 2 x 62; MM. Alfaro, Vice-Président,
Koretsky et Morelli, ab:;ents.J
Le PRÉSIDENTouvre l'audience et annonce que M. Spiropoulos, juge,
est souffrant et ne pourra pas siéger ce matin. Il donne la parole à M.
l'agent de l'Ethiopie et du Libéria.
M. GROSStermine l'exposéreproduit en annexe 3•
Le PRÉSIDENTannonce que deux membres de la Cour, M. Basdevant
et sir Percy Spender, désirent poser des questions aux Parties et ilinvite
le Greffier à donner lec1ure de la question poséepar M. Basdevant.
Le GREFFIER lit la question posée par M. Basdevant, reproduite en
annexe 4•
Le PRÉSIDENTdonne la parole à sir Percy Spender.
Sir Percy SPENDERpose les questions reproduites en annexe 5• .
Le PRÉSIDENTdemande à l'agent de l'Afrique du Sud quand ilpourra
'commencer la réplique orale.
M. VERLORENVAN THEMAATrépond qu'il sera prêt à présenter sa
réplique orale vendredi matin et qu'il pourra alors seulement dire quand
illui sera possible de rÉpondre aux questions. Il se peut qu'il ait besoin
d'un délaisupplémenta::.re.
Le PRÉSIDENTlui donne acte de cette indication et annonce que,
provisoirement, la prochaine audience aura lieu vendredi à ro h 30.
L'audience est levée à IZ h 35.
[Si'gnatures.J
QUARANTE-SIXÜtM SÉEANCE PUBLIQUE (19 X 62, IO h 50)
Présents: [Voir audieace du 2 x 62; M. Morelli, absent.]
Le PRÉSIDENT annonce en ouvrant l'audience que M. Spiropoulos, juge,
ne pourra pas siéger Œ jour, étant souffrant. Il donne la parole à M.
l'agent de la République sud-africaine pour sa réplique orale.
M. VERLORENVAN·THEMAATdemande au Président de donner la
parole à M. de Villiers.
Le PRÉSIDENTdonne la parole à M. de Villiers.
6
M. DEVILLIERScommence l'exposé reproduit en annexe •
(L'audience, suspendue à 12 h 55, est reprise à16 h 20.)
M. DE VILLIERStemtine l'exposé reproduit en annexe 7• Après avoir
l Voir pp. 292-306. s Voirpp. 326-328.
2 Voir pp. 306-317. 6Voir pp. 329-345.
3 Voir pp.317-326. 7 Voir pp. 345-356.
• Voir p.326. MINUTES
After stating that he had completed his reply to the arguments of the
Agent for Ethiopia and Liberia he added that, with regard to the
questions put by Members of the Court, he hoped to be able to give his
answers on Montlay, 22 October. For that purpose, and that purpose
alone, he asked the Court not to consider his reply as completed.
The PRESIDENTsaid that the next hearing would be on Montlay,
22 October, at ro.30 a.m.
The Court would then hear the oral rejoinder of the Agent for Ethiopia
and Liberia and the answers of the Parties to the questions put by
Members of the Court.
The Court rose at 6 p.m.
[Signatures.}
FORTY-SEVENT HUBLIC HEARING (22 X 62, ro.30 a.m.)
Present: [See hearing of 2 x 62; Vice-President Alfaro was absent in
the aftemoon.J
The PRESIDENTopened the hearing and indicated the procedure
which had been decided upon by the Court; the Agent for Ethiopia
and Liberia would first be called upon to present his oral rejoinder;
next the Agent for South Africa and the Agent for Ethiopia and Liberia
would be called upon in turn to give their answers to the questions put
by Members of the Court; and fi.nally, the Agents would be asked to say
whether the questions and the answers given thereto led them to amend
their Submissions, and, if so, to indicate the amendments.
The President called upon the Agent for Ethiopia and Liberia to
present his oral rejoinder.
Mr. GRoss made the speech reproduced in annex 1•
The PRESIDENT called upon the Agent for the Republic of South Africa
for the sole purpose of giving his answers to the questions put by Members
of the Court.
Dr. VERLORENVANTHEMAATreplied to the question put by Judge
Basdevant2.
The PRESIDENTcalled upon Mr. de Villiers.
Mr. DE VILLIERSreplied to the questions put by Judge Sir Percy
Spender3.
(The hearing was adjoumed from 12.55 p.m. to 4 p.m.)
Mr. DE VILLIERSconcluded the replies to the questions put by Judge
Sir Percy Spender 4•
The PRESIDENTcalled upon the Agent for Ethiopia and Liberia for
his replies to the questions put by Members of the Court.
Mr. GRoss replied to the questions put by Judges Basdevant and
Sir Percy Spender 5•
The PRESIDENT called upon the Agent for the Republic of South Africa.
Dr. VERLOREN VANTHEMAAT read the Submissions of his Govemment,
as amended in the light of the answers to the questions 'put by Judge
6
Sir Percy Spender •
The PRESIDENTasked the Agent for Ethiopia and Liberia whether he
wished to amend his submissions.
1 See pp.358-368. 4 See pp. 375-378.
2 See p.36g. 5 See pp. 379-381.
3 See pp. 369-375. 6See p. 382. PROCÈS-VERBAUX 15
prec1se que réponse a ainsi étédonnée à la plaidoirie de l'agent de
l'Ethiopie et du Libéria, il ajoute que, pour ce qui est des questions
qui ont étéposées par les membres de la Cour, il espère pouvoir être
en mesure d'y répondre lundi. A cette fin, et à cette fin seulement, il
demande à la Cour de ne pas considérer sa répliquecomme terminée.
Le PRÉSIDENTannonce que la prochaine audience aura lieu lundi
22 octobre à JO h 30. Elle sera consacrée à la duplique orale de l'agent
de l'Ethiopie et du Libfria et aux réponses des Parties aux questions
poséespar les juges.
L'aHdience est levée à I8 heures.
[Signatures.}
QUARANTE-SEPTIÈM SÉANCE PUBLIQUE (22 X 62, IO h 30)
Présents: [Voir audience du 2 x 62; M. Alfaro, Vice-Président, absent
l'aprés-midi. J
Le PRÉSIDENTouvre l'audience en exposant que la Cour a fixé la
procédure suivante: la parole sera donnée à l'agent de l'Ethiopie et du
Libéria pour sa dupliqŒ~ orale; la parole sera donnée ensuite à l'agent
de l'Afrique du Sud puis 1.celui de l'Ethiopie et du Libériapour répondre
aux questions poséespar les juges; enfin, dans le mêmeordre, les agents
seront invités à faire savoir si ces questions et les réponses qui y ont
étéfaites les amènent à amender leurs conclusions; ils pourront alors
énoncer les amendements éventuels à leurs conclusions.
Le Président donne la parole à M. l'agent de l'Ethiopie et du Libéria
pour sa duplique orale.
M. GRoss prononce l'exposéreproduit en annexe 1.
Le PRÉSIDENTdonne la parole à M. l'agent de la République sud
africaine, uniquement pour répondre aux questions qui ont étéposéespar
des Membres de la Cour.
M. VERLORENVANTHEMAAT répond à la question poséepar M. Bas-
devant2.
Le PRÉSIDENTdonne la parole à M. de Villiers.
M. DE VILLIERSrépond aux questions poséespar sir Percy Spender •
(L'audience, suspendue à 12 h 55, est reprise à 16 heures.)
M. DEVILLIERStermine la réponse aux questions poséespar sir Percy
Spender4.
Le PRÉSIDENTdonne la parole à l'agent de l'Ethiopie et du Libéria
pour sa réponseaux que~.tions poséespar les membres de la Cour.
-M. GROSSrépond aux questions posées par M. Basdevant et par sir
Percy Spender 5•
Le PRÉSIDENT donne lHparole à l'agent de la République sud-africaine.
M. VERLORENVANTHEMAATdonne lecture des conclusions de son
6
gouvernement, amendée~;à la suite des questions-de sir Percy.Spender •
Le PRÉSIDENTdemande à l'agent de l'Ethiopie et du Libéria s'il désire
énoncer des amendements à ses conclusions.
1 Voir pp.358-368. 4 Voir pp.37.5-378.
2 Voir p.369. 5 Voir pp.379-382.
3 Voir pp. 36g-375. 6 Voir p.382,16 MINUTES
Mr. GRoss stated that the Applicants did not desire to amend their
Submissions; they wished however to reserve their right to comment
on the amended Submissions of the Respondent. If, upon study within
a short time-limit set by the Court, he decided not to submit any com
ments, he would irnmediately advise the Court through the Registrar.
·The PRESIDENTsaid that in these circumstances he would not close
the oral proceedings, and the Agents for the Parties were requested to
remain at the disposition of the Court to furnish any further clarification
that might be desired.
The Parties would be informed of the decision of the Court conceming
a further hearing.
The Court rose at 5.05 p.m.
[Signatures.]
FORTY-EIGHTP HUBLICHEARING (21XII 62, 9.30 a.m.)
Present: President WrnrARSKI; Vice-President ALFARO; ]udges
BASDEVANTB , ADAWI,MORENOQUINTANAW , ELLINGTON Koo, SPIRO
POULOS,Sir Percy SPENDER, Sir Gerald FnzMAURICE, KoRETSKY· ,
BusTAMANTEY RIVERO,JEssuP, MoRELLI; Sir Louis MBANEFO,The
Honourable J. T. VANWYK, Judges ad hoc; M. GARNIER-COIGNET,
Registrar. ·
Also present:
For the Governments of Ethiopia and Liberia:
Mr. Ernest A. GROSS,Member of the New York Bar, as Agent and
Counsel. ·
For the Government of the Republic of South Africa:
Dr. J. P. VERLOREN "ANTHEMAATS ,.C., Law Adviser to the Depart
ment of Foreign Affairs, as Agent.
The PRESIDENTopened the hearing and declared that the Court was
meeting today to deliver its Judgment on the _Preliminary Objections
raised by the Government of the Republic of South Africa in the South
West Africa cases brought before the Court by the Applications of the
Government of the Empire of Ethiopia and the Government of- the
Republic of Liberia. . ·
He regretted to announce that Judge Tanaka, who sat during the ·oral.
proceedings and who participated in a great .part of the deliberations
of the Court in these cases was unfortunately unable to take part in
the final stages of the work on the present Judgment because of _a
serious illness. · · · · · ·
He read the French text of the Judgment. _
· The PRESIDENTcalled upon the Registrar to read the operative
provision ofthe-Judgment in English. -." · · · .
The REGISTRAR read the English text of the operative provision. ·
The PRESIDENTaimounced' that Judge Spiropoulo~. ~ad appended a_
Declaration to the Judgment of the Coùrt. Judges Blistari:tante y Rivera
and Jessup and Judge ad hoc Sir Louis Mbanefo had appended Separate
Opinions to the Judgment of_the Court. The President ,and Judgè
Basdevant had appendèd Dissenting Opinions to the Judgme!1t .of the
Court; Judges Sir Percy Spender and Sir Gerald ,Fitzmaurice had PROCÈS-VERBAUX
17
M. GROSSdéclare que les demandeurs ne désirent pas amender leurs
conclusions; toutefois, ils voudraient se réserver le droit de présenter
des commentaires sur les conclusions amendées par le défendeur. Si,
après étude des conclustons amendées dans un délai qu'il demande à
la Cour de bien vouloir fi:Œr,il décidede ne formuler aucun commentaire,
ilen informera immédia1:ement la Cour par l'entremise du Greffier.
Le PRÉSIDENTdéclarE:que, dans ces conditions, il ne prononce pas
la clôture des dêbats et prie les agents des Parties de se tenàrla dis
position de la Cour pour le cas où celle-ci voudrait leur demander des
éclaircissements supplémentaires.
Les Parties seront aviééesde la décisionde la Cour en ce qui concerne
l'audience éventuelle.
L'dudience est levéeà I7 h 5.
[Signatures.]
QUARANTE-HUITIÈM SÉANCE PUBLIQUE (21 XII 62,9 h30)
Présents: M. WINIAFSKI, Président; M. Al.FARO, Vice-Président;
MM. BASDEVANT,BADAWI,MORENOQUINTANA,WELLINGTONKoo,
SPIROPOULOSS ,ir Percy SPENPER, Sir Gerald FITZMAURICEM , M. Ko
RETSKY,BUSTAMANTE y RIVERO,JESSUP, MüRELLI,Juges; Sir Louis
MBANEFO,M. J. T. VANWYK, Juges ad hoc; M. GARNIER-COIGNET,
Gretfier.
Présents également:
Pour les Gouvernements é.thiopienet libérien:
M. Ernest A. GROSS,membre du barreau de New York, comme agent
etconseil.
Pour le Gouvernement su,ï-a/ricain:
M. J. P. VERLORENVAN THEMAAT,S.C., conseiller juridique du
département des Affaire!; étrangères, comme agent.
Le PRÉSIDENTouvre l'audience et expose que la Cour se réunit
aujourd'hui pour rendr,~ son arrêt sur les exceptions préliminaires
soulevées par le Gouvernement de la République sud-africaine en les
affairesdu Sud-Ouest africain, introduites devant la Cour par requêtes
du Gouvernement de l'Empire d'Ethiopie et du Gouvernement de la
République du Libéria.
Ilregrette d'annoncer que M. Tanaka, qui a étéprésent sur le siège
pendant la procédure orale et avait pris part à une grande partie des
délibérations, n'a mallwureusement pas pu participer aux dernières
phases du travail sur le présent arrêt en raison d'une grave maladie,
Il donne lecture du te1:te français de l'arrêt.
Le PRÉSIDENTinvite le Greffier à donner lecture du dispositif de
l'arrêten langue anglaisE.
Le GREFFIERlit le dispositif en anglais.
Le PRÉSIDENTannonce que M. Spiropoulos, juge, a joint à l'arrêt
une déclaration. MM. E:ustamante y Rivero et Jessup, juges, et sir
Louis Mbanefo, juge ad hoc,y ont joint les exposés de leur opinion
individuelle. Le Présidentet M. Basdevant, juge, y ont joint les exposés
de leur opinion dissident~; sir Percy Spender et sir Gerald Fitzmaurice,
juges, y ont joint l'exp·)sécommun de leur opinion dissidente; MM.18 MINUTES
appended their Joint Dissenting Opinion to the Judgment of the Court;
Judge Morelli and Judge ad hoc van Wyk had appended Dissenting
Opinions to the Judgment of the Court.
The Court rose at I0.45 a.m.
(Signed) B.WINIARSKI,
President.
(Signed)GARNIER-COIGNET,
Registrar. PROCÈS-VERBAUX 19
Morelli, juge, et van Wyk, juge ad hoc, y ont joint les exposés de leur
opinion dissidente.
L',wdience est levéeIO h 45.
Le Président,
(Signé) B. WrnrARSKl,
Le Greffier,
(Signé) GARNIER-COIGNET.
_J20 SOUTH WEST AFRICA
1. ARGUMENT OF Dr: VERLOREN VAN THEMAAT
(AGENT OF THE GOVERNMENT OF SOUTH AFRICA)
AT THE PUBLIC HEARING OF 2 OCTOBER 1962
Mr. President and Members of this Honourable Court.
I have the honour to present Mr. de Villiers, first on my right, and
Mr. Muller, second on my right, Senior Counsel of the Supreme Court of
South Africa, who are appearing as Counsel for the Republic of South
Africa in these proceedings, and Mr. McGregor, fourth on the right,
Deputy State Attorney, Transvaal, who is joint Agent of the Govemment
of the Republic with myself. Also Mr. Botha, third on the right, Adviser,
of the Department of Foreign Affairs of the Republic of South Africa.
Permit me, on behalf of my colleagues and myself, to express our
appreciation of the privilege of appearing before this eminent tribunal,
the Court of nations, which has already made such a marked contribution
towards the establishment. and advancement of an international legal
order. Respect for legal institutions and for judicial independence is part
of the strongest traditions of our nation, a precious heritage from the
English and the Roman-Dutch origins of our legal system.
We have, in this case, the situation that some of the contentions
advanced by us urge a departure in certain respects from conclusions
arrived at in this Court in earlier advisory proceedings. That this in
volves or implies no disrespect for the Court or any of its Members
will, I hope, be evident from what I have already stated. Indeed, we
trust that our great respect will be apparent from the very grounds
upon which we advance these contentions.
Our oral statement will deal with the four Preliminary Objections,
filedby the Govemment of the Republic of South Africa on 30 November
1961, and with the Observations filed by the Governments of Ethiopia
and Liberia on r March 1962. For the sake of convenience, the Govem
ments of Ethiopia and Liberia will hereafter usually be referred to as the
Applicants, and the Government of the Republic of South Africa as the
Respondent.
Our Preliminary Objections submit that the Applicants have no locus
standi in these proceedings, and that the Court consequently has no
jurisdiction, because:
Firstly,by reason of the dissolution of the League of Nations, the
Mandate for South West Africa is no longer a "treaty or convention in
force" within the meaning of Article 37 of the Statute of the Court;
Secondly, neither of the Applicants is any longer "another Member
ofthe League of Nations" as Article 7 of the Mandate for South \Vest
Africa requires for locus standi;
Thirdly, no dispute in the sense contemplated by Article 7 of the
Mandate is involved in the matters presented by Applicants for adjudi
cation by the Court; and
Fourthly, there is, in any event, no "dispute" which cannot "be
settled by negotiation" within the meaning of Article 7.
If the Court pleases, Mr. de Villiers will deal mainly with the First and
Second Objections and Mr. Muller with the Third and Fourth. ARGUMEN'i OF DR. VERLOREN VAN THEMAAT
2I
In the presentation oi our oral statements we shall not repeat what
is already recorded in our written Objections, except where. this is
considered necessary for special reasons such as further explanation,
development of argument, continuity, clarity, particular emphasis or the
like. Further, in our oral statements as in our written Objections, we
shall confine ourselves t•} matters relevant to the Objections, and shall
not deal with allegations made in the pleadings of the Applicants regard
ing matters which do not concem the jurisdictional issues.
Before Counsel deal specifically with the Objections, I would Iike to
deal briefly in this introductory statement with three matters. They are:
In the first place, an explanation of the attitude which we adopt, for
the purposes of the argument in these Objections, and in so far as is
relevant thereto, regarding the status of South West Africa in general.
In the second place, the general principles which we submit to be
applicable in a situation where arguments advanced in contentious
proceedings are at variance with a previous Advisory Opinion.
In the third place, certain relevant aspects of the history of Article22
of the Covenant of the League of Nations and the Mandate for South
West Africa which are material for the purpose of a proper appreciation
of some of our arguments.
Mr. President, conceming the first of the three matters which I have
mentioned, the status o[ South West Africain general, l rcfer to para
graph D of Chapter I at page 214 (1) of our Preliminary Objections where
our attitude in that reg.ud is outlined.
We stat~ there that our submissions under the first Objection concern
only the Mandate as an .1greement; our contention being that as a treaty
or convention the Mandate is no longer in force. We state further that
no submissions are adva.nced about the question whether the Mandate
in the wider sense of bE:ingan institution survived the League or not.
The logical effect of this attitude is that, although we make no admissions
in that regard, we are pr·~pared for the purposes of our argument in these
Objections to assume that the Mandate as an institution survived the
League. ·
Our contention as aforestated, and Applicants' comments with regard
to the contemplated distinction between the Mandate as an institution
and the Mandate as a treaty or convention, will be dealt with fully in
the argument by Counsd on the First and Second Objections. We shall
show in that regard th3.t Applicants are quite wrong in representing
that, in arguing on the premise I have just indicated, we are now ad
vancing the same basic contention as in the advisory proceedings in
19The second matter with which I wish to deal concems the general
principles of approach in contentious proceedings towards a previous
advisory opinion with regard to the same subject-matter.
We respectfully advanΠtwo general propositions in that regard.
· The first is that althc•ugh an advisory opinion will always command
great respect and prima /acie authoritative weight as an expression of
the views of an eminent tribunal, the Court will never refuse to recon
sider conclusions_reache:l in a previous advisory opinion, save perhaps
where a request for such reconsideration is frivolous or vexatious. This
seems, with respect, an obvious proposition which does not need moti
vation. It seems suftici,~nt to cite in support of this proposition the
following passage frorn Manley O. Hudson in his work The Permanent22 SOUTH WEST AFRICA
Court of International Justice, New York, 1943, on page 512. He states
as follows:
"Nor is the Court itself bound to adhere to conclusions reached
in an advisory opinion. If the question upon which an opinion is
given is later submitted to the Court for judgment, the matter is
not res fudicata; and though an opinion may be cited as a precedent,
the Court is not bound to abide by the conclusions stated in the
opinion."
Our second proposition is that where sound reasons are established,
the Court will depart from a previous opinion. This also, with respect,
seems an obvious proposition. It is implicit in the decision of the Court
in the Upper Silesia case, from which Applicants quote at page 420 (1)
of their Observations. The Court in that case affirmed a view previously
expressed in an advisory opinion because-and I quote from the case
conceming German Interests in Upper Silesia, P.C.l.J., Series A, No. 7,
1926, at page 3r:
"Nothing has been advanced in the course of the present pro
ceedings cakulated to alter the Court's opinion on this point."
Clearly, the Court did not intend to formulate any general rule of
practice, as is suggested by Appiicants on page 103 (I) of their Memorials,
and repeated on page 420 (1) of their Observations, where they used the
words "the practice of the Permanent Court in Upper Silesia". The Court
merely stated its finding and its decision in that particular case. The
statement implies that, where good reasons are established, the Court
will depart from a previous advisory opinion.
We do not wish to suggest any general and comprehensive rules as to
when the Court will consider that there are sound reasons justifying a
departure from a previous advisory opinion. In our submission, this is
a matter which must largely depend upon the particular circumstances
of each case. The Court would naturally give an advisory opinion all due
weight as an authority and as an expression of the considered views of
the leamed Judges of the Court. But if it considers in subsequent con
tentious proceedings that good reasons exist for a different conclusion',
our contention is that the Court would not hesitate to depart from the
conclusions in the advisory proceedings.
On page 98 (1) of the Memorials, Applicants suggest the existence of a
so-called "principle" or "doctrine of Eastern Carelia", namely "that an
advisory opinion as to a dispute is substantially equivalent to deciding
the dispute".
ln our submission no such general "principle" or "doctrine" was laid
down in the Advisory Opinion of 23 July 1923 concerning the Status of
Eastern Cardia. Itis reported in P.C.I.J., Series B, No. 5.
In that case the Council of the League of Nations requested an advisory
opinion from the Court as to whether a Treaty entered into between
Russia and Finland and a Declaration made by Russia at the same time
constituted engagements of an international character which placed
Russia under an obligation to Finland. Finland contended that the
Declaration was part of the agreement with Russia. Russia maintained
that the Declaration was not by way of contract, but was only declaratory
of an existing situation and made merely for information. ARGUMENT OF DR. VERLOREN VAN THEMAAT
23
The Court found that an Advisory Opinion on the question asked by
the Council of the Leagne of Nations would have to embody a fmding on
facts which were in dispute between Finland and Russia. Russia, who
was nota member of the League of Nations at the time, refused to take
part in the advisory proceedings.
In the circumstances, the Court declared that it would be at a very
great disadvantage at an enquiry into the disputed facts. The Court said:
"It appcars now to be very doubtful whether there would be
available to the Court materials sufficient to enable it to arrive at
any judicial conclusion upon the question of fact: what did the parties
agree to? The Court does not say that there is an absolute rule that
the request for an ,1dvisory opinion may not involve some enquiry
as to facts, but, under ordinary circumstances, it is certainly
expedient that the facts upon which the opinion of the Court is
desired should not be in controversy, and it should not be left to the
Court itself to ascertain what they are.
The Court is aware of the fact that it is not requested to decide
a dispute, but to give an advisory opinion. This circumstance,
however, does not 1)ssentially modify the above considerations. The
question putto the Courtis not one of abstract law, but concerns directly
the main point of the controversy between Finland and Russia, and
can only be decided by an investigation into the facts underlying the
case. Answering the question would be substantially equivalent to de
ciding the dispute between the parties. The Court being a Court of
Justice, cannot, even in giving advisory opinions, depart from the
essential rules guiding their activity as a Court."
I quote from pages 28 and 29 of the Report.
The opinion as a whole indicates that the passage "Answering the
question would be substantially equivalent to deciding the dispute" was
intended to refer to the particular case and was not intended to Iay down
any general rule, or to formulate a general principle or doctrine. Further
more, it related purely to the Court's "activity" as a judicial tribunal
in investigating the matter with a view to coming to a "judicial con
clusion upon the question of fact". Nothing was said or implied regarding
the weight to be attached to such conclusions in possible later contentions
proceedings.
In the Memorials on page 98 (1) the Applicants also state that in the
Peace Treaties case: ·
"Majority and dissenting opinions alike recognized implicitly or
explicitly the principle of Eastern Carelia, namely that an advisory
opinion as to a dispute is substantially equivalent to deciding the
dispute."
This refers to the ca1:elnterpretation of Peace Treaties with Bulgaria,
Hungary and Romania, Advisory Opinion, I.C.J. Reports I950, pages 65
and following.
Again, in our submission, there is no justification for this statement
of Applicants.
Although some of the minority Judges in the Peace Treaties case seem
to have held the view that some general rule was formulated in the 24 SOUTH WEST AFRICA
Eastern Cardia case as to the effect of and weight to be attached to
advisory opinions, that was not the view of the majority in the Peace
Treaties case.
The majority opinion in the last-mentioned case merely distinguished
the two cases, holding that the Eastern Carelia case was profoundly
different for two reasons-firstly, because the question put to the Court
in that case "was directly related to the main point of a dispute actually
pending between two States, so that answering the question would be
substantially equivalent to deciding the dispute between the parties".
And secondly, because "at the same time it raised a question of fact
which could not be elucidated without hearing bath parties". Bath
quotations are from page 72 of the Report.
There is nothing in the opinion of tli.e majority in the Peace Treaties
case which justifies a conclusion that the majority Judgesinterpreted the
Eastern Cardia case as laying down any general rule, principle or doctrine
regarding the effect or weight of advisory opinions or which justifies a
conclusion that they gave recognition to any such general rule, principle
or doctrine.
In effect, the majority opinion in the Peace Treaties case refutes the
very existence of any such general rule, principle or doctrine. That is
why writers who interpret the Eastern Cardia case as laying down such
a mie, principle or doctrine, consider that case to have been overruled
by the Peace Treaties case.
In this respect, we wish to refer to Lauterpacht in his work The
Development of International Law by the International Court, 1958, where
the leamed author states that the Advisory Opinion in the Eastern
Carelia case-and I quote from page 248-"can no longer be regarded
as a precedent of authority", and I quote from page 358, "can no longer
be accepted as expressing a valid legal proposition", and that the case
was-and I quote again from page 358-"not followed, in fact, in the
Advisory Opinion on the Interpretation of Peace Treaties".
Mr. President, I corne now to the third and last matter I wish to deal
with. It concems relevant aspects of the history of Article 22 of the
Covenant of the League of Nations and of the Mandate Agreement for
South West Africa.
There is a reason why I invite special attention to and the consideration
of this chapter in the history of the Mandates system.
The cases before the Court are concerned, primarily at least, with a
proper construction of Article 22 of the Covenant and of the Mandate
instrument.
In the task of ascertaining the true intentions of the parties to these
instruments, the circumstances surrounding the·creation of _theMandates
System and the conclusion of the Mandate Agreement, as. well as the
conduct of the parties concerned, both at the time and thereafter, are
matters of great importance. .
With a view to a proper appraisal of such circumstances and of the
conduct of the parties, Chapter II of our ,vritten Objections is devoted
to an analysis ·of history in so far as we consider necessary for the
purposes of our Objections, and for the purposes of demonstrating that
certain allegations made by the Applicants regarding the historical back
ground are either unfounded or inaccurate. . . ARGUMENT OF DR. VERLOREN VAN THEMAAT
25
In answer to our historical analysis, Applicants state at page 421 (I)
of their Observations, that their own account of the relevant historical
facts is a fair account and "has not been materially altered in Re
spondent's version".
This answer by Applicants must mean that they do not dispute
Respondent's analysis of the relevant historical facts.
Proceeding upon that basis, it is unnecessary for us to spend any
further time in demonstrating the particular respects in which we
contend that the account of the historical facts as set forth in Applicants'
Memorials is not correct. Our submissions in that regard have already
been made in the written Objections and are not attacked by the Ap
plicants in their Observations.
In the course of the statements by Counsel for Respondent, reference
will be made to various historical facts .relevant to their arguments.
I, however, propose to deal in this introductory statement only with
the history of Article22 of the Covenant and of the Mandate instrument
with·particular reference to the compromise aspect of the arrangement
whereby the C MandatE:s were established.
To avoid confusion as to the sense in which we use the word "compro
mise" it is necessary a·::the outset to state our understanding of the
meaning of that term.
It can only be in a very loose sense that the term "compromise"
can be employed to dE:note the procedure of offer and counter-offer
often followed in comin. to terms. In that unusual sense the term may
lend itselfto the contention put forward by Applicants on page 423 (1)
oftheir Observations that: "nearly all agreements arise from compromise".
We, however, employ the word in the more exact sense of a give and
take arrangement in the settlement ol: conflicting daims and interests
regarding the same subject-matter, for instance the settlement of a
Court action.
· It is in this sense that the arrangements at the Paris Peace Conference
regarding the former German colonies, and particularly those that
became C Mandated teJTitories, constituted a compromise. It involved
a measure of give and take in the settlement of conflicting daims regard
ing the future status of the said colonies.
There was at the Conference a marked conflict with regard to the
future of the former German colonies in New Guinea, Samoa and South
West Africa. Australia, New Zealand and South Africa put forward
respective daims for the annexation of those territories of which they
were then in occupation, whereas President Wilson of the United
States of America strongly advocated the application of a policy of
"no annexations" to al1 the former German colonies.
In consequence of the conciliatory role played by the British and
South African Prime Ministers in order to avoid a deadlock, a compromise
was arrived at. The effect of the compromise was that there would
be no annexations. All the German colonial possessions were brought
into the Mandates system. But for that tocorne about certain important
concessions had to be made to the States which were in occupation
of certain of those posse,sionsand particularly soin thecaseofAustralia,
New Zealand and South Africa in respect of New Guinea, Samoa and
South West Africa, which became the so-called C mandated territories.
The, States in question did not press their. claims for out and out
annexation but obta.ined in return a modifi.ed Mandate system -which SOUTH WEST AFRICA
involved abandonment on President Wilson's part of certain important
aspects of his proposals concerning League supremacy and control of
Mandate administration. These proposals were contained in "Supple
mentary Agreements" to his Second and Third Drafts of the Covenant
of the League of Nations. They are referred to on page 2r8 (I) of our
Preliminary Objections and quoted verbatim by Baker in his work
Woodrow Wilson and World Settlement (r922-23), Vol. III, pages ro8 to
129.
Thus, for example, in the Mandates system as eventually agreed
upon:
Firstly, Mandatories were to be individual States to whom the Mandates
were to be allocated by the Principal Allied and Associated Powers,
and in the case of the C Mandates the allocation would have to be to
the adjacent claimant States.
This was a radical departure from the proposal which President
Wilson formulated as follows-I read from Baker, page rog, paragraph II
of the Supplementary Agreements to the Second and Third Drafts
of the Covenant. Both of them read exactly the same. This second
paragraph reads as follows:
"Any authority, control or administration which may be neces
sary in respect of these peoples or territories other than their own
self-determined and self-organized autonomy shall be the exclusive
fonction of and shall be vested in the League of Nations
and exercised or undertaken by or on behalf of it.
It shall be lawful for the League of Nations to delegate its·autho
rity, control, or administration of any such people or territory
to some single State or organized agency which it may designate
and appoint as its agent or mandatory; but whenever or wherever
possible or feasible the agent or mandatory so appointed shall
be nominated or approved by the autonomous people or territory."
Secondly, the relationship between the League and the Mandatories
were in each case regulated by a Mandate agreement. Alteration of
the provisions of the agreement would normally require mùtual consent.
This stands in sharp contrast to the following proposai of President
Wilson-! read the first paragraph of paragraph III, of his Second
Draft of the Covenant of the League of Nations; the third Draft reads
exactly the sarne, with one small alteration which I will indicate:
"III. The degree of authority, control, or administration to be
exercised by the mandatory State or agency shall in each case
be explicitly defi.nedby the League [for 'League' in the Third
Draft the words 'Executive Council' were substituted; then the
quotation continues] in a Special Act or Charter which shall reserve
to the League complete power of supervision and of intimate
control and which shall also reserve to the people of any such
territory or govemmental unit the right to appeal to the League
for the redress or correction of any breach of mandate by the
mandatory State or agency or for the substitution of some other
State or agency as mandatory."
Thirdly, in the case of the C Mandates, the Mandatories were to
have powers to administer the territories as integral portions of their ARGUMENT OF DR .. VERLOREN VAN THEMAAT 27
own, and the open door principle was excluded. Also in these respects
there was a radical departure from President Wilson's proposais, result
ing in fairly widespreé.d comment that the arrangements regarding
C Mandates were in th,~ir effect not far removed from annexation. We
dealt with this on page:;221-222 (1) of our Preliminary Objections.
Where a party makes concessions in a compromise agreement, the
natural inference woukl be that the concessions are not intended to
extend beyond the express terms of the agreement. It is in this respect
that the compromise origin of the Mandates system is material and of
special significance forthe purposes of these Objections.
That compromise origin, in Respondent's submission, indicates at
least a strong probability that there could have been no common in
tention that Respondent should be subject to any obligations different
from or in addition to those expressly undertaken in terms of Article 22
of the Covenant and th~ Mandate instrument.
Hardly stronger demonstration of this probability can be afforded
than by the statements of the Prime Ministers of the United Kingdom,
Australia, New Zealand and South Africa made when the draft which
eventually became Art ide 22 was proposed. Mr. Lloyd George, the
British Prime Minister, stated that
"... it was only with the greatest difficulty that the representatives
of the Dominions had been prevailed upon to accept the draft
submitted, even provisionally",
and a little later:
"... they had accepted his proposals, but only as a compromise"
(this quotation cornes irom the work Foreign Relations of the United
States: The Paris Peac,: Conference, I9I9, Volume III, on page 790).
And Mr. Hughes of Australia, speaking for Australia and New Zealand,
made it clear: "For the present that ·represented the maximum of their
concession" (as quoted in our Preliminary Objections, page 219 (1),
footnote 6). General Botha, the Prime Minister of the Union of South
Africa, said he was prepared to agree to the compromise because the
"... League of Nations would consist mostly of the people who
were present there that day, who understood the position and
who would not make it impossible for any mandatory to govern
the country"
(as quoted on page 220 (1) of our Preliminary Objections).
Applicants say at pag•i423 (1) of their Observations that they "do not
conceive it material to the instant cases to argue the exten t to
which the Mandate arose from compromise". However, à propos of
our statements regarding the compromise, they proceed to propound
on pages 422-424 (1) of their Observations a lengthy argument on the
question whether Respondent is entitled to annex or incorporate South
West Africa. That queüion is entirely irrelevant in the instant cases
and was not touched upon in the written Objections. We did state
in our written Objections that a progressive doser association between
South West Africa and South Africa was a normal development and
within the contemplation of the parties concerned. Furthermore, we
did refer to commentators who held that C Mandates were, in their
practical effect, not far removed from annexation. SOUTH WEST AFRICA
ln neither respect, however, did we raise any question about ·annexa
tion, which is irrelevant to the present proceedings and does not there-
fore require to be dealt with by us. ·
Mr. President, I thank you. This concludes my oral statement and,
if the Court pleases, after the translation Mr. de Villiers will address
the Court on the First and Second Objections. · AR<~UMENT OF MR. DE VILLIERS
2. ARGUMENT OF Mr. DE VILLiERS
(COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA)
AT THE PUBLIC HEARINGS OF 2 TO 9 OCTOBER 1962
[Public h.iaring of 2 Octo~erI962, ajtérnoon]
Mr. President ar,d Honourable Members of this Court.
I would like tci begin by associatin~ myself, as Counsel, with the
respects that have so fütingly been pa1d to the Court and to you by
my learned friend and Agent, Dr. verLoren van Themaat. It is indeed
a privilegeto appear before this eminerit tribunal; and I hope that the
contribution we may be able to make will prove to bèof some assistance
to the Court in a matter which, with respect, can probably not be
regarded as being withc,ut difficulty.
In arguing, Mr. Pre~ident, in support of the First and the Second
Objections, I shallnot 1~ndeavourto keep the argument relevant to one
of them entirely separate from the argument relative to the other-in
watertight compartments, as it were. There is a great deal of common
ground between these 1:woObjections and I shall argue that commoÎl
ground as being applicable to both of the Objections. I shall indicate
the distinction between the two as that emerges. In fact, Mr. President,
that distinction will be found to emerge largely, although not entirely,
in the drawing of alternative conclusions .from what is essentially a
common line of argum~nt. I shall endeavour to demonstrate that in
more detail at a later stage. ·
I propose to devote a brief introductory portiôn of my argument
to an analysis, in very broad outline, of the major rival contentions
of the Parties in regard to the First and the Second Objections, and
thus also of the issues between the parties-the major issues-regàrding
those two Objections. In stating for that purpose what our major
contentions are I shall not at this stage argue in support of those con
tentions-that will conte later. Similarly, in stating what the conten
tions or answers of the Applicànts are to our contentions, I shall not
be arguing in reply to those contentions-that will also corne latet.
My purpose at the moment is merely a very broad survey of the area
of dispute. ·
Now, my learned friend, Dr. van Themaat, has referred to the wording
of our four Objection~ and I am not going to read the first and the
second to the Court àgain-they are well known to the Court. The
first concerns the propc,sition that as a result of the dissolution of the
League the Mandate Agreement, as a whole, including Article 7, has
ceased to be a treaty or convention in force within the meaning of
Article 37 of the Statu.te of the Court. The second one concerns the
proposition that the Applicants are unable to brii;ig themselves within
the expression "another Member of the League of Nations" for purposes
of Article 7 of the Mandate Agreement. I wish to point out at this
stage that .there are, in effect, three altêrnative contentions wrapped
up in these First and :,econd Objections. Th~ Applicants, judgirig by30 SOUTH WEST AFRICA
the way in which they have dealt with these Objections in their Obser
vations, appear to realize that and I propose to state those three alter
natives to the Court in a moment. But, before doing so, I would like
to refer-just for purposes of background and perspective-to the
foundation of the Applicants' case regarding jurisdiction. It is for
the Applicants to satisfy the Court that in terms of operative consent
on the Respondent's part this Court has jurisdiction in the instant
cases, that is both in regard to the subject-matter of these cases
and in regard to the Parties who are seeking to bring the cases
before the Court. The Applicants rely in this regard on Article 7 of
the Mandate Agreement and on Article 37 of the Statute of the Court.
They say so specifically in their Memorials at page 88 (1). At the begin
ning of their Chapter III they say: "The Applicant founds the juris
diction of the Court on Article 7 of the Mandate and Article 37 of the
Statu te of the International Court of Justice." They go on to say "having
regard to Article 80, paragraph r, of the United Nations Charter". But in
regard to this last portion the Applicants nowhere explain in what way
Article 80, paragraph r, of the Charter could be said to be relevant or
helpful in this regard at all. They do not explain that anywhere in the
written proceedings. Possib1y we wi11hear the exp1anation in the course
of their oralstatements and, if so, I could then deal with it. But for the
moment I will refrain from dealing with a suggestion which I frankly
don't understand. I don't know what it is intended to connote. I will
confine myself at this stage to those two provisions upon which the
Applicants say that they found jurisdiction; the first one being Article 7
of the Mandate Agreement which is well known to the Court. I would
like to read it, though, for purposes of emphasis on a particular ele
ment. Reading from page 88 (1) of the Applicants' Memorial:
"The Mandatory agrees that, if any dispute whatever should
arise between the Mandatory and another Member of the League
of Nations relating to the interpretation or thè application of the
provisions of the Mandate, such dispute, ifit cannot be settled
by negotiation, shall be submitted to the Permanent Court of
International Justice provided for by Article 14 of the Covenant
of the League of Nations."
Now, Mr. President, I would like to stress the two elements~that
the dispute must be between the Mandatory and "another Member of the
League of Nations", and secondly, that the provision there is for reference
of a dispute as defined to"the Permanent Court of International Justice".
In regard to this latter aspect, a substitution of courts is provided for
as between signatories to the Statute in Article 37 of the Statute of
the Court, but subject to certain prerequisites. It is for that purpose
that I read also Article 37:
"Whenever a treaty or convention in force provides for reference
of a matter to a Tribunal to be instituted by the League of Nations
or to the Permanent Court of International Justice, the matter
shall, as between the parties to the present Statute, be referred
to the International Court of Justice."
I stress, Mr. President, the prerequisite that the reference of the
matter to the Permanent Court should be provided for in "a treaty
or convention in force". The two elements which I have respectfully ARGUMENT OF MR. DE VILLIERS 31
stressed in these two provisions-these two Articles-relied upon by
the Applicants, those arn the two focal points of our First and our Second
Objections. Firstly,the requirement in Article 37 that the reference must
be provided for in a treaty or convention in force and, secondly, the re
quirement in Article 7 of the Mandate itself that the dispute must be as
between the Mandatory and another Member of the League of Nations.
In essence, Mr. President, our main contentions regarding the first
two Objections flow from one basic consideration and that is that, as a
result ofthe dissolution of the League of Nations there now no longer
exists a League of Nations and there no longer exists any Member
of the League of Nations. This, in our submission, has for the purposes
under discussion various effects. The first one is that we sumbit that
on a tru,e construction of the Mandate Agreement, the only parties
between whom it was intended to operate as a treaty or convention,
as an international agŒement, were the Mandatory on the one hand,
and on the other band, depending on how one looks at it, either the
League of Nations-sem as a legal persona-or the Members of the
League of Nations, or th,~League and its Members. But these possibilities
exhaust the circle, in our submission. It could be any of those alter
natives, but the circle ::s confined to the Mandatory on the one hand
and the League and/or its Members on the other band. Our first conten
tion then is that on diss:ilution of the League and upon there ceasing to
be a League and Members of the League, there also ceased to be a
treaty or convention in force, as far as the Mandate arrangement is
concerned. Because all the parties on the one hand fell away-there was
no longer a League, the1e were no longer Members of the League and ail
that remained as far as parties ta an agreement were concerned was
!he Mandatory on the other hand. And, consequently, our first contention
lS that-
"on dissolution of the League the whole Mandate Agreement-and
thus including Article 7 thereof_____.çeasodbe a treaty or convention
in force within the meaning of Article 37 of the Statute of the
Court".
Secondly, Mr. Presidrnt, we submit that certain of the provisions of
the Mandate agreement were dependent, as to their contents, upon there
existing a League of Nations and upon there being in existence Members
of the League of Nations. And, consequently, because of being so de
pendent, they became completely inoperative, incapable of performance
upon dissolution of the League. We submit that that applies particularly
to Article 6 of the Mandate Agreement which provided for reporting by
the Mandatory to "the Council of the League of Nations ... to the satis
faction of the Council". We submit upon there no longer being a League
of Nations, and no longn being a Council of the League of Nations, that
provision became incapable of performance. And, secondly, then, and
specifically important for our purposes of jurisdiction, Article 7, which
provided, in the first place, for modification of the terms of the Mandate,
with the consent of the Council of the League. Again with the Council
playing a necessary part for the purposes of that provision, it became
incapable of operation on dissolution of the League; and then the second
portion of Article 7 providing for compulsory jurisdiction in disputes
between the Mandatory and "another Member of the League of Nations".
There again, upon there no longer being another Member of the League32 SOUTH WEST AFRICA
of Nations there could be no party to invoke-no State with the necessary
competence to invoke-this Article and it became inoperative.
So our second contention is that-
"even if the Mandate could, in other respects, be said to be still in
force as a treaty or convention within the meaning of Article 37 of
the Statute, Article7 of the Mandate itself ceasedto besoin force".
Thlrdly, Mr. President, on basically the same argument as applies to
our second· contention, namely that another Member of the League of
Nations is necessary for operation of Article 7, there follows our third
contention which is merely an alternative way of putting the same
argument and that is that-
"even if the Mandate, including Article 7 thereof, could be said to
be 'a treaty or convention in force', neither of the Applicants is
qualified to invoke it as 'another Member of the League of Nations'
within the meaning thereof".
And it is mainly because of the overlappîng between the second
contention-which is really still part of our First Objection-and
this third contention· which is our Second Objection-it is mainly
because of that overlapping that I trust the Court will find it con
venient if I carry on as I propose and that is to deal with these two
Objections together and not to separate them entire1y. I would like
to point out that the three alternative contentions, as I have now
put them to the Court, are nowhere exactly so stated in writing in
the Pleadings before the Court. They are covered by the First and Second
Objections but they are nowhere exactly so stated and I thought it may
be convenient to the Court if I should, at this stage, hand in for each
Member of the Court a sheet of paper on which I have set them out in
the wording exactly as I have now stated them to the Court. Our learned
friend has indicated that he has no objection and the copies are available
for the Court. I have handed copies to him already.
Le PRÉSIDENT:Si je comprends bien, ce sont des conclusions que vous
avez communiquées à M. le Greffier et à la Partie adverse? Ou bien
s'agit-il d'un résuméde votre argumentation?
Mr. DE VILLIERS: No, Mr. President, they are not the formal submissions
or conclusions which I understand are normally handed in at a later
stage of the argument, in the practice of this Court. They are merely
a summary of the three main contentions which we advance under the
heading of the First and the Second Objections and I hand them in
merely for purposes of convenience of the Court at the moment, for
purposes of analysis and the following of the further argument.
Mr. President, on analysis of the three contentions as they are now
before the Court, I may possibly be asked the question "But now, why is
the first one necessary if either the second or the third should be sound?"
In other words, the question is "Isn't there a measure of overlapping
between these contentions?", and I must admit that there is. It is not
necessary for me to go so far, for purposes of an argument concerning
jurisdiction, as to satisfy the Court that the whole of the Mandate
Agreement ceased to be a treaty or convention in force ifI could satisfy
the Court that the crucial, compromissory clause, Article 7, ceased to be
so in force as a treaty or convention.
But, Mr. President, the fi.rst contention, as compared with the second
and third-those two are not strictly alternatives; they are distinct lines AR(,UMENT OF MR. DE VILLIERS
33
of argument, and I submit that they are both sound. They represent
various facets of one and the same problem, namely, the effect which
the dissolution of the League had on the pre-existing relationships
regarding the Mandate, and considerable Iight is thrown on other facets
when each one of them is dealt with. I propose therefore to deal with
each one fully, and to put ail those contentions to the Court because, as
I have said, in dealing with one facet considerable light is thrown also
on the other facets. A p:mper appreciation of the issues and the questions
involved is thereby assjsted.
Now, having stated to the Court in broad outline what our main
contentions are, relative to the First and Second Objections, I turn to
the Applicants' respons,~,again, as I have said, by way of broad outline.
Their response, in the first place, is to point out that our contentions as
we now advance them are in important respects at variance or in conflict
with conclusions arrived at by the Court, or by Members of the Court,
in the Advisory proceeclings of 1950. Now that is, of course, a difficulty
which we have to face ,quarely. And we do so, Mr. President, with the
greatest respect, by contending that we are now presenting to the Court
certain material, factual and otherwise, of very great importance which
was not before the Court in 1950 and which, had it been before the Court
in 1950, could have made all the difference to the conclusions eventually
arrived at in the majodty Opinion. We submit, therefore, that this is
one of those highly excEptional cases where, although the issues may now
in form appear to be still the same as they were in 1950, they are in
substance really different-really different questions for this Court to
decide, because the factual material to which this Court has to apply
the law is different fror,1the factual material that was before the Court
in 1950. I need not ask this Court to perform the invidious fonction of
preferring its own reasoning to that of an earlier tribunal because, as I
have said, in essence and in substance, because of the difference in the
factual material, the is~ues are now different. The task to be performed
by the Court is in subs;:ance a different one.
· Those are broadly om submissions on that question. The Applicants
dispute our contention that they are good and sufficient reasons for a
departure from the Opinion of 1950, and those issues then between us
and the Applicants will have to be dealt with fully at a later stage in the
argument.
Further, Mr. President, in regard to our first contention, the Applicants
point to the finding of the Court in 1950 that certain of the duties under
taken by the Respondent in the Mandate Agreement are still in force.
That proposition, as far as the substantive Trust obligations in the
Mandate are concerned, is in effect not in issue in these proceedings. My
learned friend Dr. verLl)ren has indicated to the Court that although we
contend that the Mandate, seen as a treaty or convention, bas lapsed,
we do not offer any argument to the Court on the question, the wider
question, whether the Mandate, seen as an objective institution, is still
in force,and if so, to what extent. I will deal with that distinction later;
I am merely indicatin/à: for the moment that we are, without maldng
admissions, assuming for purposes of our argument that the Mandate is
still in force as an obje>:tive institution; meaning, on the one band, the
title, the rights, the powers of the Mandatory under the Mandate, and,
on the other hand, the substantive Trust obligations undertaken by the
Mandatory which obliged it to use those powers and rights for the ad- SOUTH WEST AFRICA.
34
vancement of and the well-being of the inhabitants of the territory. We
are assuming, for purposes of argument, that to that extent the Mandate
remains in force, but we are contending that it ceased to be in force as
a treaty or convention, as an international agreement. It is therefore
common cause between us and the Applicants that, for purposes of the
argument, at least the substantive obligations as originally set out in
Clauses 2-5 of the Mandate must be regarded as still being in force. Now
the Applicants, if I understand their contention correctly, appear to say
that that is suflicient to dispose of our first contention. They say that
that being so, and because those obligations were originally laid down
in an instrument which was a treaty or convention in force, therefore
the mere fact that the obligations or duties are still in force must mean
that that instrument must still be in force as a treaty or convention.
That is how I understand the argument as they propound it in their
Observations. They seek to arrive at this conclusion without reference at
all to the question of parties between whom the Mandate could be said
to be in force as an international agreement, as a treaty or convention.
So we could say that the issue which emerges between us and the
Applicants in regard to our :fi:rstcontention, the crucial question there,
is this: Can it be said that the Mandate can be in force as a treaty or
convention when there are no parties between whom it can be said to
operate as an international agreement? The Applicants, if I understand
them correctly, appear to say the answer is "yes"; we say the answer
is "no".
When we corne to our second and our third contentions, which relate
to the question whether the Applicants can bring themselves within the
expression another M ember of the League of Nations in Article 7 of the
Mandate Agreement; when we corne to those, the Applicants are unable
to avoid the question of parties or the question of States who, in terms
of consent on the Respondent's part, may bring the Respondent to Court
in the instant cases. It is therefore necessary for the Applicants to
attempt to bring themselves within that expression, another Member of
the League of Nations, for purposes of-within the meaning of-Article 7
of the Mandate Agreement. And they do indeed attempt to do so. They
attempt to do so along one or both of two lines of argument, the first
one of which they call Succession and the second one of which they call
Carry-over. And if I understand these contentions correctly, they amount
to this: that there bas been succession on the part of the United Nations,
seen as an organization, to the League's supervisory fonctions regarding
the Mandate, and that that succession has led, inter alia, to the result
that Membership in the United Nations must now be regarded as bring
ing a State within-1 quote from the Applicants-"the descriptive
specification of 'another Member of the League of Nations' for purposes
of Article 7'';that is how they put it in their Observations at pages 443-
446 (1). In other words, briefly stated, their submission appears to be this:
that there has been succession which has in effect now made United Na
tions Membership a qualification for invoking Article 7, in substitution for
League Membership. And then their second line of argument, which
appears in essence to be an alternative, although they don't put it that
way, is that which they call Carry-over. They say there has been a carry
over of certain ofthe responsibilities of the League upon States that were
Members of the League at the time of its dissolution, and that has had
the result, amongst others, that such States-and I quote their words
,. ARGUMENT OF MR. DE VILLIERS
35
again-"remain within the description of another Member of the League
for purposes of the Mandate". That line of argument is propounded in
the Observations at pages 446-448 (1), and briefly it seems to amount to
this: that despite loss of the qualification, League Membership, which was
prescribed in Article 7, States that were Members of the League at the
time of dissolution ha,e retained the competence to invoke Article 7,
and that they have done so by reason of what the Applicants call a
carry-overprinciple. So, clearly, the issues in that regard, both in regard
to this suggested carry-over principle and in regard to this suggested
succession, will have to be very carefully gone into. Indeed, those two
issues-those two conkntions as advanced by the Applicants-appear
to be of crucial import:mce for the purposes of the First and the Second
Objections.
You will have noted, Mr. President, that in our original Objections
we deal very fully with a contention to the effect that the Respondent's
obligation of report and accountability to the Council of the League in
terms of Article 6 of the Mandate Agreement bas lapsed, and that it
has not been replaced hy, or modifi.ed into, any obligation of report and
accountability to any organ of the United Nations. We deal, as I say,
very fully with that proposition, That, of course, is not in itself an
objection to jurisdictio:-1-we fully realize that. But on the other hand
it does not follow, as th,~Applicants appear to suggest, that we introduce
that subject unnecessarily. The Applicants, strangely enough, almost
appear to resent the fr..ct that we deal fully with the matter, because
they refer three times in their Observations to the length at which we
do so. At pages·428 and 429 (1) of their Observations we fi.ndthat they
say, fi.rst at page 428 under paragraph 2,"Respondent also devotes over
one-half of its First Objection to the question whether Article 6 of the
Mandate is in force...". At page 429 (I) they say, towards the end of the
page, " ... such interconnection is not the one on which Respondent bases
its lengthy discussion of Article 6". And they continue, two sentences
further, "Since Respondent has nevertheless devoted more than thirty
fi.ve pages to Jhe que,tion of United Nations supervision ...". Their
complaint appears to bi: that stated at page 428 (1) where they say that
"Respondent fails to indicate, however, what relevance the question of
United Nations supervision bas to jurisdiction, which is the soleissue
in these preliminary proceedings". I quite agree jurisdiction is the sole
issue. But exactly the way in which the Applicants have developed
their contentions in reply to our case, exactly that development has
shown the importance for the purposes of these proceedings relative to
jurisdiction of this whole question of succession or no succession between
the League and the United Nations. The Applicants indeed rely on the
alleged succession in the form in which I have indicated as one of their
two lines of argument according to which they attempt to bring them
selves within the expression another Member of the League of Nations.
And for that reason, iffor that reason alone, this matter becomes of the
utmost importance. Our full exposition and examination of that question
of succession for purposes of Article 6 dealt very fully with it, and in
effect anticipated the Applicants' argument which is now based on that
same succession with a view to bringing themselves within the expression
anotherMember of the League for purposes of Article 7. They go further,
Mr. President, if Iunderstand them correctly. They say that the majority
Opinion of the Court in 1950 in regard to Article 7, that that opinion is SOUTH WEST AFRICA
to be understood as being based upon the finding that there has been a
succession for purposes of Article 6. They say at page 429 (1) of their Ob
servations, "The interconnection, then, between Articles 6 and 7, is this:
according to the m~jority view of Article 6, Applicants have standing
to invoke Article 7 by virtue of membership in the United Nations ...".
That is, then, the interpretation which they themselves place upon the
majority Opinion of 1950. And now we are in the position, as I have
already. indicated, of putting before the Court very material, very
important information bearing upon that question of succession in regard
to Article 6, showing in our submission that, had that been before the
Court, its conclusion would have had to be different in that regard.
That is why the issue in regard to Article 6 becomes of such crucial
importance. It does not follow that if there has been succession in regard
to Article 6 there must necessarily also have been succession in regard
to Article 7; that still remains a different argument. But if I can satisfy
the Court that there has been no succession in regard to Article 6, then
that takes away all semblance of a basis for·contending that there has
been a succession in regard to Article 7. And that is the reason, amongst
others, why I shall at an early stage in the development of the argument
deal fully with the issues that arise in regard to this suggestion of succes
sion, both in regard to Article 6 and in regard to Article 7.
[Public hearing of 3 OctoberI962, morning]
Le PRÉSIDENT:L'audience est ouverte. J'ai le regret d'annoncer que
M. Alfaro, Vice-Président, ne pourra pas assister aujourd'hui à cette
audience pour des raisons de santé. La parole est à M. de Villiers.
Mr. DE VILLIERS: Mr. President, before I deal in detail with the
various issues which I outlined yesterday, there is one further matter to
which I would like to devote some attention of an introductory nature and
that is the question of principles of treaty interpretation. Of course we all
know, with respect, that the rules are for the Judges and not the Judges
for the rules, and no one would really want it differently. But there are
certain fundamental aspects of principles of treaty interpretation which
are important. They distinguish between the functions of a Court of Law
in expounding and applying the Iaw, and that of other types of trfüunals,
like a legislature, that may have the fonction of altering the law in ac
cordance with what it conceives to be politic. There is another reason
why I suggest it may be useful to have some brief discussion at the
beginning of my argument in connection with these principles of inter
pretation. I will, of course,t be so presumptuous as to attempt to lecture
to the Court on a subject which must be very well known to all of its
Members. But for a better appreciation of certain of the aspects of my
argument it may be useful to have some emphasis on certain aspects of the
principles of treaty interpretation, and to have that right at the start.
There is also the factor that we all have different backgrounds as far as
legal training and legaI practice are concemed and, in order to avoid
misunderstanding as to the legal language which I use, it may be useful
for me at the start to set out our appreciation, our understanding, of the
basic principles as they have been applied in this Court; of course only
in so far asmay be relevant to the issues in this particular case.
In rny brief reference to these principles, I shall deal first with the
subject of common intention of the Parties. ARGUMENT OF MR. DE VILLIERS 37
As we understand that subject, Mr. President, briefly, the treaties
and conventions that operate in internatio:µal law owe their effect in law
to the joint or common consent of the parties thereto. That is the factor
that gives to treaties and conventions binding effect in law. Perhaps one
_oughtto add, coupled with the general recognition 9f the principle that
such joint consent gives rise to obligation. And from that premise seems
to arise the corollary that all questions concerning either the existence of a
treaty obligation, or coricerning the measure or the meaning of a treaty
obligation, are to be answered basically with reference to the common
intent of the parties as it existed at the time when they reached their
agreement.
Therefore we find that the basic aim of treaty interpretation, as of
interpretation of contracts in municipal law, is generally recognized to be
that of giving effect to the common intention of the parties, as well as
the Court can, and as that common intention existed at the time when
the agreement was reached. ·
There are, amongst the commentators, certain differences on questions
of emphasis as to methods by which one can best arrive at the result of
giving effect to the common intent of the parties. Sorne of these will
emerge in the discussion of some of the other principles which I have
mentioned. I will not go into discussions which may be academic for our
purposes here.
But it seems clear tha.t, except in the case of certain extreme teleolo
gists whose views have never been accepted by this Court, there is gen
eral agreement on the proposition that the aim of treaty interpretation is
to arrive at that common intent, and that all the rules of interpretation,
all the principles, are merely subservient to that dominant purpose-that
they are intended to be of assistance for the purpose of arriving at that
common intent.
I shall refer, for this fairly obvious proposition, to decisions of this
Court, and also to scholarly authority. I do not intend to read fully from
these.
· Firstly I refer to tfo~ Advisory Opinion on the Reservations ta the
Convention on Genocide. There it is stated basically that: ·
"It is well estabhshed that in its treaty relations a State cannot
be bound without its consent ...It is also a generally recognized
principle that a multilateral convention is the result of an agreement
freely concluded upon its clauses." (Ref. I.C.]. Reports I95I, p. 15,
at p. 21.) ·
Then I quote from a minority Judgment in that case which further
emphasizes this point as a matter of principle and says particularly that:
"The fact that in so many of the multilateral conventions of the
past hundred year~;. whether negotiated by groups of States or
the League of Nations or the United Nations, the parties have agreed
to create new rules of law or to declare existing rules of law, with
the result that this activity is often described as 'legislative' or 'quasi
legislative',must not obscure the fact that the legal basis of these
conventions, and the essential thing that brings them into force, is
the common consent of the parties." (Ref. ibid., at p. 32.)
All this may be very trite, Mr. President, but I emphasize it for a
purpose: because that is the theme to which I will return every time SOUTH WEST AFRICA
when it cornes to the basic, the fondamental issues, concerning the first ·
two Objections. This will be so particularly when we corne to deal with
broad conceptions-conceptions broadly stated to the Court-such as
succession and other matters of a similar kind, where some narne is given
to a proposition and the name really makes it necessary for one to analyze
what lies behind it, and how one brings the contention in line with the
fondamental principle that what we are seeking to find and seeking to
apply is a matter of common consent, a matter of common intent.
The principle of seeking that common intent in the interpretation of
treaties is very well set out-as a principle-by authorities, judicial and
scholarly, to which I shall now refer.
Judicial Authority:
Case concerning the Factory at Chorz6w, P.C.I.J., Series A, No. 9, 26
July 1927, p. 32.
"When considering whether it has jurisdiction or not, the Court's
aim is always to ascertain whether an intention on the part of the
Parties exists to confer jurisdiction upon it."
"Colombian-Peruvian asylum case, Judgment of November 20th, r950:
I.C.J. Reports r950, p. 226"; per Judge Read at p. 320.
"There is, however, a principle of international law which is truly
universal. It is given equal recognition in Lima and in London, in
Bogota and in Belgrade, in Rio and in Rome. It is the principle that,
in matters of treaty interpretation, the intention of the parties must
prevail."
"Reservations ta the Convention on Genocide, Advisory Opinion: I.C.J.
Reports r95r, p. r5"; at p. 26.
"... no State can be bound by a reservation to which it has not
·consented ...".
Page JI, per Judges Guerrero,Sir Arnold McNair, Read and Hsu Mo:
"The consent of the parties is the basis of treaty obligations ..."
"Case concerning rights of nationals of the United States of America in
Morocco, Judgment of August 27th, r952: I.C.J. Reports r952, p. r76";
at pp. 191-192.
"From either point of view, this contention is inconsistent with the
intentions of the parties to the treaties now in question. This is
shown both by the wording of the particular treaties, and by the
general treaty pattern which emerges from an examination of the
treaties made by Morocco with France, the Netherlands, Great
Britain, Denmark, Spain, United States, Sardinia, Austria, Belgium
and Germany over the period from 1631 to 1892. These treaties show
that the intention of the most-favoured-nations clauses was to..."
Scholarly Authority:
Ralston, J. H. The Law and Procedure of International Tribunats,
Revised Edition (Stanford: Stanford University Press, 1926), p. 6.
"We have said that a treaty was in a general sense an agreement
between nations. More specifically, it was described by Plumley,
umpire, in the case of the heirs of Jean Maninat, as ARGUMENT OF MR. DE VILLIERS
39
'a solemn compact between nations. It possesses in ordinary the
same essential qualities as a contract between indîviduals, enhanced
by the weightier quali ty of the parties and by the greater magnitude
ofthe subject-matter. To be valid, it imports a mutual assent, and
in order that there may be such mutual assent there must be a
similar understanding of the several matters involved. It can never
be what one party understands, but it always must be what
both parties undErstood to be the matters agreed upon and what
in fact was the agreement of the parties concerning the matters
now in dispute'. "
Page 27:
"As is manifest from all of the foregoing, the intention of the
parties must rule, and the principles laid down are after all but
means of determining, as scientifi.cally as the subject will permit,
what the parties' intentions may have been."
Schwarzenberger, G. International Law, Second Edition (London:
Stevens and Sons, 1949), Vol. I, p. 208.
"The purpose of the interpretation of an international treaty is to
ascertain its meanin,?, i.e. the intention of the contracting parties. As
the Permanent Comt of Arbitration had already emphas1zed in the
Island of Timor casf (r914), 'here again, and always, we must look
for the real and harmonious intention of the parties when they bound
themselves '."
Lauterpacht, H. "Restrictive Interpretation and the Principle of
Effectiveness in the Interpretation of Treaties", The British Year Book of
International Law, Vol. XXVI (1949), pp. 48-85; at p.83.
"It is the intention of the author of the legal rule in question
whether it be a contract, a treaty, or a statute-which is the starting
point and the goal of all interpretation. It is the duty of the judge to
resort to all availahle means-including rules of construction-to
discover the intention of the parties; to avoid using rules of inter
pretation as a ready substitute for active and independent search for
intentions; and to refrain from neglecting any possible dues, however
troublesome may be their examination and however liable they may
be to abuse, which may reveal or render clear the intention of the
authors of the rule to be interpreted."
Lauterpacht, H. The Development of International Law by the Inter
national Court (London: Stevens and Sons, 1958), p. 227.
"... the fundament:Ll principle of interpretation, that is to say,
that effect is to be given to the intention of the parties".
Fitzmaurice, G. G. "The Law and Procedure of the International Court
of Justice 1951-4: Treaty Interpretation and other Treaty Points", The
British Year Book of Inttrnational Law, Vol. XXXIII (1957), pp. 203-93;
at p. 204.
"With the exception of those who support the extreme teleological
school of thought, ;10one seriously denies that the aim of treaty
interpretation is to give effect to the intentions of the parties." SOUTH WEST AFRICA
U.N. Doc. A/CN. 4/101, 14th March, 1956 (Report on The Law of
Treaties, by G. G. Fitzmaurice, Special Rapporteur), p. r6.
"Art. 4. {r) The foundation of the treaty obligation is consent,
coupled with the fondamental principle of law that consent gives
rise to obligation."
McNair, A. D. The Law of Treaties (Oxford: Clarendon Press, 1961),
p. 365.
"In our submission that task (to apply, or construe, or interpret a
treaty) can be put in a single sentence: it can be described as the
duty of giving effect to the expressed intention of the parties, that is,
their intention as expressed in the words used bythem in the light of the
surrounding circumstances."
Page 366:
"The many maxims and phrases which have crystallized out and
abound in the textbooks and elsewhere are merely prima facie
guides to the intention of the parties and must always give way to
contrary evidence of the intention of the parties in a particular case.
If they are allowed to become our masters instead of our servants
these guides can be very misleading."
I would also like to say, in regard to the views in these quotations
as expressed by an honourable Member of this Court, that I know it
could be very invidious for members of a court to have cited to them
extracts from their writings on a matter which may have become con
troversial in the particular case. But we are studiously avoiding that.
These views which we cite are not controversial in this particular case
and are matters of principle set out in, I may say with respect, such a
lucid manner that itwould have been a pity not to have had them at all
in this list; and we include them for that purpose and for that purpose
only.
Secondly, Mr. President, we refer briefly to the principles of actuality,
natural meaning and contemporaneity. Our understanding of the situa
tion thereis brieflythis: that one of the normal aims of parties to an inter
national agreement-as to agreements in nationa11aw-is to set forth
their agreement in writing, in such language as will be clearly understand
able to themselves and to others who may have some interest in reading
and understanding what that agreement is about. That is one of the nor
mal aims. Naturally, one finds exceptions now and again, where parties
intend todisguise what their real intent may have been. Sometimes they
don't succeed in their aim, they don't express exactly what their common
intent is in fit language for the purpose. But those are the exceptional
cases. Nonnally, therefore, in order to arrive at the intent of the parties,
it is a sound rule to look first, as a matter of prima facie guide, once to the
treaty or contract, as it stands in writing,to the text, and to accept that
as being, prima facie at least, the agreement between the parties. And
secondly, as an equally strong prima facie guide, it is advisable to inter
pret the treaty in accordance with the normal, the natural and the ùn
strained meaning of the language in the context-this principle sometimes
being referred to as the principle of natural meaning. And then, thirdly,
virtually as a corollary to the previous two, ·there is the principle of
contemporaneity which is particularly important in treaties, and which ARGUMENT OF MR. DE VILLIERS 41
enjoins us to look at current concepts and linguistic usage at the time
when the particular treaty was entered into, which may, in the case of
treaties, have been a very long time before the need arises for the partic
ular interpretation.
, These three principles are well known and are expounded in the author
ities which I shall cite. They are, as I have said, not absolute rules but
they are very strong prima facie guides to intention and are generally
accepted as such. There[ore, the authorities go on to stress that there
must be special and con'1Ïncingreasons to displace the results which an
application of these prindples would indicate in a particular case. So, for
instance, if it were intended to show that the text in a particular treaty
does not set forth the full agreement between the parties; that there 1s
exceptionally something which has not been expressed in writing but
which was nevertheless part of the common intent of the parties, some
thing possibly verbal, something possibly tacit or unexpressed; those are
exceptional occurrences ;,.ndthey therefore require special and convincing
demonstration. The same applies in a case where the proposition is that
the text is exceptionally to be understood as either not giving expression
to the common intent of the parties at all, or in some sense other than the
ordinary and the natural sense of the words in their context. It is only in
these exceptional cases that it then really becomes necessary to have re
course to extraneous ffi<iansof interpretation. Where, for instance, an
attempt is made to show that what is recorded is not really the common
intent of the parties, that the recording was in some way at fault, that is
one instance in which it might be possible to refer-and a necessary in
ducement to refer-to e:draneous means of interpretation. Otherwise, if
there is only one unamb~guous, natural, unstrained meaning to be given
to a text in a particular context, then that is to prevail. lt would then
only be in cases of obscurity of language or ambiguity, where a text may
be caJ?able----evenin its natural connotation-of more thap one meaning,
that 1t would be neces1:ary or useful to have recourse to extraneous
means of interpretation.
In regard to statements of the principle of actuality and the principle
of natural meaning I should like to quote first of all from articles by Sir
Gerald Fitzmaurice in the British Y earbook.
(Fitzmaurice, G. G. "The Law and Procedure of the International
Court of Justice: Treaty [nterpretation and certain other Treaty Points",
The British Year Book o/ International Law, Vol. XXVIII (1951), pp. 1-
28; at p. 7.)
"The thought of the majority could be summed up by saying that
in their view the intentions of the framers of a treaty, as they emerg
ed from the disc)lssions or negotiations preceding its conclusion,
must be presumed to have been expressed in the treaty itself, and are
therefore to be sourht primarily in the actual text, and not in any
extraneous s.ource.Furthermore, treaties must be interpreted as they
stand, and subject 1:0the limitations inherent in the fact that they
only contain so. many articles, phrases and words. The intentions
or presumed intent;ons of the framers cannot be invoked to fill in
gaps, or import into the treaty something which is not there, or to
correct or alter words or phrases the meaning of which is apparently
plain, or to give them a sense different from that which they possess
according to their normal and natural meaning."42 SOUTH WEST AFRICA
Page 9:
"I. Principle of Actuality. Treaties are to be interpreted primarily
as they stand, and on the basis of their actual texts.
II. Principle of the N aiural M eaning. Particular words and phrases
are to be given their normal, natural, and unstrained meaning, in the
context in which they occur."
(Fitzmaurice, G. G. "The Law and Procedure of the International
Court of Justice 1951-4: Treaty Interpretation and other Treaty Points",
The British Year Book of International Law, Vol. XXXIII (1957), pp.
203-93; at p. 209.)
"It is left largely to the textual school to insist that while a treaty
should, so far as its terms will allow, be interpreted in such a way
as to give effect to its apparent intention, and to achieve what
seem to be its objects and purposes, it cannot be stretched to cover
more than, on the natural and ordinary meaning of its terms, it does
cover, or enlarged to contain what it does not contain; and that if
the partfos have failed correctly to express their intention in it,
or if the apparent object cannot be achieved on the basis of the
actual terms of the treaty, the correct, and only correct, remedy
is for the parties to amend or supplement it, but that this cannot
be the proper function of a tribunal carrying out a purely inter
pretative task. As the Court has said: 'It is the duty of the Court to
interpret ... Treaties, not to revise them'."
Pages 2ro-rr:
Resolution adopted by the Institute of International Law at its
Granada Session in 1956:
"Article·I.
r. The agreement of the parties having been embodied in the text
of the treaty, it is necessary to take the natural and ordinary meaning
of the terms of the text as the basis of interpretation. The terms of
the provisions of the treaty should be interpreted in their context
as a whole, in accordance with good faith and in the light of the
principles of international law.
2. If, however, it is established that the terms used should be
understood in another sense, the natural and ordinary meaning of
these terms will be displaced.
Article2.
r. In the case of a dispute brought before an international tribunal
it will be for the tribunal, while bearing in mind the provisions of
the first article, to consider whether and to what extent there are
grounds for making use of other means of interpretation.
2. Amongst the legitimate means of interpretation are the fol-
lowing:
(a) Recourse to preparatory work;
(b) The practice followed in the actual application of the treaty;
(c) The consideration of the abjects of the treaty." ARGUMENT OF MR. DE VILLIERS 43
Page 2II:
"I. Principle of A.ctuality (or Textuality).
Treaties are to be interpreted primarily as they stand, and on the
basis of their actual texts.
IL Principle of the Natural and Ordinary Meaning.
Subject to Principle VI below, where applicable, particular words
and phrases are to be given their normal, natural, and unstrained
meaning in the context in which they occur. This meaning can only
be displaced by direct evidence that the terms used are to be under
stood in another sense than the natural and ordinary one, or if such
an interpretation would lead to an unreasonable or absurd result.
Only if the language employed is fundamentally obscure or ambig
uous may recourse be had to extraneous means of interpretation,
such as consideration of the surrounding circumstances, or travaux
préparatoires.''
I would now like to refer the Court to the very well-known passage in
the Advisory Opinion conceming the Competenceof theAssembly regarding
Admission to the United Nations-the Second Admissions Case as it is
sometimes referred to-in 1950.
"The Court considers it necessary to say that the first duty of a
tribunal which is ca1led upon to interpret and apply the provisions
of the treaty, is to endeavour to give effect to them in their natural
and ordinary meaning in the context in which they occur. If the
relevant words in their natural and ordinary meaning make sense in
their context, that is an end of the matter. If, on the other hand,
the words in their natural and ordinary meaning are ambiguous or
lead to an unreasonable result, then, and only then, must the Court,
by resort to other methods of interpretation, seek to ascertain what
the parties really did mean when they used these words. As the
Permanent Court f.aid in the case conceming the Polish Postal
Service in Danzig (P.C.I.J., Series B, No. II,p. 39):
'Itis a cardinal principle of interpretation that words must
be interpreted in 1:hesense which they would normally have in
their context, unle~s such interpretation would lead to something
unreasonable or absurd.'
When the Court can give effect to a provision of a treaty by giving
to the words used in it their natural and ordinary meaning, it may
not interpret the words by seeking to give them some other
meaning." (Ref. I.C.J. Reports I950, p. 4 at p. 8.)
Next, I would like to refer to the point that the Court has emphasized,
on certain occasions, that special and good reasons are required for a
departure from the natural meaning. The first example of that which I
wish to cite is from th~: First Admissions Case, where the Court said:
"To warrant an interpretation other than that which ensues from the
natural meaning of the words, a decisive reason would be required which
has not been established." (Ref. I.C.J. Reports r948, p. 57 at p. 63.)
We find a similar expreésionin the Anglo-Iranian Oil Case:44 SOUTH WEST AFRICA
"... the Court cannot base itself on a purely grammatical inter
pretation of the tcxt. It must seek the interpretatiçm which is in
harmony with a natural and reasonable way of reading the text,
having due regard to the intention of the Govemment of Iran at
the time when it accepted the compulsory jurisdiction of the Court.
The text itself conveys the impression that the words 'postérieurs
à la ratification de cette déclaration' · relate to the expression
which immediately precedes them, namely, ta 'traités ou conven
tions acceptés par la Perse', to which they are linked by the word
'et', This is, in the opinion of the Court, the natural and reasonable
way of reading the text. It would require special and clearly estab
lished reasons to link the words 'et postérieurs à la ratification de
cette déclaration', to the expression 'au sujet de situations ou de faits'
which is separated from them by a considerable number of words..."
"Anglo-lranian Oil Co. case (jurisdiction), Judgment of ]uly 22nd,
I952: 1.C.J. Reports I952, p. 93"; at p.104.
The Court proceeded to state that "the Government of the United
Kingdom has endeavoured to invoke such special reasop.s" and, when
regard is had to the report, one finds that that attempt, as dealt with in
the Judgment, related to extraneous matters which could throw light
on the real intent of the parties. Sir Arnold McNair, in his separate
judgment in that matter, approached the question of having recourse
to extraneous evidence in a slightly different manner. He considered
the text to be truly ambiguous, to be equally capable of two mean
ings, and he said that, on that basis, it was desirable to have recourse to
extraneous evidence. He said: ·
"Both interpretations are grammatically possible, as Cm.in.selfor
the United Kingdom admitted. Moreover, bath are possible as a
matter of substance; bath make sense, though the effects of the two
interpretations are quite different. ln short, there is a real ambiguity
in the text, and, for that reason, itis bath justifiable and necessary
to go outside the text and see whether any light is shed by the sur
rounding circumstances." (Ibid., pp. IIJ-II8.)
Additional authorities to which I wish to refer in this connection are:
Judicial Authority :
·. Acquisition of Polish Nationality, P.C.I.J., Series B, No.·7, 15th Sep-
tember, 1923, p. 20. ·
"The Court's task is clearly defined. Having before it a clause
which. leaves little to be desired in the nature of clearness, it is
bound to apply this clause as it stands, without consideringwhether
other provisions might with advantage have been added to or sub
stituted for it."
lnterpretation of the Convention of I9I9 concer_ningEmploymenr of
Women during the Night, P.C.I.J., Series A/B, No. 50, 15th November,
1932, p. 377. ARGUMENT OF MR. DE VILLIERS 45
"The mere fact that, at the time when the Convention on Night
Work of Women was concluded, certain facts or situations, which
the terms of the .C.mvention in their ordinary meaning are wide
. enough to cover, wne not thought of, does not justify interpreting
those of its provisiorrs which are general in scope otherwise than in
accordance with their terms."
"Interpretation of Peace Treaties (second phase), Advisory Opinion:
I:C.J. Reports z950, p. 2.n"; at p. 227.
"While the text in its literal sense does not completely exclude
the possibility of the appointment of the third member before the
appointment of both national Commissioners it is nevertheless true
that according to the natural and ordinary meaning of the terms
it was intended tha.t the appointment of both the· national Com
missioners should precede that of the third member."
"Colombian-Peruvian asylum case, Judgment of November 20th, z950:
I.C.J. Reports z950, p. 2;?6"; at p. 279. ·
"If regard is had, on the one hand, to the structure of this pro
vision which indicates a successive order, and, on the other hand,
to the natural and ordinary meaning of the words 'in tum', this
provision can only Bean that the..."
Scholarly Authority:
McNair, A. D. The La,v of Treaties (196I), p. 367.
"In short, it is mbmitted that while a term may be 'plain'
absolutely, what a tribunal adjudicating upon the meaning of a
treaty wants to asŒrtain is the meaning of the term relative/y,
that is, in relation to the circumstances in which the treaty was
made, and in which the language was used. Ifthat is what is meant
by the doctrine of 'rlain terms', no objection is raised toit. But if it
means that tribunals must stop short of applying the term in its
primary and litera! sense and permit no inquiry as to anything
further, it is submitted that the doctrine is wrong. If the words
used are not clear b the light of the circumstances in which they
were used, it is perrnissible for a tribunalto examine the question,
whether the intentfon of the parties is different from that which
the words in their natural and ordinary sense express."
The principle of conternporaneity is stated by the scholarly authorities
and also in Judgments c,f the Court. One finds a reference to it in the
Morocco Case, where the Court said that:
"The Treaty of 1836 replaced an earlier trèaty between the United
States and Morocco _whichwas concluded in 1787. The two treaties
were substantially identical in terms and Articles 20 and 21 are
the same in both. Accordingly, in construing the provisions of
Article 20-and, in particular, the expression 'shall have any
dispute with each other'-it is necessary to take into account the
meaning of the word 'dispute' at the times when the two treaties
were concluded ..Fqr this purpose it is possible to look at the way
in which the word 'dispute' or its French counterpart was used in SOUTH WEST AFRICA
the different treaties concluded by Morocco: e.g., with France in
1631 and 1682, with Great Britain in 1721, 1750, 1751, 1760 and
1801. It is clear that in these instances the word was used to cover
both civil and criminal disputes. It is also necessary to take into
account that, at the times of these two treaties, the clear-cut
distinction between civil and criminal matters had not yet been
developed in Morocco."
"Case concerning rights of nationals of the United States of America in
Morocco, Judgment of August 27th, I952: I.C.J. Reports I952, p. I76";
at p. 189.
Similarly, the principle is stated in The Minquiers case by Judge
Cameiro where he said:
"I do not regard the Treaty of Paris as a treaty of frontiers.
To do so would be to fall into the very error which we have been
warned against: an instrument must not be appraised in the light
of concepts which are not contemporaneous with it."(Ref. I.C.j.
Reports I953, p. 47, at p. 91.)
Then there is the following quotation from an article by Sir Gerald
Fitzmaurice in the British Yearbook of 1957.
"VI. Principle of Contemporaneity.
The terms of a treaty must be interpreted according to the
meaning which they possessed, or which would have been attributed
to them, and in the light of current linguistic usage, at the time
when the treaty was originally concluded." (Page 212.)
"... the principle of Contemporaneity, or the interpretation of texts
and terms in the light of the meaning they possessed, or the sense
in which they were normally used at the time when the treaty
was concluded". (Pages 203-204.)
("The Law and Procedure of the I.C.J. 1951-4: Treaty Interpretation
and other Treaty Points", The British Yearbook of International Law,
Vol. XXXIII (1957).)
Mr. President, I corne next to a principle which is of very great
importance for the purposes of this case, that is the question of im
plication of tacit agreement~because as I understand the Applicants'
case on analysis, with reference particularly to our first and second
Objections, it seems to rest in its crucial aspects on suggestions that this
Court is to import by implication certain things into the Mandate
agreements that were not actually expressed in those agreements,
either in the 1\fandate agreements or in other relevant agreements which
enter into the discussion for the purposes of the argument. And, there
fore, I wish to place particular emphasis on the question of the principle
upon which such an implication may or may not be justified.
Ihave referred to the principle of actuality, which involves, amongst
others, that prima facie the contract is to be taken as being fully set
out in the written text, though exceptionally it may be possible to ARGUMENT OF MR. DE VILLIERS 47
establish that something went without saying, that is something was
clearas a matter of actual common intent in the minds of the parties,
but they did not expŒ;s it; something additional, then, to the text,
upon which they gave no expression. Ifone were to enter into a process
of ascertaining whether that position does or does not apply in a partic
ular case, then strictly speaking that is not really a matter of interpre
tation in the narrower sense 'ofassigning a meaning to a text; it is rather
a process of attempting to establish a proposition by circumstantial
evidence from which eventually a process of inference becomes necessary.
The circumstantial evidence would, of course, begin with the indications
afforded by the text itself; but then also extraneous matters, surrounding
circumstances, travaux préparatoires,conduct of the parties subsequent
to the treaty, and so forth, may be taken into account as being part
and parcel of the whole picture that could be built up by way of circum
stantial evidence in order to·seeeventually whether that logical inference
can or cannot be drawn--the inference of a tacit mutual assent which
actually existed on the part of the parties in regard to a particular
point.
In all legal systems, Mr. President, courts of law have guarded them
selves against assenting too readily to a proposition that a certain
implication îs.to be read înto a contract, or into a treaty, as the case
may be. Because courts have realized that if they were to do that-if
they were to assent to propositions of that kind too readily-then they
may really become parties to making a new bargain-a new contract
for the contracting parties, which of course is not the courts' true
fonction; the true functiim being to give effect to the contract actually
made by the parties themselves.
Because of the fact that this is a process of reasoning by inference
almost a matter of establishing a proposition by circumstantial evidence
-and also because of this danger of making new contracts for parties,
the courts have emphaûzed that in order to be justified such an
inference must arise nccessarily or inevitably from the evidential
data.
That proposition will be found emphasized repeatedly in the following
authorities, where the emphasis every time is on the element of necessary
implication, necessary intendment, arising inevitably.
Judicial Authority :
"Reparation for injuries su{lered in the service of the United Nations,
Advisory Opinion: I.C.J. Reports I949, p. I74''; at p. 179.
"It is difficult to s~e how such a convention could operate except
upon the international plane and as between parties possessing
international personality.
In the opinion of the Court, the Organization was intended to
exercise and enjoy, and is in fact exercising and enjoying, fonctions
and rights which can only be explained on the basis of the possession
of a large measure of international personality and the capacity
to operate upon an international plane."
Page I82:
"Under international law, the Organization must be deemed to
have those powers which, though not expressly provided in the SOUTH WEST AFRICA
Charter, are conferred upon it by necessary implication as being
essential to the performance of its duties."
Page I84:
"Upon examination of the character of'the fonctions entrusted
to the Organization and of the nature pf the missions of its agents,
it becomes clear that the capacity of the Organization to exercise
a measure of functional protection of its agents arises by necessary
intendment out of the Charter."
"Colombian-Peruvian asylum case, ]udgment of November 20th, I950:
I.C.J. Reports I950, p. 266"; at p. 275.
"This institution would perhaps be more effective if a rule of
unilateral and definitive qualification were applied. But such a
rule is not essential to the exercise of asylum.
These considerations show that the alleged right of unilateral
and definitive qualification cannot be regarded as recognized by
implication in the Havana Convention."
"Case concerning rights of nationals of the United States of America
in Morocco,]udgment of August 27th, I952: I.C.J. Reports I952, p. I76";
at p. 198.
"An interpretation, by implication from the provisions of the
Act, establishing or confirming consular jurisdiction would involve
a transformation of the then existing treaty rights of most of the
twelve Powers into new and autonomous rights based upon the
Act. It would change treaty rights of the Powers, some of them
terminable at short notice, e.g., those of the United States which
were terminable by twelve months' notice, into rights enjoyable
for an unlimited period by the Powers and incapable of being ter
minated or modified by Morocco. Neither the preparatory work
nor the Preamble gives the least indication of any such intention.
The Court finds itself unable to imply so fondamental a change in
the character of the then existing treaty rights as would be involved
in the acceptance of this contention.
There is, however, another aspect of this problem arising out of
the particular Articles to which reference has been made above.
_Theseare the Articles which include provisions necessarily involvip.g
the exercise of consular jurisdiction. I~ this case, there is a clear
indication of the intention of the parties to the effect that certain
matters are to be dealt with by the consular tribunals and to this
· .extent it is possible to interpret the provisions of the Act as estab
lishing or confirming the exercise of consular jurisdiction for these
limited purposes. The maintenance of consular jurisdiction in so
far as it may be necessary to give effect to these specific provisions
' can, therefore, be justified as based upon thénecessary: intendment
of the provisions of the Act." .
Page I99:
"The Court is not called upon to examine the particular articles
of the Act of Algeciras which are involved. It considers itsufficient
to state as its opinion that the consular jurisdiction .of the United ARGUMENT OF MR. DE VILLIERS 49
States continues to exist to the extent that may be necessary to
render effective thosE,provisions of the Act of Algeciras which depend
on the existence of consular jurisdiction.
This interpretatiou of the Act, in some instances, leads to results
which may not app1~arto be entirely satisfactory. But that is an
unavoidable consequence of the manner in which the Algeciras
Conference dealt with the question of consular jurisdiction. The
Court can not, by way of interpretation, derive from the Act a
general rule as to full consular jurisdiction which it does not contain.
On the other hand, the Court can not disregard particular provi
sions involving a limited resort to consular jurisdiction, which are,
in fact, contained in the Act, and which are still in force as far as
the relations between the United States and Morocco are concerned."
Certain Expenses of the United Nations (Article I7, paragraph 2, of the
Charter), A dvisory Opinion of 20 J uly I962, Tirage spécial,p. 13.
"Since no such qualification is expressed in the text of the Char
ter, it could be read in, only if such qualification must necessarily
be implied from the provisions of the Charter considered as a whole,
or from some partJcular provision thereof which makes it un
avoidable to do so in order to give effect to the Charter."
Scholarly Authority:
Fitzmaurice, G. G. 'The Law and Procedure of the International
Court of Justice: Treaty Interpretation and certain other Treaty Points",
The British Year Book of International Law, Vol. XXVIII (1951), pp. r-
28; at p. 9.
"r. Positive and active obligations-as also definite exceptions
to, or derogations from, such obligations-cannot be left to arise
as a mere inference from a text or provision. They must be expressed
in terms. In other wc·rds,positive obligations, or exceptions thereto,
cannot be read into a treaty. If not actually expressed, they must
at least be a necessary (and not merely a possible) inference from
what is expressed."
Page 22:
"... definite rights and obligations, or specific derogations there
from, cannot be read into treaty provisions by a process of inference,
unless this is a necessary and not merely a possible consequence of
the language used". ·
Page 23:
"The Court's view is therefore authority for the proposition that
in fact violence is dc,ne to the terms of a treaty (and consequently
to major principle II) whenever the existence of a right, obligation,
procedure, etc., not expressly provided for in the treaty or prima
facie cimtemplated by it, and not a necessary consequence of the
terms employed, is nevertheless .read into it as not being actually.
incompatible with th·JSeterms, while tending to promote the abjects
of the treaty." . ·50 SOUTH WEST AFRICA
Page 24-°
"... remedies or sanctions for breaches of a treaty cannot be read
into it as mere inference from its terms, still less on the supposition
that a remedy or sanction of some kind must be presumed to have
been intended".
Fitzmaurice, G. G. "The Law and Procedure of the International
Court of Justice 1951-4: Treaty Interpretation and other Treaty Points",
The British Year Book of International Law, Vol. XXXIII (1957),
pp. 203-293; at p. 233.
"In short, the implication, to be validly drawn, must be a neces
sary one."
McNair, A. D. The Law of Treàties (1961), p. 436.
"Conditions should be implied only with great circumspection;
for if they are implied too readily, they would become a serious
threat to the sanctity of a treaty. Nevertheless the main object of
interpretation of a treaty being to give effect to the intention of
the parties in using the language employed by them, it is reasonable
to expect that circumstances should arise (as they do in the sphere
of private law contracts) in which it is necessary to imply a condition
in order ta give effectta this intention."
Courts in municipal law systems have frequently dealt with the very
same problem, in principle, as to whether a tacit agreement, an implied
term, could be read into a contract between parties. Applying this same
test ofnecessaryintendment, ornecessary inference, the courts have, from
a practical point of view, indicated vanous criteria which may be very
useful to bear in mind. I cite them, with respect, to this Court particu
larly because some of them are so very apt and capable of such very
apt application to the problems which arise in this case from the sug
gestions that an implication of tacit agreement is to be read into certain
of these treaties with which we are dealing.
Before doing so I would like to refer the Court back first to the Pre
liminary Objections at pages 343-344 (1) where we citean extract from
a judgment of a Judge of Appeal, and later Chief Justice of South Africa,
in which he set out these "two cardinal rules of logic which cannot be
ignored" in reasoning by inference. The first is that "The inference sought
to be drawn must be consistent with all the proved facts. If not, the
inference cannot be drawn." And secondly, "The proved facts should
be such that they exclude every reasonable inference from them save
the one sought to be drawn. If they do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought to
be drawn is correct."
One iinds that this same idea is emphasized in the well-known work
Wills on Principles of Circumstantial Evidence (7th Ed. 1936, p. 19)
where the learned author says: 'The force and effect of circumstantial
evidence depend upon its incompatibility with, and incapability of,
explanation or solution upon any other supposition than that of the
truth of the fact which it is adduced to prove; the mode of argument
resembling the method of demonstration by the reductio ad absurdum." ARGUMENT OF MR. DE VILLIERS SI
The same point was, in effect, made by an Honourable Member of
this Court, Mr. Justice E-adawi Pasha, in the Cor/u Channel case (1949),
where he stated that "rhe most reliable doctrine takes the view that
'proof by circumstantial evidence is regarded as successfully established
only when other solutiom. would imply circumstances wholly astonishing,
unusual and contrary to the way of the world' " (I.C.J. Reports I949,
p. 4, at p. 60): thus the same idea, namely that all other reasonable
conclusions, or reasonab)e inferences, must be excluded.
Mr. President, then I also refer to a quotation which will be very
well known to the Members of the Court who are acquainted with
English jurisprudence. 1·::is the very well-known formulation of Lord
Justice Scrutton in the case of Re1gate v. Union Manufacturing Co.,
where the matter was put this way by the learned Lord Justice:
"These principles, however, have been clearly established: The
first thing is to see what the parties have expressed in the contract;
and then an implied -i:ermis not to be added because the Court thinks
it would have been reasonable to have inserted it in the contract.
[Merely because it would have been reasonable, therefore, the term
is not to be inserted.] A term can only be implied if it is necessary in
the business sense to give efficacy to the contract; that îs, ifit is
such a terrn that it -:an confidently be said that if at the time the
contract was being n·~gotiatedsomeone hadsaid tothe parties, 'What
will happen in such a case', they would both have replied, 'Üfcourse
so and so will happen; we did not trouble to say that; it is too
clear'. Unless the Court cornes to some such conclusion as that, it
ought not to imply a term which the parties themselves have not
expressed." (Ref. 19I8 r K.B. 592, at p. 605.)
That gives a very prac-::icaldemonstration of the type of question one
is to ask oneself when considering whether the inference is a necessary
one or not.
To this, further comment was added by Lord Justice McKinnon in
Broome v. Pardess Co-op. Soc. (1940 (1) A.E.R. 603, at p. 612). He
stated:
"I will add only one observation to those passages. Where the
parties have made an express provision as regards some matter
with regard to the c,Jntract, it is, and must be, extremely difficult
for either of them tJ say in regard to that subject-matter, as to
which there is an e}:press provision, that there is also an implied
provision or condition in the contract."
That is a factor which also cornes into the discussion in this case,
that when a particular matter is already regulated by express provision
in a contract it becomes so much more difficult to suggest that there
must in addition be also an implied regulation of that matter in the
contract or agreement.
And, finally, I cite frnm further observations on these very same
principles in a South Afri,:an caseby Judge Millin in the Witwatersrand
Local Division (Transvaal) in 1943. He was dealing with these very
same principles and their practical application. He said:
"The cases show that the Court has to be continually on its guard
against being persu:;.ded to introduce a term which, on analysis SOUTH WEST AFRICA
52
.of the argument, appears to be no more than a term which would
make the carrying out of the contract more convenient to one of
the parties or to both of the parties and might have been included
ifthe parties had thought of it and if they had both been reasonable:
You are not to imply the term merely because if one of the parties
or a bystander had suggested it, you think only an unreasonable
person would have disagreed. You have to be satisfied that both
parties did agree. It is quite a different proposition, if in the hy
pothetical caseScrutton L. J. puts in, you feel the parties might say:
'You have called our minds to something we have not thought of
and what you say is not unreasonable, let us discuss it.' If that is all
that the Court feels might have happened then the Court is not
entitled to imply the term.
Again, it follows from the principles which I have tried to ex
tract from the cases that the term sought to be implied must be
capable of clear and exact formulation. It must be capable of
being formulated substantially in only one way and once there is
difficulty in formulating the term, or a doubt as to how it should
be formulated or as to how far something or other should be ex
tended which has been thought of, then can it be said that there
is a term which the parties must obviously have intended to agree
upon? Once there is difficulty and doubt as to what the term
should be or how far it should be taken it is obviously difficult
tosay that the parties clearly intended anything at allto be implied.
If you corne to the conclusion that if the matter had been raised
with the parties at the time they were agreeing and a number of
different ways of dealing with the point could have been suggested,
it is surely not competent for a party seeking to imply a term to
select one of these possibilities and to say that is the term which
ought to be implied." (Rapp and Maister v. Aronovsky, 1943
W.L.D. 68 at pp. 74-75.)
The next principle to which I wish to pay very brief attention is that
which renders of assistance the three factors of travaux préparatoires,
contemporanea expositio and subsecuta observatio. The Court knows
the principles in that regard; I do not intend to state what these various
concepts mean. The only question that arises is under what circum
stances is it either permissible or of assistance to have recourse to
these various extraneous means of interpretation. Broadly speaking,
again we have to <livide the subject into two parts. One is that of in
terpretation in the narrower sense of assigning a meaning to a text.
There, of course, the degree of usefulness of these various extraneous
methods of interpretation may increase or decrease in accordance with
the clarity or lack of clarity of the text, becauseif a text in its natural
meaning, in its context, is absolutely clear and unambiguous, then it
would hardly be possible for any of these external factors to compete
against the evidential weight of that text as to what the intention of the
parties was. One may get a case then of conflict between these extraneous
factors and the clear indications afforded by the text. And so, of course,
one can get various gradations; the text may not be absolutely clear
or, on the other end of the scale, it may be completely ambiguous or
obscure, and' depending on matters of degree it may be possible then,
for puiposes of textual interpretation,to have recourse to these matters ARGUMENT OF MR. DE VILLIERS 53
-these aids to interpretation-and to find them useful. But there is
also the other aspect of what is possibly not strictly interpretation
but is generally regardtd as a process of interpretation-quasi inter
pretation-and that is to decide whether in a particular instance the
parties were tacitly agrn~d upon something which they did not express.
And in the course of an inquiry of that nature, these factors appear
to have been freely admitted and taken into account by this Court,
with respect quite corredly, because they form a necessary part of the
evidential data from which inferences eventually are to be drawn.
Therefore, it will be found that some of the authorities to which I will
refer deal with these aids to interpretation in the one respect I have
mentioned, while other1, deal with them in the other respect I have
mentioned. With regard to travaux préparatoires. I refer to the First
Admissions case where the suggestion was that there should be use
of travaux préparatoires1or purposes of assigning a meaning to the text.
The Court said:
"The Court considers that the text is sufficiently clear; conse
quently it does not feel that it should deviate from the consistent
practice of the Permanent Court of International Justice, according
to which there is no occasion to resort to preparatory work if the
text of a conventic,n is sufficiently clear in itself." (Ref. I.C.J.
Reports I948, p. 57, at p. 63.)
We find much the sarr,.estated in the Second Admissions case, and in
the Ambatielos case on jurisdiction.
"When the Court can give effect to a provision of a treaty by
giving to the words nsed in it their natural and ordinary meaning, it
may not interpret the words by seeking to give them some other
meaning. In the present case the Court finds no difficulty in ascer
taining the natu:ral and ordinary meaning of the words in question
and no diffi.culty iri giving effect to them. Sorne of the written
statements submittt:d to the Court have invited it to investigate
the travaux préparaioires of the Charter. Having regard, however,
to the consideratiom above stated, the Courtis of the opinion that
it is not permissible, in this case, to resort to travaux préparatoires."
"Competence of Assembly regarding admission to the United Nations,
Advisory Opinion: I.C.J. Reports I950, p. 4'';at p. 8.
"In any case where, as here, the text to be interpreted is clear,
there is no occasion to resort to preparatory work. !'
"Ambatielos case (jurisdiction), Judgment of July ISt, I952: I.C.J.
Reports I952, p. 28"; at p. 45.
The same point again that where the text to be interpreted is clear,
there is no occasion to rc~sortto preparatory work. These are instances
then of suggested use of travaux préparatoires for purposes of textual
interpretation.
We find for the same purpose a passage in Lord McNair's Law of
Treaties where he stated:54 SOUTH WEST AFRICA
"Here we are on solid ground and are dealing with a judicial
practice worthy to be called a rule, namely that, when there is a
doubt as to the meaning of a provision, or an expression contained
in a treaty, the relevant conduct of the contracting parties after
the conclusion of the treaty (sometimes called 'practical construc
tion') has a high probative value as to the intention of the parties
at the time of its conclusion. This is both good sense and good law."
(McNair A. D., The Law of Treaties (1961), p. 424.)
I must apologize. I see I went over to the other aspect not confined
to travaux préparatoiresbut to the matter of subsequent conduct between
the parties, where, in principle, the position is very much the same.
Then in regard to travaux préparatoires, as regards the other aspect of
using it (or using subsequent conduct) as a factor of circumstantial
evidence in an inquiry as to tacit intent, one finds that that has been
done on various occasions. So, for instance, in the Genocide Advisory
Opinion the Court said:
"The character of a multilateral convention, its purpose, pro
visions, mode of preparation and adoption, are factors which must
be considered in determining, in the absence ofany express provision
on the subject, the possibility of making reservations, as well as
their validity and effect.
Although it was decided during the preparatory work not to
insert a special article on reservations, it is none the less true that
the faculty for States to make reservations was contemplated at
successive stages of the drafting of the Convention. In this connec
tion, the following passage may be quoted from the comments on
the draft Convention prepared by the Secretary-General."
"Reservations to the Convention on Genocide, Advisory Opinion: I.C.].
Reports I95I, p. I5"; at p. 22.
I may in this regard refer to the very apt comment of Sir Gerald
Fitzmaurice in his 1951 article in the British Yearbook, where,. speaking
of the situation as at that date, the 1earned author stated:
"The Court has shown no eagerness to have recourse to travaux
préparatoires and has not in fact done so, except on one occasion
where the issue was not strictly one of interpretation."
A footnote to the above is to the following effect:
"In its Advisory Opinion on the Reservations to the Genocide
Convention (I.C.j. Reports I95I, p. 15), the Court based its view in
part on certain statements made by representatives of Governments
during the drafting of the Convention. But in so doing, the Court
was not interpreting any provision of the Convention itself (nor
did the Request addressed to it put any point of interpretation as
such). The particular issue involved in the appeal to the records
was whether, despite the absence of any express clause in the Con
vention pennitting reservations to be made, there had been a tacit
understanding among the delegates drawing up the Convention
that certain kinds of unilateral reservations would be permitted.
The point was therefore extraneous to the text of the Convention,
and the question of intention was a substantive issue, per se, rather ARGUMENT OF MR. DE VILLIERS
55
than something to be ascertained as a means to interpreting some
thing else." (Fitzm2.urice G. G. "The Law of Procedure of the I.C.J.:
Treaty Interpretation and other Treaty Points", British Yearbook
of International Law, XXVIII, 1951, pp. 1-28 at p. 6.)
There is a later case, that concerning the Rights of Nationals of the
United States in Morocco,where there was again a recourse to preparatory
work for the purpose of seeing whether a certain implication could be
made, and in which the Court said:
"Case concerning righls of nationals of the United States of America in
Morocco, Judgment of August 27th, r952: I.C.]. Reports r952, p. r76";
at p. 198.
"An interpretati•)n, by implication from the prqvisions of the
Act, establishing or confirming consular jurisdiction would involve
a transformation o[ the then existing treaty rights ... Neither the
preparatory work :..10rthe Prearnble gives the least indication of
any such intention."
Page 209:
"It cannot be said that the provisions of Article 95 alone, or of
Chapter V of the Act considered as a whole, afford decisive evidence
in support of eithcr of the interpretations contended for by the
parties respectively ...
The Court has examined the earlier practice, and the preparatory
work of the Confer<::nceof Algeciras of 1906..."
We find the same thing with regard to the principles of subsequent
conduct on the part of the parties. These principles of subsequent conduct
can also be applied in one!or the other sense; either of assigning a meaning
to a text where that te:d is for sorne reason obscure or ambiguous and
where the other rnethod:, of interpretation do not provide a clear answer,
or altematively with much freer use, under circumstances where the
issue is not one of strict interpretation of a text but one of ascertaining
whether there was a tad.t agreement or understanding upon a particular
point.
I referto:
Judicial Authority :
Jurisdiction of the Courts of Danzig (Pecuniary claims of Danzig
Railway Otficials who ha11epassed into the Polish Service, against the Polish
Railways Administration), P.C.I.J., Series B, No. 15, 3rd March, 1928,
p. 18.
"The intention of the Parties, which is to be ascertained from
the contents of the Agreement, taking into consideration the manner
in which the Agreement has been applied, is decisive. This principle
of interpretation si1ould be applied by the Court in the present
case."
''Corfu Channel case, /udgment of April 9th, I949: I.C.]. Reports I949,
p. 4" ;at p. 25.56 SOUTH WEST AFRICA
"The subsequent attitude of the Parties shows that it was not
their intention, by entering into the Special Agreement, to preclude
the Court from fixing the amount of the compensation."
"Competence of Assembly regarding admission to the United Nations,
Advisory Opinion: I.C.J. Reports z950, p. 4''; at p. 9.
"The organs to which Article 4 entrusts the judgment of the
Organization in matters of admission have consistently interpreted
the text in the sense that the General Assembly can decide to admit
only on the basis of a recommendation of the Security Council. In
particular, the Rules of Procedure of the General Assembly provide
for consideration of the merits of an application and of the decision
to be made upon it only 'if the Security Council recommends the
applicant State for membership' (Article t25). The Rules merely
state that if the Security Council has not recommended the ad
mission, the General Assembly may send back the application to
the Security Council for further consideration (Article 126). This
last step has been taken several times: it was taken in Resolution
296 (IV), the very one that embodies this Request for an Opinion."
Scholarly Authority:
Fitzmaurice, G. G. "The Law and Procedure of the International
Court of Justice: Treaty Interpretation and certain other Treaty Points",
The British Year Book of International Law, Vol. XXVIII (1951),
pp. r-28; at p. 9.
"V. Principle of Subsequent Practice. In interpreting a text,
recourse to the subsequent practice of the parties, as evidenced in
rules of procedure they have formulated, or in other ways, is not
only permissible but desirable; in brief, the way in which the treaty
has actually been interpreted in practice is evidence (sometimes the
best evidence) of what its correct interpretation is."
Pages 20-2z:
"It is a fair, inference from the attitude of the Court that, in its
view, the subsequent practice of the parties in relation to a treaty
is not only a legitimate guide to its correct interpretation, but
probably a more reliable guide than recourse to travaux préparatoires
or the attempt to ascertain the presumed intentions of the original
framers. It should be observed, however, that strictly speaking,
although it is convenient to classify the matter as a principle of
interpretation, it is not really that so much as a rule of evidence.
It is a question of the probative value of the practice of the parties
as indicative of what the treaty means."
Fitzmaurice, G. G. "The Law and Procedure of the International
Court of Justice 1951-4: Treaty Interpretation and other Treaty Points",
The British Year Book of International Law, Vol. XXXIII (1957),
pp. 203-293; at pp. 2II-212.
"V. Pr_inciple of Subsequent Practice. In interpreting a text,
recourse to the subsequent conduct and practice of the parties in ARGUMENT OF MR. DE VILLIERS 57
relation to the trea.ty is pei:missible, and may be desirable, as
affording the best and most reliable evidence, derived from how the
treaty bas been interpreted in practice, as to what its correct inter
pretation is."
Footnote to this Principle:
"Where the practice has brought about a change or development
in the meaning of the treaty through a revision of its terms by con
duct, it is permissibi.è to give effect to this change or development
as an agreed revision but not as an interpretation of its original
terms."
Page 223:
"It is, of course, axiomatic that the conduct in question must
have been that of both or all-or, in the case of general multilateral
conventions, of the great majority of the parties, and not merely
of one ...
... a consistent practice must corne very near to being conclusive
as to how the treaty should be interpreted."
McNair, A. D. The Law of Treaties (196!), p. 424.
"Here we are on solid ground and are dealing with a judicial
practice worthy to be called a rule, namely that, when there is a
doubt as to the meaning of a provision, or an expression contained
in a treaty, the relevant conduct of the contracting parties after
the conclusion of the treaty (sometimes called 'practical construc
tion') has a high probative value as to the intention of the parties
at the time of its cor,clusion. This is both good sense and good law."
Apart from questions of textual meaning, the subsequent conduct
of parties, particularly ai: stages where one would expect them to recall
a tacit agreement to mind and to apply it-under those circumstances
the subsequent conduct of the parties could, in our submission, afford a
very cogent guide, a v,~ry strong probative factor, on the question
whether an inference as to tacit intent arises necessarily.
Finally, Mr. President, and perhaps with a sense of relief on the
part of the Court, I corne to the last of these principles-the one of
effectiveness (ut res magis valeat quam pereat). This is the principle
by which, as we understand it, the Court has taken account of abjects
and purposes of treaties to be interpreted, and where the Court, in case
of doubt, interprets a treaty in such a way as to give major effect to
those objects and purposes. lt is a principle which is again invoked
in the present case in c11.1ciar lespects by the Applicants, that is why
I want to give some close consideration toit at the present sta~e.
Again, the primary form of application of the principle 1s one in
what I have termed the narrower sphere of interpretation, of assigning a
meaning to a text. Indt:ed, the maxim is put by some authorities in
this form: Verba ita sun.! intelligenda ut res magis valeat quam pereat
"words are to be so under stood...". And, in the various continental codes,
one finds the principle i;tated in the same form. For instance in the
French code-! will give a free English translation-in Article XI 57:
"When a clause is susceptible of two meanings it is to be understood
rather in that sense in which it can have some effect than in the sense58 SOUTH WEST AFRICA
in which it can have no effect at all." The Dutch code, Article XIII, Bo,
is exactly the same, and the Italian code, Article XIII, 67, is much the
same, except that instead of referring to "When a clause is susceptible
of two meanings" it simply says "In a case of doubt".
That is the primary sphere of application of the principle. In a case
of doubt, in a case of ambiguity, in a matter of textual interpretation,
that provides a sphere for application of this principle-a very legitimate
one. But here too, as in the case of certain of the other principles which
we have discussed, it has been introduced into the other sphere, which
is, asIhave said, not strictly one of interpretation but one of implication,
or suggested implication, of tacit intent in a particular instance.
It could, in that respect, be a factor, but no more than a factor,
to be taken into account together with aU the other evidential data,
in the process of determining whether or not a necessary inference as
to tacit intent on a particular point can be drawn.
In the authorities which I shall cite, we find then that the principle
is stated in relation toits application in both of these spheres. We find,
for instance, the general statement in the Judgment of the Permanent
Court, in the case of the Acquisition of Polish Nationality:
" ... an interpretation which would deprive the Minorities Treaty
of a great part of its value is inadmissible". (P.C.LJ., Series B,
No. 7, 15 Sept. 1923, p. 17.)
And in the Corfit Channel case Judgment, it was stated:
"In case of doubt, the clauses of a special agreement by which a
dispute is referred to the Court must, if it does not involve doing
violence to their terms, be construed in a manner enabling the
clauses themselves to have appropriate effects." (I.C.J. Reports
I949, p. 4,at p. 24.)
That still appears to apply primarily to textual interpretation. And
we find the principle, very aptly if I may say so, stated in an article
by Sir Gerald Fitzmaurice in the 1957 British Year Book of International
Law:
Fitzmaurice, G. G. "The Law and Procedure of the International
Court of Justice: Treaty Interpretation and certain other Treaty Points",
The British Year Book of International Law, Vol. XXVIII (1951),
pp. 1-28; at p. 9.
"Subject to I and II:
III. Principle of Integration.
Treaties are to be interpreted as a whole, and with reference
to their declared or apparent objects, purposes, and principles.
IV. Principle of Efjectiveness.
Particular provisions are to be interpreted so as to give them
the fullest weight and effect consistent with the normal meaning
ofthe words and with other parts of the text."
Page r8:
"These principles are subordinated to the first two, because
otherwise they would be liable to lead to a purely teleological
method of interpretation which the Court declined to follow.
Subject to this, they were endorsed by the Court." ARGUMENT OF MR. DE VILLIERS 59
With regard to the other sense, which for our purposes in the present
case isthe more important one, I quote from Hal,sbury'sLaws of England
-Volume n, page 392 of the 3rd Edition-where the learned authors
state, with reference to English case law:
"In order to give effect to a contra.et according to what appears
to have been the intention of the parties, the Court ma.y imply
a term or condition or a qualification of a clause which is noi
inconsistent with the general tenor of the document, but where
the intention of the parties is not sufficiently clear the Court will
not make a contra.ci: for them in order to prevent the whole agree
ment from being void on the ground of uncertainty or otherwise."
And, aga.in, with reference to that type of application of the prin
ciple, we find an illustration in the Reparation for injuries case, 1949.
"Reparation for injuries suffered in the service of the United Nations,
Advisory Opinion: I.C.J. Reports I949, p. I74"; at p. 179.
"It is at present the supreme type of international organization
and it could not carry out the intentions of its founders if it was
devoid of internatio[lal personality. It must be acknowledged that
its Members, by entrusting certain functions toit, with the attendant
duties and responsibilities, have clothed it with the competence
required to enable those functions to be effectively discharged."
Page I83:
"Having regard toits purposes and fonctions already referred to,
the Organization may fi.nd it necessary, and has in fact found it
necessary, to entrust its agents with important missions to be
performed in distur bed parts of the world... Both to ensure the
efficient and indepmdent performance of these missions and to
afford effective support to its agents, the Organization must pro
vide them with adequate protection."
There the Court dealt with the question of what powers the United
Nations Organization must be regarded as having by virtue of its
Charter with a view to what it called protection of its agents against
certain types of injuries in the course of their duties. The conclusions
at which the Court arriv~d, as is apparent from these passages and also
the earlier ones cited by me, were based on necessary implication
or necessary intendment from the terms of the Charter, and in the
reasoning which led to the conclusion this factor of effectiveness played
a very large part. It is, then, a factor which could, in the determination
of a probability as to what the intent of the parties was likely to have
been, play a part.
But I wish to stress, with respect, that in a process of that kind, where
the inquiry is as to tacit intent, one cannot concentra.te on one element
of presumed effectivenes,.to the exclusion of all other cogent indications
of what the real intent of the parties was. One must inevitably have
regard to all relevant, practical, reliable indications of intent before
coming to one's final conclusion. And that is a warning which has very
often been stated in the jurisprudence of this Court and also by com
mentators in international law and, indeed, also in the sphere of national
law-a warning that, at most, this rule is intended to assist the Court60 SOUTH WEST AFRICA
in the process of arriving at the intentions of the parties and it cannot
override or supplant the real intention of the parties or the absence of
intent upon a particular point. That waming one will find repeated in
various decisions of this Court, for instance in the Peace Treaties case
(Second Phase).
There the Court stated:
"The breach of a treaty obligation cannot be remedied by cre
ating a Commission which is not the kind of Commission contem
plated by the Treaties. It is the duty of the Court to interpret the
Treaties, not to revise them. •
The principle of interpretation expressed in the maxim: Ut res
magis valeat quam pereat,often referred to as the rule of effectiveness,
cannot justify the Court in attributing to the provisions for the
settlement of disputes in the Peace Treaties a meaning which, as
stated above, would be contrary to their letter and spirit..."
The rest of the passage goes on in a similar vein:
"The ineffectiveness in the present case of the clauses dealing
with the settlement of disputes does not permit such a generaliza
tion" [as was suggested to the Court].
"... Normally each party has a direct interest in the appointment
of its commissioner and must in any case be presumed to observe
its treaty obligation. That this was not so in the present case does
not justify the Court in exceeding its judicial fonction on the pretext
of remedying a default for the occurrence of which the Treaties have
made no provision." (I.C.]. Reports r950, p. 221, at pp. 229-230.)
Similar caution is either expressed or is demonstrated in the Morocco
case, where the Court said:
"The purposes and objects of this Convention were stated in its
Preamble in the following words... In these circumstances, the Court
can not adopt a construction by implication of the provisions of
the Madrid Convention which would go beyond the scope of its
declared purposes and objects. Further, this contention would in
volve radical changes and additions to the provisions of the Con
vention. The Court, in its Opinion-Interpretation of Peace Treaties
(Second Phase) (I.C.J. Reports r950, p. 229)-stated: 'It is the
duty of the Court to interpret the Treaties, not to revise them'."
"Case concerning rights of nationals of the United States of America in
Morocco, Judgment of August 27th, r952: I.C.J. Reports r952, p. r76";
at p. 196.
And in the Anglo-Iranian Oil case Judge Read forcibly stated the
waming in regard to the application of this principle:
"It is my duty to interpret the Declaration and not to revise it.
In other words, I cannot, in seeking to find the meaning of these
words, disregard the words that as actually used, give to them a
meaning different from their ordinary and natural meaning, or add
words or ideas which were not used in the making of the Decla
ration."
"Anglo-Iranian OilCo.case(/urisdiction) J udgment of] uly 22nd, r952:
I.C.J. Reports r952, p. 93"; at p. 145. ARGUMENT OF MR. DE VILLIERS
61
I would again, becaus•! of their pertinence to certain of the issues in
this case, like to refer the Court to scholarly authority where this
caution is very effectively expressed. I would like to read first from an
article by Sir Gerald Fitzmaurice. It is at pages 2u and 222~23 in the
article in the British Y ec.rBook of r957 :
"IV. Principle of Efjectiveness (ut res magis valeat quam pereat).
Treaties are to be interpreted with reference to their declared or
apparent objects and purposes; and particular provisions are to be
interpreted so as to give them their fullest weight and effect con
sistent with the normal sense of the words and with other parts of
the text, and in suc:h a way that a reason and a meaning can be
attributed to every :,?artof the text."
Pages 222-223:
"... it is through the principle of effectiveness that the Court has
given its legitimate 1,laceto the teleological element in interpretation
(objects and purpo,:es). But, as shown on pp. 19-20 of the 1951
article, precisely because of its teleological tendencies, and the
danger of falling into judicial legislation that the teleological
principle may invol?e, the Court bas subordinated the principle of
effectiveness to that of the textual and natural meaning, in the
sense that it is neYer legitimate, even with the object of giving
maximum effect to a tcxt, to interpret it in a manner actually
contrary to,or not consistent with, its plain meaning."
Fitzmaurice, G. G. "The Law and Procedure of the International
Court of Justice 1951-4: Treaty lnterpretation and otherTreaty Points",
The British Year Book of International Law, Vol. XXXIII (1957),
pp. 203-93; at p. 2II.
I may add, with respect, that the principle of effectiveness would not
enable the Court to makE,implications, where that is suggested in confl.ict
with the ordinary princi:0les which apply to the process of making such
an implication ..
The same type of caution is expressed by the late Judge Lauterpacht
in an article, and in his book The Development of International Law. I cite
a number of quotations all to the same effect that the application of the
principle of effectivenesc is not to override intent but it is to be used
as a method of arriving at the joint intent.
Lauterpacht, H. "Restrict~ve Interpretation and the Principle of
Effectiveness in the IntE-rpretation of Treaties", The British Year Book
of International Law, Vol. XXVI (1949), pp. 48-85; at p. 73.
"The intention of the parties-express or implied-is the law.
Any considerations---of effectiveness or otherwise-which tend to
transform the ascertainable intention of the parties into a factor
of secondary importance are inimical to the true purpose of inter
pretation."
Page 74:
"No rule or principle of interpretation is acceptable unless it
proceeds from or aci:s upon that paramount consideration. In parti
cular no principle of effectiveness can properly endeavour to give62 SOUTH WEST AFRICA
legal efficacy to clauses or instruments which were not intended to
produce such results."
Page 83:
"... the principle of effectiveness constitutes a general principle of
law and a cogent requirement of good faith. It finds abundant
support in the practice of international tribunals. On the other
band, the principle ... is in the last resort no more than an indication
of intention,to be interpreted in good faith, of the parties."
Lauterpacht, H. The Development of International Law by the Inter-
national Court (1958), p. 227.
"... effectiveness ... may be put in jeopardy by the deliberate in
conclusiveness of a treaty embodying a compromise attempted but
not actually achieved".
Page 228:
"..• deliberately or otherwise, there may have been no intention
to render the treaty fully effective".
Page 229:
"For the principle ut res magis valeat quam pereat does not mean
that the maximum of effectiveness must be given to an instrument
purporting to create an international obligation; it means that the
maximum of effectiveness should be given to it consistently with
the intention-the common intention--of the parties.
Moreover, the principle of effectiveness provides no ready-made
solution in cases in which a decision must be reached in relation to
apparently conflicting provisions of the same treaty as, for in
stance, in the matter of the principal provision and the exceptions
thereto."
Page 230:
"A choice must thus be made between the effectiveness of the
general purpose and the exceptions thereto."
Page 28I:
"... absence of agreement could not properly be supplemented by
an inference aiming at securing for the instrument in question a
higher degree of effectiveness than was warranted by the intentions
of the parties".
Finally, because of their aptness to the present case, I would like to
give your Lordships three quotations, very briefly, from authorities in
municipal law on this very same point. The first is from Halsbury's Laws
of England, 3rd Edition, the 8th volume at pages 121-122:
"Such an implication must in all cases be founded on the presumed
intention of the parties and upon reason, and will only be made
when it is necessary in order to give the transaction that efficacy
that both parties must have intended it to have."
Further, at page 122:
"If the contract is effective without the suggested term and is
capable of being fulfilled as it stands, generally speaking an im
plication ought not to be made." ARGUME:N"T OF MR. DE VILLIERS
Then at page 123:
"Where, though 1here has been no frustrating event putting an
end to the contract, a turn of events has occurred which was not
contemplated by the parties to the contract, the court is not thereby
entitled to qualify the contract for the purpose of doing what
seems toit just and reasonable."
I also have a quotation from the well-known work of the American
author, Williston, On Contracts:
"620: Secondary rules: The writing will be interpreted if possible
so that it ~hall be effective and reasonable.
An interpretation which makes the contract or agreement lawful
will be preferred ov1~rone which would make it unlawful; an inter
pretation which reEders the contract or agreement valid and its
performance possible will be preferred to one which makes it void
or its performance impossible or meaningless; an interpretation
which makes the Cûntract or agreement fair and reasonable will
be preferred to one which leads to harsh or unreasonable results ..."
And then a qualification at the end:
"But the mere fact that parties have made an improvident
bargain will not lead a court to make unnatural implications or
artificial interpretationsA court will not under the guise of inter
pretation write a new contract for the parties." WillistoOnContracts
(Rev. ed.), Vol. 3, S,~c620.
I wish to conclude on that note with reference to Lord McNair's
work, The Law of Treatits:
"The rule of effectiveness must mean something more than
the duty of a triburial to giveefjectto a treaty; that is the obvions
and constant duty of a tribunal, that is what it is there to do.
The rule must surely mean, in the mind of the party involving it:
'If you (the tribumJ) do not construe the treaty in the way that
I submit to you to be correct, this treaty will failin its abject.' But
that is a petitio principi,because as has been submitted in the
previous chapter, it is the duty of a tribunal to ascertain and give
effect tothe intentio11,f the parties as expressein the wordsused by
!hem in the light of the surrounding circumstances. Many treaties
fail-and rightly fail-in their abject by reason of the words used,
and tribunals are properly reluctant to step in and modify or sup
plement the language of the treaty." (McNair, A. D. The Law of
Treaties (196r),p. 3.33.)
Mr. President, I havE emphasized these warnings, these cautionary
notes, perhaps to exces~. but I have done so with a purpose, because
we find that in the crudal aspects of the issues before the Court-in
questions which are es:;entially questions of interpretation-we find
contentions advanced by the Applicants using expressions somewhat
grandiose, somewhat swŒping, such as "the four sides of a quadrilateral
jural system", such as "an organized international community" with
"organs" that "replace" one another by virtue of a "doctrine of suc
cession" "explicit" in some cases and "implicit" in other cases. Those SOUTH WEST AFRICA
are expressions wlùch are used in questions of treaty interpretation.
We find recourse to a so-called "de facto carry-over of the responsibilities
of an entity which has forrnally been dissolved", and that "carry-over
principle" is distilled from statutory provisions in certain municipal
legal systems!
I am reminded that an eminent Australian judge once said that the
greatest of fallacies may be wrapped up in a felicitous phrase, or words
to that effect. And it will be my task, part of my task, Mr. President,
to analyze these phrases and these expressions in order to see what is
really wrapped up in them from the point of view of treaty interpretation,
from the point of view of ascertaining the intentions of the parties. In
particular, I shall have to analyze whether in effect the Courtis not being
invited by these contentions to revise the treaties instead of interpreting
them. I may be at fault, but it seems tome very difficult to understand
why it should be necessary to use all these high-sounding doctrines and
theories and bring them into the picture of a simple question of treaty
interpretation; of saying, in other words, what the words of the treaty
mean and what the treaties imply as a matter of tacit intent which was
so clear that the parties did not trouble to express it, as a matter that
went without saying.
But perhaps I am precursing my argument. I have corne to the end
of this section on principles of interpretation.
[Oral hearing of 3 October I962, a/ternoon]
Mr. President, in outlining the issues in regard to the First and
Second Objections yesterda y, I indicated that they concerned the effect
of the dissolution of the League upon certain pre-existing relationships
in regard to the Mandate. I propose to deal specifically now with certain
of those issues but, as a basis for doing so, it is necessary to go back
in order to find what those pre-existing relationships were in the lifetime
of the League of Nations, because that is where the issues betwecn the
Parties commence. ln order to ascertain what the effect was of dissolution
of the League on what went before, one must have absolute clarity
first as regards the position that went before. Now, fortunately, not
everything in that regard is contentious or in issue between the Parties.
There are certain aspects of those pre-existing relationships that may
be said to be common cause, or at any rate they do not appear to be
contested in the written Pleadings which are before the Court. I could
indicate certain of those features very briefly and broadly without the
elaboration with which they have already been dealt with in our Pre
liminary Objections. \Ve deal in our Preliminary Objections, at pages
300-307 (1) with what we term the contractual origin and effect of the
Mandate. In essence, we point out there that the Mandate System was
brought into existence by a process of international agreement. It
came about-this constitution of the Mandate System-in virtually
two stages. The first stage was the international compromise agreement,
which became Article 22 of the Covenant of the League. That Article
provided for a Mandate System to be constituted. It provided for the
agreed idealistic objectives of such a system; it provided for agreed
methods whereby the system would be put into operation; and it pro
vided for agreed features that would be incorporated in such a system
substantively, corresponding to the sacred trust and, procedurally,
to the securities for the performance of that trust. But Article 22 did ARGUMENT OF MR. DE VILLIERS
not itself purport to put the Mandate System into operation. For that,
such further steps as e<mtemplated in Article 22 itself were necessary.
Article 22 was an agreement internationally between the Members of
the League, as such, regarding a Mandate System to be constituted in
terms thereof; but the system would only corne into operation upon
specific agreements by specific mandatories to undertake a Mandate in
accordance with Articl':! 22, with reference to a particular mandated
territory. It would only be upon that act of specific consent to an
international agreement that the Mandatories would acquire the rights
under the Mandate System, and incur for themselves the international
obligations envisaged therein. '
That is then what happened in what one might term the second phase
ofthe constitution of the Mandate System. That, in itself, really partook
of two portions. One was the allocation of the Mandates to particular
Mandatory Powers by 1he Principal Allied and Associated Powers, and
the tentative agreement between those Powers and the specific Man
datories about terms and provisions to go into the particular Mandate
Agreement. And the other part of it was the agreement as between
each Mandatory and the Council of the League, in regard to the particular
Mandate to be issued te, the particular Mandatory.
All that took place, Mr. President, in pursuance of international
agreement, because the Principal Allied Powers acted in pursuance of
Articles rr8 and rr9 of the Treaty of Versailles, by which the power
of disposal over those German possessions had been granted to thèm.
The Council of the Lec.gue, in turn, in coming to agreement with the
Man<latories, acted in pursuance of paragraph 8 of Article 22 of the
Covenant which specifically authorized the Council to do that, the
Covenant itself and the Treaty of Versailles itself both being inter
national treaties or conventions. So that the origin-the basis-of
the whole Mandate System was international agreement. The contractual
consequences of the Mandate were, for the Mandatory, the powers and
the rights obtained and the obligations accepted through the voluntary
agreement of each Mandatory to each l'l!andate instrument, to the terms
set forth therein. The powers and the rights and the obligations could
be described as international in the sense that they were valid against
other international persons as powers and rights; they were owed to
other international persons as obligations. And they were contrac
tual because they were in force by reason of an operative agreement,
the Mandate being an agreement betwecn the Council of the League
representing the League of Nations and, possibly, also its Members,
and the Mandatory on ·::beother hand.
Therefore, Mr. President (I am putting the matter very briefly-it
is dealt with more fully in the Preliminary Objections), if, at any stage
during the existence of the League, the question had arisen whether
the Mandate could be regarded as a treaty or convention in force, then
the answer would obviJusly have been "yes-it is in force as an inter
national agreement between its parties"-those parties being, as indicated
before, the Mandatory on the one hand, and the League, and/or its
Mcmbers on the other band. The question of parties will be dealt with
further (I will deal with it later) in order to emphasize the importance
of membership of the league in regard to the question of being a party
to the Mandate Agreement. But, for the moment, I merely want to
point out that it does not appear to be disputed, in the written Pleadings66 SOUTH WEST AFRICA
before the Court, that the circle of parties did not extend wider than
the Mandatory, on the one hand, and the League and/or its Members, on
the other hand. We deal, in the Preliminary Objections (at pp. 307-308 (1)
para. 14, of our Chapter III) with the süuation in regard to the Principal
Allied and Associated Powers. Our submission is briefly that to role
which they played in the constitution of the Mandatory System was a
transitory one. They had the power of disposal of the colonies and
possessions-they, as it were, brought them into the Mandate System
but, thereafter, in the agreements which were actually forged (in Arti
cle 22and in the actual Mandate Agreements-the Mandate instruments)
no specific role was provided for on the part of the Principal Powers
as such. They would not be parties between whom and the Mandatory
a contract or international agreement wouid operate. They, as it were,
brought the possessions into the Mandate System and then they retired
further from the operation of that system. They would, of course, take
part in the operation of the system, either as individual Mandatory
Powers in some cases, or as Members of the League and Members of the
Council, in other instances, but not as Principal Powers, as such.
We deal also, Mr. President, at pages 358-359 (1) (that is paragraph 51
of Chapter III of the Preliminary Objections) with the position regarding
the inhabitants of the territory and we point out, for the reasons there
dealt with, that they could not possibly have been regarded as being
parties to an international agreement-the Mandate Agreement. The
circle, therefore, was confinedto the Mandatory and the League and/or
its Members, and that proposition, and indeed the fact that the Mandate
operated in the lifetime of the League as an international agreement
as a treaty or convention--<loes not appear to be contested by the
Applicants. I will proceed then on the basis that they are not contested.
If they should be, in the course of these proceedings, I will deal with
them further, but I use them as a basis for the further argument of
the issues between the parties in regard to the First and Second Objections.
Mr. President, in submitting that the Mandate had this contractual
effect to which I have referred, we must not be understood as suggesting
that its effect was contractual only. We are fully aware of the dis
tinction drawn in the 1950 Advisory Opinions-particularly elaborated
in the separate Opinion of Sir Arnold McNair-between the operation
of the Mandate as a treaty or convention and its operation as an objective
real institution which could exist independently of operation of an inter
national agreement. That distinction appears also to have formed the
basis of the reasoning in the majority Opinion, although it was not quite
so fully elaborated as in the Opinion of Sir Arnold McNair,
I have already indicated that for purposes of argument we assume
in these proceedings that that distinction is a sound one and that the
Mandate did have this additional operation-this operation of being
a real, or objective, institution, in additito having a contractual oper
ation.But the point-the only point I wish to make at the moment-is
that, as appears from the Opinions in 1950 themselves, that contemplated
objective or real operation was seen as being something additional
to the contractual, and not as something that displaced the contractual
operation.
As I shall have to deal with that distinction in more detail later,
and for that purpose I will then refer to the wording of the 1950 Opinions ARGUMENT OF MR. DE VILLIERS
in that respect, I shall n-:itdo so at this stage, in order to avoid repetition
on that point.
I proceed to deal with one of the first, and one of the most important,
issues relating to the First and Second Objections. That is the effect of
the dissolution of the L,~ague upon the Mandatory's obligations relative
to supervision on the part of the League organs, generally referred to
as the supervisory fonctions of the League. And our broad contention
is, as I have indicated llefore, that in this respect the obligation on the
part of the Mandatory was terminated completely on the dissolution
of the League and tht: obligation was not converted into a similar
obligation of report ar,d accountability to any organ of the United
Nations. This is a matter that was dealt with in the 1950 proceedings
and the Court decided on the question, with a majority of 12 to 2, in
favour of a ruling that there was now an obligation on the Mandatory
to report and account to the General Assembly of the United Nations.
Itis particularly in that respect that we submit that there is information
ofvery vital importanc,~ which is now put before the Court, which was
not before the Court in 1950, and which particularly renders desirable
a full reconsideration ofthis whole question.
We elaborate our aq;'Ument in this regard fully in the Preliminary
Objections. But in ordn to deal with the issues that have now arisen
between us and the Applicants in that regard, I will, as a basis of my
argument, have to restate certain of those elements which have been
dealt with in the Prelirninary Objections very briefly and without full
elaboration. I willstate them merely as a basis for bringing me to the
crucial issues between the two Parties.
ln the Preliminary Objections we point out that this element of report
and accountability to the Council of the League as a supervisory autho
rity was something which brought about a measure of resemblance
between the international mandate institution and the municipal law
institute of a mandatum; it is an element of resemblance, of broad
resemblance. One does not say that those two institutions could be
assimilated to one another, because the international Mandate institution
also had other elements, other elements which brought about broad
resemblance with the trust institution and with the tutelage institution
of municipal law.
We point out further that this element was an innovation in the
history of the government of backward communities which was considered
to be of very great pnctical importance, as compared with previous
avowals of a sacred trust in colonial administration and even earlier
international arrangemenh or agreements which had recognized sub
stantive obligations of :mcred trust and tutelage in that regard. It was
considered to be an important element. How important, and of what
determinative value in the mandate as a legal concept, is a different
matter with which I wül deal later.
We point out furthe1 that although it is customary to speak in this
regard of "supervisory fonctions of the League", of "League supervision"
and so forth, those are not expressions that were used in the actual
Mandate instruments or in the Covenant itself. They are descriptions
which really follow from the obligation undertaken by the Mandatory
to report to the Council of the League. The only specific provisions in
the Mandate treaties-including in that description the Covenant of the
League-relevant to this obligation are to be found in paragraph 7 of68 SOUTH WEST AFRICA
Article 22 providing for a report to the Council of the League; para
graph 9 of Article22 providing for the Permanent Mandates Commission,
and then in Article 6 of the Mandate Agreement itself. In all cases the
matter is put on the basis of an obligation on the part of the Mandatory
to report to the Council. The element of account of which we speak
really emanates from the wording of Article 6 in that respect where it
says tha t this report shall be:
"to the satisfaction of the Council, containing full information
with regard to the territory, and indicating the measures taken to
carry out the obligations assumed under Articles 2, 3, 4 and 5".
In other words, the essence of this reporting was to indicate to the
international supervisory authority what the Mandatory was actually
doing with a view to fulfilment of the substantive obligations under
taken in the earlier portion of the Mandate Agreement. Itwas in that
sense then that the Mandatory was said to be under an obligation not
only to report but also to account to the supervisory authority, the
Council of the League. And the description of the Council as a super
visory authority really only follows from the Mandatory's agreement,
the Mandatory's consent, to accept this obligation to report and account.
And so, for instance, Mr. President, we refer to a similar type of
substantive obligation undertaken by all League Members in Article
23 (b) of the Covenant, where they stated that:
"Subject to and in accordance with the provisions of international
conventions existing or hereafter to be agreed upon, the Members
of the League undertake to secure just treatment of the native
inhabitants of territories under their control."
That could historically be said to be the forerunner of Chapter XI
of the Charter of the United Nations.
Now, there was a substantive obligation undertaken similar to the
substantive obligations in the various Mandate agreements; but in the
absence of a complementary agreement-rather supplementary agree
ment-providing for report to a supervisory authority, there has never
been any suggestion that that was an obligation to be undertaken under
the supervision of the League. There has never been any suggestion
that the League had any supervisory fonctions in regard to an obligation
of that kind.
Therefore the essence of looking at the League as a supervisory author
ity is really the Mandatory's voluntary undertaking of the obligation of
report and accountability.
Again, and it is necessary to get this clear at the outset, the procedure
in regard to petitions being sent to this supervisory authority appears
to have been entirely subsidiary and dependent upon the fact that the
Council was the supervisory authority. Petitions were sent in fact,
and the Council then had to evolve some form of procedure as to how
petitions would be dealt with. From that emanated the rules which
provided for petitions to be forwarded through the Mandatory so as to
give the Mandatory an opportunity of commenting on the petitions.
But the petitions went to the Council because the Council was the
supervisory authority, and the Council was the supervisory authority
because of the obligation to report and account as undertaken by the
Mandatory. So everything in this regard also revolves around that
fundamental obligation as undertaken by the Mandatory. ARGUMENT OF MR. DE VILLIERS
69
The source and the c-rigin of this obligation to report and account
was contractual in the ;ense which I have indicated; the Mandatory
becoming bound to it by its agreement to Article 6 of the Mandate.
If one further bears in mind the suggested distinction by analogy which
Sir Arnold McNair employed in 1950 as between persona! rights and
obligations on the one hand, and real rights and obligations on the other,
I would submit with n:spect that by its very nature this obligation
would have to be classified as a persona! one. One can understand that
obligations to deal with property, to deal with a terri tory, to deal
with powers of administration of a territory, for a trust purpose-that
substantive obligations of that kind could be regarded as obligations
which affect the property itself; which affect territory, by analogy, itself,
and which could be said to be something of the nature of an onus reale
resting upon the power or the title to that property or to that terri tory.
But when it cornes to an obligation of a procedural kind, an obligation
to report to an outside body, to a third party not involved in the trust
itself, to a supervisory body, in regard to the manner of discharge of
substantive trust obliga-i:ions, then that surely by its nature would be
persona!. It could hardly be said to be something affecting the property
itself, or the title to the property. But that is not a matter of particular
importance. However on,3views the matter in that regard, the important
question is, does one regud this obligation of report and accountability
as being an element of the Mandate which was severable from the other
aspects of the Mandate, or must it be regarded as being an integral
portion of such a kind as to be totally inseverable from other aspects
of the Mandate instituti,)n. A question of severability or inseverability
is of course, in the case of something which grows out of agreement,
always to be related ba,:k to the common intent of the parties which
brought that institution into existence by their agreement.
The consequences of regarding this obligation to report and account
as being an absolutely :-1ecessaryinseverable element of the Mandate
institution, as it was conceived by its founders, would be that if one
should corne to the cor,clusion that this particular obligation ceased
to exist, that it could no longer be capable of performance, then the
whole Mandate institution would have to faU to the ground and would
have to be regarded as having lapsed, because of the premise of insevera
bility between this element and the rest of the Mandate institution.
That, however, was not the view of the situation which is apparent from
the Opinion in 1950. lndt:ed, if we take first the separate, or shall we say
in this regard, the minmity Opinions of Sir Arnold McNair and Judge
Read-because the position in that respect can be demonstrated most
easily in the case of these opinions-they actually found that the obliga
tion to report and account had lapsed, but that the Mandate as an
institution in other respects still remained in existence. Judge Read,
indeed, emphasized specifically this element of severability which ex
isted in his view. I think that is to be found at page 165 of the 1950
Opinions where he said:
"This third class of obligations [i.e. those under Articles 6 and 7
of the Mandate] was the new element in the Mandates System, and
its importance should not be underrated. At the same time it should
not be overestimated. The disappearance of the obligations included
in the first and the second classes would bring the Mandates System70 SOUTH WEST AFRICA
to an end. [They are the substantive obligations.] The disappearance
of the regime of report, accountability, supervision and modification,
through the Council and the Permanent Mandates Commission,
might weaken the Mandates System; but it would not bring it to
an end. As a matter of fact, the record shows that the paralysis of
those agencies during six war years had no detrimental effect
upon the maintenance of the well-being and development of the
peoples."
So here is a very explicit sfatement of the view of severability, and
indeed, as I pointed out, the very conclusion arrived at in this opinion,
as in the Opinion of Sir Arnold McNair, followed upon that basis.
But, Mr. President, the same view emerges on analysis from the
majority Opinion of the Court. The majority Opinion dealt first with
the question whether the Mandate seen as a status-seen as title on a
Mandatory's part on the one hand and substantive obligations, as set
forth in Article2 to 5, on the other hand-was still in existence. In dealing
with the obligations, the Court dealt fust with the substantive obligations
as set forth in Articles 2 to 5; and at page 133 of the Opinion, these
obligations are referredto as follows:
"These obligations represent the very essence of the sacred
trnst of civilization. Their raison d'Btreand original object remain.
Since their fulfilment did not depend on the existence of the League
of Nations, they could not be brought to an end merely because
this supervisory organ ceased to exist. Nor could the right of the
population to have the Territory administered in accordance with
these rules depend thereon."
I emphasize that their fulfilment did not depend upon the existence
of the League of Nations and they could, therefore, not be brought
to an end merely because this supervisory organ ceased to exist. Already,
by strong implication, the Court intimates there that the continued
operation or existence of the Mandate, including these substantive
trust obligations, was not dependent upon there being a supervisory
organ or upon reporting to a supervisory organ. That is the prima facie
intimation which we find at this stage of the Opinion. \Ve find that
intimation confirmed by various other considerations in this Opinion.
The majority of the Court proceeded in the next ensuing pages of
the Opinion, up to the top of page 136, ta deal with its condusion
and its reasons for the conclusion that the Mandate survived the League.
It deals with those reasons, and it states its conclusion, without having
regard at all at that stage to the question whether the obligation under
Article 6 relative to supervision-reporting and accounting-whether
that obligation is still in existence. Surely, if the view of the Court had
been total inseverability between the obligation to report and account
and the other aspects of the Mandate institution, then it could not corne
to a positive conclusion as to the continued existence of the Mandate
institution in other respects before having regard to the question
whether Article 6 survived in some form or another. Yet the Court did
so, and therefore I submit the indications are very clear that the Court
itself regarded the obligation under Article 6 as being severable from
the other aspects of the Mandate institution. The Court very clearly
in the passages as from page 133 to page 136 referred several times to
conclusions already reached by it; particularly at the top of page 136 ARGUMENT OF .MR. DE VILLIERS 71
certain statements on the part of the Mandatory were referred to and
the Court concluded: "In this case the declarations of the Union of
South Africa support the conclusions already reached by the Court."
And it is only after reaching these conclusions that the Court proceeds
and says: "The Court will now consider the above-men tioned second
group of obligations." [Including, then, Article 6.J
The Court proceeded to indicate at page 136 that the obligation
incumbent upon a Mandatory State to accept international supervision
and to submit reports wa, an important part of the Mandate system. The
Court proceeded to describe it as something that was considered ne
cessary for effective performance of the sacred trust. Now that is not
a description of something which was regarded as absolutely necessary
as something without which the rest of the Mandate institution could
not exist at all. And therefore, I submit, Mr. President, that on analysis
it becomes very clear from the majority Opinion that it also regarded
the obligation to report and account as being severable from the rest
ofthe Mandate institution. And it is because of the premise upon which
we argue this case-becanse of the premise that the Opinions were correct
in 1950 to the extent of fi.nding that the Mandate as an objective in
stitution survived the Lcague~because of that premise, we also accept
for purposes of argument the premise of severability; so that a conclusion
that the obligation to report and account has terminated does not
necessarily result in a conclusion that the whole of the Mandate has also
terminated and lapsed.
The next aspect of this obligation to report and account, which I have
to stress as being of the utmost importance, is that its content was pre
cise;its content was to rEport and account to a specifi.cbody-the Coun
cil of the League-to its i;atisfaction. One can hardly think of something
more spccific, more precii;e; not a general, vague concept of reporting to
an international community, reporting to some international authority,
reporting to the community of nations, or the like. lt is very precise: a
specific organ of a speciJic internationalorganization and to the satis
faction not of the organiz:l.tion, but of that particular organ-theCouncil
of the League. That body-the organ-was constituted in terms of the
Covenant of the League under certain very specifi.c provisions which
provided for the manner in which the Council was to be composed and
for the manner in which the Council was to opera te, and particularly also
for the manner in which the Council was to act in relation to other
Members of the League or other States whose rights or interests might be
affected by any action on the part of the Council.
Therefore, Mr. President, when I refer to the fact that the content of
the obligation was precise in this sense, I am not referring to a technical
consideration in this regard. I am referring to something which, as all
the historical indications show, was of the utmost practical importance
to the contracting partie1; who brought the mandate system into exist
ence. It was of the utmo,;t practical importance because of the inherent
careful checks and balances that were to be found in the supervisory
system as devised in the Covenant of the League, and in the attendant
procedural arrangements in that regard, and already foreshadowed at the
Peace Conference, where the compromise agreement in regard to man
dates was entered into. Those checks and balances were specifi.cally so
devised as to protect the mandatories against interference with their
administration which might be imprudent or unwise or unfair in certain SOUTH WEST AFRICA
72
respects, and at the same time to have the effect, as was then considered
beneficial for the population in those territories, that the supervision
should carry within it a minimum of political element and a maximum
of an expert independent approach. When we analyze the arrangements
we find that in the first place the Council was composed as a relatively
small and select body of the Great Powers and certain other Powers with
them, and that the Council included within its number a number of
mandatory Powers-Powers, therefore, who would know the problems
of a mandatory, who would understand them, and who would be sym
pathetically inclined towards those problems and obstacles which a
mandatory Power might encounter.
We fmd, secondly, that there was a rule which required unanimity for
Council decisions and, thirdly, an attendant rule which required the
Council to accord session on the Council to any Member of the League
whose interests might be affected by a decision of the Council in a
particular case. So, that would in each case have included the mandatory
Power when the Council was about to take a decision affecting that
particular mandate.
Itdoes not matter for the purposes of my argument whether in these
circumstances we have to look at the unanimity requirement as involving
that the mandatory also had to agree to a Council decision in cases
affecting the Mandate, or whether it did not involve that. For purposes
of my argument I am perfectly prepared to assume that the mandatory's
vote was not required, and that unanimity was only required as far as the
other members of the Council were concerned. But even so, that in itself
was an extremely important, practical safeguard and check against un
due, against imprudent, against unfair interference with mandatory
administration.
Then we find that part of the system was that the Council was to be
advised by a Permanent Mandates Commission. This Mandates Com
mission was designedly composed not of political representatives of their
governments, but of independent experts, who employed a non-political,
impartial approach to their task as a supervisory authority-as they
expressed it in a very well-known passage which is cited in our Prelimi
nary Objections: "less as judges than as collaborators in a great cause".
And finally we find that this policy to which I have just referred-the
policy of co-operation, of acting less as judges than as collaborators
was not something which originated with the Permanent Mandates
Commission once it was formed, and once it started to function, but it was
something that was inherent in the very approach to the Mandates system
right from the very start and even foreshadowed at the Peace Conference
itself, as ,ve emphasized at pages 317-319 (I) of our Preliminary Objec
tions. I willtry to fi.ndthe exact page. Yes, 1 refer to the bottom of page
318 of our Preliminary Objections, where we have a citation of something
stated by Mr. Lloyd George at the Peace Conference on the 28th January
1919. [He]
"said that he agreed with M. Clemenceau that if the League of Na
tions were made an executive for purposes of governing, and charged
with fonctions which it would be unable to perform, it would be
destroyed from the beginning. But hc had not so interpreted the
mandatory principle when he had accepted it.
President Wilson said he too had not so interpreted it. ARG·UMENT OF MR. DE VILLIERS
73
Mr. Lloyd Georg,\ continuing, said that he regarded the system
merely as a general trusteeship upon defined conditions. Only when
those conditions were scandalously abused would the League of
Nations have the right to interfere and to call on the mandatory
for an explanation. For instance, should a mandatory allow foul
liquor to swamp the territories entrusted toit, the League of Nations
would have the right to insist on a remedy of the abuse"-
therefore, what I might term a conservative policy as regards the possibi
lity of interference with mandatory administration, and a policy which
did not only evolve in the lifetime of the League but which existed and
was foreshadowed even ;tt the Peace Conference, at the very birth of the
mandatory system.
All these factors, singlyand collectively, emphasize the practical im
portance of the fact that this obligation to report and account was
precise, as far asts content was concerned; and, when I emphasize that,
I am not speaking merEly of a technical consideration but of one that
was of the very essence of the arrangement, from a practical point of
view, from an equitable point of view.
That, indced, was in effect emphasized by the South African Prime
Minister on the very occasion when this compromise agreement was en
tered into in regard to the Mandates system, when at length Australia,
New Zealand and South Africa werc prevailed upon to agree to bring the
respective territories in which they were interested into the Mandates
system as "C" mandated. territories. He said on that very occasion-now
reading from page 318 (I) of the Preliminary Objections-that:
"Personally he felt very strongly about the question of German
South-West Africa. He thought that it differed entirely from any
question that they had to decide in this conference, but he would be
prepared tosay tha:; he was a supporter of the document handed in
that morning, because he knew that, if the idea fructified, the League
of Nations would consist mostly of the same people who were present
there that day who understood the position and who would not
make it impossible for any mandatory to govern the country.
That was why he said he would accept it."
That emphasizes, precisely and specifically, why it was so important
for the parties to this compromise arrangement to know that the obliga
tion to report and account was one relating to a specific supervisory body
and no other.
In logic and in faimE·ss it, therefore, cannot be inferred that when
any mandatory Power was prepared to accept such an obligation, that
carried with it willingness to submit to supervision on the part of any
other supervisory authority not specified in the agreement at the time.
The situation is very much analagous to what we find in almost all
municipal legal systems, as far as I know, that when a master enters into
a contract of service with a servant which involves the personal relation
ship of supervision and control on the part of the master, then almost
invariably that is a contract which the master cannot assign without
the servant's specific consent, because it is of the essence of the very
arrangement that what the servant has agreed to is to serve a particular
master, to obey him and to obey his instructions, and not to obey some
body else who might be chosen as a cessionary by that master. SOUTH WEST AFRICA
74
I am speaking by way of a very broad analogy; but as a matter of
logic and as a matter of equity and fairness, those same considerations
enter into this arrangement between the mandatory Powers and the
other Members of the League regarding supervision of their mandatory
administration by the Council of the League, with the assistance of the
Permanent Mandates Commission, and in terms of the specific arrange
ments containing the checks and balances to which I have referred .
.M.r.President, because of the considerations which I have just stressed,
we give examples, in our Preliminary Objections at pages ro8-rog, of
what Mandatories clearly could not have been obliged to submit to,
during the lifetime of the League, because of their consent to the obliga
tions to report and account to the Council of the League. We give the
example, for instance, if States that were not Members of the League had
decided to form an organization, similar to the League, of their own. We
know that there were times when a very large number of civilized States
of the world did not belong to the League, and where it would not have
been completely inconceivable that they could have formed an organi
zation of their own. And suppose that in this international organization .
they provided for an organ which constitutionally would have been ca
pable of exercising supervisory fonctions over manda tory administration.
That, surely, alone, could not have made the Mandatory obliged to re
port and account to such an organ-to such a potential supervisory au
thority. Fresh consent, on the .M.andatory's part, would be required for
that purpose because the obligation would not only in form, but also in
substance, be a different obligation from that which the Mandatory under
took by its consent to the Mandate Agreement. Similarly, if we take some
of the international organizations which did corne into existence, such as
the International Labour Organisation, having for its Members largely
the same States that were Members of the League, surely, there again, the
same applies as in the case of the previous example. And even within the
League of Nations, if there should have been an alteration of the provisions
of the Covenant to the effect that supervision over mandatory admini
stration was now to be handled by the Assembly of the League instead
of the Council, and that the Assembly would, for that purpose, be able
to corne to a decision by a bare majority vote, or by a two-thirds majority
vote, then surely that, in itself, would again alter not only the form but
also the substance of the obligation for the Mandatory to submit to such
supervision. That could not take place without the Mandatory's consent.
Article 26 of the Covenant, indeed, makes that clear, in another sense,
because the Article is to the effect that if a valid amendment of the Cove
nant receives sufficient support, for the purposes of being valid, it will
operate but it willnot bind any Member of the League that may not have
supported it, although such a Member of the League may then lose it~
membership in the League. That is the effect of the Article, as I read it.
Therefore, in the case of those Mandatories who were also Members of
the League, if they were not prepared to assent to an alteration of the
kind which I have just mentioned by way of an example, the position
appears to be that they could qua Member of the League then be forced
out of the League, but they could not qua Mandatory, as a party to
the Mandate Agreement, be forced to accept that alteration as binding
upon them without their own consent.
We submit, therefore, Mr. President, that because of this precise
nature and content of the obligation, it necessarily came to an end with ARGUMENT OF MR. DE VILLIERS 75
the dissolution of the League; and upon there no longer being a Council
ofthe Lea~e, as envisaged in the obligation itself-the Council of the
League bemg the only impervisory body as to which there had been
agreement for purposes of this obligation, the Council of the League
being the body to do thE:supervision, to be satisfied with the reports
that Council falling away. the obligationbecame incapable ofperformance.
And we stress that an obligation to report and account conceming manda
tory administration to any organ of the United Nations, and particularly
if it wereto be the General Assembly of the United Nations, would, like
the examples which I have just mentioned, involve a difference in sub
stance, as well as in form, from the obligation undertaken by the Manda
tory in Article 6 of the Mandate with which we are dealing-and, indeed,
all Mandatories in respect of similar obligations in their Mandate.
The substantive aspect-the aspect of practical importance of this differ
ence-emerges in various respects. Again I emphasize that the distinction
is nota technical one, it ls one of the utmost practical importance.
In the first place, let u:, take it only on the basis of the legal situation.
The United Nations was t.y deliberate design, as the Court knows, not con
stituted a general successor of the League of Nations. We all know
what the position was, ii1 that regard, of certain of the major Powers,
particularly the United States and the Soviet Union, who took a leading
part in the formation of the United Nations, and who particularly did not
want any semblance of the United Nations being a successor of the
League. We know, therefore, that anything that might resemble such a
succession was studiously avoided. We know that, in so far as it was
desired to transfer certain assets of the League to the United Nations,
and in so far as it was regarded as desirable that the United Nations
should take over, or cor:,tinue, certain of the fonctions that had been
exercized by the League, :itwas necessary to make specific ad hoc arrange
ment for such transfer and for such assumption, or taking over, by the
United Nations and that was, in fact, done by a very elaborate arrange
ment.
We know that where (a.ndthis is where the practical importance of the
distinction cornes in) the United Nations Charter made provision for a
trusteeship system which would, broadly speaking, correspond to the
League Mandatory System, there were certain elements of very impor
tant practical difference, as far as supervision over trusteeship admin
istration was concerned. The supervisory body, what we might call of
the first instance, which would correspond broadly to the Permanent
Mandates Commission in "thecase of the League, would be the Trusteeship
Council; and the Trustecship Council, in contrast with the Permanent
Mandates Commission, would consist of political representatives of
govemments-of State Members of the United Nations. They would not
be independent experts with a non-political approach, but they would be
political representatives oftheir govemments who would, in the normal
course, receive instructions from their governments as to what political
attitude to adopt in part icular cases. One knows from experience that
that is how is does go at the United Nations-that is the general practice
and that is what is to be cxpected, and what must have been anticipated
in a system of this kind; thus there is a distinction, not only of a technical
nature, but one that could be of very major practical importance.
Secondly, we find that the ultimate supervisory authority, correspond
ing by analogy to the Council of the League, would be the General Assem- SOUTH WEST AFRICA
bly of the United Nations; nota small and select body inwhich Manda
tories could exercise some measure of influence, as was the case with the
Council. It would be the Plenary General Assembly of the United Nations,
consisting of all its Members, a large number of whom had never been
Members of the League at all.
Thirdly, instead of the unanimity rule which prevailed in the League
Council, decisions in the United Nations General Assembly could be
taken either by a bare majority, or by a two-thirds majority on im
portant questions, and, in the Security Council, in the event of trustee
ship over strategic areas, a decision could be taken by an affirmative 7
votes out of a total ofII,except of course for the veto-a possible veto
by one of the five Permanent Members. So, again, we have, in the very
structure of the supervisory machinery, these very imp9rtant differences,
which are unavoidable differences. They flow from the very structure of
the Organization and they render the distinction between supervision by
the one organization and supervision by the other not only a technical
one, but one of the utmost practical importance. In addition, there was,
in the case of the United Nations, no policy of conservatism as regards
possible interferencewith mandatory administration corresponding to the
policy which I outlined earlier this aftemoon in the case of the League.
Therefore, having regard to all these factors of difference, it is, in my
submission, a matter not only of technical law but also of logic and of
ordinary equity or fairness, that a Mandatory could not merely by
reason of its agreement to the obligation as originally set out in the Man
date Agreements to report and account to the Council ·ofthe League, be
held liable to report and account to any one of these supervisory bodies
on the part of the United Nations. There would have to be an act of fresh
consent, or assent, on the part of the Mandatory, in order to render it
Hable to such an obligation. The question, in essence, therefore-the
question regarding possible succession or non-succession in regard to
Article 6-that question revolves, in essence, around the enquiry whether
the Mandatory (the Respondent in this case) ever gave such consent by
any binding juristic act, expressly or impliedly.
[Public hearing 0/ 4 Octoberr962, morning}
Le PRÉSIDENT:L'audience est ouverte et j'ai le regret d'annoncer que
l'état de santé de M. Alfaro, Vice-Président, ne lui permet toujours pas
de prendre part à l'audience d'aujourd'hui.
La parole est à M. de Villiers.
Mr. DEVILLIERS:Mr. President, at the conclusion of yesterday's argu
ment, we came to the point where I submitted to the Court that the con
sent of the Mandatory-of the Respondent-to the Mandate agreement,
and particularly to Article 6 thereof, was not by itself sufficient to create
an obligation on the part of the Respondent to submit to an obligation
to report and account to an organ of the United Nations concerning
Mandatory administration; that for this latter purpose fresh consent
and agreement to such an obligation would be required on the part of
the Respondent; and that the inquiry is therefore to be directed to
this question whether such consent or agreement was ever given. I may
say, in passing, that in dealing yesterday with the differences, in sub
stance as well as in form, in supervision by United Nations agencies or
organs as against supervision by the League machinery, I omitted to ARGUMENT OF MR. DE VILLIERS 77
referthe Court to a passage which is very pertinent in that regard, in the
Advisory Opinion of thi; Court in 1955 concerning the Voting Procedure
on Questions relating to Reports and Petitions concerning the Territory of
South West Africa. At page 75 of that Opinion there occurs this passage:
"The voting syst·~m is related to the composition and fonctions
of the organ. It forms one of the characteristics of the constitution
of the organ. Takin~; decisions by a two-thirds rnajority vote or by a
simple majority vote is one of the distinguishing features of the
General Assembly, while the unanimity rule was one of the distin
guishing features of the Council of the League of Nations. These two
systems are charactcristic of different organs, and one system cannot
be substituted for the other without constitutional amendment."
I proceed, Mr. President, with this inquiry, whether there was ever any
fresh consent or agreemrnt on the Respondent's part to an obligation to
submit to United Nations supervision regarding the Mandate. And
immediately the further-1 might say component-questions present
themselves as to when and to whom such consent could conceivably
have been given. As regards the time when it could have been given, that
could possibly have beeu any time as from 1920 until now, but, more
probably, when historiccJ events are taken into account, if such consent
had been given at all, one would have expected it to have been given
during the period which we, for convenience, called the period of tran
sition, meaning thereby, transition generally in world organization as
from the era of the Leag,1eof Nations to that of the United Nations; the
period, in other words, rç,45to 1946 when the United Nations was formed,
when it was constituted, when it was set into operation and when the
League was disbanded a:nd eventually dissolved. One would expect that
if there was consent to au obligation to submit to supervision on the part
of the United Nations, it would have been given either during that period
or possibly shortly thereafter. Again, as to possible parties to whom such
consent could have been given, one would have expected either the
Members of the United Nations, or the United Nations as an organization,
or the Members of the Li:ague, or the League as an organization, or to all
these groups that I have mentioned. There are variants within this num
ber, of course, but that appears to be the circle within which one could
expect that such a consent would have been given, if at all.
Now, it seems to be common cause that such consent was never
expressly given; nowhere in the pleadings do the Applicants allege
that such consent was ever expressly given. Indeed, in the major
ity Opinion of 1950, there was a specific acknowledgment that there was
never such express arrangement. One finds that at page 136 of the
Opinion: "Sorne doubt might arise from the fact that the supervisory
fonctions of the League with respect to Mandated territories not placed
under the new trusteeship system were neither expressly transferred to
the United Nations nor ·~xpresslyassumed by that Organization." That,
of course, refers to a gem:ral transfer of fonctions, but also more specific
ally to the case of the F'.espondent. The Court nowhere finds that there
was any express submission to supervision by United Nations supervisory
machinery. And the qm:stion that remains, therefore, is whether such
consent was ever given tacitly. On the principles with which I dealt
yesterday, the inquiry would therefore have to be whether, from all the
relevant evidential data, there can be drawn a necessary inference of such SOUTH WEST AFRICA
tacit consent, necessary in the sense of excluding all other reasonable
inferences and of being consistent with all the relevant facts.
In the 1950 proceedings, if I understand those opinions correctly, the
Court differed on that question whether on the facts and information
as then presented to the Court, such a necessary inference could be
drawn. That is why it is of such extreme importance, as I stressed yester
day, that we are presenting tothe Court further. evidential data, further
evidential material, which we submit to be of utmost importance and
which, in substance, alters the totality of the facts from which aninference
is to be drawn, so that this Court need not be placed in the position of
having to choose between the reasoning of the majority and the minority
in the 1950 proceedings on this particular question. The question is, in
substance, a new one on the evidential material that is now presented to
the Court. I will deal with the question of what the evidence shows and
of what inferences are to be drawn from the evidence. I will deal with
that first in the light of the facts as now before the Court, and I shall
stress afterwards the particular significance in that regard of material
which is now before the Court and which was not so in 1950.
First of all, when regard is had to the Charter of the United Nations,
we find that it makes specific provision for United Nations supervision of
administration under trusteeship agreements voluntarily entered into,
but it makes no mention of any supervision in regard to Mandates not
converted into trusteeship. This indicates in our submission, Mr.
President, at least prima facie,that on the part of the authors of the
Charter there was never any contemplation of such supervision of Man
datory administration in the case of a Mandate not converted into
trusteeship. Or alternatively, if there was any such contemplation at all,
it was left for subsequent arrangement-something additional to the
Charter, something subsequent to the Charter, something possibly by
way of amendment of the Charter-but the Charter itself made no
provision therefor. In addition, during the San Francisco Conference, the
Respondent's representative made a statement which we set out in the
Preliminary Objections at pages 237-238 (I) and that statement read asa
whole, Mr. President, renders clear, in our submission, that on the part of
South Africa there was no intention at that stage to be committed to the
United Nations in any respect in regard to South West Africa, either in
regard to entering into trusteeship agreement or in regard to any other
arrangement. ln fact, the statement makes it clear, if we refer to the por
tion at page 238 of the Preliminary Objections, that the whole question of
this daim which South Africa intended to put forward as regards in
corporation of South West Africa into the Union, as at that time, was
intended to be presented at that stage not to the United Nations itself,
but to a peace conference that was apparently contemplated at that stage.
We read at the top of page 238:
"The Delegation of the Union of South Africa therefore daims that
the Mandate should be terminated and that the territory should be
incorporated as part of the Union of South Africa.
As territorial questions are however reserved for handling at the
later Peace Conference where the Union of South Africa intends to
raise this matter, it is here only mentioned for the information of the
Conference in connection with the Mandates question."
The implication then is clear, that what was intimated by the South ARC"UMENT OF MR. DE VILLIERS 79
African representative was that the other delegates were to understand
clearly that there was to be no commitment as far as South ·west Africa
was concerned on the part of the Union towards the United Nations.
That is rendered further clear by a comment in the very next paragraph,
at page 238 (1) of our Preliminary Objections, when there was about a
year later a reference ba-:k to this statement by Field-Marshal Smuts. He
stated there that the purpose of this statement was that such con
sideration of this question should not be prejudiced by any prior com
mitment on the part of the Union Govemment by virtue of its member
ship of any organizatiorr which might replace the League of Nations.
So, when these factors are taken into account, it seems most unlikely
that there could have been any tacit understanding on the part of the
founders of the Unite<l Nations, including the Respondent, to the
effect that there would be United Nations supervision in respect of
Mandates not converted into trusteeship.
But in any event, Mr. President, there is a further wayoftestingwheth
er there was any such contemplation, and that is this consideration,
namely that if there haé,been any such understanding one would surely
have ex'pected it to have been raised in some way or other during the
deliberations of the Preparatory Commission and the first portion of the
first session of the United Nations General Assembly, when special atten
tion was given in the two resolutions-XIV and Xl-to the question of the
taking over of certain as:;ets and also certain functions and powers oy the
United Nations as from i:he League of Nations. If there had been contem
plation, as I say, of such supervision over Mandates not converted into
trusteeship, that would have been the stage at which one would have ex
pected it to have corne to light and to have been mentioned, and that
would therefore afford a next testing point at which one can see whether
there could have been such a contemplation at all.
Mr. President, we d1:al very fully, in the Preliminary Objections
at pages 239-247 (1) fü1d then again at pages 325-328, with the two
resolutions XI and XIV. as adopted at the first part of the First Session
of the United Nations General Assembly in London in early 1946, and
the history-the preceding history-of these resolutions in the Pre
paratory Commission and its Committees.
I will not go into that malter fully again. I merely wish to draw
attention to some of th,~ very pertinent indications of intent, as far as
is relevant for our argument-our present purposes-that are afforded
by this portion of the record.
Now, our submission is that these resolutions and their history
show very clearly that the United Nations did not consider itself to
be a successor in Iaw automatically to any of the League assets or
functions, and that the founders of the United Nations, therefore,
contemplated special affangements for the transfer of particular League
assets and for the assurnption of particular functions and powers; and
when it came to the furrctions and powers they even took trouble, at
the instance of certain d~legations, to avoid the word "transfer'' because
those delegations expressed the fear that the use of that expression
might, and I quote from the United Nations records, "imply a legal
continuity which would not in fact exist". We deal with that point in
the Preliminary Objections at page 241 (1) and we give the references to
that portion of the debate.
It was that concem which resulted in an alteration of the wording in80 SOUTH WEST AFRICA
these arrangements. The Committees and Sub-Committees had initially
proposed a "transfer" of fonctions and powers, and that word was
altered later to "assumption" on the part of the United Nations of
particular fonctions and powers.
Resolution XIV was the one that dealt with this transfer of assets
and assumption of powers, and it contained in its Part I, paragraph 3 (B),
which we cite at page 242 (1) of our Preliminary Objections a statement
of general willingness on the part of the General Assembly of the United
Nations to continue to exercise certain League fonctions. But when
regard is had to the wording one finds that this was confined to rion
political fonctions. When it came to political fonctions, there was a
different part of the resolution which dealt with that. It was Part I,
paragraph 3 (C), which we cite in our Preliminary Objections at
pages 242-243 (1), and there the Court will see that the provision was
that:
"The General Assembly will itself examine, or will submit to the
appropriate organ of the United Nations, any request from the
parties that the United Nations should assume the exercise of
fonctions or powers entrusted to the League of Nations by treaties,
international conventions, agreements and other instruments having
a political character ..."
So, if resolution XIV could be regarded as being possibly appropriate
at all to a question of supervision of Mandatory administration, which
was a political matter, then the matter would have had to be dealt with
in terms of this portion of resolution XIV.
But, on analysis, Mr. President, it will be found that from a practical
point of view the procedure as envisaged here could hardly have been
regarded as being appropriate to the case of mandates, particularly if
one viewed mandates as being an arrangement as between a Mandatory,
on the one hand, and the League of Nations and/or all the Members
of the League, on the other hand. It would not be easy to arrange a
request from the parties under circumstances of that kind. Therefore
it is not surprising to find in the history of this resolution that, on the
part of its proposers at any rate, it was not designed to cover the
case of Mandatory administration or supervision over Mandatory
administration; because if we look back in the history to the Committees
and the Sub-Committees, we find that at an early stage an exception
was made in regard to Mandates. There was stated-the Court will
find that at page 239 (1) of our Preliminary Objections-that:
"Since the questions arising from the winding up of the Mandate
system are dealt with in Part III, Chapter IV, no recommendation
on this subject is included here."
If we trace that through the documents we find that perhaps that
reference to "Part III, Chapter IV" is not very apt. But we do trace
in the history of resolution XI, which dealt with the putting into
operation of the trusteeship system, that there was a special reference
to this question of supervision of Mandatory administration. We find
that dealt with in the Preliminary Objections at page 244 (1). The only
point I wish to make at the moment is that that indicates clearly that
resolution XIV was not even intended, by its proposers at any rate, ARGFMENT OF MR. DE VILLIERS Sr
to cover the case of Mandatory administration or supervision in respect
thereof.
When we then corne t,J resolution XI and its history, we find that
the proposal in the Execu-~iveCommittee of the Preparatory Commission
was that there should bt constituted a Temporary Trusteeship Council
and that its fonctions would be inter alia to
"advise the General Assembly on any matters that might arise
with regard to the transfer to·the United Nations of any functions
and responsibilities hitherto cxercised under the Mandates system".
(Doc. PC/EX/u3/Rev. r, 12th November, 1945, p. 56.)
So here, then, was a specific, express proposal to do something in
regard to the possible transfer to the United Nations of fonctions of
the League regarding Mandates. But, Mr. President, we fmd in the further
history of this resolutior, XI that this proposai was not adopted. It
was dropped in the Preparatory Commission itself and nothing was
substituted for it in regard to possible transfer of, or assumption by,
the United Nations of League fonctions in regard to Mandates. The
proposa! was dropped, nothing was substituted for it, and in the end
we find that resolution XI in effect merely urged the Mandatory Powers
to submit trusteeship agreements as soon as possible. That is the effect
of the resolution. We cite the resolution at page 247 (1) of the Prelimi
nary Objections, and we deal with it again at page 327 (1).
The Asscmbly knew by that time that in certain cases such trusteeship
agreements would not bt submitted. lt knew, by reason of the reser
vations that South Africa had made, that South Africa would not be
submitting a trusteeship agreement, that the position was still one
where the population would be consulted in regard to a possible
incorporation into the Union. And it also knew in regard to Palestine
that the United Kingdom had said specifically that the matter was
subject to an enquiry by the Anglo-American Commission of Inquiry
and that for the time being no proposals would be made in regard to
Palestine at all. Even in the case of the former Japanese Mandate the
position was completely uncertain and nobody knew exactly what was
going to happen.
the outstanding features of the history of those
These, therefore, are
two resolutions as they a,:e pertinent for our purposes, and they, in my
submission, demonstrate very clearly that there could not have been
a tacit understanding on the part of the founders of the United Nations
to the effect that supervisory fonctions of the League regarding Mandates
not converted into trusi:eeship would be transferred to the United
Nations without anything more being required to be done in that regard.
In the first place, the Members of the United Nations must have
realized that if there was to be any such transfer, then co-operation
on the part of the League itself would be required for that purpose.
To demonstrate that by way of an extreme: Suppose the League at the
last meeting of its Assembly had decided that all Mandates should be
cancelled-there was at one stage some talk of that possibility-but
let us suppose that had been a possible resolution on the part of the
League Assembly at its hst meeting. Then, on that basis, there would
have been nothing to transfer. There would have been nothing to assume
on the part of the United Nations. And, surely, there must have been 82 SOUTH WEST AFRICA
that contemplation-that knowledge--on the part of the founders of
the United Nations that, for this reason, some co-operation on the
part of the League itself would be required if there was to be such a
transfer. In fact, in regard to all the other transfers there was such
co-operation, and it was expected beforehand; it was actually solicited
by the United Nations. It was expected, and it was solicited by the
form of resolution XIV, taken at the first portion of the First Assembly
meeting. That resolution was laid before the League Assembly at its
last session and it served as a basis for corresponding resolutions taken
at that last session of the League, so that the matter of a transfer of
assetsand an assumption of fonctions and powers could be arranged
so far as was necessary by way of co-operation between these two
organizations and representatives thereof. Therefore again, in the case
of possible taking over of supervision in respect of Mandatory adminis
tration, the realization must have been that there would have to be
similar co-operation, and, for that reason alone, it seems most unlikely
that the matter would have been left to a tacit understanding and that
there would not have been some express arrangement about it, if that
had been the contemplation. Indeed, when we find that there is a concern
not to imply a legal continuity which would in fact not exist, if we find
that all the elaborate arrangements are made in the other respects for a
transfer of assets' and assumption of fonctions and powers, one cannot
understand why this question in regard to mandates supervision should
have been regarded as something that "went without saying".
The very proposai, Mr. President, which existed at one stage for a
Temporary Trusteeship Council, that proposai showed that there could
not have been a general contemplation that this was a matter that
spoke for itself, that did not require special and explicit arrangements.
The mere fact that there was such a proposa! shows that there was a
contemplation that if there was to be a transfer of fonctions in this
regard it would have to be specially provided for. But that proposai,
as I have pointed out, fell away eventually. The inference appears to
be that it did not obtain sufficient support in order to be adopted as
portion of a resolution. I cannot put it higher than that. I cannot say
that that must necessarily have been the position, but there is at least
a strong indication of probability that that proposai could not obtain
suffi.cient support, and therefore the indications of probability are
against there having been a general contemplation, tacit or otherwise,
that there would be a transfer of League fonctions of supervision in
regard to Mandatory administration.
The probabilities are much rather that the contemplation was that
this would be a matter to be Ieft to individual treatment in every case.
Each one of the Mandatories, except for the case of the previousJ apanese
Mandate, had made a statement regarding its position-its intentions
in regard to the mandated territories. There were the differences per
taining to the various cases, and the probabilities are that the general
contemplation was that each case would be dealt with separately and
that an appropriate arrangement would be found in each case.
Mr. President, Iturn next to the proceedings at the last session of the
League Assembly, with a view to seeing what evidence those proceedings
provide as regards this question ofintent-intent on the question whether
any League supervisory fonctions regarding Mandates were to be trans
ferred to the United Nations in cases outside of trusteeship. ARGUMENT OF MR. DE VILLIERS
We find that, after c,Jnsideration of the United Nations resolution
XIV, the League Assembly adopted resolutions to facilitate the assump
tion by the United Nations of League fonctions, powers and activities,
but the resolution was cnnfined to functions, powers and activities of a
non-political character. In regard to those of a political character there
was no resolution at all011the League side. Obviously, then, the intention
must have been to leave these in general to the ad hoc treatment which
had been envisaged in the United Nations resolution XI V, part I, 3 C~
the one that I read to the Court before-namely a specific request from
the parties in each case to be specifically dealt with by the United Nations
organs.
Now, more particularl:r in regard to Mandates, we find a very signifi
cant indication of intent in the history revolving around the original
proposal by China, which is set out at page 253 (1) of our Preliminary
Objections. The Court will find that that proposal-the draft resolution
proposed-reads as follows;
"The Assembly:
Considering that the Trusteeship Council of the United Nations
has not yet been constituted and that all mandated territories under
the League have not been transformed into territories under trustee
ship;
Considering that 1:he League fonctions as supervisory organ for
mandated territorie:; should be transferred to the United Nations
after the dissolution of the League in order to avoid a period of
interregnum in the supervision of the mandated territories:
Recommends that the mandatory Powers as well as those admin
istering ex-enemy mandated territories shall continue to submit
annual reports on these territories to the United Nations and to
submit to inspection by the same until the trusteeship council shall
have been constitutéd."
In other words, what was envisaged here was this time-Iag between the
dissolution of the League and the constitution of the Trusteeship Council
because, as the Court knows, the Trusteeship Council consists partly of
representatives of administering authorities, and prior to the entering
into of trusteeship agreements there could therefore not be a constitution
of the Trusteeship Courrcil; so there would necessarily be a time-lag
. between the contemplated dissolution of the League and the time when
the Trusteeship Council could begin to function and begin to exercise its
supervision in respect of trusteeship agreements. That period-that inte
rim period-was seen by the representative of China as constituting a
possible threat to the continuation of supervision in respect of Mandatory
administration. He want~d to avoid a period of interregnum in that re
gard, and he therefore proposed expressly that the Assembly should ex
press itself as considering that the League fonctions as supervisory organ
should be transferred to the United Nations, particularly in order to avoid
that period of interregnum:. He proposed an express resolutionrecommend
ing that the Mandatory Fowers should for that period continue to submit
annual reports on the territories.
Therefore, the questior· of possible United Nations supervision regard
ing Mandates not converŒd mto trusteeslùp was not, at this last session
of the League Assemblf, treated as something that "goes without SOUTH WEST AFRICA
saying", something that could be left to tacit understanding. There was
a proposal here to deal with it expressly and specifically. And one sees
that as the events progressed at the last session of the League Assembly
the only inference that can be drawn is that this proposa! could not mus ter
sufficient support in order to be carried as a unanimous resolution at the
last League Assembly; because one finds in the subsequent history that
there were negotiations, and, resulting from these negotiations, one finds
in the First Committee there was later a report that there had now been
an agreed draft, to which everybody had agreed, including the representa
tive of China who then, indeed, proceeded to be the introducer of that
agreed draft, and that draft became the eventual resolution regarding
Mandates. The matter is so important because of the significant contrasts
between the resolution as eventually adopted and this earlier proposal on
the part of the representative of China. In paragraph 3 of the resolution
as adopted, the Assembly "Recognizes that, on the termination of the
League's existence, its fonctions with respect to the Mandated territories
will corne to an end ..."-! am reading from the wording of the resolution
as set out at page 255 (I) of the Preliminary Objections. There it recog
nizes that on termination of the League's existence its fonctions with re
spect to the Mandated territories will corne to an end. But it"notes that
Chapters XI, XII and XIII of the Charter of the United Nations embody
principles corresponding to those declared in Article 22 of the Covenant
of the League". In other words, in spite of the recognition that those
fonctions of the League would corne to an end, nothing is said about the
possibility of transfer of those fonctions to caver this period of interreg
num-possible period of interregnum--as had been previously proposed
in the Chinese draft. All that the resolution proceeded to do was tonote
that there were corresponding principles in Chapters XI, XII and XIII
of the Charter. In other words, nothing was done in order to have a trans
fer for the period of interregnum; everything was left to be dealt with
exclusively in accordance with the provisions of the Charter in that res
pect, in Chapter XI, Chapter XII and Chapter XIII; XII and XIII
contemplating the possibility of trusteeship agreements and Chapter XI
dealing generally with non-self-governing territories.
The resolution goes on, in paragraph 4, to state that the Assembly:
"Takes note pf the expressed intentions of the members of the
League now adininistering territories under mandate to continue
to administer them for the well-being and development of the peoples
concemed in accordance with the obligations contained in the res
pective mandates until other arrangements have been agreed be
tween the United Nations and the respective mandatory powers."
(Preliminary Objections, p.255 (1).)
In other words, the Assembly contemplates that there may be other
arrangements agreed upon between the United Nations and the respect
ive Mandatory Powers. lt contemplates a specific agreement in each case,
a specific arrangement that may be agreed between the United Nations
and the respective Power; and it also contemplates, as did the original
Chinese proposa!, that there would be an interim period pending such
further arrangements. In regard to that interim period it also expresses
itselfas taking note of expressed intentions of the Members of the League
in regard to that period. But all that those intentions amounted to were
intentions regarding the administration of the territories for the well- ARGUMENT OF MR. DE VILLIERS
85
being and development cifthe peoples concerned-nothing in regard to
reporting or accounting, a.shad been expressly proposed and visualized in
the original Chinese proposal. And those omissions, I submit, Mr. Presi
dent, especially by way ,)fthis contrast, are very significant. They de
monstrate, in my submisi,ion, very clearly that there was a total absence
of contemplation of a general transfer of League fonctions of supervision
regarding Mandates for this interim period; that the proposal for effecting
such a transfer could not achieve the necessary support, and that that in
itself indicates that there was no general agreement about it.
Mr. President, further emphasis on the contrast which I have just
referred to-the contrast between the resolution as eventually adopted
and the proposai contained in the original draft submitted by China
further emphasis on that contrast is to be found in whatthe representative
of China is reported to have stated in introducing the agreed draft which
eventually became the resolution. We fmd an extract from what he
stated at page 254 (1) of ·,:hePreliminary Objections, and I would like to
direct the Court's attention thereto.
"In proposing the new draft resolution, Dr. Liang 'recalled that he
had already drawn the attention of the Committee to the complicated
problems arising in regard to mandates from the transfer of fonctions
from the League to the United Nations. The United Nations Charter
in Chapters XII and XIII established a system of trusteeship based
largely upon the principles of the mandates system, but [I emphasize]
the fonctions of the :League in that respect were not transierred auto
matically to the Unifod Nations. The Assembly should therefore take
steps to secure the continued application of the principles of the
mandates system'."
I pause there for a moment. The speaker draws attention again to the
fact that there was no automatic transfer of fonctions and that it was
therefore necessary for the Assembly to take steps. The matter could not
be left unsaid; something specifically had to be done in regard thereto.
But now, Mr. Presidell';:,instead of moving to the next logical stage as
he had clone in his previo11sproposai, namely, to propose that something
expressly should be resolved by the Assembly in regard to this inter-
vening period, he goes on to say that: .
"As Professer Bailey had pointed out to the Assembly on the pre
vious day, the League would wish to be assured as to the future of
mandated territoriei;. The matter had also been referred to by
Lord Cecil and other delegates." (Preliminary Objections, p. 254 (1).)
In other words, the reference is now purely to the statements, to the
assurances, that had been given to the Assembly by the various represen
tatives of the Mandatory Powers. And he proceeded to say:
"It was gratijyin{;' to the Chinese delegation, as representing a
country which had always stood for the principle of trusteeship,
tbat all the Mandatory Powers had announced their intention to
administer the territories under their control in accordance with
their obligations under the mandates system until other arrangements
were agreed upon. It was to be hoped that the future arrangements to
be made with regard to these territories would apply in full the
principle of trusteeship underlying the mandates system." (Prelim
inary Objections, p. ~:54(1).)86 SOUTH WEST AFRICA
In other words, there was no contemplation here that there would be
anything in regard to report or accountability or supervision in the
intervening period. Everything was placed on a hope of full application
of the principles of trusteeship by the future arrangements to be made.
For the interim, there was only a contemplation of continued admini
stration by the Mandatory Powers in accordance with their obligations
under the Mandate system.
Indeed, then, if we refer to the wording of the various statements
by Mandatory Powers to the Assembly, we find this point further em
phasized, that nota single one of them referred to any intention to render
reports for the interim period until such time as they might make other
arrangements with the United Nations. Their intentions, as expressed
regarding that interim period, were confined entirely to the matter of
administration in the territories themselves, and indeed, in the case of
three of those statements, the suggestion was very pointed, that in the
meantime there would be no reporting as there had been before and as had
been required in the respective report articles of the Mandates. So, for
instance, if we refer to the statement by the representative of South
Africa-which we find at pages250-251 (I) of the Preliminary Objections
-we find that there is a statement first of the intention to consult the
population and to lay proposais in that regard before the General As
sembly of the United Nations; and then, as for the interim, we find this
statement at page 251:
"... In the meantime the Union will continue to administer the
territory scrupulously in accordance with the obligations of the
mandate, for the _advancement and promotion of the interests of
the inhabitants, as she has done during the past six years when
meetings of the Mandates Commission could not be held" -
in other words, during the period when there could be no reporting
and when there was in fact no reporting and no supervision; the sug
gestion being that that was the position which would now be continued.
"The disappearance of those organs of the League concemed with
the supervision of mandates, primarily the Mandates Commission
and the League Council, will necessarily preclude complete com
pliance with the letter of the mandate." (Preliminary Objections,
p. 251 (1).)
Again, very pointedly, that very same suggestion. When we look at the
statement by the representative of Australia, the position becomes, if
anything, clearer, for this reason, that the Australian representative
rendered clear that in his view there would be an obligation in the interim
period to submit information in terms of Chapter XI of the United
Nations Charter-Article 73(e)-which of course is a very much less
onerous and stringent obligation than reporting and accounting in
respect of compliance with substantive trust obligations under a mandate.
This Article is to the effect that the Members of the United Nations
who have responsibilities for Non-Self-Governing Territories under
take to transmit regularly to the Secretary-General for information
purposes, subject to such limitation as security and constitutional
considerations may require, statistical and other information of a
technical nature relating to economic, social and educational con
ditions in the territories for which they are respectively responsible, ARGUMENT OF MR. DE VILLIERS 87
other than those territuries to which Chapters XII and XIII apply.
Whether this contemplation was legally correct or not does not matter
for my purposes, Mr. President; whether in fact there was a legal obli
gation in the interim to submit information in terms of this Article does
not really matter. What <loesmatter is that ;the Australianrepresentative,
if there had been any c,mtemplation on his part that there would be a
continued obligation to report and account in terms of the relevant
provision of the mandate agreement, could not have stated a con
templation that this le-,ser obligation would apply in the meantime.
The representative statcd that "After the dissolution of the League of
Nations"-! am reading from page 252 (1) of our Preliminary Ob
jections-
"... After the dissolution of the League of Nations and the
consequent liquidaüon of the Permanent Mandates Commission,
it will be impossible to continue the mandates system in its entirety.
Notwithstanding this, the Government of Australia does not
regard the dissolution of the League as lessening the obligations
imposed upon it for the protection and advancement of the inhabi
tants of the mand.:·.ted territories, which it regards as having still
full force and effect. Accordingly, until the coming into force of
appropriate trusteeship agreements under Chapter XII of the
Charter, the Government of Australia will continue to administer
the present mandated territories, in accordance with the provision
of the .Mandates, for the protection and advancement of the in
habitants."
So, there again, the undertaking is confined to the manner of admi
nistration. And then, further on:
"... In due coune these territories will be brought under the
trusteeship system of the United Nations; until then, the ground
is covered not only by the pledge which the Government of Australia
has given to this Assembly today [relating to the manner of admini
stration] but also by the explicit international obligations laid
down in Chapter XI of the Charter, to which I have referred."
(Preliminary Objecti'ons,p. 252 (1).)
That previous reference is not given there. I might give it to the Court.
It is from _page47 of the Special Supplement No. 194 of the League of
Nations Official Journal dealing with this Iast meeting, and there it is
stated-there is a reference to Chapter XI of the Charter, with a further
comment:
"... Amongst other things, each administering authority under
that chapter undertakes tosupply to the United Nations information
concerning economic, social and educational conditions in its
dependent territories."
That mere contemplation, as I have submitted, excludes a contem
plation of a more onerous obligation to report in terms of the relevant
provision of the Mandate Agreement.
Finally, we find that the United Kingdom's representative expressed
the intention of his Government in this fonn: he referred to the in
tention to place certain territories under trusteeship, depending on
negotiation of satisfact-Jry terms, and then, as regards Palestine, he 88 SOUTH WEST AFRICA
said that thatcould not be decided until the Anglo-American Committee
of Enquiry had rendered their report, but then:
"... until the three African territories have actually been placed
under trusteeship and until fresh arrangements have been reached
in regard to Palestine-whatever those arrangements may be-it
is the intention of His Majesty's Government in the United King
dom to continue to administer these territories in accordance with
the general principles of the existing mandates". (League of Nations,
OffecialJournal. Special Supplement, No. 194, p. 28.)
I stress "the general principles of the existing mandates". A rather
interesting light on what appears to have been intended with that
expression is provided by the Report of the Special Committee on
Palestine, from which we cite in our Preliminary Objections at page
335 (I), where we find this statement from that Report:
"Following the Second World War, the establishment of the
United Nations in 1945 and the dissolution of the League of Na
tions the following year opened a new phase in the history of the
mandatory regime. The mandatory Power, in the absence of the
League and its Permanent Mandates Commission, had no inter
national authority to which it might submit reports and generally
account for the exercise of its responsibilities in accordance with the
terms of the Mandate. Having this in mind, at the final session of
the League Assembly the United Kingdom representative declared
that Palestine would be administered 'in accordance with the general
principles'of the existing Mandate until 'fresh arrangements had
been reached'."
This is a report by the Eleven-Nation Committee, not by the United
Kingdom itself; but it seems most unlikely that this explanation could
have been given for that statement had it not been obtained at the
statement's very source. And that, indeed, appears to be the only logical
explanation for that wording: that although the substantive provisions
wouid be foIIowed in the meantime, that would be by way of general
principle, because there could meanwhile be no reporting. Therefore, on
analysis, a very clear contemplation,intimated tothe General Assembly,
that there would, in the interim period, be no reporting or accounting.
Mr. President, our submission is then that the events at the final
session ofthe League Assembly show very clearly, not only an absence
of a contemplation of a transfer of League supervisory fonctions re
garding Mandates to the United Nations in respect of territories not
converted into trusteeship, but that there was a widespread contrary
understanding, namely, that there would be no report and accountability
in that regard.
I proceed to deal with the negotiations between the Respondent and
the United Nations subsequent to the dissolution of the League, in
order to point out that from those negotiations again there never resulted
any agreement, or any consent on the Respondent's part to submit to
United Nations supervision in respect of administration under the
Mandate. There was initially the proposal regarding the recognition of
incorporation, to which the General Assembly would not accede. There
was the counter-invitation of the General Assembly to the Union of ARGUMENT OF MR. DE VILLIERS 89
South Africa to submit a trusteeship agreement, to which the Union
would not accede for th,~reasons itgave. There were further proposais
from the side of the Union Govemment in regard to new arrangements
that might be entered into. These were not acceptable to the United
Nations or its negotiating agencies. So that there was, in general, no
agreement, no "arrangement" "agreed" upon between the Union and the
United Nations. There was for a period a submission of information in
accordance with, or broadly on the same basis as envisaged in, Article 73
of the Charter, for information purposes only. But in regard to that
submission of informaticin, it was made clear from the outset that the
information was submitted on the basis that there was no obligation at
all, as far as the Union was concerned, to submit any information whatso
ever; that it would be voluntary and that the Union would submit it on
the condition that the information was not to be dealt with as if a trustee
ship agreement had, in fact, been concluded. Itwas coupled with an ex
press denial of any accountability to the United Nations. These conditions
were never accepted by the United Nations and, indeed, the information
was treated eventually as if it involved accountability, and for that
reason the practice was desisted from of supplying that information.
There was therefore, Mr. President, no agreement, either express or
implied, even in regard to submitting information in accordance with
Article 73 (e), and much less to submit information by way of reporting
and accounting as regards compliance with substantive obligations under
a Mandate.
The Applicants do not appear to allege that any agreement came
about relative to the present case in this history of negotiation between
us and the United Nations. But I mention it for this purpose, namely
that there appears to be some misunderstanding, judging from certain
things I have read, about what the position was in this regard and par
ticularly also as to what the finding of the majority of the Court was in
this regard in 1950. We find, for instance, in a dissenting Opinion by
five judges in 1956 on the question of the hearing of oral petitions, this
statement at page 65 of that Opinion:
"An important element of the situation then existing was referred
to on a number of occasions by the Court in the reasoning of its
Opinion [referring to the 1950 majority Opinion]: that is, the
willingness expressed by the Union of South Africa to regard itself
as continuing to eJiercrse its Mandate, to continue to administer
the Territory in accordance with the provisions of the Mandate
and to continue to render reports to the United Nations."
There was, in fact, never any such willingness expressed as regards
continuing to render reports, if by that is meant reporting in terms
of the Mandate obligation, and the Court, in 1950, never found that there
was anything of the kinél.T. here seems to be a similar misunderstanding
on the part of the late Judge Lauterpacht; I am reading from his Develop
ment of International Lai1 by the International Court at page 170. He says
there-in discussing a principle of interpretation:
"... Thus in the Advisory Opinion on the International Status of
South-West Africa the Court held that certain declarations made
by the Government of the Union of South Africa constituted a
recognition on its part of its obligation to submit to continued90 SOUTH WEST AFRICA
supervision in accordance with the Mandate and not merely an
indication of its future conduct."
In fact, Mr. President, there was no such declaration by, or on behalf
of, the Government of the Union, and the Court did not find in 1950
that there was any. The Court did refer to declarations which implied
the continued existence of the Mandate, but nothing which implied
acceptance of United Nations supervisory powers in respect of the
Mandate.
We deal further, Mr. President, in our Preliminary Objections,
with a section which we call the Practice of StatesV.ledo so at pages 334-
337 (1) of the Preliminary Objections, and as the matter is set out quite
fully there, I do not propose to deal with that in detail. I merely want
to emphasize certain salient features which emerge from it. The first
is-perhaps I should put it on this basis-that if, during the transition
period of 1945 to 1946, there had then been a tacit agreement or under
standing that there would be continued reporting and accounting
under Mandates not converted into trusteeship, then one would have
expected that understanding to have been referred to shortly thereafter
on several occasions. \Ve refer to some of these. One, for instance, is the
fact that in the case of Nauru and in the case of Palestine, the "other
arrangements agreed" upon came as late as two and two and a half years
respectively after the coming into force of the Charter, one and a half
years and two years after dissolution of the League. There was that
long intervening period, and in that time nobody ever suggested that
in respect of those two Mandates, which in the meantime remained in
existence, there should be reporting or accounting to the United Nations.
We refer to the report of the Eleven-Nation Special Committee on
Palestine-Australia, Canada, Czechoslovakia, Guatemala, India, Uru
guay, Iran, the Netherlands, Peru, Sweden and Yugoslavia---of whom
eight had also been Members of the League at the time of its dissolution
some seventeen months before this report. There we have the explicit
statements of which I have read one or two to the Court (there are
others set out which I am not going to read) to the effect that, according
to their understanding, with the disappearance of the Council of the
League and the Permanent Mandates Commission there was an end of
the obligation of report and accountability in terms of the Mandates.
Perhaps I should just read this; the conclusion then is that in the case
of Palestine:
"The most the mandatory could now do, therefore, in the event of
the continuation ofhe Mandate, would beto carry out its administration
in the spirit of the Mandate, without being ableto discharge its inter
national obligations in accordance with the intent of the mandates
system" (Preliminary Objections, p. 335 (1)).
that is, by reporting and accounting to some supervisory organ. So, if
there had been any contemplation of an obligation on the part of Man
datories to report and account in terms of the Mandate to any United
Nations supervisory organ, then surely it would have been stated there.
But, in fact, the very contrary understanding is stated by these eleven
States. The same contrary understanding emerges from the statements
made in various circumstances in various debates between 1946 and 1948
by representatives of New Zealand (I am referring to pages 336 and 337
(1) of our Preliminary Objections), of the Soviet Union and of the United ARCUMENT OF MR. DE VILLIERS gr
States of America, clearly intimating that, in their view of the situation,
outside of trusteeship there could be no question of United Nations
supervision in respect of Mandates. The New Zealand representative
apparently had a difficult time about the terms of the draft trusteeship
agreement, and he eventually said that if any terms were attempted to be
forced upon him there might be no agreement at ail, and "in this even
tuality, New Zealand wc,uldhave to carry on without the privilege of the
supervision by the United Nations, which it desired".
The Soviet Union's statement was made with reference to the Mandate
previously held by Japan. The question arose whether the Security
Council could express itself on the question whether or not Japan had
violated the terms of the Mandate, and the Soviet Union's attitude
was that it could not de,so because "there is no continuity, either legal
or otherwise, between the Mandatory system of the League of Nations
and the trusteeship system laid down in the United Nations Charter.
There is, therefore, nothing which might entitle the Security Council to
discuss this question, let alone take any decisions on it." The further
reasoning proceeds on the same lines.
The United States representative in regard to a debate on Palestine
said:
'The United Nations does not automatically fall heir to the
responsibilities eith,~rof the League of Nations or of the Mandatory
Power in respect of the Palestine Mandate. The record seems to us
entirely clear that the United Nations did not take over the League
of Nations Mandat,~ system." (Preliminary Objections, p. 337 (1).)
Mr. President, we takti then the eleven States in the case of the report
on Palestine, plus these three States, making a total of fourteen-about
a quarter of the membership of the United Nations at the time. These
statements are made apparently without any contradiction at all, in
various circumstances oEinterest or counter-interest, not all in respect
of the same matter wher•!there may be a grouping of interests, and made
very soon after the period during which such tacit understanding, ifit
existed, would have manifested itself. I submit that, as a matter of
circumstantial evidence, the weight to be assigned to these expressed
contemplations and understandings of the situation must be consider
able. It must be very n-uch more than attitudes that might have been
taken up later by various States specifi.cally in regard to the Mandate
on South West Africa when sides had already been taken, when matters
of prestige, and possibly emotion, came into the picture. In any event,
I shall deal later, in reply to an argument by the Applicants, with the
attitudes that were shc-wn by States, Members of the United Nations
initially onthis question, during the years 1947 to 1949: I will corne to
that later. But quite apart from that, these attitudes shown in respect
of the other Mandates--other than South West Africa-in this variety
of circumstances, very strongly, in my submission, show that there was
a widespread understar,ding and contemplation that, in the absence
of trusteeship agreemen1, there would be no supervisory fonction on the
part of the United Nations and no obligation to submit to any such
supervision on the part of the Mandatory Powers.
· Mr. President, it is against the background of the evidential material
which I have now particularly emphasized that I would like to deal,
with respect, with the Advisory Opinion of 1950 on this question of92 SOUTH WEST AFRICA
report and accountability-the majority Opinion in that regard-in
order to develop our contention that the information which we now put
before the Court, and which was not before the Court in 1950, is of
crucial importance for an evaluation of this Opinion.
First,it becomes necessary to interpret the reasoning in that Opinion
relative to the question under discussion, and I must admit that there
are various interpretations. Commentators have differed as to the
exact manner in which that reasoning is to be interpreted. We find
that difference of opinion, for instance, in the 1956 Opinion concerning
the question of hearing of oral petitions, a difference of opinion apparently
between the Judges who concurred in the majority judgment in 1956
as against the Judges who concurred in the minority Opinion in that
year; they differed as to the înterpretation to be put upon the relevant
reasoning in 1950. The Applicants and we also differ about it, judging
by the contentions on the written pleadings before the Court. And
there also appears to be a difference of opinion in the writings of com
mentators. Our submission is that, on analysis, that reasoning is to be
understood as resting on an implication of tacit agreement or under
standing on the part of the Members of the United Nations at the time
of its establishment and corresponding tacit agreement on the part of
the Members of the League at the time of its dissolution to the effect
that, and I quote from the Opinion, "... the supervisory fonctions [are]
to be exercised by the United Nations ..."; and tothe effect, further, that
Mandatories would be obliged to submit to such supervision pending or
failing trusteeship or other agreement. That is, in our submission, the
basis upon which the Opinion, on analysis, rests-an implication of
such tacit agreement on the part of United Nations Members on the
one hand and Members of the League on the other. That, in our sub
mission, is really the only logical and juridical explanation that can
be given of that reasoning when, with respect, it is analyzed. And we
submit that it is because of resting on such an implication that the
evidential material to which I have referred, which is now placed before
the Court for the first time, assumes such very crucial importance.
Now, first, in regard to this interpretation of the reasoning. I have
already referred the Court to the passage at page 136 of the 1950 Opinion,
where the Court said that
"... Since the Council disappeared by the dissolution of the League,
the question arises whether these supervisory fonctions are to be
exercised by the new international organization created by the
Charter, and whether the Union of South Africa is under an obli
gation to submit to a supervision by this new organ and to render
annual reports to it."
Then this passage follows:
"Sorne doubts might arise from the fact that the supervisory
fonctions of the League with regard to mandated territories not
placed under the new Trusteeship System were neither expressly
transferred to the United Nations nor expressly assumed by that
organization."
So,the reasoning begins with this acknowledgment that there was no
express arrangement. That in itself suggests that the reasoning to
follow would be Iike1yto rest upôn an implication of a tacit arrangement ARGUMENT OF MR. DE VILLIERS 93
or understanding. And, indeed, when one analyses the reasoning that
follows, one finds that that suggestion is confirmed by. it. In the fust
place, by just looking at it superficially and seeing what is the key
word in the various semences of the reasoning, one fmds this: one finds
there is a reference to what the authors of the Covenant "considered"
when they created the i;ystem; we find a reference to what the authors
of the Charter "had in rnind" when they organized the international
trusteeship system; we find, in regard to Article 80, paragraph 1, at
the bottom of page 136, that there is a reference to what the purpose
"must have been". And then there is a reference to the last resolution
of the League Assembly, and the crucial sentence at the end refers to
what the resolution "presupposes"; it "presupposes that the supervisory
fonctions of the League would be taken over by the United Nations'.
Now, all those words indicate that what the Court was referring to was
what these parties had in mind without expressing it, because in each
case the reference is not ,;osomething to be expressly found in the treaties
or the provisions of the resolutions in question, but to what, according
to the reasoning of the Court, is to be inferred therefrom. That by
itself indicates that the reasoning is founded on an implication of tacit
arrangement, agreement or understanding.
[Pitblic hearing of 4 OctoberI962, afternoon]
Mr. President, I was dealing at the adjournment with the inter
pretation of the 1950 majority Opinion on the question of supervisory
fonctions, and my subrnission to the Court was that both as regards
the structure of the reas,)ning and as regards the language of the crucial
portions thereof, the indications are that what the majority of the
Court had in mind as the basis of its reasoning was a tacit agreement,
or understanding, as berween Members of the League on the one hand
and Members of the United Nations on the other hand.
I propose to continue to analyze the substance of the reasoning, and
I submit that that analysis will further confirm what I have just sub
mitted, and that is that it was such a tacit agreement or understanding
that the Court had in mind.
We find that the rea:;oning falls to be divided into four parts. Be
at page 136 of the Opinion, the four parts are divided into four
ginning
paragraphs in the text. The first one is what the Court itself described
as ''general consideratiorcs''.Then followed aparagraph concerning Article
80, paragraph l, of the Charter. Then a paragraph concerning the last
resolution of the League Assembly regarding mandates. And the fourth,
and last one, dcals with the competence of the General Assembly of
the United Nations to exercise supervision and to receive and examine
reports.
This last one refers to Article IO of the Charter which authorizes the
General Assembly to di:,cuss any questions or any matters within the
scope of the Charter and to make recommendations on these matters or
questions to the Members of the United Nations. Now, obviously, that
reference does not appea;: to have been intended to deal with the question
at all whether there had. been any transfer or assumption of fonctions;
it merely pointed to an organ within the United Nations that would be
competent to exercise tlte supervision if such supervision were a matter
within the scope of the Charter. That question does not purport to be94 SOUTH WEST AFRICA
answered by this last paragraph. The answer to that, if any, is to be
found in the first three paragraphs, and that is therefore, on analysis,
what appears to be the crucial portion of the reasoning-the first three
of these four paragraphs.
Now, the first one sets out-I am reading back at page 136-that:
"The obligation incumbent upon a mandatory State to accept
international supervision and to submit reports is an important part
of the Mandates System. \:Vhenthe authors of the Covenant created
this system, they considered that the effective performance of the
sacred trust of civilization by the mandatory Powers required that
the administration of mandated territories should be subject to
international supervision. The authors of the Charter had in mind
the same necessity when they organized an International Trusteeship
System. The necessity for supervision continues to exist despite
the disappearance of the supervisory organ under the Mandates
System." (r950 Opinion, p. 136.)
I pause there for a moment. What the Court is suggesting here is,
in my submission, perfectly clear. It is that in this Mandate System
the element of report and accountability to an international super
visory authority was regarded as a very important element, an element
directed towards effective performance of the sacred trust of civili
zation. It was so considered by the authors of the Covenant; and later
the authors of the Charter, when they devised the trusteeship system,
had a similar contemplation. And, therefore, there arises this general
probability that even after the disappearance of the supervisory organ
provided for under the Mandate System tliere would be a contemplation
of continuation of such a system of supervision. The Court refers, as I
understand it, to the consideration of effectiveness as a consideration of
general probability, bearing upon probable intent of the interested par
ties.
The Court continues to refer then to another general consideration
which is that there is in existence, despite the disappearance of the League
supervisory organ, an organ on the part of the United Nations which
performs similar, though not identical, supervisory fonctions.
The Court said:
"... It cannot be admitted that the obligation to submit to
supervision has disappeared merely because the supervisory organ
has ceased to exist, when the United Nations has another inter
national organ performing similar, though not identical, supervisory
fonctions." (r950 Opinion, p. 136.)
The suggestion appears to be this: that because of the gcneral prob
ability that the interested parties would have intended to keep alive
a system of supervision, and because of the existence now of an organ
that would be capable of performing such supervisory fonctions, the
probability is that the parties would have intended such supervision
to be exercised by this new organ. ·
That, in my submission, is the only juridical interpretation that
could be placed upon these general considerations, as the Court called
them. It could not have been the intention of the Court to connote that
because of the necessity or desirability of supervision, therefore the
Court holds that that supervision must be kept alive. It cannot have ARGUMENT OF MR. DE VILLIERS
95
been the intention of the Court to signify that because there was an
organ on the part of 1:he United Nations capable of exercising the
supervision, therefore the Court now holds that there is an obligation
on the part of the Mandatory Power to submit to such supervision.
Because, if that had b{:en the intention of the Court, then what the
Court would have been doing would not be interpreting the law but
laying down the law, or legislating, and that is not a fair interpretation
that could be placed upnn this reasoning. The only juridical, or judicial
interpretation, I submit, that can be placed upon it, is to read it as
being indicative, as a matter of probability, of intent-probable intent
on the part of the intere~ted parties, with the aid of the consideration of
effectiveness. Therefore, that is the rcason why the Court itself referred
to this reasoning as "these general considerations"-meaning thereby
general considerations c,f probability tending towards an inference of
tacit intent on the part ,)f interested parties.
Read in this way, the "general considcrations" could not have been
regarded as being conclusive on the question of what the tacit intent
of the parties must have been. They are mere general indications of
probability tending one way. But before a final answer could be given
to the question whether m inference of tacit agreement arose necessarily
or not, it would be nece,;sary to have recourse also to all other evidence
bearing upon such intent on the part of the interested parties. And,
therefore, the Court pro:eeded to have regard first of all to a considera
tion regarding probable intent on the part of the authors of the Charter
in its reference to Artic!e 80, paragraph 1, and thereafter it proceeded
to give corresponding attention to probable intent on the part of the
Members of the .League at the time of the last resolution regarding
mandates. And it is only after consideration of all this reasoning that
the Court stated its conclusion at page 137:
"For the above r~asons, the Court has arrived at the conclusion
that the Gcneral As,embly of the United Nations is legally qualified
to exercise the supervisory fonctions previously exercised by the
League of Nations with regard to the administration of the Territory,
and that the Union of South Africa is under an obligation to submit
to supervision and ·:ontrol of the General Assembly and to render
annual reports toit." (I950 Opinion, p. 137.)
When we corne to analyze what the Court said in regard to Article 80,
paragraph 1, we see that the Court refers to this clause "as it has been
interpreted above". Now, the "above" interpretation refers back to pages
133 and 134 of the report where Article 80, paragraph 1, is first dealt
with in this Opinion. The Court there stated this view of the continued
existence of the substantive portion of the Mandate:
"This view is conürmed by Article 80, paragraph 1, of the Charter,
which maintains th'=rights of States and peoples and the terms of
existing international instruments until the territories in question
are placed under the Trusteeship System. It is true that this pro
vision only says that nothing in Chapter XII shall be construed to
alter the rights of ~itates or peoples or the terms of existing inter
national instruments. But-as far as mandated territories are
concemed, to which paragraph 2 of this article refers-thisprovision
presupposes that the rights of States and peoples shall not lapse SOUTH WEST AFRICA
96
automatically on the dissolution of the League of Nations. Itobvi
ously was the intention to safeguard the rights of States and peoples
under all circumstances and in a11respects, until each territory
should be placed under the Trusteeship System." (r950 Opinion,
pp. 133-134.)
So, Mr. President, in referring back then to this interpretation of
Article 80, the Court evidently referred back to this portion as to what
this provision "presupposed", and as to what the "obvious intention"
was that was to be found underlying that provision. Because the Court
-at pages 133 to 134-contrasted what the provision actually says with
what the provision presupposed and what was the obvious intention in
regard to that provision. And therefore again this reference in the reason
ing at page 136 to 137, referring back to Article 80 as "interpreted above",
is a reference, not to the express provisions of Article 80, but to a tacit
underlying intent which the Court infers from it.
And that idea is further supported by the wording which the Court
now employs at pages 136 to 137, where it says further:
"... Itpurports to safeguard, not only the rights of States, but
also the rights of peoples of mandated territories until Trusteeship
Agreements are concluded. The purpose must have been to provide
a real protection for those rights; but no such rights of the peoples
could be effectively safeguarded without international supervision
and a duty to render reports to a supervisory organ." (r950 Opinion,
pp. 136-137.)
Therefore, Mr. President, again a clear reference to implication as to
tacit underlying intent-"The purpose must have been"-and the argu
ment is supported by the consideration of effectiveness.
Again, therefore, the reasoning appears to be that the indications, the
probabilities, indicated an underlying intent which must have been to
provide for continued international supervision in regard to mandatory
administration.
And then, finally, in the reference to the Resolution of the Assembly
of the League of Nations, we find the Court sets out the effect of the
third and fourth paragraphs thereof, and then concludes with the words:
"... This resolution presupposes that the supervisory functions
exercised by the League would be taken over by the United Nations."
(r950 Opinion, p. 137.)
Again therefore, the reference in the reasoning is not to something
expressed in the resolution. The resolution nowhere expressly said
anything about transfer of supervisory fonctions exercised by the League
to the United Nations, or the taking over of such fonctions. But when the
Court speaks of what the resolution "presupposes" in that regard, it must
be an inference and an implication as to tacit underlying intent.
It was therefore, Mr. President, the totality of these factors-the
general considerations of probability, the indications afforded to the
Court by Article 80, paragraph 1, of the Charter, and the indications
afforded toit by the last resolution on mandates by the League Assembly
the totality of those factors led the Court to an inference that there
was an intention. on the part of the interested parties to provide for
an obligation of report and accountability regarding mandatory admin- AR(;UMENT OF ~rn.DE VILLIERS
97
istration to the General Assembly of the League, reading in this last
respect also, Article roof the United Nations Charter with that reasoning.
And, because of that basis for the reasoning, it becomes extremely im
portant to have regard fo these factors of evidence, throwing light on the
actualintentions ofthe interested parties, which were not before the Court
in 1950. Because, clearly, where reasoning has to proceed by inference
from evidential data, then the conclusion arrived at by inference from
certain facts could be completely different from what it might be if those
facts were amplified by others which were not known at the time when
the first inference was drawn. The question-the logical question-as to
whether an inference can or cannot be drawn alters as the evidential data,
from which the inference is sought to be drawn, is altered.
We list at pages 345<:46 (1) of our Preliminary Objections the partic
ular factors which were not before the Court in 1950, and which in our
submission are important now. The first one is not really important-1
will not deal wîth it for the moment for I will revert to it later-but
those which I wish to emphasize now as being of importance are the
second, the third and th,~fourth. I would like to begin with the third one,
which refers to the facts conceming the original proposai by China at the
final session of the AssEmbly of the League of Nations, and the subse
quent withdrawal therrnf and substitution therefor of the resolution
actually adopted.
Mr. President, those facts, in mv submission, are of the utmost im
portance in this regard. \.Vhen we 1ook at the wording of that original
proposa! by China we find that it contains almost word for word a pro
position, a proposai, for an express resolution to the effect-to the same
effect-as the tacit intent the Coud found to be presupposed by the
actual resolution of the League. The Court stated that presupposition,
which it considered to b,~involved in the League resolution, as follows at
page 137: "This resolution presupposes that the supervisory functions
exercised by the League would be taken over by the United Nations."
The original Chinese draù, as we have it at page 253 (1) of the Preliminary
Objections, proposed in its second leg that the Assembly should express
the view that it consid,~red "that the League fonctions as supervisory
organ for mandated teFitories should be transferred to the United Na
tions after the dissolution of the League". Exactly the same thing. The
Court considered that to be presupposed in the actual resolution adopted.
The original proposa! by China provided for an express resolution to that
effect. But now that all the facts are known it is also known that that
proposa! by China could not be adopted because all the indications were
that it could not receive the nccessary support at the final meeting of the
League. And when that proposal is now contrasted with the resolution
actually adopted, considerably more light is thrown on the whole subject
than was available to th,~Court before. Now, it becomes significant to see
what was not contained in the actual resolution as adopted, and the
significance appears from the statement by the representative of China
on the introduction of the resolution as finally adopted. The implications
flowing from that statement also become clear, to the effect that the
understanding now was that there would be no further reporting and
accounting; there would not be a transfer of fonctions of the League in
respect of mandated territories not converted into trusteeship. And as
soon as that becomes clear, then that throws considerable light in all other
directions too. If that had been the understanding at the time of the •
SOUTH WEST AFRICA
98
dissolution of the League, then surely it seems hardly likely that there
could have been an opposite understanding some months earlier at San
Francisco, when the Charter was adopted, when the delegates at the
San Francisco Conference included the majority of the Members of the
League.
Therefore, this factor, in itself, throws such light on what the actual
intentions were, that it serves to counteract the considerations of general
probability on which the Court relied and, with respect, correctly relied,
in the absence of evidence to the contrary. But where this evidence to the
contrary is supplied, then those general indications of probability lose
their effect. This is particularly so when, in conjunction with the history
regarding the original Chinese proposal, there is also taken into account
the further fact which we mention in paragraph 2 at page 345 (1) of our
Preliminary Objections, namely that the Court was not informed of the
proposa! by the Executive Committee of the Preparatory Commission
of the United Nations for a Temporary Trusteeship Committee, or of the
rejection of that proposal by the Preparatory Commission itself, or of the
fact that nothing was then substituted as regards possible transfer to or
assumption by the United Nations of fonctions regarding Mandated
terri tories. That again shows, in the history of the formation of the United
Nations and the putting into operation of the trusteeship system, that
there was a proposa! for some express regulation in this regard-for the
taking over of supervisory fonctions in regard to Mandates not converted
into trusteeship. And there again, the proposa! was eventually reïected
and not adopted, affording a further indication that it could not muster
the necessary support. And as regards both sides-the contemplation
both at the final meeting of the League Assembly, and the contemplation
at the San Francisco Conference, and the first General Assembly of the
United Nations at the time of its formation-considerable light is thrown
on the intentions and the understanding then by the practice of States,
to which I referred this morning. That is point (iv) which we list at page
346 (I) of our Preliminary Objections. This again affords very strong evi
dential material-in my submission virtually conclusive evidence-that
there could not have been such a tacit understanding either on the part of
League Members or on the part of Members of the United Nations, as was
found by inference by the majority of the Court in 1950. Here we have
direct evidence, very shortly after the actual event, bearing upon what
the understanding and the intent of the parties in question actually was.
All the evidence obtained from this source points in one direction and
one direction only, and that is that about a quarter of the Members of the
United Nations indicated that, according to their understanding, there
was to be no supervision in respect of Mandatory administration where
the Mandate had not been converted into trusteeship; and that, where
they do express this under circumstances where one might expect con
tradiction, if there were other States that did not agree with that, we
find no contradiction at all.
Therefore, we submit that, with this evidence specifically directed to
the crucial portions of the reasoning by inference in 1950, if this evidence
had been before the Court in 1950, the conclusion at which the majority
arrived would not have been a possible conclusion for it, and in our
submission it would then not have been recorded.
M.r. President, we deal at pages 346-350 (1) of our Preliminary Objec
tions with extracts from the writings of several scholarly writers on inter- ARG-UMENT OF MR. DE VILLIERS
99
national law who acconled a critical reception to the majority Opinion
of 1950 on the point under discussion. I am not going to refer to those
further now; they are on record. All I wish to say aboutit is this: I am
not suggesting that the rnajority Opinion must be considered to be wrong
merely because certain writers on international law suggested that it
was, but what I do sug 5cst is that whcn one has such a reaction from
scholarly writers it is an indication that something could have been
amiss somewhere. My snbmission as to what was amiss was the inade
quate presentation of fa.:tual material to the Court in 1950. Sorne of the
factual material may well have been known to some of these writers, as
appears to have been indicated by their comments. lndeed, Mr. President,
the only scholarly writer-apart from those who merelynote thP.Court's
decision without a discmsion of its merit-the only writer who indicates
support for the decision, as far as we have been able to ascertain, was
the late Judge Lauterpacht in his writings. And he appears to have
laboured under the mi:;apprehension of fact which I mentioned this
morning, namely that thcre had been some statement on the part of the
South African Govemment by which it had acknowledged acceptance
of an obligation to submit to supervision on the part of the United Na
tions, which, of course, was a complete misapprehension of the true facts
of the situation.
I tum now to the Applicants' submissions in regard to Article 6 to
see what they are, and 1o what extent they meet the case which I have
just put to the Court. Their submissions in that regard appear to fall
into three parts. The first is an introduction in their Observations at
pages 428-429 (I) in which they suggest that we may have introduced this
subject of Article 6 unnecessarily in these proceedings-in these Prelim
inary Objections. I havi!, in effect, disposed of that point; I dealt mth
it two days ago, I think, and I pointed out that if I could satisfy the Court
that there was no succession as far as Article 6 was concemed, then that
takes away all basis for the suggested succession in regard to Article 7
upon which the Applica:nts rely; and in that sense alone, the point îs of
the utmost importance. It is important also in other respects which I
need not deal with now. Secondly, the Applicants urge a reaffirmation of
the 1950 majority Opinion, and they deny the existence of good grounds
for a full reconsideratiou of the matter. Thirdly, they have certain sub
missions on the merits of the question.
I will now deal firstith what they say in regard toreaffirmation of the
1950 majority Opinion. They commence with their submissions in that re
gard at page 430 (1) of the Observations, and there they state that Re
spondent's contention is advanced "with little grace or merit". Grace is, I
suppose Mr. President, a matter of taste essentially, and I think it is my
French ancestors who first emphasized that that was nota matter which
was really susceptible of logical disputation. But I need say nothing
further about it except, seriously, that our contention involves no
disrespect whatsoever fc.r the Court. Indeed, I think I have emphasized
that in the very way in which I have submitted to the Court that the real
basis why I submit thü there is a ground for deviation from what
the Court found in 195c, in this respect, is that the facts were not fully
and adequately presented to the Court then. As to the merit of the
contention, I have dealt with that and I will deal with it further in
answcr to the Applicants' submissions. The Applicants continue at page
430 (1) of the Observations and say:Iù0 SOUTH WEST AFRICA
"First, not one of the so-called 'new facts' has corne into existence
since 1950. Respondent had full opportunity to develop at length
each and every one of them during the advis0ry procecdings."
(Observations, p. 430 (1).)
Now, Mr. President, as a statement of fact that is correct, except of
course that we nowhere in our submissions refer to them as "new facts";
wedon't call them that. They are not new in the sense that they came into
existence after 1950 or that they could not have been presented in 1950.
But that, in my submission, makes no difference whatsoever to the
contention.which we are advancing or to the merits of that contention.
In municipal legal systems where there exists a principle of res fudicata,
provision is made by way of exception for reopening a case where new
evidence is discovered, but then, in order to prevent abuse-in order to
prevent this principle of res judicata from being frittered away altogether
-that exception is safeguarded by qualifications. The qualifications are
generally to the effect that the evidence sought to be raised with a
view to reopening a case has to be new, either in the sense that it arose
after the previous hearing, or in the sense that it could not with due
diligence have been discovered at the stage of the previous hearing.
One generally finds that in municipal legal systems qualifications of that
kind are attached to this exception to the principle of res judicata.
We find a similar situation in the procedure of this Court as set out in
Article 61, paragraph I, of the Statute. We find it there stated that:
"An application for revision of a judgment [a judgment now in
contrast with an advisory opinion] may be made only when it is
based upon the discovery of some fact of such a nature as to be a
decisive factor, which fact was, when the judgment was given,
unknown to the Court and also to the party claiming revision,
always provided that such ignorance was not due to negl~gence."
So we have a similar safeguard there in protection of a similar principle
of res judicata. But, Mr. President, in the case of a previous advisory
opinion the principle of res fudicata does not apply, and where the
principle does not apply, there is no need for an exception to the principle,
and where there is no need for an exception to the principle, there
can be no occasion for a qualification to the exception. There is, indeed,
no question as to the admissibility of argument or evidence on the
same question that had been decided before in an advisory opinion.
The sole question here is, what weight is to be assigned to the pre
vious advisory opinion as a matter of authority. Clearly, if the factual
material before the Court now was substantially the same as the factual
material in 1950 when the Advisory Opinion was considered, then that
alone would mean that the Advisory Opinion would be granted strong
prima facie weight as being of precedential value as an authority. But
when it is found that the question now before the Court is, although the
same in form, very different in substance because of the presentation of
new facts, then that must affect the value that could be given to the
Advisory Opinion as a matter of precedent-as a matter of authority.
That is the only logical proposition that is before the Court. We say it
goes so far that the real question to be decided now by application of the
law to the facts is in substance different from what it was in 1950,
although the form of it still remains the same and, therefore, that the AR(-U!,!ENT OF MR. DE VILLIERS 101
Advisory Opinion has under these peculiar circumstances virtually no
precedential weight in the present circumstances. That is our contention
as we advance it, and we submit that that contention remains sound
whatever the reason rna:r have been why the facts were not presented to
the Court in 1950 when they might well have been presented.
. Mr. President, the Applicants proceed at page 430 (1) of their Obser
vations as follows; they say:
"Second, not one of the so-called 'crucial new facts' is in rcality
either new or cruciai.. Each one of them was before the Court in 1950,
and, obviously, was not deemed crucial."
They proceed then, at pages 430-433 (1) of the Observations, to discuss
this allegation with refercnce to each one of the four elements of fact
which wc listed in the Preliminary Objections at pages 345-346, and they
conclude by repeating at page 433:
"... These facts are neither new nor crucial. The Court considered
them, as well as the other pertinent facts, and arrived at its conclu
sion. Respondent merely disagrees with that conclusion."
Now, i\fr. President, fh.at is not so: except for an explanation which I
have to give in regard to the first one of the four points which we list,
it is completely incorrect to say that any one of these factors on which
we rely in fact was before the Court in 1950. In regard to the first one,
I refer to our Preliminary Objections, page 345 (1); that was a reference
to "Respondent's expres:, reservation of rrth May, 1945, at the San Fran
cisco Conference". The rderence back is to pages 237-238 of the Prelimi
nary Objections. It is a ~tatement from which I read to the Court earlier
in my argument-! read a portion at the top of page 238. The Court will
observe that there is a footnote at page 238 which explains that in the
written record of this statement, which we found in our records, from
which the South African. Representative, Dr. Smit, had read the state
ment, there was a further paragraph which was not to be found in the
United Nations record. That paragraph reads as follows:
"As stated in the Memorandum, this is not a matter that can be
decided here, but I am directed to mention it for the information of
the Conference so that South Africa may not afterwards be held to
have acquiesced in the continuance o"fthe Mandate or the inclusion
of the territory in :rny form of trusteeship under the new Inter
national Organization.''
When we referred to something that was not before the Court in 1950,
we intended that to relate only to this last paragraph, because the
rest of the statement w,is before the Court. But that was not clear
the wording of our Preliminary Objections on thjs point was misleading
as it was originally fi.led--the wording, that is, at page 345 (1). And that
is why we made a correction before the Observations were filed. The
correction was forwarded under caver of a letter dated 13 February 1962
in which we asked for a :footnote to be inserted at page 133 to the effect
that the text of the menorandum set out in Chapter II, Part A, para
graph 25 supra, was bef.::irethe Court in 1950, but that the Court was
not informed of the further paragraph set out in footnote 1 at page 238
supra. So that was all that was intended to be referred to, and as a
matter of fact that stat,~ment is correct; the Court was not informedI02 SOUTH WEST AFRICA
of this further paragraph. But the whole question is really unimportant,
and it is complicated further by the fact that although we had Dr.
Smit's affirmation at the time when these Preliminary Objections were
filed that he did in fact make that statement, Dr. Smit is unfortunately
now deceased. The matter is for my purposes not important-that is
why I said before I was not placing particular reliance on it because,
in effect,there is implicit in the body of the statement, as it is in the
text at pages 237~238(1), the same as is conveyed explicitly in this further
paragraph in the footnote, and I am prepared to leave the matter at that.
But now, what is important, as I have submitted before-important
for our purposes-are the second, the third and the fourth points listed
in our Preliminary Objections at pages 345-346. In regard to the second
point, namely:
"The rejection by the Preparatory Commission of its Executive
Committee's proposa! for a Temporary Trusteeship Committee,
without substitution of anything regarding possible transfer to,
or assumption by, the United Nations of any 'functions under the
Mandates System' "
in regard to that point the Applicants submit at page 431 (1) of the
Observations that that was covered in substance by Respondent's
Written Statement in 1950, and they refer then to an extract from the
Written Statement. On analysis, Mr. President, one finds that that
Statement referred only to the change of wording from "... a 'transfer'
of fonctions ..."to the wording of an "... 'assumption' by the United
Nations of 'certain activities' previously exercised by the League".
That is the crucial point, as far as I can make out, of the relevant
passage in the Written Statement of 1950. Now, that is a point which
I dealt with here too. It is a point which occurred in regard to the
history of resolution XIV at the first part of the first session of the
United Nations General Assembly. But the point regarding a proposa!
for a Temporary Trusteeship Committee with a fonction inter alia of
investigating questions that might arise in regard to the transfer of
fonctions regarding .Mandates-that proposal was something quite
different. That was something which occurred as part of the history of
resolution XI relating to the putting into operation of the trusteeship
system. That is a completely different point, and I don't know how it
could be suggested that that was covered in substance by this different
submission made in 1950 in the passage cited by the Applicants. The
point on which we rely is that there was in this history of resolution XI
a specific proposa! for express provision in regard to arrangements for
a possible transfer of fonctions,but that that express proposa! could not
muster su:fficient support. Soit is a point which is completely different
from any of the others. that have been submitted, and it was definitely
not before the Court in 1950. Nor"is the point covered by the forther
statements which the Applicants make here. They say-I am reading
from the Observations at page 431 (1):
"The Court knew that the functions of the League in respect to
mandates had not been expressly transferred to the United Nations
and was aware of the fact that other transfers from the League
to the United Nations had occurred. Neither of these facts was
regarded as crucial." ARG•JIIIDIT OF MR. DE VILLIERS 103
But then again, neithEr of those facts is this particular fact on which
we rely; this express proposal for a Temporary Trusteeship Committee
for dealing with the question of transfer of fonctions which could not,
apparently, muster sufftcient support.
Then when we corne to our point No. (iii)relating to the original
Chinese proposal at thi: final session of the League Assembly. The
Applicants state at the bottom of page 431 (1) of their Observations:
"Respondent's statement concerning the original Chinese pro
posal is also not well taken. The facts concerning the Chinese
proposal were beforn the Court in 1950, in the Written Statement
of the United States of America."
And at page 432 (1) ag.:tin-about the middle of the page-they state:
"... As a matter of fact, the Court obviously did not find the
facts concerning the Chinese proposal crucial, and had good reason
therefor, as is demonstrated by the following section from a League
Report which is quoted in the United States Written Statement..."
So, both these allegati,)ns-to the effect that the facts concerning the
original Chinese proposal were before the Court in 1950-rest upon
this extract from the Written Statement filed by the United States in
1950. The Written Stakment cited the following from a report by an
official of the League, and the wording of that report was:
"Following upon a number of statements in plenary session of
the Assembly with regard to the future of the territories now
held under mandate, this subject was but briefly discussed by
the First CommittE,e. Attention was drawn by the delegate of
China to the fact that, although the Charter of the United Nations
in particular by the establishment of an international trusteeship
system-embodied i:·rinciplescorresponding to those of the mandate
system, it made no provision for assumption by the United Nations
of the League's functions under that system as such. The continued
application to the mandated territories of the principles laid down
in the Covenant of foe League was a matter on which the Assembly
would wish to be a:;sured. The First Committee took note of the
fact that all the Members of the League now administering mandated
territories had expressed their intention to continue, notwithstanding
the dissolution of the League, to administer these tenitories for
the well-being and development of the peoples concerned in accord
ance \Vith their obhgations under the respective mandates, until
other arrangements were agreed upon with the United Nations."
(Observations,pp. 432-433 (1).)
Now, Mr. President, how this extract could justify the statement that
the facts conceming the original Ch.inese proposal were before the
Court in 1950 I frankly don't understand. The reference is entirely
to what was stated by th~ representative of China on the second occasion;
that was on 12 April 1946 on the introduction of the agreed draft which
eventually became the 1esolution of the League Assembly, as will be
evident on reference to our Preliminary Objections, pages 253-254 (1)
where we cite the extracts from the Official Records of the League. The
Court will see that the reference to what occurred on 9 April when the
original proposai was intrnduced, as recorded in the summary records of SOUTH WEST AFRICA
the League, that is set out at page 253 (1). And then over the page, at
page 254, there is recorded what was stated on 12 April on the introduc
tion of the approved draft-of the agreed draft. And when the statement
at page 254 is compared with this extract from the Written Statement of
the United States in 1950, one will see that they accord almost exactly,
and that the reference therefore was to what was stated on this later
occasion. There was not a word of reference to the earlier proposal
either to the contents of the proposa! or to what was stated in regard
to that proposal on the earlier occasion. So that the whole of the point
which we are now making, of the contrast which there is between what
was eventually resolved and what was originally proposed-that was
not before the Court at a1I, and I really see no justification whatever
for this suggestion that the facts were in any way before the Court.
Mr. President, in regard stillto this question of the original Chinese
proposal, the Applicants further-at page 432 (1) of their Observations
state as follows:
''The Chinese delegate to the Fourth Committee has placed
Respondent's contention in its proper perspective."
The reference is to something which was stated in the Fourth Com
mittee-1 think it was in 1950-after the Advisory Opinion of the Court
and after reference had been made there to the fact that certain of these
facts had not been placed before the Court. Now, the citation is this, and
Applicants say this places our contention in its proper perspective:
"Mr. Liu (China) observed that the South African representative
had stressed the draft resolution submitted to the League of Nations
by the Chinese delegation; he feared that that representative's
remarks might create a wrong impression in the Fourth Committee.
The resolution finally adopted hy the League did not, it was true,
contain any specific provision for the transfer of supervisory fonc
tions, but neither did it forbid such transfer. In view of the im
portance of that point, he wondered why the South African Govern
ment had not considered it earlier but had waited until the advisory
opinion of the Court had been discussed in the Fourth Committee.
Dr. Steyn, who had represented his Government at the deliberations
of the International Court of Justice, could have raised the question
at the time.
The Chinese delegation was therefore unable to accept the
argument that the Court had been ignarent of the facts." (Obser
vations,p. 432 (1).)
Mr. President, how that places the matter in perspective, I must
say, I fail to understand. The only two statements in here are that
there was no forbidding of transfer, the relevance of which I do not
appreciate, and that Dr. Steyn could have raised the question at
the time. But why this should lead to the conclusion that the Court
was not ignorant of the facts I really do not understand. I do not
understand the perspective that is said to flow from this. The fact
remains that the facts regarding the original Chinese draft and its
history were not placed before the Court, and none of this comment can
do away with that basic fact.
Then, in regard to our fourth point, which we list at page 346 (1) of
our Preliminary Objections under the heading of "Practice of States", ARGUMENT OF MR. DE VILLIERS ros
referring to the unanimous comments of the United Nations Special
Committee on Palestine. and also the statements on behalf of certain
other States as we deal ,vith them in our Preliminary Objections, there
the Applicants state in their Observations at page 433 (1), the paragraph
numbered (4) (I will not read the first portion, which is argumentative;
I will deal with that later. I will proceed with the statement at the
middle of that paragraph) :
"The facts concemin~ the Palestine Mandate were discussed by
Sir Arnold McNair in h1s Separate Opinion, and, presumably, were
known to his collea1)1eson the Court as well",
and the reference in the footnote is to Sir Arnold McNair's Opinion at
page 157.
Mr. President, we find that what Sir Arnold McNair said was this:
"Each Mandate bas to be considered separately to ascertain the
date and the mode of its termination. Take the case of Palestine.
It is instructive to note that on November 29, 1947, the General
Assembly of the United Nations adopted a resolution approving
a plan ofpartition of Palestine, which was firmly based on the view
that the Palestine Mandate still continued, as is evident from
Articles I and 2 of Part A and Article 12 of Part B of the Plan."
(I950 Opinion, p. 157.)
That is all that Sir Arnold McNair says in regard to Palestine.
Now, how that could be relevant to our allegation that there was a
report on Palestine which contained these very explicit statements
indicating an understanding that there was no longer an obligation to
report and account-ho?1 that cottld be affected I do not know. The
reference by Sir Arnold McNair is not even to the report; be refers
to the resolution which was based on the report, and he himself made
no mention of that report at all. The Applicants go on and say:
"The Report of the Special Committee on Palestine was also
noted in the aforementioned Written Statement of the United
States."
And they refer to paGe 134 of the statement in the Pleadings and
Documents of 1950. Now, this is apparently the passage to which the
reference is made:
"In April 1947, the mandatory for Palestine requested the
calling of a special session of the General Assembly to consider
the question of the future government of Palestine and make
recommendations concerning it. A special session was held, and
a United Nations Special Committee on Palestine was appointed by
the Assembly. Thi,: Committee reported to the second regular
session of the Assembly in the fall of 1947, and on the basis of
its report the General Assembly adopted resolution 109 (II) con
taining recommendé.tions concerning the future of Palestine. The
resolution recommended the establishment of a Jewish State, an
Arab State, and an internationalized city of Jerusalem. On May 15,
1948, the State of brael came into existence. Subsequently, it was
admitted to membership in the United Nations. Negotiations are
still in progress concerning the definitive arrangements to be madeI06 SOUTH WEST AFRICA
with respect to Jerusalem and the portions of Palestine outside of
Israeli territory."
So, the only statement there is that there was a resolution which was
based on a report of this Committee, and there is no reference whatsoever
to the contents of the report. We carefully went through the documen
tation of 1950, and we are quite satisfied that the report itself was not
before the Court. The documentation shows that very clearly.
Therefore, Mr. President, the mere fact that Members of the Court
may broadly have known the facts, as I suppose we all did, more or less,
regarding the developments in Palestine-may even have known of the
existence of a Committee, of the fact that the Committee had reported
that would not have made the Court awareoftheseparticularportionsof
the report of the Committee on which werely as being ofspecial significance
in this regard. So here again, the Applicants' suggestion that those
statements were before the Court is not well founded. The Applicants
do not deal at ail with the further statements from debates in the United
Nations by representatives of New Zealand, the Soviet Union and the
United States, which I referred to this morning and which are set out
in the Preliminary Objections at pages 336-337 (1). They do not attempt
to show that those statements were brought to the Court's attention.
They do make other comments regarding our reliance now upon those
statements, but I will deal with that later.
Because, Mr. President, of the fact that the Applicants suggest that
these facts were before the Court, they do not deal, as a matter of
merit, with our suggestion-with our submission-that those facts
were of crucial importance. They simply say (a) the facts were before
the Court and (b) because of the result they were obviously not deemed
important by the Court, not deemed crucial. That is the way in which
they put them. They put it specifically so at page 430 (1) where they say:
"Each one of them was before the Court in 1950, and, obviously,
was not deemed crucial."
Now, because the premise falls away-the suggestion that the facts
were before the Court-therefore the basis for the further comment also
falls away-the suggestion that the facts were obviously not deemed
crucial. They could not have been deemed either crucial or not crucial
when the Court was not aware of them. And the Applicants therefore
present no reasoning at all to the Court in regard to the question whether
knowledge of those facts could or could not have made a difference to
the result arrived at by the Court in 1950. The Applicants have therefore
failed to show that this is not a case in which we can legitimately, on
grounds of real substance, ask the Court for a reconsideration de novo
of the whole question and for a conclusion which would differ in that
particular respect from that arrived at in 1950.
Mr. President, I corne now to the Applicants' submissions on the
merits of the question whether the obligation to report and account
survived the disso1ution of the League.
In this respect, the Applicant's argument largely takes the form of
putting an interpretation upon the majority Opinion of 1950 and then
supporting that opinion in the sense in which the Applicants interpret
it. I can give a general indication of their submissions in that regard
with reference to page 430 (1) of their Observations. I should perhaps,
for context, start at the bottom of page 429. They say: ARGUMENT OF MR. DE VILLIERS
IOJ
"Respondent admits that it is the Mandatory's duty to report
and account which distinguishes a mandate from a self-limiting
trust. Nevertheless, although it continues to administer the Terri
tory, and avers that it has the legitimate right to do so, it contends
that it has no duty to report and account. It is this illogical and
inequitable proposition which the Court was unwilling to accept
when it held that f:.espondent has the duty to report and account
to the United Nations; when it did so, it did no more than apply
the principle of giving effect to a basic international instrument
which has as its purpose more than mere contractual relations
between two entitiei;, but which creates an international institution
-a sacred trust. The Court employed the same type of legal
reasoning that a municipal court would employ ifit were faced
by the contention c,f a trustee or tuteur that this duty to account
had 'lapsed'."
Now, Mr. President, there are several things wrapped up in that
passage. First of all thue is a suggestion, not specifically stated but
strongly made, that a right to administer the territory under a Mandate
cannot be separated from a duty to report and account in respect of
it to an international institution: in other words, a suggestion of in
severability as between the duty to report and account and the other
aspects of the Mandate institution. I have already pointed out that
as far as this suggestion is concerned it finds no support whatsoever
from the Advisory Opidon of 1950. I may say, in passing, that the
Applicants make that suggestion of inseverability more explicitly at
page 443 (1) of their Observations, where they say:
"Although they ..."
(the organs created after World War I)
"have been succeeded or replaced by other organs, the Court in
its 1950 Advisory Opinion ruled that the Mandate survived, and
consequently, that international supervision of the Respondent, as
Mandatory, endures' (Observations, p. 443 (1)),
the suggestion being that as soon as we have survival of a Mandate,
then there must neccssarily also be international supervision of the
Respondent. as Mandatory: again, therefore, a very pertinent suggestion
of inseverability in this respect.
I have given the Conrt the analysis, the proposition being quite
obvious in the case of the two minority Opinions of Sir Arnold McNair
and Judge Read that they regarded the two elements as severable
the element of report and accountability as against that of the other
aspects of the Mandate--and also an analysis of the majority Opinion
which clearly shows that that proceeded on the basis of severability and
not inseverability.
The next aspect of this passage from the Observations which 1
have read, is the suggesti,Jn that the majority's finding in 1950 regarding
survival of this obligation to report and account was based on the
finding that the Mandate involved more than mere contractual relations
between two entities and that it created an international institution-a
sacred trust. But that again, Mr. President, seems at best a very ques
tionable interpretation of the majority Opinion. That Opinion, as I108 SOUTH WEST AFRICA
pointed out to the Court before, specifically distinguished between
what it called "the essence of the sacred trust" on the one hand-"the
substantive obligations to utilize its powers for the benefit and the
advancement of the native inhabitants of the territory"-it distinguished
very clearly between those obligations as set out in Articles 2 to 5 of the
Mandate, and what it called the obligations which corresponded to secu
rities for the performance of this trust, and it classified the obligation
of report and accountability in this latter category. It was in regard to
the former category, the survival of the substantive obligations involved
in the sacred trust that the Court employed the reference to "something
which involved more than mere contractual relations", that involved an
international institution.
Mr. President, apart from that, let us for the moment ·assume for
purposes of argument that we do regard this element of report and ac
countability as not merely a personal contractual obligation, but as
something which could, in some sense or another, be said to be part of an
international institution, part of a régime, part of a status-something
objective. The mere fact that one could give that description to it-give
it that name-does not mean that one can now deal with this element as
if it were unrelated to an original question of intention between the
parties altogether. It does not mean that if the parties which created this
international institution-this status or régime, by an international
agreement--if they intended that that obligation was to relate to specific
supervisory machincry only, that the Court could now step in, merely
because of this forming part of an objective status or institution, that the
Court could now step in and substitute other supervisory machinery for
that originally agreed upon by the parties. I do not know of any principle
of law which would justify such a process of reasoning-a process of
reasoning which leads to the result that as soon as one can give the name
of a status or a régime to a certain arrangement, then intentions of the
parties that created that thing no longer matter at all and the Court can
step in and change the situation and bring about one that is not in
accordance with what the parties originally intended. Even if we deal
with something that could be described as a status, as a régime, as an
objective institution, its content must still be determined with reference
to the intentions of the parties that created it, the effective intent that
went into its creation, its constitution. That is the only basis that I
know of in law for determining what the content of such an institution
could be.
Thirdly, Mr. President, there is in this passage, which I have read
from the Observations, a suggestion that ''the Court employed the same
type of legal rcasoning that a municipal court would employ if it were
faced by the contention of a trustee or tuteur that his duty to account had
lapsed". The analogy, in my submission, is completely unsound. When we
deal with a case of a trustee, or tuteur, in municipal law what does his
duty to account mean? His dut y to account means something substantive.
It means the duty which is the essence of his trust: to account to the
beneficiaries under the trust, to render to them the interest on the capital,
or the capital itself if and when he has to do so in terms of his trust;
and if he fails to do so, to account to them, to excuse his failure for
complying with his substantive obligation. That is what is meant by a
tuteur or a trustec's duty to account in municipal law. It is something
substantive. It is something part and parce] of his trust, and obviously ARGUMENT OF MR. DE VILLIERS 109
he cannot remain a tutei~ror a trustee and have that duty ta account
lapse.
But, Mr. President, that is not the analogy with the Mandate as-an
international institution and with the Mandatory's duty to account.
The Mandatory's duty is different. It would be analogous to a case
where such a municipal tuteur or trustee is, in addition to his substantive
duty to account to the b,meficiaries, also specially required by contract
to render, say, an annud account to some supervisory body, or some
persan in a supervisory :position-where, for instance, there may be a
Board of Executors, or a Board of Trustees, or a Master or an Orphanage
chamber, or something c,fthat kind-wherc there is special provision,
then, in the trust arrangement, that apart from accounting substantively
to the bencficiaries, there is also to be an annual report or account to such
a supervisory institution.
Now ifsuch a supervisory institution should cease to exist for any
reason whatsocver, there is no reason that I can see why a municipal
court would not fmd that a tuteur or trustce's duty to account in that
sense had lapsed, when there is nothing in the trust arrangement that
is substituted for that particular supervisory body or persan to whom
the duty to account related. There is nothing fancy or fantastic in the
suggestion that such a duty to account could have lapsed. And that, I
submit, is the true analogy between the case of a municipal trustee or
tuteur and that of the situation relating to a duty to report and account
under the Mandate system.
[Public he,m·ng of 5 October r962, morning]
Mr. President, I am still dealing with various arguments of the Appli
cants conceming the obligation of report and accountability. I pointed out
yesterday, shortly before the adjournment, that most of these arguments
take the form of putting an interpretation on the 1950 majority Opinion
and then supporting the Opinion in the sense as interpreted. There is a
further one of these at page 430 (1) of the Observations, to which I
would like to refer-the second paragraph there:
"The Court furthermore found, for purposes of confirmation,
that the League of :'l'ationsrelied on declarations of Mandatories,
including Respondent, that they would continue to honor their
obligations as manda.tories ..."
Now, Mr. President, I pointed out earlier in my argument, in dealing
with the last session of the League Assembly, that those declarations by
Mandatory Powers rclated only to obligations concerning administration
in the territories themselves, and they included no intention whatsoever
of reporting in regard to implementation of those obligations. That po
sition is perfectly clearOILthe record, and the majority Opinion of 1950
did not indicate anything to the contrary. Therefore it is not clear at ail
what this argument of the Applicants is intended to mean-at any rate
with reference to the que,tion of report and accountability. The Applic
ants proceed to say the Court also found
"... that neither the League nor the United Nations intended the
obligations of manda tories to disappear without their being replaced
by new obligations under trusteeship agreements". (Observations,
p. 430 (1).)IIO SOUTH WEST AFRICA
There again it is difficultto see the relevance of this contention to the
question of report and accountability because, in regard to that obliga
tion of the Mandatories, no specific intent was required to make that
obligation disappear. Itwould disappear automatically upon dissolution
of the League, upon cessation of the existence of the supervisory organs
specifically referredto in terms of that obligation. And it could only be
kept in existence by some new arrangement, some fresh consent, whereby
a new supervisory organ would be substituted for the old one for the pur
poses of the obligation. The Court in 1950 investigated the question
whether there was such a new arrangement. The majority found there
was, by implication, submission on the part of the Mandatory to a new
supervisory authority-the General Assembly of the United Nations;
the rninority differed on that point. That was the question decided. So
I do not follow how this interprctation could be put on that Opinion
relative to the obligation to report and account, namely that what the
Court found was that there was no intention that the obligation should
disappear.
The main contention which the Applicants advance as the ratiofor the
1950 decision on the question of report and accountability is what they
call by various names: "automatic succession" is the expression they
use.at page 429 (1); they call it a "doctrine of succession" at that same
page and also at page 443; and they call it a "principle of succession" in
the Observations at page 445. In each case the suggestion is that the suc
cession involved a substitution of the United Nations for the League as
the supervisory organ to which the Mandatory was obliged to report and
account. Now, one has to analyze what is exactly meant by these ex
pressions-" automa tic succession", "doctrine of succession" or "principle
of succession". How is that brought into relation with the treaty relation
ships between the parties regarding the Mandate?
There are three possibilities. The first one, it seerns, is that what
the Applicants may have in mind is a succession in pursuance of some
thing which was already provided for in the Mandate Agreement itself.
If that Agreement should, for instance, have provided that "in the
event of dissolution of the League of Nations, and in the event of there
then being or coming into existence another international organization
with the following characteristics"-and there would then have followed
a description which would have fitted the United Nations-"then, in
such an event, the Mandatory will be obliged to report to an appropriate
organ of such an organization to its satisfaction"-if there had been a
provision of that kind in the Mandate, then one could speak of an
"automatic succession" at the time when the League was dissolved
and when the United Nations was formed. The succession would be
automatic in the sense that it would take place in pursuance of something
provided for in the basic instrument. There is, of course, no such express
provision in any of the Mandates-in any of the international agreements
relating to the Mandates-but it may be, and it seems to be the position,
that the Appiicants rely on something tacit to that effect, something
to be implied in the Mandate Agreements. That is the first possibility
as to what they might mean by the expressions.
The second possibility is that they might refer to succession by
reason of some tacit agreement or understanding arrived at during the
period of transition, that is, at the time of establishment of the United
Nations and of dissolution of the League. And the third possibility is ARGUMENT OF MR. DE VILLIERS III
that they might have in mind a succession by reason of some principle
of customary international law.
When one cornes to analyze the arguments of the Applicants as they
develop them-to the extent that they develop them-in the Obser
vations, it would appear, Mr. President, that they mainly have in mind
succession in the first sense to which I have referred; succession provided
forin the Mandate Agreement itself, by implication. They don't put it
in so many words, they don't state it exactly in that way, but that is,
on analysis, what they appear to advance. They also refer to a passage
in an article by Sir Gerald Fitzmaurice, and the manner in which they
cite that appears to su1;gest that they might possibly have in mind
succession by reason of some principle of international law; but that
is not clear at all-1 shall deal with that at a later stage. In the main
it appears that they ha,,e in mind succession by reason of something
provided for in the Mandate Agreement itself. We find the argument in
that regard linked up '>l'ithreferences to an "organized international
community", and this argument is particularly developed at pages 442-
443 and again at pages 443-446of the Observations. They fortify the argu
ment further with refereEce to scholarly authority and to the pri,pciple of
effectiveness. The scholarly authority is cited in the Observalions at
pages 445-446, and the principle of effectiveness is referred to at pages
446 and again 48r of the Observations.
Now, Mr. President, if this line of argument is reduced to its bare
essentials it appears to amount to this: that by Article 6 of the Mandate
Agreement the Respondent undertook to report and account to what
then was "the appropriate international institution" of "the organized
international community"-those are the two expressions used by the
Applicants in this contention-"the appropriate international institution"
of "the organized international community". So that, although Article 6
expressly referred only "to the Council of the League", "to the satis
faction of the Council", what was really meant was the appropria te
international institution of the organized ip.ternational community.
Secondly, that for purpo!:,esof the Mandate the United Nations has now
replaced the League of Nations as the appropria te international in
stitution, and that Respondent is therefore now obliged to report and
account to the United ]\ations in the manner prescribed in Article 6.
They advance further that such an interpretation of the situation
involves a legitimate application of the principle of effectiveness. That
appears to be the line of argument advanced. It seems, Mr. President,
that the argument rests primarily on an implication to be read into
Article 6 of the Mandate A.greement itself, because the Applicants them
selves state expressly at page 481 (1) of the Observations as follows
they refer first to what they call a liberal interpretation employed by the
Court in other cases, and then say in the last paragraph at page 481:
"This mode of interpretation has already been accepted by the
Court in interpreting Article 6 of the Mandate. In the Advisory
Opinion the Court concluded that Respondent is required to submit
to the supervision ol the General Assembly of the United Nations
and render annual r,~ports thereto. In reaching its conclusion, the
Court interpreted Article 6 of the Mandate so as to accomplish its
purposes."II2 SOUTH WEST AFRICA
In other words, their contention appears to rest then on a manner of
interpretation or construction of Article 6 of the Mandate Agreement.
But naturally Article 6 contains notuing express to the effect contended
for by the Applicants, and therefore the coi;itention must rest on an
implication which they seek to introduce into Article 6.
Mr. President, when I submitted, in the course of my argument to
the Court, that Article 6 referred expressly only to a specific supervisory
organ-the Council of the League-I was not asking the Court to inter
pret Article 6 restrictively or to indulge in a difficult process of inter
pretation in order to assign that meaning to Article 6. That is the only
meaning which the words in Article 6 can bear, given their ordinary
natural meaning in their context. It is simple enough:
"The Mandatory shall make to the Council of the League of
Nations an annual report to the satisfaction of the Council, con
taining ..."
And the same in paragraph 7 of Article 22:
"In every case of mandate, the Mandatory shall render to the
Coancil an annual report..."
That is then the only meaning of the words interpreted in their ordinary
and natural sense. And therefore, Mr. President, if the Applicants now
seek to put another interpretation, as they call it, upon Article 6, by
which Article 6 must be understood as referring to the appropriate organ
for the time being of the organized international society, or words to
that effect, then, Mr. President, that interpretation must in fact rest
on implication. It is something which was not expressed-it was some
thing that, if it is to be sound, must rest on one thing and one thing only,
namely a tacit common agreement between the Parties which they did
not express because they thought that that was "too clear".
In order to assist the Applicants' argument, that common intent
would have had to involv~ this: that in the event of the League becoming
dissolved and in the event of there then existing another international
organization to which the description "organized international com
munity" might be applicable, then the obligation would be to report
and account to whatever organ of that new organization which could
now be regarded as being appropriate in terms of its constitution.
That seems to be the suggestion, and that would then have to be the
effect, broadly speaking, of this tacit common intent on the part of the
Parties to the Mandate Agreement if the Applicants' contention was to be
regarded as sound. And so the question arises, on the principles which I
attempted to state to the Court before, whether-having regard to the
relevant evidential material concerning the Mandate Agreement, con
cerning Article 22 of the Covenant, concerning the constitution of the
Mandate system, having regard to all that relevant evidential material-a
necessary inference can be drawn to the effect that there was actually
such mutual intent onthe part ofthe Parties to the Mandate arrangements.
My submission is, Mr. President, that when regard is had to the
circumstances surrounding the compromise agreement that went into
Article 22 of the Covenant-the historical circumstances at the time
which are well known to the Court and which are a matter of record
then it seems perfectly clear that there is no justification whatsoever
for drawing such an inference as being anything approaching a necessary ARGUMENT OF MR. DE VILLIERS IIJ
inference.It may well bE·that some of the delegates to the Peace Con
ference would have liked to see such a result if possible, notably the
President of the United States (President Wilson) and others who may
have thought in the sam~ direction as he did. They may have thought
of that-they may or may not have had it in mind as an ideal. Whether
they thought of it or noi:, if somebody had raised it, they might have
considered it something 1.hat ought to be striven for as an ideal which
ought to be achieved if p,)ssible. But one must not lose sight of the fact
that what could be achie·,ed could be done by agreement and by agree
ment alone, and there were other Iines of thought at that same conference,
as historyvery clearly shows.
The States who were in possession of the ex-German colonies and
possessions, and who reaUy wanted to annex or incorporate them into
their own-for them the natural desire would have been-"If we do
accept this Mandate system as a compromise, we want to make our obli
gations in regard thereto as little onerous as possible." That would bethe
natural tendency. Therefore the tendencies in this respect-on this
particular point-would be in opposite directions, as indeed in many
other aspects of this compromise arrangement which was eventually
forged.
When these States were then eventually and with difficulty prevailed
upon to accept the formula which was proposed as a compromise-an
express formula which thE:ythen accepted-there is in my submission no
justification whatsoever for an inference that what is now suggested by
the Applicants, and which would have taken the matter a step further
than to what they agreed expressly, that they would have assented to
such a proposition. Indeed, Mr. President, all the indications are against
even the probability that they would have assented to such a proposition.
I have referred in that regard to the attitude expressed by the Prime
Minister of Australia-we find it at page 219 of the Preliminary Objec
tions-to the effect that his country really desired direct control (those
were his words) and that this document, as handed in by the Prime Minis
ter of Great Britain, repre:,ented for his country and for New Zealand the
maximum of their concession. Ihave referred in that regard-the quota
tion is in the same portion of the Preliminary Objections-to what the
South African Prime Minbter stated, to the emphasis which he laid upon
the people who constituted the conference and who would constitute the
League of Nations, who understood the position and would not make it
impossible for any Mandatory to govem the country. That was a factor
which had induced him to agree. I have stressed in that regard the checks
and the balances which went into a very carefully devised League super
visory system, and which were known to the Mandatories at the time
when they agreed to this compromise solution.
In these circumstances then, Mr. President, if the officiousbystander
as he has sometimes been called~referred to by Lord Justice Scrutton
had corne along and had asked the question, "Now, what will happen if
the League of Nations is to be dissolved one day? What will happen
to this obligation of report and accountability to the Council of the
League? ", can one seriously under those circumstances expect that
there would have been one harmonious answer from the delegates at
that conference? Could orn'.expect that they would have said, "Obviously
the answer is so clear that we did not trouble to say so"? I submit not,
Mr. President. I submit that a factor of vital importance in that wholeII4 SOUTH WEST AFRICA
situation is the existence in the Mandates system-in each of the Man
dates-of a provision for amendment and modification of the terms of
the Mandate, if and when that might be necessary, by agreement between
the Mandatory and the Council of the League. The Applicants themselves
state, at page 443 (1) of their Observations, towards the bottom of the
page:
"It was, of course, hoped and expected that the organs created
after World War I to represent the international community would
endure."
From that proposition certain consequences follow, which the Appli
cants overlook in their argument. Most important is this, that it would,
in my submission, be quite unrealistic to attribute to the delegates at the
Peace Conference any real contemplation of detailed effects which a
possible later dissolution of the League of Nations might have upon the
Mandate arrangements. If the question had been put to them they would
say, "But that is something which we do not foresee at the moment. The
circumstances, if that should happen, must determine what will take
place." So that, if the bystander had put this question, "What will
happen if the League is to be dissolved?", the natural answer wou1d
have been, "AU will depend on the circumstances; there is machinery
here by which we can alter the Mandate agreements to fit in with altered
circumstances; we cannot foresee exactly what those circumstances will
be, and time will have to tell. The arrangements and adjustments will
have to be made as we go along. We cannot now have an agreement or an
arrangement to cope with something which as yetis for all of us some
thing from a practical point of view completely unforeseen." And there
fore the circumstances here very forcibly emphasize the generalization
to which I referred before by way of an extract from the judgment of
Lord Justice McKinnon, in Broome v.Pardess. It is already on record
! merely repeat it for emphasis-where the learned Lord Justice said:
"... Where the parties have made an express provision as regards
some matter with regard to the contract, it is, and must be, extremely
difficult for either ofhem to say in regard to that subject-matter,
as to which there is an express provision, that there is also an implied
provision or condition in the contract."
To take this analysis a stage further, Mr. President, suppose the
bystander-the imaginary bystander-at this conference had pressed his
point a bit further and had said: "What if the League-if and when it
should be dissolved-should be replaced by another organization which
could be described as the organized international community, and what if
that organization should have an organ that might be appropriate, in
terms of its constitution, for the purpose of exercising supervision over
mandatory administration? Would this consent, which has nowbeengiven
by mandatories to submit to the supervision of the Council of the League,
to report and account to it, be regarded as applicable also to reporting
and accounting to such an appropriate organ of such an imaginary later
organization?" What would the natural reaction to that have been, Mr.
President? I can imagine that a very natural and probable reaction might
have been: "We have had enough trouble and difficulty about arriving
at the agreement that has been arrived at; don't introduce further
difficulties now; that is something which is not an immediate problem,
it can safely be left for posterity. We will have to deal with the obstacle ARGUMENT OF MR. DE VILLIERS IIS
when we corne toit; thern is provision for possible amendment", as I have
said. That is one possible reaction, a very reasonable and very probable
one.
Another probable reaction might have been, "We have not discussed
that matter at all; let us discuss it now and see how far we corne". In the
event of such a discussi,Jn, what are the indications of probability as
to what the attitude would have been, judging by what there is on the
record in the annals of history as to the various attitudes at the confer
ence?
Again, Mr. President, the probabilities are that the Mandatories-or at
least some of them-would have said: "Now we know what it is that we
are agreeing to by way d supervision on the part of the Council of the
League; we know the implications of that type of supervision and we
know, in other words, exactly what we are agreeing to. We are satisfied
with those implications, we are prepared to accept them. This suggestion
that is now being putto us about some type of organization which may
replace the League, which may have an appropriate organ to exercise
this supervision, is very ?ague. We cannot agree to, or assent to, a pro
position of that kind without having more particulars, more details as to
what it would involve, what the implications would be for us. We cannot,
in fairness, be askedto agree to a proposition which is as vague as all that,
without knowing how this organization would be constituted, how its
organs would be composed, what the powers would be of the organs,
what the voting procedure would be of the organs, and so forth." Indeed,
that would have been the obvious attitude that the Mandatory Powers
or at least some of them-would have adopted. And, in those circum
stances, Mr. President, I submit that nobody at that conference could
have thought that there was any tacit agreement to the effect that the
express provision in regard to supervision was intended to carry with
it also a submission to a further vague type of supervision of this kind.
There could not have been any impression in the minds of any of the
delegates to the conference that that was the consensus of opinion and
that everyone was prepared to agree to a proposition of that kind,
although it had never becn discussed.
That that is so, is specifically borne out by the subsequent conduct of
the parties-of the Statei,-who were represented at that Peace Confer
ence initially and who can be regarded as the founders of the Mandate
system. If there had bee11an understanding that Article 6 was to be in
terpreted or understood in the sense contended for by the Applicants,
then surely there were occasions-particularly in 1945 and 1946 and
shortly thereafter-when that understanding would very pertinently
have been brought to lig;1t. Particularly if we look at the occasion on
12 April 1946, at the last session of the League Assembly, when the re
presentative of China said that the fonctions of the League in that respect
-in respect of Mandate,-were not transferred automatically to the
United Nations (I have gi·.renthe quotation to the Court before) when he
said that, then surely, if there had been a general tacit understanding of
the kind contended for by the Applicants, somebody would have reacted:
"But that is not right, yc-uknow! These fonctions of the League will be
transferred automatically because the understanding has always been
that this reporting and acc:ounting is to be to the appropria te organ of the
organfaed international c,)mmunity, and now there will be appropriate
organsin the United Nations and, therefore, there will be an automaticn6 SOUTH'. WEST AFRICA
transfer." Surely if there had been such a general agreement-such a clear
understanding, something which was not expressed because "it went
without saying"-then there would have been some reaction of that kind
at the League Assembly. But not a single delegate spoke to that effect,
and indeed there was no disputation whatsoever of this statement by the
Chinese representative that the fonctions of the League were not trans
ferred automatically. Further, when the Chinese representative made the
proposai that there should be express provision for a transfer of fonctions
and for further reporting and accounting in·the interregnum to which he
had referred, one would have expected a reaction: "But that is unneces
sary, it is already provided for by this general understanding which we all
know, and to which we are ail parties." And again there was no reaction
of that kind.
When the expressed intentions of.the Mandatory States at that last
League Assembly indicated that there would be adherence to the obliga
tions of the Mandates as regards administration in the territories, when
in some cases nothing was said at ail about reporting and accounting,
and when in other respects there was a _most pertinent indication--or
intimation-that there would be no reporting and accounting in terms of
the Mandate, then surely if there had been a general tacit understanding
as contended for someone wouldhave reacted to that effect and would have
said: "Now what about that obligation, what about this understanding
we have always had that your reporting and accounting would not only
be to the Council of the League but to whatever organ of the organized
international community could fairly thereafter be regarded as being a
successor in that respect of the Council?" Nobody reacted to that effect,
Mr. President.
When the questions arase in regard to Palestine (which were dealt
with by that Eleven-Nation Committee), surely if there had been a
general understanding of that kind the Committee could not unanimously
have said: The Mandate has now become infructuous becausc there is
no organ to which thcre can be reporting and accounting.
The question, Mr.President, remains; one of intentions-joint, common,
mutual intentions-of the parties; and that question cannot be avoided
by the use of labels, by speaking of an "automatic succession", by
speaking of an "organized international community", or by using
expressions of that kind. The basic enquiry remains one of intent.
The factors to which I have referred afford the most practical means
of testing that intention, and they all go to show that there is no foun
dation for the Applicants' argument.
If we take, for instance, the label "the organized international com
munity", the argument may at first blush seem attractive because it
has succeeded in finding a common name which can apply bath to the
League of Nations and ta the United Nations, and by the use of this
common name the argument seeks ta bridge the gap. But, Mr. President,
surely that is fallacious unless the matter is related to the intentions
of the parties. I can give the Court an example. Suppose I make a
contract with a transport contractor that he is to pick me up every
morning by motorcar at an appointed time to take me to my place of
work. One moming he tums up with an ox cart. Surely he cannot then
say tame, "But our contract provided for a motorcar, which is a vehicle,
and an ox cart is also a vehicle, and therefore I am performing my
contract by bringing a vehicle and taking you in that, even though ARGUMENT OF MR. DE VILLIERS IIJ
you may be sopping wet when you arrive there because of the rain and
even though you may be an hour late for your work." Surely, one cannot,
merely by fmding a cornmon name for two things, now regard those
two things as being the equivalent of one another for the purposes of
a contract or agreement which refers to one of them.
If, for instance, some ~;tate had joined the League of Nations in 1930
and thus-according to the Applicants' description-became a Member
of the "organized intemational community"; if that State had never
taken any trouble to take the necessary steps to become a Member of
the United Nations, surel:( that State could not at the present time daim
that "I am a Member of the United Nations because the United Nations
now is the 'organized ir,temational community' and I joined the 'or
ganized international community' in 1930 when I joined the League".
That type of assimilation is a fallacious one unless it is related to the
intentions-to the real intentions-of the parties. And the factors to
which I have referred render it clear, in my submission, that the in
tentions of the parties agreeing speci:fically about supervision by the
Council of the League cannot be understood as referring to the Council
of the League as a concept of being an appropriate organ of an "or
ganized international cc-mmunity" for the purpose of implying that
if the Council should no longer exist one day and if there should be some
other organization to which that label might apply, then that other
organization is to be the supervisory authority.
Another ground on which Applicants' argument is sought to be based
is the "principle of effectiveness". However, as the authorities on the
subject render clear, this principle is merely to be used as a guide of a pre
sumptive nature, indicative of common intent; it is to be used as an
aid in arriving at a consideration of general probability regarding such
intent. There can be no .;cope for its application where such intent, or
the absence thereof, is c:learly demonstrated by other considerations.
Williston on Contracts, in Volume 3, Sec. 6zo, in referring to the use of
this principle writes:
"But the mere fact that parties have made an improvident bargain
will not lead a Court to make unnatural implications or artificial
interpretations. A Court will not under the guise of interprctation
write a new contract for the parties."
And in Halsbury's Laws of England we find in Volume 8, pages 121
to I22, that
"Such an implication must in all cases be founded on the pre
sumed intention of the parties and upon reason, and willonly be
made when it is neŒssary in order to give the transaction that
efficacy that both parties must have intended it to have."
ln the pr'esent case, there is no justification for contending that the
parties to the Mandate i,1strument must have intended the effect con
tended for by ApplicantE. As Lauterpacht, in bis Development of Inter
national Law by the Intemational Court, page 281, points out,
"... absence of agreement could not properly be supplemented by
an inference aiming at securing for the instrument in question a
higher degree of effec:tivenessthan was warranted by the intentions
ofthe parties".II8 SOUTH WEST AFRICA
The overriding considerations, therefore must be such practical,
reliable indications of common intent as exist, or-as in the present
case-of the absence of such intent. A court's aim cannot be to attain
the maximum of effectiveness, but only the maximum effectiveness
consistent with the intentions of the parties. Indeed the 1950 majority
Opinion did not invoke the principle of effectiveness in the way sug
gested by Applicants-i.e. with a view to reading an implication into
Article 6 of the Mandate....:....butmerely as an indication of probability
regarding the intent of members of the League and of the United Nations
at the time of transition.
In further support of their contention, Applicants refer to a statement
of Judge Lauterpacht quoted at pages 445 (I) and 446 of the Obser-
vations, which reads as follows: ·
"While as a rule the devolution of rights and competences is
govemed either by the constituent instruments of the organizations
in question or by special agreements or decisions of their organs,
the requirement of continuity of international life demands that
succession should be assumed to operate in all cases where that is
consistent with or indicated by the reasonably assumed intention
of the parties as interpreted in the Iight of the purpose of the or
ganizations in question."
It will be observed, Mr. President, that the statement is premised
upon the "reasonably assumed intention of the parties". As Lauterpacht
himself pointed out elsewhere the use of the principle of effectiveness is
essentially a matter of good faith; it rests on an interpretation in all
good faith of the intention of the parties. Where therefore as in the
present case, practical considerations demonstrate the absence of such
intent, that takes away all ground for such a reasonable assumption
of intent and therefore precludes the succession contended for.
In the reasoning which led Judge Lauterpacht to the statement
I have just read out to you, an analogy is drawn between the present
situation and the "cy-pres" doctrine. This reasoning is set out at page
279 of the Development of International Law by the International Court,
and the relevant passage reads as follows:
"... Seldom was there a more compelling occasion for applying
as the Court did in fact-the cy-près doctrine which common law
courts apply in order to render effective a general charitable in
tention in face of the impossibility of applying it according to the
literal language of its author. In the case of the Status of South
West Africa the Court applied the essence, though not the termi
nology, of that doctrine-with full propriety, it is believed-to
something less than the substance of the relevant provision; it
applied it merely to the procedure of its execution. If, as the Court
held unanimously, the institution of mandates constituted a
status, then it was proper to apply to the matter before it the
principle of succession in international organization-a principle
which the present writer has stated ... with reference to the Opinion
of the Court in the case concerning the Status of South-West Africa."
It seems clear, Mr. President, that in this case the very premise for
the analogy is Iacking, i.e. the basic overriding intent to which effect
can be given despite failure of a particular method or machinery pre- AR( UME NT OF MR. DE VILLIERS
scribed for its implementation. To illustrate this point, may I be permit
ted to quote from HalsbHry's Laws of England on the "cy-pres" principle,
where we find on page JI7 of Volume 4 (3rd edition):
"There can be no question of an application cy-près until it is
clearly established that the mode specified by the donor cannot
be carried into effed and that the donor had a general charitable
intention."
And it goes on as follc,ws,at pages 317 to 318:
"An application ,:y-prèsresults from the exercise of the ordinary
jurisdiction of the Court to administer a charitable trust of which
the particular mode of application has not been defined by the
donor. Where the d-:morhas in fact prescribed a particular mode of
application and that mode is incapable of being performed but
the donor had a charitable intention which transcended theparticular
mode of application prescribed, the Court in the exercise of this
jurisdiction can caJTy out the charitable intention as though the
particular direction had not been expressed at all. Where, however,
the particular mode of application prescribed by the donor was the
essence of his intemion (which may be shown by a condition or by
particularity of language) and that mode is incapable of being
performed, there is nothing left upon which the Court can found
its jurisdiction, so that in such circumstances the Court has no
power to direct an:r other charitable application in .place of that
which has failed."
Then, at page 324, we find the following passage on the same principle:
"Where the original foundation is capable of taking effect, the
Court has no autho:city to vary it and to apply the charity estates
in a manner which it conceives to be more beneficial to the public,
or even in a manner which the Court may surmise that the founder
would himself have contemplated could he have foreseen the
changes which have taken place by lapse of time."
And finally, at page J'.l5we read:
"Again, where thiire is no general dedication of a fund to charity,
or,in other words, where there is no ovcrriding charitable intention,
a gift for a particular purpose which cannot take effcct cannot be
applied cy-près."
As we have seen from the quotations given above, the basic over
riding intent in cases where the "cy-près" principle can be resorted to
is known as a "general charitable intent", i.e. when a donor or testator
had an overriding intent to benefit charity, a specific body or institution
having been designated by him to effect that overriding intent. Howevcr,
where no such intent can be found, the doctrine cannot be applied.
The matter is one of interpretation in each case. To corne back to the
analogy suggested in the passage I quoted from Judge Lauterpacht's
book: if the "cy-pres" principle were to be applicable here, there would
surely have to be an overriding intent on the part of the founders of the
Mandate that Mandatorics should be obliged to submit to international
supervision, and that they should report and account to an organ, not
necessarily the one exprcssly provided for, with a view to achieving theI20 SOUTH WEST AFRICA
overriding intent. But surely, Mr. President, if there is no such intent~
the reporting and accountability obligations being specifically and ex
clusively related to a specific organ or institution-the very premise
for the analogy falls away.
There are other respects in which the analogy with the "cy-près"
principle fails. The doctrine is applied where, a donor or testator no
longer alive and in control, the Court then of necessity has to step in, in
view of the ensuing change of circumstances, to take such steps as are ap
propriate to effect what it considers to have been the overriding intent of
the donor or testator. Now, where a contract, or an international agree
ment is concemed, where the parties to that agreement are still in exist
ence, and where specific provisions are made in the instrument for effect
ing such modifications as may be required in view of altered circum
stances, there is no such necessity for the Court to intervene.
Thirdly, in order to justify intervention by the Court, the original
foundation must be incapable of taking effect-in toto and not merely as
regards some aspect thereof. The reason for that is perfectly clear. The
Court steps in because of necessity, when necessity requires it, in order
to give effect to the basic intent and to prevent a lapse of the charitable
bequest. But where there is no necessity for the Court to step in there is
no justification for the Court to do so.
To give an example: Suppose there should be a bequest with a general
charitable intent of providing for hospitalization of the poor in a partic
ular district. ·ln order to give effect to that intent, the donor or testator
provides that there is to be, say, an annuity available to a particular
hospital in the district, and one of the conditions or directions in regard
to that bequest is that the director of the hospital shall annually report
to say a hospital control board of the district in order to indicate what he
had done with the money during that year. Now, Mr. President, if that
particular hospital should cease to exist, then there would, on these
principles, be an occasion for the Court to step in and apply the cy-près
doctrine. But if merely the hospital control board should cease to exist
so that there could no longer be reporting to the supervisory board, then
that would merely alter one of the aspects of the bequest. The bequest
itself-the original foundation-would still be capable of being given
ëffect to. The hospital could carry on-it could still apply that annuity
every year for the purpose for which it was intended-and there would
therefore be no occasion, or no justification, for an application cy-près
according to these principles to which I have referred.
That is really the position here. On the basis on which this case is
being argued, one accepts that the basic idea, the sacred trust of civili
zation, remains, that the Mandate remains, involving for the Mandatory
the substantive trust obligations which he undertook and which bind him
to apply his rights and his powers in regard to the territory for the benefit
and for the well-being and for the advancement of the inhabitants.
That is the basic, underlying, original foundation-if we talk by way
of anaogly with the cy-près doctrine-and that can still take effect.
Therefore there is no justification for a Court to step in merely when
an additional aspect attached toit, that of reporting and accounting to a
supervisory authority, when that by itself becomes incapable of further
performance. There would be no occasion and there would be no justi
fication for the Court to perform any role of that kind. ARGUMENT OF MR. DE VIU.IERS 121
For all these reasons, therefore, the analogy with the cy-près doc
trine isnot a sound one.
Mr. President, at page 445 (1) of the Observations the Applicants cite
in support oftheir argument a passage from an article by Sir Gerald Fitz
maurice in the 1952 Briiish Year Book. They state that:
"... The rationale of the Court's approach is further confirmed by
the carefully reasoned analyses of Sir Gerald Fitzmaurice and Sir
Hersch Lauterpacht. Judge Fitzmaurice has pointed out...",
and then follows a passage which I am not going to read to the Court;
it points to the similarity between State succession, where territory
passes from one State t,) another, and the passing of a functional field
from one organization to another.
Now, what I do want to point out is that the manner in which this
passage is quoted, divorced from its context, is apt to lead to a mislead
ing impression. The passage in fact in the British Year Book, 1952, at
page 9, commences with the words "On the foregoing basis", which
words were omitted at the beginning of the quotation; and they refer back
to very important quaEfications which go before, as I understand the
article. On the previous page the learned author states, referring to the
1950 Opinion:
"The Court fourni in effect that there had been an automatic or
necessary devoluticn on to the United Nations of certain super
visory functions of the former League of Nations in regard to man
dated territories, i.e. the right to receive, examine and observe upon
reports on such territories, which the mandatory Powers were under
a corresponding obligation to furnish to the League, and hence (in
view of the devolut:ion) were now under an obligation to furnish to
the United Nations, in lieu of the League. Judges McNair and Read
dissented from this view, because they were unable to agree that
there had been an:1 automatic or necessary devolution. In their
opinion, any succes;Îon depended on definite arrangements to that
effect having been made, and in the light of the relevant instruments
they did not consider that this had been done."
The learned author proceeds:
"I t is not the present purpose to discuss which of these views was
correct, particularly as the issue turned largely on the effect of
particular instruments, and, to that extent, raised no point of
general legal intereEL lt would appear, however, that the Court's
fmdings [in other words the findings in the majority Opinion]
constitute authority for at any rate the following two general
propositions:
(i) There can be an automatic devolution of fonctions from one
international organ ization on to another in the event of the ex
tinction of the former.
(ii)There is a presumption that such a devolution occurs when
ever the following c-:mditions are fulfilled:
a. a given organizadon becomes extinct, but another organization,
intended generally to take its place cornes or has corne into being,
having essentiallythe sarne purposes and principles, with a similar
or analagous constitution and institutions, and carrying out
broadly the samt: functions, in the same field; I22 SOUTH WEST AFRICA
b. the constitutive instrument of the new organization specifically
authorizes or enables it to assume and carry out the fonctions in
question."
All these qualifications are therefore to be borne in mind as being
implicit inthe words "On the foregoing basis" which introduce the next
passage. Particularly I want to stress these, Mr. President: it was not the
learned author's purpose to discuss whether the views of the majority
or of the minority were correct in the 1950proceedings; secondly the issue
in 1950 tumed very largely upon the effect of particular instruments and
arrangements; and, finally, where the general propositions are stated on
the basis of the views of the majority of the Court, even there the
occurrence of a devolution under the circumstances mentioned can
be put no higher than a presumption, which would apply under certain
circumstances. And particularly, in a footnote relating to this element
of presumption, the leamed author again states:
"The matter is purposely not put higher than a presumption
because it is clear that in arriving at the conclusion that the rights
and fonctions in question had devolved on to the United Nations,
the Court was not proceeding on a purely doctrinal basis but was
influenced by certain factual considerations relative to the character
of the Mandate for South-West Africa and the effect of certain
particular instruments."
Therefore, it appears that, although the rationale of the Court's
approach was analyzed by the learned author, it was certainly not con
firmed by him.
The analysis, in my submission, supports the construction which I
have, with respect and with submission, put upon that reasoning of the
majority, in the sense that I have also submitted to the Court-that
it was based on a general probability-a conception on the part of
the majority that there would have been, as a matter of general probabil
ity, an intention on the part of the interested parties to keep alive this
obligation to report and account in the form that the new organ, that
would be appropriate for the purpose, would then for the purposes of
their, contract, be regarded as the new supervisory organ. In other
words, it proceeded on a general probability, one that would have
to be viewed and to be weighed in the light of all other relevant, evi
dential considerations before one can corne to a final conclusion as to
whether there was in fact and in law in the particular case such a devo
lution or succession.
Therefore also, where I referred earlier to the three possible ways
in which the Applicants' reference to a principle of succession could be
understood, it is only when this particular passage to which I have just
referred is read without regard to its context, it is only then that there
could be some suggestion of a possible reference to succession in the sense
of a principle of customary international law. I know of no authority that
has ever suggested that there does exist such a principle of customary
international law. lt is not suggested in the article in question, as I have
just emphasized. The article points out that the matter is one to be
investigated with reference to the particular instruments, and I know of
no authority which refers at all to the possibility of there existing a rule
of customary international law to this effect. ARGUMENT OF MR. DE VILLIERS 123
Therefore in the fin".l analysis, Mr. President, of the Applicants'
arguments concerning succession, we find that they apparently do not
contend for succession in pursuance of a principle of customary inter
national law. They do not contend for succession in the sense of a tacit
agreement at the time oEtransition between Members of the League on
the one hand and Members of the United Nations on the other hand.
Nowhere in their writfon Observations does one find any suggestion
that they rely on succe,,sion in this latter sense. And therefore, in my
submission, they do not attempt to support what was really the rationale
of the majority Opinion in 1950. According to the analysis which I
presented yesterday in my argument, that Opinion rested on a conclusion
that during the time of transition there was such a tacit agreement or
understanding providing for a succession, but that the Applicants do not
attempt to support. And they do not attempt to controvert our analysis
ofthe events during the transition period by which we show that all the
indications there are ag".inst the existence of such a tacit agreement or
understanding.
Their contention app,~ars to rest entirely upon this interpretation,
as they put it, which is to be giveto Article 6 of the Mandate Agreement,
and which, on analysis, as I have presented it to the Court, is to be under
stood really as resting c,n an implication to be read into that Article.
And it is significant that, although they do that, they do not really
advance any evidential rnaterial to the Court which must indicate that it
would be a necessary inforence to attribute such a common intent to the
Parties. They do not attempt to controvert several major factors in our
argument which tend to show that there could have been no such joint
intent. They do not attempt to controvert our demonstration of the
compromise history of Article 22, nor our analysis of the practical im
portance to the Mandate-ries of the fact that Article 6 related to specific
League supervisory machinery only. They don't controvert that any
where. They don't meet our argument as to the difference in substance
and in form between supervision on the part of the League supervisory
machinery and organs of the United Nations on the other hand.
And, finally, they do not meet our argument at all as to the
significance to be attributed to the practice of States in this regard
-to the statements of the nations involved in the report of the Commis
sion on Palestine, to the other statements by the United States. New
Zealand and the Soviet Union representatives during the course of de
bates-bearing upon what the real intent of the Parties in this regard
must have been. They simply assert that that is the way in which Article
6 is to be read in order to make it effective. That, in our submission, in
effect amounts to a suggestion that the instrument is to be given a
higher degree of effectivmess than is warranted by the intentions of the
Parties. It would, in efiect, in my submission, amount to a revision
of the instruments inste2.d of interpreting them and it would give them
an effect which would be contrary to their letter and their spirit.
Mr. President, when I dealt earlier with the Applicants' reply at page
433 (1) of their Observations to our argument conceming the practice
of States, I mentioned thcn that there was a portion of that reply
with which I would not deal at that stage. I would like to do so now.
There are really two portions of that passage at page 433 which remain
to be dealt with.124 SOUTH WEST AFRICA
The first is a reference to Dr. Steyn's address to this Court on behalf
of the Union of South Africain 1950. The argument is this: Applicants
say "The fact that Respondent finds the views of States expressed in a
Report on Palestine to be crucial is surprising in the light of Respondent's
argument before the Court in 1950", and they cite:
"As a corollary, apparently, to the proposition that the man
datories and the Members of the League never intended the mandates
to lapse, the Court's attention is also drawn, in the Written State
ment of the United States, and also in the oral statements, to the
fact that certain Members of the United Nations, and also the
United Nations itself in certain resolutions, have accepted the
continued existence of the mandates. Now that again, Mr. President,
does not seem to take the matter any further. ln fact, I find it
difficult to understand why these views are referred to at all in this
connection. At the most, they are mere expressions of opinion.
These expressions of opinion cannot change the realities of
the legal situation. They cannot make new law." (Observations,
p. 433 (1).)
But to appreciate that argument in its true light, one merely has to
go on to read the very next sentence at page 280 of the Pleadings,
Oral Arguments, Documents of 1950. The next sentence reads:
"If in law the mandates lapsed upon the dissolution of the
League, a contrary opinion, however often it may be expressed
in the United Nations, could not alter the law, and revive the
mandates."
There was no inconsistency whatsoever; Dr. Steyn's argument then
was that a certain situation, the lapse of the Mandates, followed ne
cessarily upon an event, namely the dissolution of the League. He said
where that has happened, opinions expressed afterwards cannot alter
that situation. Here we are dcaling with an entirely different proposition;
we are dealing with a proposition that there was, in regard to the
question of succession or no succession regarding supervisory fonctions,
a tacit agreement or understanding between the interested States. We
refer to the practice of the States under various circumstances, the
attitudes they adopted very shortly after the period of this suggested
tacit agreement, when that tacit agreement would have become an
important matter. And we submit that the views which they then ex
pressed in that regard must be regarded as of very great evidential
weight.
There is another passage at page 433 (I) of the Observations which
remains to be dealt with, where the Applicants state:
"Further, ifthe views of States are now to be considered relevant,
due weight will undoubtedly be accorded to the views of the over
whelming number of United Nations Members, which have re·
peatedly taken the position that Respondent as Mandatory is
accountable to the United Nations."
Now in support, in a footnote (No. 5), the Applicants state: "See, for
example ...", and they mention three United Nations General Assembly
resolutions. The Court will note that the dates are I3 December 1950,
the next one is 1952 and the third one is 1953. When those resolutions
are referred to one finds that they were all, as the dates indicate, adopted ARGUMENT OF MR. DE VILLIERS 125
a/ter the 1950 Advisory Opinion, and they were all directed inter alia
at acceptance of that Opinion by the United Nations and a practical
course or policy to be adopted on the basis of that Opinion. That was
the trend or the contents of those resolutions, and that was what these
States who took part in them were voting for. They were not then
giving an indication of their own views or their own understanding of
the situation in regard toreport and accountability. If one is to ascertain
what their attitude was in that regard, one has to go back to the crucial
years before the Court's Opinion was given, immediately after this
question of South West Africa had begun to arise in the United Nations.
And then one has to refer for that purpose to the very significant
debates of 1947, 1948 and 1949 in this regard. If one does that, Mr.
President, as I now intend to do in reply to this argument of the Appli
cants, one finds that very far from the views of the overwhelming number
of United Nations Members having been as the Applicants allege, we
find the contrary. We find overwhelmingly the understanding is indicated
that there was no obligaüon to report and account, outside of a trustee
ship agreement, in terms of a mandate agreement because of a tacit
agreement or understanèi.ing to that effect.
For the purposes of presenting this argument to the Court, I would
like to refer to certain extracts from speeches and statements in debates
in the United Nations.
[Public hearing of 5 October I962, afternoon]
Before reverting to the! argument I would like to explain further that
we have compiled an index of all statements made on South West
Africa at the U.N., but that need not fonn part of the record at all.
It could be a document in the files of the Court. It was purely for the
convenience of MemberE of the Court, and for my learned friends, to
enable a check to be made on whether we have made the extracts
correctly, or whether th,~ extracts ought, in some way, to be regarded
as being amplifi.ed or qualified by other things said on other occasions.
The index is as full as wc could make it-we cannot guarantee that it is
absolutely exhaustive.
Now, Mr. President, to revert to the argument. We wish to draw
attention to the fact that in 1947, during the Second Session of the United
Nations General Asserribly, the representative of the Respondent on
two occasions stated very explicitly that, in the view of his Govemment,
the United Nations had no supervisory jurisdiction in respect of South
West Africa. He said t:ii.at first on the 27th September 1947 in the
Fourth Committee. We quote the passage in our Preliminary Objections,
at page 261 (1). The pai;sage reads as follows:
"the annual report which his Govemment would submit on South
West Africa would contain the same type of information on the
Territory as is required for Non-Self-Governing Territories under
Article 73 (e) of the Charter.It was the assumption of his Govem
ment, he said, that the report would not be considered by the
Trusteeship Council and would not be dealt with as if a trusteeship
agreement had in fact been concluded. He further explained that,
since the League of Nations had ceased to exist, the right to submit
petitions could no longer be exercised, since that right presupposes 126 SOUTH WEST AFRICA
a jurisdiction which would only exist where there is a right of
control or supervision,and in the view of the Union of South Africa
no such jurisdiction is vested inthe United Nations with regard to
South West Africa."
Over the page, we find a reference to a further statemcnt on r No
vember 1947 in the Plenary General Assembly-also by the representa
tive ofthe Union-where he stated that:
"The Union of South Africa has expressed its readiness to submit
annual reports for the information of the United Nations. That
undertaking stands. Although these reports, if accepted, will be
rendered on the basis that the United Nations has no supervisory
jurisdiction in respect of this territory,hey will serve to keep the
United Nations informed ..." (Preliminary Objections, p. 262 (1)).
I am stressing that portion-they "will be rendered [if accepted] on
the basis that the United Nations has no supervisory furisdictionn respect
of this territory".
There were, at the time, 57 Members of the United Nations, 51 of
whom had been original Members of the United Na'tions. 32 of those
51 States had also been Members of the League at the time of its dis
solution, and 34 of them had been original Members of the League.
Therefore, if there had been a tacit understanding-originating from the
tirne of the League, either from the time when the Mandate system was
created or from the transition period when the League was dissolved
and the United Nations came into existence-to the effect that the
Mandatory was now obliged to report and account to the United Nations,
as formerly to the Council of the League, regarding compliance with its
substantive obligations under the Mandate, then surely, after these
two statements by the representative of South Africa (to which I have
just referred) in 1947, very shortly after the transition, one would have
expected sorne reaction to that. Someone would have got up and said:
"But you are running contrary to this understanding which has always
existed, something that was so clear that it wcnt without saying." But
what do we find, in fact, during this 1947 Session? We find, on analysis,
that representatives of 41 States addressed the various organs of the
United Nations on this question of South West Africa-the Fourth
Committee, the Trusteeship Council and the General Assernbly. The
other 16 of the 57 Members at the time did not take part in the debate
on this question. Not a single one of any of the States-any of the
Members of the United Nations-alleged the existence of a tacit agree
ment or•understanding of the kind which I have just mentioned. There
were some of the 41 who took part in the debates who contended that
·there was an obligation to enter into a trusteeship agreement. There
were sorne of them who contended for an obligation to submit technical
information to the Secretary-General under Article 73 (e) of the Charter,
which (as I have shown) is a different obligation from reporting and
accounting under the Mandate. Sorne of them contended that the
Respondent (the Union of South Africa) had committed itself to the
United Nations by the temporary rendering of reports in terms of the
undertaking to which the two statements I have just read refer. They
had, apparently, misunderstood the conditions under which that sub
mission of information had been made right from the start. Sorne of
the States contended that the Mandate had lapsed altogether, and some
of them stated no clear attitude on the legal side of the situation. ARGUMENT OF MR. DE VILLIERS I27
They contended for what they called "political and moral duties and
obligations" but they did not deal specifically with the legal side.
These are various types of attitudes adopted on the question. But,
I repeat, not a single one of them alleged a tacit agreement or under
standing which would render the Respondent liable to submit to super
vision by the United Nations in the manner in which it had reported and
accounted and submitted to the supervision of the Council of the League.
ln addition to argummts statcd on other aspects of the matter, one
finds that at least 14 of the 41 States who took part in the debatc,
acknowledged---either e::pressly or by very clear implication-that, in
the absence of a trust,~eship agreement, the United Nations would
have no supervisory powers in respect of South West Africa. (I say
at least 14 for we made this classification and in some cases it is very
difficult to decide whether the attitude of a State is to be classified
on one side of the line c,r the other. We tried to be as conservative as
possible and where theie was the least doubt we classified a State's
attitude as being non-cornmittal on the point, rather than as being in our
favour in this particular:Œspect. But of those 14, wesuggest (even though
there may, in other cases, be difference of opinion) that they, either
expressly, or by clear implication, indicated the attitude that outside
of a trusteeship agreem,~nt there would be no supervisory powers on
the part of the United Nations in respect of South \Vest Africa. These
States were: Australia, China, Colombia, Cuba, France, India, Iraq,
the Netherlands, New Zcaland, Pakistan, the Philippine Republic, the
Soviet Union, the United States of America and Uruguay.
I would like to give examples now of the types of statements made in
this regard by the States which I have mentioned, and to give the refer
ences where their statements are to be found. I would classify the state
ments of the following nations as being very explicit on the point: that
of the United States, tha·::of the Netherlands, that of Pakistan, of China,
and of lndia. Now I would like to refer first to a statement on behalf of
the United States of America, for a reason which will become obvious
from the contents of that statement. It is to be found in the records of the
Trusteeship Council for the 2nd Session, 1st Part, 15th Meeting, I2 De-.
cember 1947, page 505--a statement by Mr. Gerig. The occasion was
consideration of the information which the Union of South Africa had
voluntarily submitted in ierms of its undertaking. There appears to have
been quite a debate on the question as to the manner in which this
information was now to be dealt with in the Trusteeship Council. And
this iswhat the represen-::ative of the United States said:
"It was said here earlier this aftemoon, and I did not hear any
member object, that while we all hope-my delegation as muchas
any delegation feel~ that way-that there will be a trusteeship
agreement for this terdtory, we do not, in the absence of a trustee
ship agreement, ha·,e supervisory fonctions over this territory.
Therefore, I do not think we ought to imply that we do have super
visory fonctions to @sure that the Union Government discharges
its duties under the present mandate, admitting that it exists."
It is a vcry significant statement because it is not only one made on
behalf of the United States of America but it reflects on all the other
memberspresentin the Trusteeship Councîl on that particular afternoon,
in that the representativc of the United States said that that statement
had been made and he did not hear any member object.I28 SOUTH WEST AFRICA
The statement on behalf of the Netherlands was almost equally
explicit. I refero the Records of Plenary Sessions·of the General Assem
bly, 2nd Session, Volume I, rn5th Plenary Meeting, 1st November, 1947,
page 605. Mr. Kemcamp stated:
"The mandate system now does not operate. As there is no longer
a superv.isoryauthority, there is no longer a mandate system. The
voluntary transmission of information, merely for the sake of in
formation, by the Union of South Africa to the Trusteeship Council
does not give the Council the same jurisdiction as the Permanent
Commission on Mandates had ...
We consider that the present situation constitutes a step back
ward, in so far as a territory once under international supervision
is now under no superintendence."
We fi.ndon behalf of Pakistan equally explicit statements. The passage
as a whole to which regard ought to be had is somewhat longer and I do
not propose to read the whole of it to the Court. It is to be found in the
General Assembly Official Records, Second Session, Volume I, 105th Plenary
Meeting, ISt November 1947, at pages 618-619, a statement by Mr. Pir
zada, commencing with the words "A simple comparison of the relevant
Articles in Chapters XI and XII...", and I would like to refer to the whole
passage to where it concludes with the words: "... second, supervisory
control of an international body". For the sake of emphasis I refer now
only to these two portions. The speaker was comparing the situation
under the Mandate system, taking that system as being still in existence
in regard to the case of South West Africa, and the situation, on the other
band, under the Trusteeship system, and he was mentioning various
points of comparison. He stated:
"The second advantage which the Trusteeship System has over
the ordinary administration under Chapter XI is that international
supervision is provided under the International Trusteeship System,
according to Artlcle 75 of the Charter. As against that, under Chapter
XI of the Charter, which relates to the administration of Non-Self
Goveming Territories-to which class this Territory of South West
Africa will have to belong if it is not brought under the Trusteeship
System-there is no provision for international supervision, and
the only supervision that exists takes the form of supplying in
formation on non-political matters for the consideration of the
Unite~ Nations: in other words, economic, social, and other mat
ters...
I skip somewhat and read the very last portion:
"Therefore, by refusing to place this Terri tory under the Trustee
ship System, the Union of South Africa is going back on both prin
ciples recognized by the Covenant of the League of Nations: first,
trusteeship of an international body; second, supervisory control
of an international body." (P. 619.)
We fi.ndin the case of China two statements which, in our snbmission,
strongly imply the same thing, both made in 1947. I will merely give
theirreferencesnow without reading them. The first one: General Assem
bly, Official Records, Second Session, Fourth Committee, 31st Meeting,
25th September 1947, page 6; and the second one, G.A.O.R., Second
Session, Volume I, rn5th Plenary Meeting of the General Assembly, ARGUMENT OF MR. DE VILLIERS 129
1st November, 1947, page 601. But any doubt there may be as to what
was intended to be signified was removed by a statement by the same
representative of China in 1948, General Assembly, Third Session, Part I,
Fourth Committee, 76th Meeting, 9th November, 1948, page 296. There
the statement was this:
"It was true that, as no trusteeship agreement had been concluded
for South West Afdca, the United Nations could not intervene or
exercise its power ,Jf supervision in regard to that territory. But
paragraph 2 of Artide 80 imposed an obligation to conclude such an
agreement without delay."
An example, therefore, of an attitude that there was an obligation
to enter into a trusteeship agreement but that, in the absence thereof,
there was no power of supervision. '
Then, India. India prnposed a draft resolution of which paragraph 5
contained the following statement (General Assembly, Second Session,
Fourth Committee, Anne:c 3 h, page 197}:
"Whereas the territory of South West Africa, though not self
goveming, is at present outside the control and supervision of the
United Nations."
The case of Australia I classified as being one of clear implication.
Possibly I could put it stronger and put it on the basis of being express.
We have three references-Fourth Committee of the General Assembly,
Second Session, 39th Meeting, 8th October, 1947, page 58; and the next
one is Plenary Meetings -Jithe Second Session, Volume I, ,ro4th Meeting,
ISt November, 1947, page 588. On both occasions the effect of the state
ment was that the Union was under an obligation to treat the territory
as being non-self-governing and therefore to submit information in
terms of Chapter XI.
But now I wish to refer to the third extract, which is in the Trusteeship
Council, Second Session, First Part, 15th Meeting, 12th December, 1947,
page 477-a statement by Mr. Forsyth:
"The reports on Trust Territories are submitted not merely to
inform the Trustecship Council but to enable the Trusteeship
Council to exercise its main fonction, the supervision of admini
stration. In the ca:;e of South West Africa which is not a Trust
Territory, the Trusteeship Council does not have the fonction of
supervising admini,tration. The administration of South \Vest
Africa has been reserved by the Govemment of the Union of South
Africa as its own concern and that Government, not having placed
the territory under ::rusteeship, does not recognize the power of the
Trusteeship Council to supervise its administration. There is, there
fore, a fondamental difference between the purpose for which the
report on South We:;t Africa is submitted and the purpose for which
reports on Trust Te1Titories are submitted."
I have now referred te, the statements on behalf of six of the fourteen
States which I mentioned; I will not read from the statements on behalf
of the other eight, I will merely indicate the references where their state
ments are to be found and our interpretation which we place on those
statements.
In the case of Colombia, there are two statements to be found in the
Official Records of the General Assembly's Second Session, namely the 130 SOUTH WEST AFRICA
105th Plenary Meeting, 1st November, 1947, page 602, and the 33rd
Meeting of the Fourth Committee, 27th September, 1947, page 14. In the
case of Iraq there are three to be found in the Official Records, namely,
General Assembly, Second Session, Fourth Committee, 32nd Meeting,
26th September, 1947, page 10; 105th Plenary Meeting, 1st November,
1947, pages 621-622; and Trusteeship Council, Second Session, First
Part, 15th Meeting, 12th December, 1947, page 482. In the case of the
Soviet Union there is one in the OfficialRecords of the General Assembly's
Second Session, Volume I, 105th Plenary Meeting, 1st November, 1947,
page 6I2; and in the case of Uruguay there are three references in the
General Assembly's Official Records of the Second Session, namely:
Fourth Committee, 33rd Meeting, 27th September, 1947, page 14;
Fourth Committee, 40th Meeting, 9th October, 1947, page 60; 105th
Plenary Meeting, Volume I, rst November, 1947, page 615. In all these
cases the attitude adopted was that the Mandate had lapsed altogether,
so by clear implication, Mr. President, if the Mandate had lapsed alto
gether then there could not be a duty of reporting and accounting in
terms of the Mandate. .
Then the other States of the fourteen that I have mentioned, were
France-Trusteeship Council, Second Session, First Part, 15th Meeting,
12th December, 1947, page 480; New Zealand-General Assembly,
Second Session, Fourth Committee, 33rd Meeting, 27th September, 1947,
page 17, and Second Session, Trusteeship Council, First, Part, 15th
Meeting, 12th December, 1947, pages 478-479; Cuba, in whose case there
are two in the Official Records of the General Assembly's Second Session,
namely Fourth Commitee, 32nd Meeting, 26th September, 1947, page
IO, and 39th Meeting, 8th October, 1947, page 55; and finally the Philip
pine Republic, for whom also there are two, namely, G.A.0.R. Second Ses
sion, Fourth Committee, 31st Meeting, 25th September, 1947, page 7, and
39th Meeting, 8th October, 1947, page 57. ln all these cases the impli
cation is clear because the statements are to the effect that in the absence
of a trusteeship agreement the information in fact submitted by South
Africa under its undertaking at that time could be examined for informa
tion purposes only-that was the trend of these varions statements made.
In the case of Cuba the representative went so far as to say that the
information could not be examined at all, and the representative of
the Philippine Republic contended that there was an obligation under
Chapter XI to submit information which of course, as I have explained
before, is a much less onerous obligation than to report and account
in regard to compliance with substantive mandatory obligations.
Now of these fourteen States, Mr. President, four of them had also
signed the Report on Palestine to which I referred before. They were
Australia, India, the Netherlands and Uruguay, leaving seven additional
signatories to that Report who had there, of course, indicated the same
type of attitude. The other seven, then, were Canada, Czechoslovakia,
Guatemala, Iran, Peru, Sweden and Yugoslavia. So, if we add these
seven-because the Report was also in 1947-to the fourteen I have men
tioned, we have twenty-one in all of the Members of the United Nations
out of a total of fifty-seven who gave expression to this view in 1947,
without a single contradiction. Sixteen of those twenty-one States had
alsobeen Founder Members of the League of Nations, and fiftecn had been
Members at the time of its dissolution. The record for 1947is in this regard
therefore a very significant one in my submission. ARGUMENT OF MR. DE VILLIERS I3I
During 1948 and 1949 there were three additional States who by
similar statements associated themselves with the others I have
mentioned, so as to brîng the total up from twenty-one to twenty
four. Those three were Costa Rica, Greece and the United Kingdom.
Costa Rica's statement was to the effect that the Mandate had ceased
to exist (G.A.O.R., Third Sess., Part I, Fourth Comm., 82nd Meeting,
17 Nov. 1948, p. 365). Then there was a statement by Greece to which I
would like to refer. It was by Mr. Lely:
"He recalled that at the third session of the General Assembly the
representative of the Union of South Africa had stated that, when
the Government of the Union of South Africa had given an assurance
that it would send information on the Territory, it had made a
specific reservation that the sending of such information would
imply no commitm~nt for the future and would not be indicative
of accountability to the United Nations.
[He] felt that tha.t statement spoke for itself. The sending of in
formation was a vob1ntary act on the part of the Union Government.
If that was so, and he believed that it was, then the Union Govem
ment had not repudiated any previous assurance." (G.A.0.R.,
Fourth Sess., 269th Plenary Meeting, 6 Dec., 1949, p. 530.)
And then the third statement-that of the United Kingdom to the
effect that:
"It could not be 1;aidthat the Government of the Union of South
Africa had repudiated its previous assurance since it had complete
liberty to decide whdher or not to transmit information." (G.A.O.R.,
Fourth Sess., Fourth Comm., 135th Meeting, 24 Nov., 1949, p. 247.)
So the total, then, that had indicated this attitude grew to twenty
four; if we add the Union of South Africa itself, we find that twenty-five
United Nations Members out of a total of fifty-six had expressed this
attitude over the three vears.
Whereas there had, ir, 1947, been no contradiction whatsoever, there
came some measure of contradiction over the years 1948 and 1949, but,
Mr. President, only from five States out of the very large numbers that
participated in the debates. These were five that suggested that the
United Nations had sup(!tvisory powers, or that Respondent had a duty
to account, in respect of continued administration under the Mandate.
They were Belgium, Brazil, Cuba, India and Uruguay. The attitude of
Belgium is to be found at C.A., O.R., Third Sess., Part I, Fourth Comrn.,
79th Meeting, 12th November, r948, pages 325-326; of Brazil at C.A.,
O.R., Fourth Sess., Fourth Cornm., 132nd Meeting, 22nd November, 1949,
pages 223-224 and C.A., O.R., Fourth Sess., Fourth Comm., r35th Meeting,
24th November, 1949, page 244; of Cuba at C.A., O.R., Third Sess.,
Part I, Fourth Comm., t;2nd Meeting, 17th Novernber, 1948, page 356,
and C.A., 0.R., Fourth 5%s., Fourth Comm., 130th Meeting, 2ISt Novem
ber, 1949, page 216; of fodia at C.A., O.R., Third Sess., Part I, Fourth
Comm., 81st l\foeting, 16th Novcmber, 1948, page 352; and of Uruguay at
C.A., O.R., Third Sess., Part!, Fourth Comm., 78th Meeting, nth Novem
ber, 11)48,pages 3n-312.
Now, Mr. President, it1the cases of Cuba, India and Uruguay, these
statements were in conflid with earlier statements or attitudes which they
had adopted. I have already indicated before that Cuba had, in 1947, 132 SOUTH WEST AFRICA
taken up the attitude that the Mandate had lapsed altogether, India had
inserted that paragraph in its draft resolution ta the effect that South
West Africa was outside United Nations supervision and control, Uru
guay had taken the attitude (G.A.,0.R., 2nd Sess., 4th Comm., 33rd
Meeting, p. 14; 40th Meeting, p. 60, and Vol. I, 105th Plenary
Meeting, p. 615) to the effect that the Mandate had lapsed alto
gether and that there was now only a matter of self-governing terri
tories, non-self-governingterritoriesand territoriesnder the trusteeship
system, and that there was no provision for any other-that was the
attitude that Uruguay had taken up; soin these three cases the attitude
adopted later, in either 1948 or 1949, was in conflict with an earlier atti
tude stated on the subject in 1947. In addition I might point out in the
case of India the attitude was also in conflict with a submission which
India made to this Court in 1950; that submission is to be found in the
official record of the Pleadings in 1950 at page 148. The submission is to
this effect:
"It is respectfully submitted that the only respect in which the
position has changed [as a result of the dissolution of the League]
is that Article 6 of the Mandate and the first portion of Article 7
of the Mandate have become incapable of being complied with.
In other respects, the rights and obligations of the mandatary are
exactly the same as they were before. The result is that the mandato
ry is not obliged ta submit an annual report under Article 6 and that
it cannot modify the terms of the Mandate at all because the proce
dure by which it could have modified the terms of the Mandate has
ceased to be applicable."
That was the attitude again adopted by India before this Court in
its formal submission in 1950. And in any event, Mr. President. in no
case was the attitude of any one of these five States based upon a sug
gestion of a tacit agreement or understanding that had arisen on this
subject during the transition period of 1945 or 1946. And in no case was
the attitude based, explicitly at any rate, on an implication to be read
into the Mandate Agreement itsclf; they may have had that in mind,
but nobody ever said so. Briefly speaking, the bases which were in fact
advanced were these: on behalf of Belgium the attitude was that Article
So of the Charter protected the benefit of international supervision for
the people of South West Africa; that is to be found at the reference
place which I have given. In the case of Brazil there was just a broad
statement to the effect that the Mandated terri tory "was under the super
vision of the community of Nations, namely, the General Assembly".
but no motivation given as to why that was so. In the case of Cuba the
statement was that the United Nations had assumed the League's super
visory functions, for bath Organizations represented the international
community. That was the motivation given for the statement that there
had been an assumption of League fonctions by the United Nations. ln
the case of India there was a broad suggestion that Article 80 of the
Charter prevented the extinction of the right of the people of South West
" Africa to have reports submitted and scmtinized. In the case of Uruguay
the reference was again to Article 80. It said that Article 80 imposed a
duty to report to the international community, the United Nations
having replaced the Council of the League as the organ or co-ordinating
centre of that community; there we find an argument which approxi- ARGUMENT OF MR. DE VILLIERS 133
mates to that which the Applicants are now addressing to the Court.
And we find, therefore, even in the case of these five, that the suggestions
were somewhat vague and inconsistent in themselves, and contradictory.
There was not a joint suggestion that there had been an understanding
all the time to which South Africa was now running counter. The mere
factthat they are so inconsistent, and that they are even so contradictory
in certain respects, affords, in my submission, additional evidence of the
absence of any clear unclerstanding on the subject.
The fact that we find in the case of the three countries, Brazil, Cuba
and Uruguay, a referenc,~now to the organized international community
-that appears to sugge:,t that that was not an idea that had operated
in the minds of the four1ders of the Mandate system way back in 1920,
but that it was an idea that appears to have originated somewhere with a
lawyer in 1948 or 1949, and was then put fonvard by these three coun
tries,in the case of two d them in conflict with attitudes which they had
adopted before-in the case of Cuba and in the case of Uruguay.
So, .Mr.President, I submit that the total result of this survey is that,
far from the overwhelming number of United Nations l'IIembershaving
taken the attitude that Respondent as Mandatory is accountable to the
United Nations, as is suhmitted by the Applicants, the situation during
the significant period which I have covered, shortly after the transition,
may be said to have been overwhelmingly the opposite. I am not concern
ed with the question whether the actual legal attitudes adopted by the
varions States were correct in law or not; I am merely concemed with an
evidential enquiry as to whether there was a general understanding of the
kind suggested by the contention of the Applicants, and I submit that
this cvidcnce beyond any doubt refutes the existence of any such under
standing and shows the existence of a very wide-spread contrary, or
opposite, understanding.
1fr. President, I have :orne to the end of the portion of the argument
dealing with the effect of the dissolution of the League on the Mandatory's
obligation to report and account. In conclusion, I want to state that
the effect of the argument is that that obligation, properly construed
and interpreted-as a matter of wording and as a matter of prob
able intent of the parties-related only to specific League supervi
sory machinery and to nothing else; and because of the disappearance
of that machinery, it became incapable of performance. AU the sugges
tions ofsuccession on the part ofUnited Nations organsin that regard are,
on analysis, and upon biing tested in the Iight of the evidence as to the
real intentions of the parties, found to be without foundation in law. I
have in this regard stres~;edthe importance of the facts which have now
been placed before the Court, and which were not before the Court in
1950. Incidentally, this further analysis which I have just given of the
attitudes of States at the United Nations during the pèriod 1947 to 1949
on this very question of South West Africa, that too was not before the
Court in 1950.
Where I have stressed that, I must not be taken to suggest that,
had it not been for new fa.cts or new information, it would not have been
competent for this Court to depart from a conclusion earlier arrived at in
an advisory opinion. It would certainly have been competent for the
Court to do so, and I submit that ifthe Court were satisfied that justice
required it to do that, :1 would not hesitate even in the absence of
any new information. But I submit that in this case it would be much134 SOUTH WEST AFRICA
easier for the Court to corne to its own conclusion because of the fact
that there îs this new information which in substance makes the task
of applying the law to the facts in this regard a different one from what
it was in 1950.
I proceed to deal with the effect of the dissolution of the League upon
the Mandate seen as a treaty or convention in force. I have dcalt with the
contractual origin and effect of the Mandate, and I have pointed out in
that regard that it appears to be cornrnon cause that during the lifetirne
of the League, whatever its other effects rnay have been in addition,
the Mandate did operate as a treaty or convention, and it would have
been regarded as a treaty or convention in force within the meaning of
Article 37 of the Statute of the Court. There does not appear to be any
dispute about that. What is an issue between the Parties is whether,
despite the dissolution of the League, the Mandate Agreement is still
in force as a treaty or convention within the meaning of Article 37. We
say "no", the Applicants say "yes". The Applicants have to satisfy the
Court that it is, with a view to justifying their contention with regard to
jurisdiction.
Mr. President, our basic contentions in that regard are as follows.
Wesubmitthata treatyorconventionis an international agreement made
between subjects of international law and intended to create rights and
obligations between such subjects of international law. Thercfore, for
a treaty or convention to have effective existence there must of necessity
be at least two such parties possessed of international personality who
enter into such agreement, and between whom the intended rights and
obligations can operatc as provisions of such an agreement. That appears
to be perfectly trite-that one cannot have an agreement without at least
two parties, and where one requires parties with international personality,
as parties to a treaty or convention, there one must have at least two
such parties to a treaty or convention in order to bring it into existence as
an agreement, and in order to bring about contractual rights and obli
gations which can operate between them.
Likewise, we submit that, for continued operation as a treaty or con
vention, such an agreement requires the continuation in being of at least
two parties, possessed of international personality, who can, as between
themselves and by reason of the contractual nexits between them, claim
observance of the agreed rights and performance of the agreed obligations.
It is not sufficient only to have the two parties to make the agreement.
They must continue to be parties to the agreement while it is in operation,
otherwise it does not continue to operate as an agreement. There must
be parties of which .one can say to the other: "You have made a
promise to me, you are under an obligation to me by reason of the con
tractual nexus between us; therefore I can enforce that promise against
you; you cannot break it; you have prornised to me t.hat you are to
fulfil it, and I now claim performance from you, because that contract is
still in operation as an agreement between ourselves."
Consequently, when by extinction of parties to a treaty or convention
the number of parties is reduced to one, then its continued contractuaJ
operation between parties becomes impossible in fact. In our submission
the continued existence of the contractual rights and obligations as
between international persons by reason of that treaty is then rendered
impossible in law; there being only one party, the operation of contractual
rights and obligations between international persons then becomes ARG•JMENT OF MR. DE VILLIERS 135
impossible. It is impossible in fact, and the continued existence then of
contractual rights and obligations, as distinct from other types of inter
national rights and obligations, becomes impossible as a matter of law.
Now, Mr. President, snch an extinction of parties so as to reduce their
number to one could occur in various ways. They could be extinguished
as States, or they could-although remaining in existence as Statcs
cease to be parties to the particular agreement. There may be various
reasonswhythey could so cease to be parties to a particular agreement.
They could be released by voluntary agreement between the parties, or
they could cease to be a party because of loss of an agreed qualification
for being a party. The contract may require that in order to be, and in
order to remain, a party to that contract, the particular State or inter
national person must have a certain qualification, with the result that,
upon loss of that qualification, that State or international persan would,
in pmsuance of the very agreement itself, cease to be a party to the con
tract. And our submissio;1 is that that is what happened upon the disso
lution of the Lcague of Nations in regard to the Mandate in its aspect of
operating as an international agreement, as a treaty or convention. We
submit that all the partü,s to that agreement, other than the Mandatory
itself, fell away-all the parties between whom it previously had contrac
tual operation-and that for that reason there ceased to be a treaty or
convention in force, quite irrespective of the question whether certain
of the vcsted consequcnces of the Mandate Agreement could continue in
existence for an independent reason, independently of its operation as an
international agreement. In order to develop the crucial contention that
all the parties other thar- the l\fandatory fell away on the dissolution of
the League, we have to deal with the question who those parties were
and what was the intent of the parties to the Mandate Agreement as to
qualifications in that regard; and that is the next subject to which I will
pay attention.
Mr. President, we deal in the Preliminary Objections, at pages 300-305
(1), very fully with the question of who are to be regarded as having
been the parties to the Mandate Agreement. I have already made a
submission to the Court that the fonction of the Principal Allied and
Associated Powers in thü; regard was intended to be of a mere transitory
nature, to bring the prc-perty into the trust, as it were, if I may use
that analogy. The situati,m was very much analogous, in my submission,
to that of a donor in respect of a trust. I may refer the Court to the
view of authorities in r,~gard to what that position is. I refer to an
extract from a book which is available here in the Carnegie Library-it
is Underhill's Law Relating to Trusts and Trustees, nth edition, page 5.
I willread a brief extraci:-the author states:
"The late Sir Frederick Pollock, in his learned work on contracts,
considers that a trust is, in its inception, a form of contract, but
adroits that the cornplex relations involved in a trust cannot be
conveniently reducd to the ordinary elements of a contract and
that there is sufficient justification for the course adopted by all
English writers of treating trusts as a separate branch of law.
There is, however, a radical distinction between contracts and
trusts, namely that an executed trust, as distinct from a contract
to create a trust, car,.only be enforced by a person for whose benefit
it was made and can neither be enforced nor released by the person SOUTH WEST AFR!CA
who created it, unless he be also a beneficiary. On the other hand,
as is shown later on in Article 8, a contractas a rule can be enforced
or released only by the parties thereto. A trust, once finally created,
is in fact the equitable equivalent of a Common Law gift and leaves
no right in the creator thereof as such to enforce it."
The analogy, in my submission, applies in this case to the Principal
Allied and Associated Powers. There was no contract which stipulated
arole for them in the operation of the contract. They were in the same
position as a donor who brings property into a trust. That trust was
intended to operate, by broad analogy, as between the Mandatory and
the inhabitants of the various terri tories, but also with certain contractual
relations to apply in that regard as between the Mandatory and the
League of Nations or the Members of the League. Because we find that
the other party to this Mandate Agreement, apart from the i\fandatory,
was then the Council of the League; the Council of the League, acting in
pursuance of paragraph 8 of Article 22 of the Covenant, which provided
that "the degree of authority, control, or administration to be exercised
by the Mandatory shall, if not previously agreed upon by the Members of
the League, be explicitly defined in each case by the Council." That is
where the Council got its authority to act as it did in representing the
League or its Members in contracting with the Mandatory.
The next question, then, really is, who did the Council represent?
Did it represent the League, to be seen as a legal persona, or was the
League not to be regarded as a legal persona, and, if so, whom did the
Council then represent? And if the League was a legal persona, did the
Council represent the League only, or the Members of the League as
well as the League itself?
\Ve submit-and I don't need to elaborate on the submissions now
because they are fully dealt with in the Preliminary Objections-that
if the League was not to be viewed as a legal persona, then the Council,
in agreeing with the Mandatory that it was to be a Mandatory on behalf
of the League, would then, in reality, have been acting on behalf of
the JV!.embersof the League associated in the League seen as a mere
voluntary association of international persons and not as a legal persona.
The expression itself "Mandatory on behalf of the League" would then
not really be an exact one; it would really be an expression which is
inapt and which ought to read "a Mandatory on behalf of the States
associated in the League of Nations as Members thereof". Then the
Members would have to be seen as the principals represented by the
Council. And so the contractual nexus wpuld then, in that cvent, have
been between the Mandatory, on the one hand, and a11the Members
of the League, on the other hand, in respect of all the rights and obli
gations provided for in the Mandate Agreement.
There is, however, Mr. President, a very considerable body of authority
for the proposition that the League was to be seen or viewed as a legal
persona. We cite that authority in the Preliminary Objections at pages
308-310 (1), in our paragraph 15 of Chapter III. That is a proposition
which I do not intend to argue fully or to analyze fullyIt does not matter
for the purposes of my argument whether the League be viewed as a
legal persona or not. On either basis-and I argue the effect of the
dissoluti?n of the League on the Mandate as a treaty or convention,
I argue it on both bases-the argument cornes to one and the same ARGUMENT OF MR. DE VILLIERS 137
result, in my submission. But we do point out that the Applicants
appear to accept the proposition that the League was to be seen as a legal
Persona, because at page-448 (1) of their Observations they refer to the
league as a "corporate body" and they propound there a "carry-over"
argument which was deri ved from provisions in municipal law regarding
corporations. At page 4<~8(1) there is a section headed "Respondent's
Contentions", and the last sentence of it reads:
"If the League still existed as such, and a State withdrew from
membership, there would still remain a corporate body and a
membership thereof which could assure compliance with the
Mandate."
And as I have said, the whole "carry-over" argument is based on the
propositions which apply to corporate bodies.
Now, Mr. President, c,n the basis that the League was to be viewed
as a legal persona, then the League itself would primarily have been
the principal, the party represented by the Council in its contract or
agreement with the Mandatory; and therefore, then, all the rights and the
obligations provided foi in the Mandate Agreement would primarily
operate as between the Mandatory, on the one hand, and the League,
seen as a legalpersona, ot1the other hand. And on this basis there would
benoground for regardir-g the League Members also as parties or as the
holders of legal interesfo under the Mandate as an agreement, except
an inference which might be drawn, not from anything express or
anything specifically said upon the point, but from certain of the pro
visions of that agreement. It will be recalled that the individual States
Members of the League did not sign the Mandate Agreement, nor did
they ratify it. If they became parties, or the holders of legal interests
in regard thereto, it could only have been because of representation of
themselves by the Council, or, possibly, by way of a stipulation for their
benefit, seen as third parties, which thcy then accepted, and so, in a
sense, rendered themselves parties to the Agreement.
The provisions from which one might possibly infer that Members
of the League were also intended to be parties, or the holders of legal
interests, are those which envisage actual benefits for them. One finds
in the various agreements-net in the C Mandates, of course, but in
the other mandates-orn: fi.ndsthe provisions for an open door, intended
to operate for the bene,'i.t of League Members. One finds even in the
case of the C Mandates--the ones with which we are dealing-there is a
provision providing for freedom of movement of the nationals of League
Members who are missio:-mriesand who want to exercise their calling in
the Mandated territory. One finds in Article 7 that provision is made
for the reference of disputes between another Member of the League and
the Mandatory to the Permanent Court of International Justice. That
in itself suggests that there was a view that Members of the League were
to be regarded as having a legal interest or rights under this agreement
which would then be justiciable in terms of Article 7. It is only in
ference from considerati,)nS of that kind, whereby one could say that
on the basis that the League was to be viewed as a legal persona, the
Members of the League were to some extent to be regarded as co-parties.
On that basis, then, the Mandate would be a contract primarily
between the Mandatory and the League of Nations, but in addition also
between the Mandatory and the Members of the League to the extent SOUTH WEST AFRICA
that it operated for the benefit of League Members. To that extent, then,
League Members would be co-parties with the League to this Mandate
Agreement. In these two alternative senses, then, one can say that
the parties to the Mandate Agreement, vis-à-vis the Mandatory, were
the League and/or the Members of the League.
Which of those various alternatives is the correct one is, for the
purposes of my argument, not important. The important point is that the
circle was no wider than the League and its Members. There were no
other or additional parties to this Mandate Agreement. And this analysis
which I have just putto the Courtis nowhere disputed by the Applicants
in the Observations, as far as I could make out, and it appears to be
accepted by them.
Only in one respect do they raise a query; they say that the legal
interests of Members of the League are too narrowly conceived by
the Respondent. They say that in the Observations at page 441 (1), and
they proceed, and I quote, that such "interests" of League Members
"... encompassed the achievement of the 'material and moral well
being and the social progress of the inhabitants' of the Mandated
Territory as a 'sacred trust of civilization' ".
But, Mr. President, what they do not bear in mind when they make
this submission is that our particular submissions-to which they refer
at page 441 (I) of the Observations-refer to a statement which we had
made that, on the basis of the League being a legal persona, Members of
the League would have had a legal interest in such obligations vis-à-vis
the Mandatory only in so far as the latter's obligations were intended
to operate for the benefit of Members and their nationals. The Applicants
leave out of account that that statement is made only on the basis that
the League was a legal persona; and we say on that basis it seems very
difficult to see how the Members of the League could also be said to be
parties to this Agreement except by the process of inference, and that
inference leads us no further than so far as their o,m interests, their
material interests, might have been concerned.
On the basis, however, of the League not being regarded as a legal
persona, then the Members of the League would have to be regarded
as parties in respect of all the obligations of the Mandatory and there
fore also in respect of the obligations which related specifically to the
material and moral well-being and the social progress of the inhabitants.
The Applicants do not indicate, on the basis of the League being
viewed as a legalpersona, by what process the Lcague Membcrs could also
have become parties to the Agreement to a wider extent than we have
indicated, to a wider extent than flows from the inference which arises
from the fact that certain provisions appear to be intended for their
mater1al benefit.
But however that might be, the Applicants do not suggest anywhere
that the circle of parties could have been wider than the Mandatory, on
the one hand, and the League and/or its Members, on the other hand.
And that is an important basis for the further argument of this question.
[Public hearing of 8 OctoberI962, morning}
Le PRÉSIDENT: L'audience est ouverte. J'ai le regret d'annoncer que
M. Koretsky, juge, lui aussi ne pourra pas assister à l'audience de ce
matin pour raisons de santé. ARGUMENT OF MR. DE VILLIERS 139
La parole est à M. de Villiers pour la continuation de sa plaidoirie.
Mr. DE VILLIERS:Mr. President, before the adjournment on Friday,
I was developing our argument regarding the effect of the dissolution of
the League of Nations upon the Mandate as a treaty or convention in
force within the meaning of Article 37 of the Statu te of the Court. I then
gave reasons for our submission that, in order for a treaty or convention
to be in force within the meaning of Article 37, there must at least be two
parties,or sets of parties, with international personality, between whom
it can opera te as an international agreement, and that if the parties should
be reduced to one, then it would cease to have operation as an inter
national agreement and thus as a treaty or convention.
As regards applicatior:. of that submissionto the present case, I was
dealing with the proposition that, for the Mandate seen as a treaty or
convention during the füetime of the League, the only parties were on
the one hand the Mand2.tory, on the other hand the League and/or its
Members. I dealt with the various alternative possibilities involved in the
conception of the Leaguc and/or its Members as parties to the Mandate
Agreement. I pointed out that in that respect there was in one instance a
dispute between us and the Applicants concerning the scope of interests,
or rights, of Members oi the League on the basis of the League itself
being regarded as a legal persona. I pointed out also that there appears
to be no conflict on the prnposition that the circle of parties was confined,
as I have stated, to the Mandatory, on the one hand, and the League
and/or its Members on the other.
Proceeding, then, from that point, Mr. President, I would like to re
mind the Court that in the Preliminary Objections, at pages 351-355 (1)
(they are paragraphs 39-46 of our Third Chapter), there we analyze the
provisions of the Covenant and of the Mandate instruments and we refer
to relevant practice of ~itates in confirmation of our submission that
Members of the League were the only States that were intended to acquire
contractual rights and interests from the Covenant and from the Mandate
Agreements. And we refer there, amongst others, to the importance which
was obviously attached in the Covenant to the aspect of reciprocity
reciprocity as between rights, interests, benefits which the provisions of
the Covenant could confer upon States as Members of the League and,
on the other hand, obligations imposed upon States as Members of the
League by the provisions of the Covenant; the intent being obvious that
the benefits or rights weΠnot to be enjoyed by States who did not render
themselves bound to the :Œciprocalobligations imposed by the Covenant,
and that that was the ba,ic reason or policy why rights conferred by the
Covenant, and by the Mandates made in pursuance of the Covenant,
would be confined to Le&.gueMembers.
We deal in detail there with provisions of the Covenant in substantia
tion ofthis argument, and I need not repeat the details which are before
the Court in the Preliminary Objections.
\Ve point out that the Mandates were made in pursuance of the Cove
nant and contain a projection of that same policy; that they indicate
that they are Mandates" on behalf of the League" which conception itself
confines the circle of inkrested parties to the League and possibly also
its Members, and that in compromissory clauses in the various Mandates
-like Article 7 in the case of our Mandate-the procedural facility for
invoking jurisdiction of the Permanent Court was confmed to Members
of the League, thereby again indicating the contemplation that the SOUTH WEST AFRICA
substantive rights intended to be conferred by the earlier provisions of
the Agreement were intended to be confined to States that were Members
of the League.
We point out also---and I would like to emphasize this-that the
Council was acting in pursuance of Article 22: paragraph 8, of the Cove
nant, and that that was an authorization which was given only by
League Members; and therefore in so far as it could be regarded as
an authorization to act on behalf of States, as distinct from the League
itself, it could not fairly be regarded-itcould not be regarded at ail-as
being an authorization to act on behalf of States that were not Members
of the League.
Now, again, these submissions, Mr. President, are not disputed by
the Applicants and they appear to be common cause.
We proceed in the Preliminary Objections at pages 355-357 (1) (our
paragraphs 47and 48of Chapter 3) with a further analysis of the provisions
of the Covenant and of the Mandate instruments. vVedemonstrate there,
with reference to both the natural meaning and the practical implications
of those provisions,that, just as membership of the League was necessary
in order to procure rights for States in regard to the Mandate system,
just so membership of the League was a necessary qualification for the
retention of such rights, and that the obvions intent was that upon loss of
membership of the League the rights would no longer be vested in that
particular State.
Again, Mr. President, we point out that as a general probability one
would expect that to be so. If all the concem was shown to prevent States
other than League Members from acquiring rights under the Mandate
system, or under the Covenant generally, then one would naturally
expect tliat there would be the same concern shown to ensure that after
loss of membership by a particular State, rights would not be retained,
otherwise the position would become anomalous.
We refer, for instance, to the large number of provisions in the Cove
nant in which the expression "Member of the League" occurs. We
find it in provisions such as those providing that each Member shall have
a vote in the Assembly, that four Members of the League, apart from the
Principal Allied and Associated Powers, shall have representation on the
Council. Now, in provisions of that kind it seems so obvions that the
practical intent is that they apply while a State is a Member. The position
would be completely anomalous if a State could, after ceasing to be a
Member, still daim the benefit of provisions of that kind. We find that,
on analysis, right throughout the Covenant: it is both a matter of natural
meaning and a matter of practical implication as towhat the intent was
in those respects.
And again the situation in regard to the Mandates we find to be a
projection of what is in the Covenant itself in that regard. If I may again
refer to Article22, paragraph 8, in so far as it authorized the Council to
act on behalf of States, it did so clearly for the purpose of the association
of those States in the League of Nations and for no other purpose.
Again as regards the conception ofa "Mandate on behalf of the League",
ifthe position was to be that States that ceased to be Members of the
League would retain their rights under the Mandate system, then in the
1930s when a large number of States, ex-Members, were no longer Mem
bers of the League, one would have found a position of the Mandatory
then having a Mandate not only on behalf of the League but also on ARGUMENT OF MR. DE VILLIERS
behalf of some fifteen States in addition. And we fi.ndthat the situation
would, in practice, be an anomalous one, if States that were no longer
Members of the League could retain their rights as against the Mandatory
as parties to a Mandate Agreement. They could, for instance, insist on
demilitarization in accordance with the provisions of the Mandate and
at the same time commit flagrant breaches of their own obligations in
that regard under the Co1enant. They could insist on open-door facilities
in the Mandates .in which that applied, while at the same time not
complying with their obligations under the Covenant as regards freedom
oftransit and movement and so forth.
Clearly, then, the situation there envisaged also was that upon loss
of membership of the League, for the practical reasons I have mcntioned
and because of all these indications of intent, such a State would lose the
rights, the legal interests it previously had under the Mandate vis-à-vis
the Mandatory.
And again, Mr. President, we fi.ndthat this proposition does not appear
to be disputed by the Applicants as far as the position is concerned
during the Iifetime of th•oLeague; because they go so far as to use this
language at page 448 (1) of their Observations, in that middle section,
headed "Respondent's Contentions", in the third sentence beginning
with the word "Respondent" they state:
"Respondent elab,)rates an argument in which a State which had
withdrawn, or had been expelled from, the League attempted to
exercise rights it hacl formerly possessed as a League Member."
I emphasize "rights it had former/y possessed as a League Member",
indicating clearly an ac,:eptance of the proposition that those rights
would no longer be possessed by such a State-that is, of course, dealing
with the position during the lifetime of the League, whatever the position
might be afterwards, which is the one that is being brought in issue by
the Applicants.
Now, Mr. President, j;1st as, during the lifetime of the League, any
State which ceased to be a Member lost its status as a party to the
Mandate contract, we s1bmit that that consequence necessarily and
logically followed for ali .Members of the League at the date of the
League's dissolution, because, if the contractual intent was that
contractual rights would be confi.ned to the League Members, then as
soon as there were no longer any League Members, in terms of that very
same intent, there wouk. no longer be contracting parties. The logical
consequence, further, of this result would be that the Mandate would
cease to operate as an h1ternational agreement, whatever vested con
sequences of that agreement might still remain in existence and in
operation.
The Applicants do not deal directly with this submission, as to the
necessary and logical consequence of the situation as in the League's
lifetime upon the situation that resulted from dissolution of the League.
The Court will recall that in regard to a similar problem which arises,
particularly as re9.ards Articles 6 and 7, the Applicants advance
submissions as to 'succession" and as to "carry-over". They do not
advance similar submissi,)ns here. The effect of-shall we say-a "suc
cession" argument, as applied to the whole situation of the Mandate
as a treaty or convention in force, would really be that, whereas the
original contracting parties were the League and/or its Members, vis-à-vis SOUTH WEST AFRICA
the Mandatory, those contracting parties would now be the United
Nations and/or its Members. Therefore, there would now be, in terms
of the succession, a substitution-net only of a supervisory authority
for the purposes of Article 6, not only of States competent to invoke
compulsory jurisdiction under Article 7, but also of the very parties
to the Mandate Agreement. There would, as regards the parties with
whom the Mandatory contracted, be a substitution of a completely
new set for the previous set. That contention is not advanced by the
Applicants-they rather attempt to meet our case in an indirect manner
on this particular point.
They advance an argument, at pages 434-436 (I) of their Observations,
of which the salient features appear tobe this (I referto certain portions
of the Observations in regard thereto): they say that the Mandate
instrument was-and indeed still is-a treaty or convention and that
it defines Respondent's duties. We find that towards the middle of
page 435 (1)-it is, I should say, about one-third down the page:
"... Applicants respectfully reiterate the point that it is the
Mandate instrument-a treaty or convention-which defines Res
pondent's duties."
Itgoes on to say:
"lt is to that instrument th;ü the Court looked, holding that
the terms of the Mandate are still in force, including Articles 6
and 7 thereof."
Then they go on (1 skip a bit) :
"... the Mandate instrument, which created an international regime
or a status, survived the dissolution of the League as a treaty or
convention because, to repeat the words of Judge Lauterpacht,
'the essence of such instruments is that their validity continues
notwithstanding changes in the attitudes, or the status, or the very
survival of individual parties or persons affected' ".
At the beginning of that paragraph the Applicants state:
"Applicants have pointed out that the instant cases pertain to
the duties of Respondent as set forth in the Mandate instrument,
and that the Court in its Advisory Opinion found such duties in
force."
This reasoning, if I understand it correctly, appears to mean this:
"We have duties laid down in an instrument. At the time when the
instrument laid them down the instrument was a treaty or convention
in force. The Court has now found that those duties are still in force
and they are still in force as defined in the instrument. Therefore, the
instrument must still be in force and therefore it must still be in force
as a treaty or convention." That appears to be the line of argument; and
it is advanced (the Court will observe) without reference at all to the
question of parties between whom the Mandate could be said to be in
force as an international agreement. Our submission is thatthat argument
of the Applicants breaks down, at its very premise, because its premise
is really a play on words.
In our submission a treaty or convention is a legal transaction, an
international agreement. That is the primary signification of that ex- ARGUMENT OF MR. DE VILLIERS
143
pression. But, because of the practice of embodying a contract-an
agreement and also an international agreement-in a written instrument,
the terms "treaty or cor,vention" have acquired usage also as referring
to such an instrument. To that extent, then, there is an ambiguity in
the expression itself-"treaty or convention". But that ambiguity exists
only when one has the expression alone, divorced from any context.
As soon as one puts it into a context-as soon as one speaks of a treaty
or convention in force--then surely in that context the expression
could only refer to the legal transaction and not to the document which
is, in essence, mere evidence of what the transaction is. It is not, in
any true sense, a document that could be "in force"-it is the legal
transaction recorded in the document that could be either in force
or not "in force". Therefore, it could only be in a very loose sense (I know
the language is sometimi:s used) that one could speak of an instrument
as being "in operation", or "in force", or as having "continued validity",
the real suggestion contained in such expressions being that the transac
tionrecorded in that instrument is still in force as a legal transaction
as a legal act. ·
We have a similar sitm.tion in the sphere of private law-of municipal
law-with regard to the use of the words "contract" and "agreement".
Again the word "contract" and the word "agreement" refer primarily to
the transaction and, when they are used in conjunction with the expression
"in force" or "operative'' (or anything of that kind), then quite clearly
the reference is to the transaction. One could also say-and one does
with the same type of ambiguity that an instrument in which such a
contract or agreement mi1~htbe recorded is a "contract" or "agreement",
although the more correc·;:usage would be to speak of that instrument as
the deed, as is the practice in English law, the deed which contains that
transaction-records it-sets it out. But as soon as one speaks of the
conception of a contract, or an agreement, as being in force-as being
operative-then it becomes clear that one has a transaction in mind and
not the deed or the document in which it might be recorded.
Confirmation for this :mbmission, Mr. President, which I have just
advanced, is found in this consideration: Suppose we have a treaty or
convention recorded in an instrument, but, later, something happens
which cancels that agreement, renders it inoperative-suppose there is
a later treaty between thE,parties by which the previous one is expressly
cancelled and annulled. Now the document in which that previous treaty
had been recorded and sd out might still be in existence. It need not
necessarily be tom up because there has been a cancellation of the treaty,
and there could be recordi; of it; it might be printed in books (as we often
find). One could then still--as a matter of language-refer to those docu
ments (even copies thereof) as being "trcaties" or "conventions". But one
would never speak of them as being a "treaty or convention in force".
The reason why one would not do that is because the transaction which
they recorded is no longer in force: and, therefore, that must always be
the determinative consid,~ration when one raises the question whether
a treaty or convention Îê,in force. The determinative consideration is
the transaction recorded--is that in force or not? And from that there
might, or might not, foll,)w a less precise usage of speaking of the in
strument as either being in force or not being in force.
Mr. President, I have whh respect employed the example of a previous
treaty which may be cancdled expressly by a later treaty, with the result SOUTH WEST AFRICA
that one would then no longer speak of the previous treaty as being a
treaty or convention in force. That sarne result would, inmy submission,
follow evcn if there would, say in the new treaty, corne into existence
a new causa for the same obligations as in the previous treaty to corne
into force again, or to remain in force. Suppose the obligations, or some
of them, as recorded in the earlier treaty should be repeated in substance
or even precisely in the later treaty, but they now owe their existence
not to the first treaty but the second one, and that is why they are now
in force as treaty obligations. Then the rnere fact that those obligations
still existin exactly the same form, with exactly the same content and
in exactly the same wording as originally recorded in the cancelled treaty,
that would still not result in a consequence whereby one could speak
of the cancelled treaty as being in force. It, therefore, follows Mr. Presi
dent, that it is not suflicient for the Applicants to point to certain of
the duties of the Respondents as originally recorded in the Mandate
instrument as being still in force, and then to say that the consequence
follows that the Mandate must still be in force as a treaty or convention.
The inquiry must centre on the causa, the reason for those obligations
still beingin forceIfthat reason is the continued operation of the original
transaction namely, the Mandate as an agreement, then of course the
Applicants' contention would be sound. But if itsbould be found that
the causa or the reason is something else-is not continued operation
of the original transaction, the agreement-but is something else which
results in those obligations still being in force without the original
contract or agreement still being in operation, then the Applicants'
contention is not sound. It is for that reason that it becomes necessary
to have regard to the distinction between duties as originally defined
in the Mandate agreement continuing in force by reason of either con
tinued operation of the Mandate as a treaty or convention, or alter
natively, by reason of continued existence of the Mandate as an objective
institution.
That distinction, Mr. President, is one to which I have referred
several times, but I have not dealt with it in detail before. It is one
which is not in truth advanced by us as a submission which we urge
the Court to accept; it is really a distinction which was drawn by this
Court in 1950 in the Advisory Opinion, in coming to the conclusion
that the Mandate was still in operation. Broadly speaking, the contention
then advanced to the Court on behalf of the Union of South Africa was
that upon dissolution of the League, the Mandate lapsed in toto,there
was nothing lcft of a Mandate. The Court's answer to that in effect
was, as we understand the Opinions, that the Mandate involved some
thing more than contractual relations only: it involved also for the
territory an objective status or regime which could survive and exist
independently of continued operation of the contractual arrangements
from which it had resulted. That status or regime cornprised, on the
one hand for the Respondent, title, power to administer the territory
as Mandatory, and on the other hand, substantive trust obligations as
set out in Articles 2 to 5 of the Mandate instrument.
What we are doing in referring the Court now to that distinction is
really to say that that answer which the Court gave in its Opinion in
1950 is accepted by us, for purposes of argument, to be correct, and
that on that assumption that distinction becomes an important one.
It becomes necessary then to have regard to its implications as regards ARG"•JMENT OF MR. DE VILLIERS I45
this question whether the Mandate can still be said to be in force as
a treaty or convention.
I have now stated te, the Court broadly how we understand and
interpret the 1950 Opinions on this point. Just for sake of clarity,
may I repeat our unden:tanding is that what the Court indicated was
that the Mandate really had a dual aspect; it had the aspect of operating
as an international agreement, as a treaty or convention, but the aspect
also of resulting in an objective institution, and that therefore the
argument addressed to the Court to the effect that the Mandate as a
whole necessarily lapsed becausc the parties thereto disappeared, that
argument could not be sound because even if there should no longer be
an international agreemeut, the Mandate was still in existence as some
thing objective which co,.ild exist independently of the operation of an
agreement. The Applicar1ts, however, say that we have misunderstood
the pertinency of the judicial analysis,-these are the terms they use at
page 435 (1) of the Observations. They say-a little bit above the middle
of that page:
"The Court did not, as might be inferred from Respondent's
ambiguous language, hold that only in an objective or 'real' sense
did the Mandate survive. The Court found that the Mandate is an
international regime, and Judge McNair found that it has acquired
a 'real'or objective status. But the pertinency of this judicial analysis
is lost on Respondent: the Mandate instrument which created an
international regime or a status, survived the dissolution of the
League as a treaty or convention because, to repeat the words of
·Judge Lauterpacht, 'the essence of such instruments is that their
validity continues notwithstanding changes in the attitudes, or the
status, or the very survival of individual parties or persons affected'.''
It will be noted immecliately, Mr. President, that in support of their
statemcnt that Respondent has misunderstood the pertinency of
the judicial analysis, the Applicants refer not to something which
was said in the 1950 Opirrions, they refer to an extract from what was
written by the late Jndge Lauterpacht. In effect, they merely
concentrate on this use d language on his part where he said that "the
essence of such instrum(:nts is that their validity continues notwith
standing changes in the attitudes, or status, or the very survival of
individual parties or persons aft:ected". Now that language, with the
greatest respect, Mr. PŒsident, in that context was somewhat loose.
It did not matter for the purposes of the learned author that it was loose
because he was not dealing with a possible distinction between the
Mandate operating as a treaty or convention and operating objectively.
What the learned author there implied, and that was his only point really,
was that the obligations, the legal rights and obligations provided for
in the instrument, were still in effect, that their validity continued
and it was reallyper cons1:quentia hat he then spoke of the "instrument"
itself as being something of which the validity continued. But he did not
use that language in relation to the question whether it could then be
said that such an instrument was still in operation as a treaty or con
vention, without reference to the question of parties between whom it
could operate as an intErnational agreement. And therefore, because
his language was not interrded by him to be applied to such a situation,
even that Ianguage affords no support for the Applicants' contention. SOUTH WEST AFRICA
When one tums to the 1950 Opinions themselves, they, in my sub
mission, afford no support for the contention of the Applicants but
they bear out the interpretation which we are putting on them for the
purposes of our contention.
Mr. President, for the purposes of the analysis of the 1950 Opinions
on the point under discussion, I should like to commence with the
separate Opinion of Sir Arnold McNair on this point, because the leamed
judge wcnt into this distinction most fully and explicitly in that Opinion.
I will from that revcrt to the majority Opinion, which did not deal with
the point in the same measure of detail, but my submission will be that
the indications are clear that the line of thought was the samc.
I refer first to page 153 ofhe separate Opinion of Sir Arnold McNair.
There the learned judge stated this proposition:
"From time to time it happens that a group of great Powers,
or a large number of States both great and small, assume a power
to create by a multipartite treaty some new international régime
or status, which soon acquires a degree of acceptance and durability
extending beyond the limits of the actual contracting parties, and
giving it an objective existence."
Thus the concept of something born from international agreement by
multipartite treaty, but something which, once it has been created
inter partes,acquires a degree of acceptance beyond the confines of the
contracting parties and therefore also of durability beyond the existence
or operation of their contract.
He discusses this proposition with reference to other examples that
have occurred and, at pages 154 to 155, he applies it to the case of the
Mandates system established in pursuance of Article 22 of the Covenant.
I read the last sentence at page 154-it follows on a discussion as to
the coming into effect of Article 22:
"ln my opinion, the new régime established in pursuance of this
'principle' [the principlethat the well-being forms a sacred trust of
civilization]has more than a purely contractual basis, and the
territories subjected to it are impressed with a special legal status,
designed to last until modified in the manner indicated by Ar
ticle 22."
Therefore, again, something which would have effect beyond the
ordinary confines of a contractual relationship, more than a purely con
tractual basis-a special legal status resulting from it for the territories.
At page r56 there follows this significant passage, after setting out the
contents of the Mandate for South West Africa. l'm reading just below
the quotation from Article 7.
"These obligations possess two distinct characters. The provisions
of the Mandate are in part contractual, and in part 'dispositive'
(upon which term see Westlake, International Law (2nd edit.); ii,
pp. 60, 294). In English terminology, it is both a 'contract' and a
'conveyance', that is to say, a document which transfers or creates
rights connected with property or possession. ln addition to the
persona! rights and obligations referred to above, it also created
certain 'real' rightsand obligations." ARGUMENT OF MR. DE VILLIERS
147
Here we then find a very clear and explicit statement on the· dual
aspect of the Mandate to which I referred before; its effect as a contract
inter partes plus the additional effect as being something of the nature
of a conveyance, as beirig dispositive of something real, pertaining to
ownership, to use, to possession, to title of property. And the line of
thought is developed as bllows:
"Coupled with the effect of the assent of the Principal Allied and
Associated Powers, in whose favour Germany renounced ber rights
and titles over South-West Africa and who are expressly described
in the preamble of the Mandate as the proposers of the Mandate,
the Mandate transferred to the Mandatory, or created and recognized
in the bands of the Mandatory, certain rights of possession and gov
ernment (administrative and legislative) which are valid in rem
erga omnes, that is, a.gainst the whole world, or at any rate against
every State which was a Member of the League or in any other way
recognized the Mandate; moreover, there are certain obligations
binding every State that is responsible for the control of territory
and available to othcr States." (I950 Opinion, p. 156.)
It looks, Mr. Presiden1, as if in this last portion of the sentence, a
"the" may have been omitted in front of the word "territory". The
Frenchis "du territoire", and the equivalent in English would require the
"the", which would also make better sense in the context. It looks as if
that might have been omitted there.
In any event, the distinction suggested here is a clear one. The idea is
apparently that in addition to operating as a contract or agreement
inter partes, the Mandate and its consequences-things that went with it
-had a dispositive effect regarding title to property and corresponding
conditions, or burdens, n-sting upon that title. That is why the learned
judge stressed the effectof the assent of the Principal Allied and Asso
ciated Powers, whohad the power to dispose of the title to the particular
territories. That demomtrated the fact that the Mandate had the
effect of transferring or creating a right of possession and government,
which would have an effect beyond the contracting parties, appar
ently based upon the recognition that would be given to that special type
of status-that special type of title which is involved for a particular
Mandatory. Through the Mandatory's acceptance of that title, which
involved not only rights but also corresponding obligations, and by
recognition by other Staks of that type of title and of the Mandatory's
possession of that specific title in a particular case-through that
process of recognition the::ecame about an objective situation operating
outside of, and independently of, a contractual relationship.
This conclusion is further rendered clear by the next passage at pages
156 to 157:
"In short, the Mandate created a status for South-West Africa.
This fact isimportan1: in assessing the effect of the dissolution of the
League. This status--valid in rem-supplies the element of perma
nence which would enable the legal condition of the Territory to
survive the disappea.rance of the League, even if there were no
surviving persona! obligations between the Union and other former
Members of the Leagi1e." SOUTH WEST AFRICA
In' other words, here the learned judge very definitely foresees the
possibility that the whole of the contractual relationship may have
disappeared, and yet the Mandate would survive in the sense of this
legal condition of the territory-this status and the title which itinvolves
for the Mandatory, coupled with the corresponding obligations-in that
sense there would be a survival of the Mandate.
Further, Mr. President, in support of this line of thought, and this
interpretation which we put upon the Opinion, I refer to page 157 where
the learned judge cited an extract from a judgment of Chief Justice
Marshall of the United States on the point that when a right is once
vested, although having had its birth from a treaty, the expiration of the
treaty which originally conferred that right cannot affect the continued
existence of the right. The right may be one that has now obtained an
independent existence, independently of the treaty which gave birth toit.
That treaty may fall away and yet the right might persist: again sup
porting the interpretation that what the learned judge had in mind was
that the Mandate seen as a contract, an international agreement,
might have disappeared altogether, and that yet the Mandate as an
objective institution would still have an independent existence, inde
pendent from the continued operation of that international agreement
to which it owed its original creation.
Before proceeding with an analysis of the majority Opinion, I would
like to referto Westlake, the work to which Sir Arnold McNair referred
at page 156 of his Opinion in drawing the distinction between a contrac
tual and a dispositive effect of the Mandate. The particular passage from
Westlake throws more light on what was envisaged in that distinction.
The learned author was dealing with the general principle that where
territory is ceded by a treaty of transfer or cession, then under certain
circumstances the treaties which had been entered into by the transferor
State may cease to be of operation in the ceded territory, and also with
the principle, closely related to it, that where a State may cease to exist
through annexation by another State, then the treaties of the annexed
territory cease to be of operation-that being a general principle which
he had discussed before. Now the learned author proceeds to state:
"There is a class of treaties called transitory or dispositive which
may seem to be an exception to the rule that the treaties of the trans
feror or extinguished state cease ta operate in the ceded or annexed
territory, but which mayas easily be represented as not being really
an exception, These are treaties which dispose of or about things by
transferring or creating rights in or over them, as a deed conveying a
field or granting a right ofay over it disposes of or about.the field by
transferring the property in it to the purchaser or creating the right
of way over it in the grantee. Such are treaties of cession, by which
the sovereignty in a territory is transferred by one state to another,
and those by which a territory is subjected to a servitude or case
rnent, as the treaties of 1815 by which northern Savoy was declared
perpetually neutral, thus creating in it a servitude of neutrality in
support of the neutrality of Switzerland. Documents of title of this
class, whether in private or in international law, are called transi tory,
because their effect passes over (transit) into and forms a part of the
body of rights concerning the thing in question, so that it is possible
in subsequent dealings to start from that body of rights as a fact, ARGUMENT OF MR. DE VILLIERS
without being obligeclalways to refer to the dealings which created it,
as it would be neces~.aryto refer to an ordinary contract every time
that its performance had to be claimed in a fresh case. But the term
[transitory] isa bad C·ne,because the associations usually connected
with the word 'transi tory' cause it to suggest a fleeting character for
documents of which the operation is really the most permanent,
and the best term to ·,1seis 'dispositive'. Nowa transferee or annexing
state takes the territory as it stands, that is, subject to all the
rights which have been impressed on it in favour of third parties
by the treaties whkh have disposed about it; and by virtue of
this possibility of looking only at the rights as they stand, without
going behind them te,the documents of title, dispositive treaties may
be represented as not being an exception to the general rule."
(Westlake, International Law. Part I, Peace,, Second Edit., pp.
60-61.)
In other words, the line of reasoning is that where you have as a
normal principle that tte treaties of the, shall we now say, annexed
territory, automatically Jall away, that they cease to be of operation on
annexation, we have thi, situation about dispositive treaties, that may
have created something of the nature of a servitude or an easement,
something which pertain, to the use of the property-dcmilitarization,
canal rights, something oJfthat nature-that in those cases it may be
possible to look not only at the treaties but also at the rights which have
resulted from the treatiEs as having an objective existence. Therefore
theydonot really constitute an exception to the rule, because the treaties
themselves cease to op(:rate, there no longer being parties to those
treaties. But the rights ·,vhich have become vested have acquired an
objective, an independeff-: existence and for that reason the rights them
selves continue to operate without the treaties still being in operation.
That is apparently the type of distinction borne in mind and which was
to be applied to the Mandate system.
I proceed to refer to the majority Opinion at page r3r. There the major
ity of the Court descrihe the Mandate system as an "international
regime" in the last paragraph.
"With a view to giving practical effect to these principles, an
international régime. the l\fandates System, was created by Article
22 of the Covenant c,fthe League ...",
and at page 132, the next page, there is a reference to the Mandate,
just below the break in the print, about one-third down the page:
"The terms of this Mandate, as well as the provisions of Article 22
of the Covenant and the principles embodied therein, show that the
creation of this new international institution did not involve any
cession of terri tory ..."
So the :Mandate is there describcd as "this new international institu
tion".
Further down the pagt the Court reasons in answer to the contention
as thcn advanced on behalf of the Union Government-I think it may be
best to read that portion in its context:
"It is now contended on behalf of the Union Government that
this Mandate has lapsed, because the League has ceased to exist. 150 SOUTH WEST AFRICA
This contention is based on a misconception of the legal situation
created by Article 22 of the Covenant and by the Mandate itself."
(I950 Opinion, p. 132.)
And then the Court proceeds to explain why that was a misconception:
"The League was not, as alleged by that Government, a 'manda
tor' in the sense in which this term is used in the national law of
certain States. It had only assumed an international fonction of
supervision and control. The 'Mandate' had only the name in corn
mon with the several notions of mandate in national law." (I950
Opinion, p. 132.)
I stress the next portion:
"The object of the Mandate regulated by international rules far
exceeded that of contractual relations regulated by national law."
(I950 Opinion, p. 132.}
In other words, here we get the same idea that the Mandate had in
mind something-an object-which would transcend or exceed con
tractual relations. The next passage proceeds to explain what that was:
"The Mandate was created, in the interest of the inhabitants of
the territory, and of humanity in general, as an international insti
tution with an international abject-a sacred trust of civilization ."
(I950 Opinion, p. 132.)
That, then, in this context, must be what the Court had in mind as the
abject which the founders of the institution contemplated, as something
which would transcend and go beyond normal contractual relations.
"It is therefore not possible to draw any conclusion by analogy
from the notions of mandate in national law or from any other
legal conception of that law. The international rules regulating the
Mandate constituted an international status for the Territory
recognized by all the Members of the League of Nations, including
the Union of South Africa." (I950 Opinion, p. 132.)
And thus we corne again to the conclusion that there is something
which would owe its existence to recognition afforded ta it and which
could for that reason have a status, an existence, independent of, or at
any rate transcending, contractual relationships. Thcre seems to be, there
fore, basicallythe same line of reasoning and of distinction as in the Opin
ion of Sir Arnold McNair, because what îs to be borne in mind is the
context of this reasoning; the context is an answer to the contention of
the Union Government that the whole of the Mandate had lapsed because
there was no longer a Mandator. And the Court answered it by saying
that the institution that was created here had an object which transcen
ded contractual relationships, and that was a status for the territory,
recognized by the Members of the League of Nations, including the
Union.
And thereforc the same result follows: that what was contemplated by
the Court was something which could exist independently of contractual
relationships.
Explaining more particularly what this object involved-this object
that would go beyond contractual relationships-we find the majority
stating at page 133, the second paragraph from the end of the page: ARGVMENT OF MR. DE VILLIERS
"These obligatiom, [referring to Articles 2-5] represent the very
essence of the sacred trust of civilization. Their raison d'êtreand ori
ginal object remain. Since their fulfilment did not depend on the
existence of the League of Nations, they could not be brought to an
end merely because this supervisory organ ceased to exist." (I950
Opinion, p. r33.)
Here, then, we find what it was that the Court had in mind as some
thing capable of this objective existence, as forming part and parcel of
this international status ,)f the territory recognized by the Members of
the League, including the Union of South Africa.
Judge Read, in his Separate Opinion in r950, indicated agreement
with that elaboration, with the views of the majority on the question
of the status for the territory which resulted from the Mandate arrange
ments. At page 164, he stated:
"It is sufficient to note that the international status of South
West Africa was that of a mandated territory."
And then at pages 165-166 he says:
"Bearing in mind the nature of the international status of South
West Africa under the Mandate System, it is necessary to consider
the effect of the dissolution of the League. In this matter, I concur
in the view of my colleagues that the international status of South
\\Test Africa, as a mandated territory, survived the League."
Mr. President, the general views of the Members of the Court in 1950
on this question, therefore, appear to have been that quite independently
of continued operation of a contractual relationship between the Man
datory and other Membe1s of the League-in other words bctween the
founders of the Mandate system-the Mandate could exist as an inter
nationally recognized im,titution which involves for the territory a
status thus recognized, and, for the Mandatory, a title or a power of
administration, thus rec,Jgnized. The title, according to this view,
was seen as a qualified one-analogons to that of a trustee in municipal
law-in the sense that it existed for the purpose of implementation
of a sacred trust. And, just as in municipal law, it is possible to view
the trust as being something of a burden which rests upon the title of the
trustee, something which E•xistsindependently of a contract. This appears
from the passage from Underhill, which I read, in which he rendered it
clear that the donor, having made the necessary arrangements for the
trust, normally falls out of the picture-in the absence of some very
special arrangement. The completed trust then is no longer a contract.
It is something analogous to a completed gift. There has already been a
disposition of the propert:r, a new title is now recognized by the law in
the hands of the trustee a.nd the obligations of the trustee vis-à-vis the
beneficiaries under the trust are seen as something which operate as a
qualification to his title. He has the title for the purpose of complying
with those trust obligations and, in that sense, the obligations are much
of the same nature as a real charge-an onus rea!e--0n the trust property.
That appears to be the type of institution which the Court had in mind
in 1950,whichcouldexist in the case of the Mandate, independently of the
operation of a contract. It would be something analogous then to a
municipal law trust, in the sense that here would be a special kind of 152 . SOUTH- WEST AFRICA
status for the territory-a special kind of title-involving rights and
powers, on the one hand, but substantive obligations, on the other hand,
pertaining to the manner in which this property was to be used, and the
manner in which the title (the powers-the title to the property) was to
be applied, namely for the benefit of the inhabitants (the beneficiaries)
for the furtherance of the sacred trust. On this basis, I might point out
that if this is a true appreciation of what the Court had in mind, then it
might well be that, on that view of the situation, the conditions resting
upon the Mandatory's title, as qualifications thereto, may be available
as rights to a wider circle of States than those who had been parties to
the Mandate arrangement, the idea being apparently that States recog
nize the objective existence of the Mandate-of this new type of status
for a territory-and of a particular Mandatory's title thereto, and that,
on the basis of that recognition, the Mandatory is not only qualified to
exercise his rights but he is also obliged to comply with his duties which
are coupled as part and parcel of his rights to the territory. That
would seem to be the contemplation, and that would seem then to
be the distinction which was drawn between continued operation of the
Mandate as a treaty or convention, as an international agreement, and
continued existence as an objective or a real institution.
That is why, Mr. President, I wish to emphasize that it is not for me
to satisfy the Court that there is, or is not, a continued existence, as an
objective international institution, of this Mandate. It does not matter
at all for my purposes whether or not there is such a thing. On the
assumption that there should be no Mandate at all, then there could be
no jurisdiction of the kind which the Applicants seek to found, juris
diction being part and parcel of a Mandate alleged to be in existence and
sought to be exercised for the very purpose of performance of that Man
date. Therefore, an assumption of that kind does not hurt me, it hurts the
Applicants. Again, the purpose of my argument has been to demonstrate
that an opposite assumption-an assumption of continued operation of
the Mandate ofthe nature that the Court envisaged in 1950, namely as an
objective institution--does not hurt my argument either, because that
would envisage a causa for continued operation of the Mandate which
would be completely independent of continued operation of a contract.
Therefore, my contention that the Mandate ceased to. be in force as a
treaty or convention, is not affected at all by acceptance-assumption for
purposes of argument-of the proposition that the Mandate continued in
operation in the objective sense. That is so in as far as concems the
Mandate seen as the title of the Mandatory, the status of the territory,
and the objective trust obligations contained in Articles 2-5 of the Man-
date. ·
Different considerations· apply to Articles 6 and 7. I have pointed out
before that, in regard to Article 6, it would be difficult to apply the anal
ogy of a real charge-of something which affects the possession or the
use of property. It sèems to be more persona! in its nature. That is the
more so in regard to Article 7, providing for compulsory urisdiction of a
court. That is really a matter providing for adjudication of disputes, and
it could hardly be said to be something directly pertaining to the use that
can be made of property and, in that sense, to fall in the analogy of a real
charge or an obligation of a dispositive nature. Apart from that, Article 7
requires parties to invoke it, and therefore if Article 7 should still be in
operation-if there is to be a finding that Article 7 is still in operation- ARGUMENT OF MR. DE VILLIERS I53
then that finding would imply that there would be parties who could
bring it into operation and, because of the requirements of Article 37 ofthe
Statute of the Court, that operation would have to be based on a treaty
or convention. I must thnefore admit that in so far as the Court found in
1950 that Article 7 is stilJ.in force, that finding did seem to imply that it
was still in force as a treaty or convention. Therefore I am prepared to
accept that, as far as Artides 6 and 7 are concemed, what I am contending
in respect of those Articles is, in effect, in conflict withhe opinion, the
conclusion arrived at by the Court in its majority Opinion in 1950.
But that does not apply as far as Articles 2-5 are concemed. The Court
did not in any way indicate, as far as Articles 2-5 were concerned, whether
it considered that, in addition to their objective existence as part of the
sacred trust, there could 1;tillbe said to be a treaty or convention in force
in regard to them.
Therefore, in all respects except Articles 6and 7, the contention which
I have now advanced to the Courtis not in conflict with anything found
in 1950. In so far as variance is involved regarding Article 6, I have dealt
with the situation in that regard. I will deal particularly with Article 7
in a separate portion of my argument which will follow directly on this
one. All I want to point o;it at the moment is that if the principles and the
application which I have advanced to the Court under this portion of the
argument should be accepted as sound, if, in addition, the contention
which I have already advanced in regard to Article 6 is accepted as
sound, and, finally, the contentions which I am to advance in regard to
Article 7~if those should also be accepted-then the final consequence
of the argument, as I ha,'e now stated it to the Court, would be that the
whole of the Mandate agreement is no longer in force as a treaty or con
vention.
As regards the Separate Opinions in 1950 of Judge McNair and Judge
Read, our contention that the Mandate is no longer in force as a treaty
or convention also involves some measure of conflict, but only in so far
as Sir Arnold McNair found that the expression "Member of the League"
was "descriptive" and not "conditional". He stated that at pages 158-159
of the Opinion. But perhaps I should refer first to a passage at the begin
ning of page 158:
"Which then of the obligations and other legal effects resulting
from the Mandate remain to-day? The Mandatory owed to the
League and to its Members a general obligation to carry out the
terms of the Mandate and also certain specific obligations, such as
the obligation of Ari:icle 6 to make an annual report to the Councij
of the League. The obligations owed to the League itself have corne
to an end. The obligations owed to former Members of the League,
at any rate, those who were Members at the date of its dissolution,·
subsist, except in so far as their performance involves the actuar
co-operation of the League, which is now impossible." :
·So, there, the learned judge appears to find that there is still a con
tractual relationship in force as between the Mandatory and the other
Members of the League, and he.says so specifically at the. bottoÏn of the
page:,154 SOUTH WEST AFRICA
"... and I have endeavoured to show that the agreement between the
Mandatory and other Members of the League embodied in the
Mandate ls still 'in force'". (z950 Opinion, p. 158.)
And now follows the ratio for this finding:
"The expression 'Member of the League of Nations' is descriptive,
in my opinion, not conditional, and does not mean 'so long as the
League exists and they are Members of it'; their interest in the per
formance of the obligations of the Mandate did not accrue to them
merely from membership of the League, as an examination of the
content of the Mandate makes clear." (z950 Opinion, pp. 158-159.)
It is on the basis of this reasoning that Sir Arnold McNair found that
there was still a contractual relationship in force as between the Manda
toryandother Members ofthe League. But the passage which I read earlier
renders it clearthat, had Sir Arnold McNair not made that finding, then
he would have corne to the conclusion that the Mandate still existed as
an objective institution, although there would then have been no sur
viving contractual relationship. The passage which I read earlier is at
page 156-157 where he said:
"This status-valid in rem-supplies the element of permanence
which would enable the legal condition of the Territory to survive
the disappearance of the League, even if there were no surviving
persona! obligations between the Union and other former Members
of the League."
Therefore, Mr. President, it was only in respect of this finding
on the basis of this finding-that the expression "Member of the League"
was descriptive and not conditional for intended parties, that Sir Arnold
McNair came to the conclusion that a contractual relationship still
subsisted. That reasoning I propose to deal with specifically in the portion
of my argument conceming Article 7, because it is particularly applicable
there. Apart, then, from questions pertaining to Articles 6 and 7, my
contentions regarding the cessation of the operation of the Mandate as a
treaty or convention are not in conflict with anything found either in the
majority, or in the minority, Opinions in 1950.
[Public hearing of 8 Octoberr962, afternoon]
Mr. President, I had at the adjournment virtually completed my argu
ment on the question of the effect of the dissolution of the League on the
Mandate seen as a treaty or convention in force within the meaning of
Article 37 of the Statute of the Court. It remains for me only to deal in
that regard with certain specific averments by the Applicants. I have
dealt with their main arguments in that regard; but there are certain
averments which deal with this aspect of the subject and which have, in
effect, been answered, but I would just like to put the specific answers
on record.
In their Observations at page 421 (1) the Applicants state this-I am
reading from just about the middle of the page, the middle of the second
paragrapq.:
"The question before the Court is whether Respondent's duties
under the Mandate instrument continue to exist, that is to say, ARGUMENT OF MR. DE VILLIERS
r55
whether Respondent's administration of the mandated territory
which is based on the Mandate instrument is free of the obligations
prescribed in that instrument."
I point out that for the purposes of this contention that is not the
question at all. The qu~stion is not whether those duties continue to
exist, but, assuming as we do for purposes of argument that they do exist
as far as the substantive obligations are concemed, what is the causa
for their existence. I have dealt with that question fully. Then, at page
426 (1) of the Observations, the Applicants state, in the third paragraph,
the second sentence:
"lts [that is, Respondent's] contention is exactly that advanced
by it in 1950 before 1:heCourt, and which the Court rejected, namely,
that the dissolution of the League caused its obligations defined in
the Mandate instrument to lapse."
That is not our contrntion; indeed on the contrary, we assume for
purposes of argument the existence of the substantive trust obligations.
Then, stillat page 426 (I 1,the Applicants state, just below the quotation:
"Respondent still views the Mandate as a bare contract",
and somewhat further, tliree lines from the bottom of the page:
"All that Respondent has done in its more modem version bas
been to add one more possible contractor who could have 'fallen
away' by virtue of the League's dissolution, in spite of the fact that
the Court clearly st2.ted that the Mandate may not be analyzed as a
mere contract." (Observations, p. 426 (1).)
Mr. President, far from viewing or analyzing the Mandate as a "bare"
contract or as a "mere" ,:ontract, our contention assumes the dual effect
of the Mandate, the contractual as well as the objective status which
resulted from the Mandate. The latter status could, as far as we as
sume for purposes of argument, have survived the dissolution of the
League, whereas the contractual aspect fell away. This comment of the
Applicants is therefore also not justified. Also, it is not true or correct to
say that we have added another contractor who could have fallen away.
I think I have made it clear that for purposes of argument it makes no
difference whatsoever whether the League alone is seen as the contracting
party vis-à-vis the Manc'..atory,or whether the Members of the League
are so seen or whether the situation is seen as being the League and its
Members. What is important is that the circle was no wider than the
League and/or its membErs. Then at page 427 (1) of the Observations the
Applicants state:
"... it is an imposition upon the Court for Respondent to present
the same basic argument as before, and at the same time propose
a de nova considerat:ion".
Now again, Mr. President, the argument is not the same, basically
or otherwise. It assume:; as correct the basic finding of the Court in
1950; and in the limited respects regarding Articles 6 and 7 in which it
is in conflict with what the Court decided in 1950, we have given, I
submit, good reasons for a deviation from the CoU:rt'sfinding as far as
Article 6 is concerned. A;1dI wiUproceed to state our reasons regarding ·soUTH WEST AFRICA
Article 7, which I submit are equally good reasons. That brings me to the
:end of that particular portion and I can proceed to deal specifically with
the eHect of the dissolution of the League regarding Article 7 of the
Mandate.
· Now, I have pointed out that the second portion of Article 7, which
isthe crucial compromissory clause, required for its operation "another
·Member-of the League of Nations" to invoke that jurisdiction. It is corn
mon cause between the parties that during the lifetime of the League,
·each Applicant would have fallen within the meaning of that expression
·and could in a fit case have invoked the jurisdiction of the Court. B~t
the issue between us is whether that is still the situation, since the disso
lution of the League; whether any State can now still qualify to invoke
.such jurisdiction within the meaning of the expression "another Member
of the League of Nations". We, representing the Respondent, contend
for a negative answer and the Applicants contend that certain States,
including themselves, can still so qualify. That is, broadly speaking, the
issue regarding Article 7. Before I develop the arguments in that regard,
·may I just again refer to the implications; to exactly how and where tqi_s
:argument fits into the pattern of our objections and our contentions
regard~ng the first two objections. If our contention regarding Article 7
should be sound then the effect would be, in the first place, that in
conjunction with the argument which I have already addressed to the
Court regarding Article 6, and in conjW1ction with the argument which I
addressed to the Court this moming in regard to Articles 2 to 5, the effect
would be that the whole of the Mandate agreement has ceased to be a
treaty or convention in force within the meaning of Article 37 of the
Statute, that being the first of our three contentions relative to Jhe first
two objections. But we côntend in ·anyevent, secondly that whatever the
'situation might be in regard to other portions of the Mandate Agreement,
the effect of our contentions regarding Article 7 is that Article 7 itself
ceased to be so in force as a treaty or convention-that is our second
contention, Our third and alternative to the second is that even if Article
·7 could be said to be so in force, the Applicants are not qualified to
invoke it.
I will proceed to deal first with a development of our argument as to the
.propcr interpretation of that phrase "another Member of the League of
Nations" in its context in Article7. But before doing so, I think it would
·.beconvenient if I were to refer to something which the Applicants raise
in this regardand which might almost be regarded as an objection to our
-objection. They quote in their Observations, at page 440 (1) a passage
from a statement made by a representative of the Union of South Africa
in 1950. They say it was Mr. D. B. Sole. That was not correct, the rep
resentative was Dr. Donges, but that does not matter.:The point is that
this statement is cited here by the Applicants, at page 440, and they refer
to it as if it was something said by a representative of Respondent
"speaking for Respondent". Those are the words used at page 440. And
they say aboutit earlier, at page 437, justabove theheading ''A. Judicial,
Scholarly. and Other Authority," that our contention-----our submission
regarding Article 7-"is inconsistent with the prior decisions of this
Court, as well as with scholarly authority and the admissions of Respon
dent_itself before the United Nations", that statement apparently bearing
·UP.On this portion here cited at page 440. Further, at page 440, after the
.quotation, they say of it,·in the Summary-the last sentence: · ARGUMENT OF"MR. DE VILLIERS 157
"The latter admis;ion, :thougli not conclusive as to (the meaning
.of Article 7, has) considerable probative value (since it contains)
recognition by a party of its own obligations under (Article 7)'."
(Observations,p. 440 (1))
Now, Mr. President, what I want to indicate in regard to that passage
is, in the first place, that when it is propèrly interpreted in its context it
is very doubtful, to put it at its lowest, whether the representative in
tended to do anything more than to set out the effect of the Opinion of
the Court on this particular point. But even if he should have intended
anything more, if he should have added something by way of comment
apart from merely stating the effect of the Opinion of the Court-then
it is perfectly clear from the context, from explicit statements made by
him before and after this passage in the course of his adqress, that he was
not speaking on behalf of his government and that his·govemment had
not yet taken any attitude about the matter and that nothing that he
could say at that stage must be taken as binding his govemment in any
way. Therefore what he said could not have been understood by anybody
as being spoken on behalf of the Respondent, as being an admission on
behalf of the Respondent, of binding the Respondent in any way or of
indicating an admission c,rrecognition by a party of its own obligations.
I shall deal with those suhmissions in a moment with reference to the ad-·
dress. . .
. Now first, Mr. President, as regards the interpretation of the statement
itself, two paragraphs beiore the portion which is quoted in the Obser
vations the speaker starkd by stating:
"It will be recalle<lthat the Court advised",
and then he proceeded te-state the effect of what the Court had advised'
and he proceeded to deal with that and also to make certain comments.
of his own apparently in that regard. I must admit immediately, the
statement is !=Onfusingin the sense that the speaker did not always
clearly distinguish betweim what was his own comment and what was a
statement as to the effect of the Opinion of the Court. Possibly the ques
tion ofthe use of quotations, or the absence of quotation marks, may also
have made a difference. But in fact one finds that when he cornes to this
passage which is quoted, {t really consists of a piecing together of certain
statements by Judge McNair at page 158 of his Opinion and certain
statements by Judge Read at page 165 of his Opinion.
So, for instance, the first sentence-in that quotation is:
"Now the Mandate, as has been shown, provided two ·kinds of·
machinery for its supervision by the League of Nations-firstly,.
there was the judicial supervision by means of the right of any..
· member of the League under Article 7 to bring the mandatory
compulsorily before the Permanent Court. And secondly, the
administrative supervision by means of annual reports and their
examination by the Permanent Mandates Commission of the·
League." (Observations,p. 440 (1))
That is almost verbatim what Sir Arnold McNair said at page 158:
"The Mandate provides two kinds of machinery for its super-
vision..." .
and it goes on to the judicial and the administrative.158 SOUTH WEST AFRICA
And so, the next sentence then, in the quoted portion:
''The judicial supervision provided for in Article 7 of the mandate
has been expressly preserved by means of Article 37 of the Statute
of the International Court of Justice ..." (Observations, p. 440 (1).)
For that portion, again the statement that there bas been an express
preservation by means of Article 37 is taken from Sir Arnold McNair
at page 158 where the leamed judge stated:
"The iudicial supervision bas been expressly preserved by means
of Article 37 ofthe Statute of the International Court..."
The other sections, and even the phrase "reinforced by Article 94
of the Charter", corne from Judge Read's Opinion at page 169 where
Judge Read said:
"In the present instance, the Union, in the case of disputes
relating to the interpretation or the application of the provisions
of the Mandate, is subject to the compulsory jurisdiction of this
Court-under the provisions of Article 7 of the Mandate Agreement
and Article 37of the Statute, reinforced by Article 94 of the Charter."
And the statement continues, as quoted:
"... and the Court has in fact found that the Union of South Africa
isthereforestillunder an obligation to accept the compulsory juris
diction of the Court according to the provisions mentioned".
(Observations, p. 440 (1).)
That may possibly "be a reference to the Court in the sense of the
rnajority of the Court,. which also made a finding specifically on that
point, as compared with the statements which have been cited from the
judgments of Sir Arnold McNair and Mr. Justice Read. The quoted
statement proceeds:
"Any State which was a member of the League at its dissolution
could therefore still implead the Government of the Union of
South Africa before the International Court of Justice in respect of
any dispute between such a member state and the Govemment of
the Union of South Africa relating to the interpretation or the
application of the provisions of the Mandate." (Observations, p. 440
(1).)
That sentence could be taken either as being a statement by the
speaker himself, or as stating the effect of what the Court had found, in
the context there. But, Mr. President, as I have said, I must admit the
statement is a most confusing one in that respect and I am perfectly pre
pared to assume, for the purposes of my argument, that the speaker here
went further than stating the effect of the Opinions.
Even then it becomes very clear from the context and from the cir
cumstances that he never intended to say anything on behalf of his
government and that he could not possibly have been so understood.
The occasion on which he spoke was in December of 1950, some months
after the Advisory Opinions had been delivered. I think the Opinions
had been delivered in July of 1950. And in stating the attitude of the
Respondent to the Court in this regard in the Advisory Proceedings, Dr.
Steyn, at page 288 of the Pleadings as officially printed, had stated there: AR<;UMENT OF MR. DE VILLIERS 159
"And finally, there is no State legally competent to refer disputes
relating to the interpretation or the application of the provisions of
the Mandate to the International Court of Justice, the competence
to do so having been limited by Article 7 of the Mandate to Members
of the League."
So the attitude, as sta-ted to the Court-the attitude of the Respondent
-was very clearly that there was no longer compulsory jurisdiction in
terms of Article 7 for that reason, because there were now no longer
any Members of the League. Dr. Steyn had also advanced to the Court
the main contention to which there has been ample reference in the
Pleadings by the Appfo:ants themselves in this case, namely that the
Mandate had, as a result of the dissolution of the League, lapsed in toto.
So, if the Mandate had Japsed in toto there could not possibly have been
any question of compulwry jurisdiction in pursuance of Article 7 of the
Mandate. Those, in both. respects, were attitudes stated on behalf of the
Union Government. But now, in the address by Dr. Donges in December
1950, he commenced (in document A.C. 4/185, from which the passage is
cited by the Applicants:1 early in his statement (itisat page 3 of that
document) to state the following;
"Now, I corne to another point which has concerned several dele
gations, and which was first put to me in the form of questions by
the distinguished dtlegate from the Philippines, and which was also
repeated by many other delegates, and again this afternoon in the
speech which preceded mine, by the distinguished delegate from
Mexico. The question was, what was the decision of South Africa
in regard to the advisory opinion of the International Court. I
anticipated that question in my opening statement. To make it
plain I have merely to refer to what the distinguished delegate of
Ecuador has already stated today, namely, that the position taken
up by South Africain this regard is crystal clear. I said then that I
did not propose to participate unduly in this debate on a matter on
which my Govemment will later on have to define its position."
[I repeat] "on a matter on which my Government will later on have to
define its position."
And that is the position of South Africain regard to the Advisory Opinion
of the International Court. The speaker proceeded:
"I said that 'it would be readily understood that the nature of the
resolution, that is the resolution to be adopted by this Committee and
by the General As~embly, will have an important effect on my
Govemment's decisfons', and while we are not prepared to slam the
door on any attempt to find an amicable solution of a question
which has vexed us for so long, we sincerely hope that the Organ
izationon its part will not do so either." (U.N. Doc. A/C. 4/185, p. 4.)
There, very clearly, hi:; govemment had taken no decision and would
later on have to define it:; position. And then, at the end of the address,
after the quoted passage and at the very conclusion (page 16 of the docu
ment) the speaker stated:
"The Committee will, therefore, realize that this new development
is a factor which has also to be carefully weighed and considered by.160 SOUTH WEST AFRICA
my Govemment, together with the attitude of the United Nations in
regard to the international position of South West Africa as ex
pressed in any resolution which may be adopted by the General
Assembly. It would be premature to expect me to say or do anything
which could possibly be interpreted as binding my Govemment in
any way until it has had every opportunity of considering fully and
carefully the whole problem in ail its aspects." (U.N. Doc. A/C.4/185,
p. 16.)
That, I submit, Mr. President, renders quite clear that the speaker did
not intend, and that his audience could not have understood him as
intending, to state anything that could be regarded as binding his
govemment, as being an admission by his government, as being a re
cognition of any duties still incumbent upon his government.
I may point out further in that regard too, that shortly afterwards,
.in June 1951, after resolutions had been taken at the United Nations and
after the Union Govemment had had an opportunity of defining its at
titude, its attitude was stated by its representative to the ad hoc Com
mittee on the 27th June 1951. I quote from the Applicants' Memorials,
pages 56-57 (1). where they set that out. I read about eight lines from
the bottom of the page:
"... the Union representative stated, according to the summary
records, that 'the International Court had expressed the view that
these obligations remain legally in force, a view to which apparently
the majority of the United Nations subscribed. His Government did
not agree with the opinion of the Court as endorsed by the majority
of the United Nations on this point. It held that, since one of the
two parties to the contractual arrangement had disappeared, the
Mandate had lapsed and it could no longer be regarded as a legally
binding contract and that, in consequence, the Government of the
Union, in contrast to the opinion of the Court and of the majority
of the United Nations was of the opinion that it no longer was legally
bound to carry out the provisions of the Mandate in question.
Here, therefore, there was disagreement' ."
So, Mr. President, on the last occasion before this statement, where
there had been a formai statement of the attitude of the Union Govern
ment, and on the first occasion afterwards, one finds a very clear intima
tion of the position of the Union Government, again showing that
what was stated by the speaker on that particular occasion was not
intended to be spoken on behalf of his govemment. And, indeed, in
the Memorials, the Applicants had already referred to this particular
passage on which they now rely as an admission. And there they appear
to have conceded that it could not be regarded as an admission on the
Respondent's behalf, because they stated there, at page 93 (1) in a
footnote:
"Presumably, the Union denies that Article 7 is in force since it
states that the Mandate is not in force. It is well to note, however,
that on 7 December, 1950 the Union's representative to the Fourth
Committee stated ..." ·
and then followed an extract from the statement which is also now
quoted. So there was an indication that the Applicants realized that this
was, in truth, no admission at all-the statement which is now relied upon
by them as being such an admission. ARGUMENT OF MR. DE VILLIERS r6I
I procee~dwith the argument on the merits of the dispute between us
and the Applicants as to the meaning and effect to be given to the expres
sion "another Member of the League of Nations" read in its context in
Article 7 of the MandatE Agreement.
Mr. President, what is that context? The context is one of a com
promissory clause in which the Mandatory agrees to accept the com
pulsory jurisdiction of the Court for certain types of dispute as defined.
That consent is qualifieè.with reference to various things and qualified,
inter alia, with reference to the party or parties who could, in the case of
a dispute as defined, bring the Mandatory before the Court. Indeed, that
party is referred to as being the other party to such dispute; the dispute
must arise between the Mandatory and another Member of the League.
The reference to that other party to the dispute is not to another
State or States by nam! but to another State or States to which the
expression "Member of the League of Nations" applies. Now, may I
refer the Court again b the wording of the second part of Article 7,
which I now propose to read elliptically for a doser analysis of context
on this particular point. I rcad the words:
"... if any dispute ·.vhatever should arise between the Mandatory
and another Member of the League of Nations [I am skipping some
words] such dispute [omitting again] shall be submitted to the Per
manent Court".
And so we have: "If any dispute should arise between the Mandatory
and another Member of the League ... such dispute ... shall be submit
ted to the Permanent Court." In the context, bath the literal meaning and
the natural and ordinary meaning is perfectly clear, and that is that this
other State must be a Member of the League of Nations at the time when
the dispute arises; at the time, therefore, of envisaged application of this
clause, when there may -i:henbe such a reference of the dispute to the
decision of a Court. And if the other party to the dispute does not comply
with this qualification to the consent, then the consent does not cover the
particular case. If the other party is not, at the time when the dispute
arisesand when the occasion cornes for a reference to the Court, if that
party is not then anoth,!r Member of the League of Nations then the
consent does not apply t,J that particular case.
The effect, Mr. President, of this construction may be described in
two ways. One may say that the expression "another Member of the
League" is descriptive, but it is descriptive with reference to the time
of envisaged application c,fthe clause. It describes what the other party
is to be at the time wh~n the clause is to corne into operation. As I
shall later emphasize, to talk of a descriptive meaning has little purpose
unless the description is related to a point or a period of time.
That is one way of describing what the effect is of this natural and
ordinary construction of this clause. The alternative way of describing
it is to say that the right of the other State to take the Mandatory to
court is conditional upor· that State complying with a qualification at
the time of envisaged apj.zication of the clause. One could put it in two
ways. One can say the expression is descriptive, but at the point of
envisaged application. Or,e can say, alternatively, the right of the State
is conditional upon tha1. State complying with the qualification, but
again at the time of envisaged application-that being the important
factor in both instances. 162 SOUTH WEST AFRICA
That is not only the natural and ordinary way of interpreting the
language which we find here, ît is a perfectly ordinary and very common
and usual thing in matters of jurisdiction, in matters of locus standi,
in questions pertaining to competence to bring judicial proceedings,
to adjudge those questions as at the stage of the institution of the
proceedings. That is the normal thing which one finds in all systems
of the law of procedure. But be that as it may, in this particular context
here, taking the wording into account and taking into account the
context as a compromissory clause, that is the literal interpretation
indeed the only literal interpretation-and it is the only ordinary and
natural meaning that could be given to the language.
Therefore, in terms of the principle of natural construction as we have
noted it from the Second Admissions case, the next stage in this enquiry
is now: does that construction make sense? Do the words read in this
meaning, in their ordinary, natural meaning in the context, do they make
sense or, on the other hand, are they ambiguous or do they lead in
practice to an unreasonable result? Because, as the Court will remember,
according to the principles as they are stated in the Second Admissions
case,. if the natural construction makes sense that is the end of the
enquuy.
Our submission is, Mr. President, that there is no ambiguity whatso
ever and that, on an analysis of the practical implications, one finds
that this natural construction leads to a result which, far from being
unreasonable, does make sense and accords with the probable intentions
of the parties.
For the purposes of developing this submission, I remind the Court
again-without going into detail because I have covered that field
of the analysis which has been made in the Preliminary Objections and
which I referred to in my argument this morning, of the provisions of
the Covenant of the League, which, in all except a few of its clauses,
contains the expression "Member of the League" or "Member of the
League of Nations", or a similar expression. ln each one of them one
finds that that reference to membership is intended to relate to the
time of envisaged application of that clause. \Vhere there is an obligation
to contribute to the expenses of the secretariat, surely that applies to
a Member of the League who is a member at the time when the obligation
accrues. \Vhere there is an obligation to exchange information inter alia
about armaments and so forth, as between M.embers of the League,
surely that obligation applies to a State if at the time when there is
to be such an exchange that State is a Member, otherwise it does not
apply to it.When it applies to a right to be elected to the Council, the
same thing goes---the State has to be a Member at the stage of election or
at the stage of taking session on the Council if elected, othenvise this
clause does not apply. And so one can go through with each one of them;
that is every time the interpretation which makes sense and which
accords with the probable intentions of the parties, apart from being,
in each instance, also the natural construction of the language in the
context.
And likewise where we find in the Mandate instruments themselves
either a use ofthe expression "another Member of the League of Nations"
or we find a clause which appears to be intended for the benefit of
another Member of the League of Nations, one can find as a matter of
probable intent and as a matter of natural construction the same idea ARGUMENT OF MR. DE VILLIERS 163
that membership must be there as a qualification at the time of the
envisaged application of a particular clause.
Take the open-door arrangement in the A and the B Mandates for
the benefit of other Members of the League and their nationals. Surely
that benefit is to apply while a State is a Member of the League and not
at ·any other time. And therefore, again, in those instances of inter
pretation in accordance with the idea of documents in pari materia, one
finds that the natural construction is confirmed.
lndeed as a result of the submissions I made to the Court this moming,
based on this same analvsis, one cornes to the conclusion that the only
States for whom substani.ive rights were intended vis-à-vis the Mandatory
under the Mandate Agreement were Members of the League, and that
those substantive rights would apply only for so long as they were
Members of the League. Now surely if that were so, then a compro
missory clause aimed at the enforcement of substantive rights by the
other parties to the con~ract could only make sense if it too is limited
forthe duration of the other party's membership of the League. Other
wise we would have thü, strange and anomalous position of a Member
of the League havîng no substantive rights under the Mandate Agree
ment but still having the facility at its disposai of invoking a com
promissory clause. The question might be asked then: What for, if
there is no substantive right which can be enforced?
We deal specifically iu the Preliminary Objections, at page 365 (1),
paragraph 6 of the Fourth Chapter, with the anomalies that would
flow from a result whereby an ex-Member of the League could still
implead the Mandatory under Clause 7. We would have the position
that the State would no longer be a Member of the League; it could
no longer raise any questions about the Mandatory administration
in the League Council, i:a the organs of the League; it could no longer
ask the League to take êdion about it; but it could still take the Man
datory to court or force the Mandatory to negotiate with it to avoid
being taken to Court. This position would be the more anomalous,
ifthe rights and interesb; which could be taken to court under this com
promissory clause by Members of the League should include the interests
of the inhabitants of the Œrritory--even in caseswherethe other Member
of the League may have no direct material interest of its own or indirectly
through its subjects in the subject-matter of the particular dispute.
We contend for the purposes of our third objection that that inter
pretation ïs not to be gi...-ento Article 7, that the only types of disputes
envisaged by the Article which could be taken to court would be those
in which the other State-the other Member of the League-would
have a material interest either for itself as a State or for its subjects
or nationals, and, therefore, the type of case which concemed solely
the interests of the inhabitants of a particular territory, that type of
case was not intended to be covered by Article 7 at all. But for the
purposes of the first and the second Objections we assume that the
position could be either ,vay as far as that was concemed. If we should
at this stage, in conflict with our submission for the purposes of the
third Objection, assume that the wider interpretation be given to Ar
ticle7 on that particular point so that another Member of the League
could take the Mandat01y to court even on a matter which concemed
the inhabitants' interestE alone, that position would become even more
anomalous when it is ex-tended to ex-Members of the League. Because · SOUTH WEST A1'-RICA
then we could have this position: that a State is a Mèmber of the League
for some time and is either expelled or resigns from the League; the
Mandatory continues to administer the territory in accordance with
policies discussed in the Permanent Mandates Commission and approved
of-unanimously approved of-by the Council, but that policy is not
in accordance with the wishes, or in accordance with the views or desires,
of this ex-Member of the League. Under a construction whereby that
ex-League Member would still have the competence to invoke Article 7,
he could then take the Mandatory to court on a matter which complies
entirely with the views of the supervisory organ-the Council-but still
the Mandatory would have to account to this ex-League Member,
negotiate with him and be subject to compulsory jurisdiction of a court
if the negotiations should lead to nothing. That would clearly be a
completely anomalous result. · '
Similar considerations of a practical nature apply-and one could
easily think of examples-to other instances where the expression
"Member of the League" is empioyed, for instance in other Mandates
with regard to the open-door provision, as I -have stated before. In all
these other Mandate instruments, in all the provisions of the Covenant
where·the expression "Member of the League" is used, one finds that
the natural interpretation, and the one that makes sense, is the one that
relates the requirement of membership to the time of envisaged appli
cation of the particular provision. There is not a single instance which
we could find in which the expression was used in any other sense, either
in the Covenant, or in any other Mandate instrument. And therefore
we submit that the natural meaning is confirmed by the practical im
plications bearing on the probable intent of the parties.
Mr. President, in everything that has been written about this question
-and that is a great deal-including what has been written in pleadings
now before the Court, the only meaning alternative to the one which
I have just advanced to the Court, is that in the separate judgment of
Sir Arnold McNair, to which I referred this morning-what one might
briefly term his "descriptive meaning". I have nowhere, with any other
author or even in the submissions of the Applicants, found any sug
gestion as to an alternative meaning. The Applicants contend for a
different result, but that is not by attaching a different meaning to
this phrase, as I shall endeavour to show later.
Sir Arnold McNair said (if I may remind the Court) at pages 158-159:
"The expression 'Member of the League of Nations' is descriptive
in my opinion, not conditional, and does not mean 'so long as the
League exists and they are Members of it'."
And it was on the basis of assigning this meaning to the expression
"another Member of the League of Nations" or "Member of the League
of Nations" that Sir Arnold came to the conclusion both that Article 7
remained in force, and indeed that the Mandate as a whole remained in
force as an agreement. Because it seems quite clear from the rest of his
reasoning that had it not been for this conclusion he would have found
that the Mandate ceased to exist in its contractual operation-that is
as a treaty or convention-although remaining in objective existence
in the manner in which he exp1ained.
This may be a convenient stage now for examining, with respect, the ARGUMENT OF MR. DE VILLIERS
reasoning involved in this "descriptive" meaning suggestion, both for the
purposes of Article 7 and for the purpose of the whole question whether
the Mandate Agreemen-=:remained in force as a treaty or convention.
Now what did the learned judge mean by that expression-"descriptive"
and "not conditional"? Apparently, it seems, with respect, that what he
had in mind was that Article 7 was not intended to prescribe, in its
reference to another MEmber of the League, a qualification with which
the other party to the dispute is to comply, but, just as the clause
might have said "if a dispute should arise between the Mandatory
and States A, B, C,D and E" (mentioning them by name), or, as the clause
might have said "any ~.tate mentioned in the annex hereto" (and then
incorporate a list by reference), just as that would be a descriptive
method of stating who the other parties to this arrangement would be,
just so, this rcference to "another Member of the League" could be read
as referring to every Sta.te that was a Member of the League, just as if a
list had been attached with the names of those States: so that the ref
erence is to the State, and not to the State in a capacity as a Member
of .an international org.mization. That appears to be the idea under
lying this suggestion-the idea then that led to the conclusion that
even after dissolution of the League, and even after loss of membership
of the League, the· States that had been Members could retain their
rights under the Mandate-their contractual rights vis-à-vis the Man
datory generally, and, in particular, their competence to invoke Article 7.
Now, Mr. President, it is exactly for the purpose of that type of.
reasoning that I mentioned earlier, that calling a meaning "descriptive"
does not really help, unless it is brought in relation to a point, or a
period, of time. Look at the problem with reference to a "Member
of the League". If the meaning was intended to be descriptive, in the
sense which I have endrnvoured to explain, does that description apply
to Members at the time ,vhen the Mandate Agreements were entered into,
or does it apply to any States that at any time became Members there
after-or would become Members thereafter-or would it apply only
to States that remained Members until the League's dissolution? What
exactly ,vas intended te, be referred to in this description, because the
three alternatives that I have now stated would have involved three
alternative lists, if they are seen in accordance with the concept of, say,
an annexure to the Mandate agreement, something that is incorporated
by reference. There w,mld be three alternative lists of States, ac
cording to those, three alternative possibilities. There is nothing in
Article 7 itself-or indeed in the Mandate Agreement as a whole, or
anywhere in the Covrnant or associated documents-which could
throw any light, as a matter of choice, on any of those three possibilities
-as to which of those three one would have to choose for purposes of a
"descriptive meaning" Ïi1terpretation.
Let us examine the implications of those three from a practical point
of view. Let us take, first, the possibility of those States that were
Members at the time when the Mandate Agreement was entered into
that that was the list of States intended to be referred to. On that basis,
Mr. President, the interpretation would exclude States who later
became Members of tht: Leaguè. They would then never acquire the
competence to invoke Aiiicle 7 and that, in itself, seems a most unlikely
contemplation or intention for the parties· to this agreement. Sec
ondly, the implication would be that a State which resigns from the166 SOUTH WEST AFRICA
League, or is expelled from the League, during its lifetime, could
still, even after that event, have the competence to invoke Article 7,
which would again be a most unlikely contemplation.
Let us take the second possibility, that the intention was to refer
to States that might, at any time be, or become, Members of the League.
There we would not have the first of the difliculties which I mentioned
in regard to the first alternative, but we would still have the second
one--we would still have this difliculty that States that ceased to be
Members of the League even during its lifetime, by reason of resignation
or expulsion, would retain competence to invoke Article 7, and that
does seem a most unlikely contemplation.
The third alternative would be the point of time of dissolution of
the League. The States intended to be referred to in Article 7 would then
be States who would be Members of the League at the time of dissolution
of the League. Now, Mr. President, in the first place, the difliculty with
this suggestion is that it would seek to distinguish between States that
lost membership of the League be/ore dissolution and States that lost
membership at dissolution and because of the dissolution. That is a
distinction for which Article 7, or any other provision in the Mandate
{or anywhere else), makes no provision whatever. There is not even any
due which could lead one to a conclusion that there was an intention to
draw a distinction of that kind, as a matter of designation or meaning
of this phrase "another Member of the League". The second difliculty
about this suggestion-relating the description to the time of dissolution
of the League-would be that that would attribute to the parties to the
Mandate Agreements in 1920 a contemplation of what would happen at
some future date when the League might be dissolved, something which
does not appear to have been foreseen as a practical eventuality at that
stage. It could have been foreseen, of course, as a theoretical possibility,
as something that might happen, but it could not yet at that stage have
been foreseen as a practical event in the sense that there could have been
a contemplation on the part of the parties as to what the circumstances
then would be, and what the implications would be of the situation.
So that it seems most unlikely that the parties would, at the inception of
their agreement relative to an organization which was intended to be a
permanent or indefinite one, that they would now begin to make definite
arrangements-by contemplation or otherwise-for that event of dis
solution of that organization, and for what is to happen in such an event.
More specifically, Mr. President, it would really mean that the parties
here provided, in Article 7, for reference of disputes as therein described
to a certain Court-the Permanent Court of International Justice-
which was, in practice and, to the knowledge of the parties, dependent
for its existence and its functioning upon the existence of the League
of Nations-because of the manner in which the Court functioned, in
which it was financed, composed, and so forth. Therefore, the normal
contemplation would be that, if the League should fall away, the Court
would fall away; and it seems most unlikely that the parties would have
intended to make a provision whereby competence toinvokethisclause
to take a matter to that particular Court-should be kept alive after
the dissolution of the League, unless the parties had in mind already
some method whereby the Court would be kept in existence and function
ing despite dissolution of the League, or whereby there would be some
other organization that would keep alive a Court and that could provide ARGUMENT OF MR, DE VILLIERS
Members who could take a matter to the Court. Surely it becomes
completely unrealistic -;;oattributeideas of that kind to the founders
of the Mandate system.
Therefore, Mr. President, there is, in my submission, no foundation
whatsoever, with the ,-5eatest respect, for this "descriptive meaning"
suggestion. It leads to all these difficulties and to all these anomalies;
and when one has regard further to the fact that, as a matter of assign
ing a meaning to langu.1ge, it must at least be classified as a somewhat
unnatural and strained meaning, then surely it cannot compete, in any
way, with the natural construction, the natural meaning which I
suggested to the Court, which can be tested in all its practical impli
cations,and which withstands the test of making very good and sound
sense, in accordance with the probable intent of the parties.
Mr. President, I have said that Sir Arnold McNair was the only one
who expressed this view as to an alternative meaning to be assigned
to the expression "another Member of the League of Nations". Possibly
Judge Read's separate opinion is to be read as implying agreement
with Sir Arnold McNair on this point, but it does not say so anywhere
expressly. The result, of course, ofthat opinion was also to keep alive
on the part of States tliat were no longer members of the League after
dissolution, the competence to invoke Article 7, and also to regard them
as still having substantive rights under the Mandate contract with the
Mandatory. And it may well be that for those reasons Judge Read's
Opinion is to be read a5 being along the same line of reasoning as that
of Sir Arnold McNair, implicitly. If so, the same argument which I
have now addressed to the Court applies also to the case of Judge Read's
opinion on this particular point.
In our Preliminary Objections at pages 370 (I) to 372 we dealt fully
with the reasons which we respectfully advance why the interpretation
of Sir Arnold McNair could not be accepted as legally correct. We dealt
with the matter as one of principle, one of analysis, and we supported
our submissions with reference to scholarly authority. Despite that
fact, the Applicants nowhere in the written pleadings before the Court
attempt to answer our argument in that regard, or to offer any argument
in support of the "descriptive meaning" interpretation, though they cite
that interpretation as a matter of a conclusion arrived at by Judge
McNair. They cite in thdr Memorials at page go (I) and in their Obser.
vations at page 439 (1), an extract from Judge McNair's opinion which
contains the portion in question. But they offer no argument in support
of the interpretation. Their own arguments which they offer on this
question of Article 7 implicity reject the "descriptive" meaning inter
pretation and proceed c,n a basis in conflict with it. Indeed, Mr. Presi
dent, the Applicants nowhere dispute our analysis of the meaning,
and I stress the meaning of the expression "another Member of the
League of Nations" in Article 7. On the contrary, it seems implicit in
the manner in which th,! Applicants seek to answer us that they accept
that meaning as being 1 correct one. I have pointed out already that
at page 448 (1) of the Observations they appear to accept that a State
whrch had withdrawn or had been expelled from the League during its
lifetime would have lost the right it had formerly possessed as a League
Member. It seems that they intended that statement to apply also to
the right to invoke jurisdiction in terms of Article 7, because that is
the point with which thr:y are dealing at that particular page-page 448 SOUTH WEST AFRICA
168
(1). They are dealing in this chapter with the question of the competence
to invoke Article 7, and after making the statement to which I have
just referred, they go on to conclude that portion with reference to
our contentions and then to state their conclusion: "Applicants' legal
conclusion-that they are competent to invoke Article 7 is supported
by the authority ...", and so forth. So that is the point with which they are
dealing. And they appear, therefore, to accept at that particular stage
th at during the lifetime of the League, a State which had ceased to be
a Member of the League would no longer be "another Member of the
League" within the meaning of Article 7. Therefore, it seems, Mr. Presi
dent, that they acceptas a matter of linguistic meaning in the context this
interpretation which we put upon that expression, but they contend
for a different result from the one at which we arrive, for special reasons.
Their submissions in that regard do not rest on giving a different meaning
to Article 7. On the contrary, if we look at the nature of those sub
missions, not only at the way in which they are worded, but also at their
substance as legal propositions, they appear to proceed from the basis
of an implicit acceptance of the construction which we put on "another
Member of the League" as a matter of meaning in the context. For they
say that for reasons other than meaning, the expression "another Member
of the League" is now to beregarded as referring to "former Members of
the League as well as to Members of the United Nations". For these last
words I quote from the Memorials at page 90 (1)-for the words "former
Members of the League as well as to Members of the United Nations",
They say in the first paragraph at page 90:
"It is submitted that the phrase 'another Member of the League
of Nations' as used in Article7 of the Mandate, should be construed
as referring to former Members of the League, as well as to Members
of the United Nations."
Now surely, they cannot make that submission as a matter of assigning
a meaning to "another Member of the League of Nations". They go on
and they state in their Observations at page 446 (1) :
"Even ifthe principle of succession as set forth above were not
accepted by the Court in the instant cases, Applicants are never
theless competent to invoke Article 7 inasmuch as they were Mem
bers of the League at the time of the League's dissolution."
And after referring then to the "principle of carry-over", they state at the
bottom of the page:
"Hence, States, such as Ethiopia and Liberia, which were
members of the League at the time of the League's dissolution,
remain within the description of 'another Member of the League'
for purposes of the Mandate." (Observations, p. 446 (1).)
Again, therefore, no suggestion that that expression still applies
today as a matter of meaning, but that States to which the expression
applied at the date of dissolution still would have the competence to
invoke the Article. And finally, they also state with reference to their
succession contention, at page 443 (1), that (1 am referring to the first ARGUMENT OF MR. DE VILLIERS
169
paragraph just before the one headed, Membership m the United
Nations, the last sentence of that paragraph):
"They [the Applicants] fall within the descriptive specification
of 'another Member of the League of Nations' either as current
Members of the United Nations or as Members of the League of
Nations at the time of its dissolution."
Current Members of the United Nations could never as a matter of
meaning be the same a; "another Member of the LeagueofNations".
Indeed, Mr. President. if one looks now at what these two alternative
contentions are-1 say alternative; the Applicants do not advance them
as alternative, but they say they rely on one or the other, or both. In
essence they are, in my submission, alternatives, but I will deal with
that point later. Let m just look for the moment at what these two
contentions involve: succession by the United Nations to the League
supervisory fonctions resulting in a succession also by United Nations
Members to the compet~nce of League Members to invoke Article 7-
that is their first line of argument. The second one is a carry-over of
the League's responsibihties regarding Mandates, resulting inter alia, in
the keeping alive on the part of States that were Members of the League
at the time of its dissolution of the competence to invoke Article 7.
Surely neither of these would be necessary if the Applicants could assign
to the expression "anottcer Member of the LeagueofNations" a meaning
which would keep on applying to them after dissolution of the League.
They would not need n succession from one organization to another
in order to bring them vdthin the competence provided for by Article 7;
and they would not require this conception of a "carry-over" of
something, which had bdonged to the League, to States that were Mem
bers ofthe League at thE time of its dissolution, if they could by a simple
expedient of assigning an alternative meaning to the expression-similar
to what Sir Arnold McNair did--come to a conclusion that that expression
in its meaning as construed still applies to them. What they are really
saying in effect isthat 'Nhen regard is had to the meaning of that ex
pression inthe clause, the natural consequence would be that upon loss
of League membership the competence provided for would also be lost,
.but that there are two special reasons why at the dissolution of the
League that did not happen, why in spite of loss of the prescribed
qualification,the comp~tence to invoke the clause was nevertheless
retained by States in the position of the Applicants. That is the effect
of the argument which they are advancing to the Court. And that is
the issue which has to be further considered, our submission being that
as a result of this natural meaning of the expression "another Mernber
of the League of Nation,;'', the consequence of dissolution of the League
is to end all League memberships; and therefore to end for all those States
the competence to invoke Article 7. That submission must be sound,
unless there is some special reason, something of the kind advanced
by the Applicants, why, in spite of the loss of the qualification prescribed
by Article 7, the compe1ence could still be regarded as being alive.
[Public luaring of 9 October r962, morning]
. Mr. President, during yesterday's argument I concluded the develop
ment of our submissiorn; regarding the meaning to be assigned to Ar-170 SOUTH WEST AFRICA
ticle 7 of the Mandate, particularly as regards the expression ''another
Member of the League of Nations", our contention being that the natural
ordinary meaning in the context, confirmed by the considerations
which 1 dealt with, is to the effect that a State that would wish to
invoke Article 7 would have to be a Member of the League at the time
of envisaged application of the clause, that is at the time of the arising
of the dispute which is sought to be referred to the Court for adjudication.
I dealt with the consequence which that had in the lifetime of the
League, namely that if a Member of the League should lose membership
then it would also lose the competence to invoke Article 7. I pointed
out that as far as these two propositions are concerned, which I have
just stated now by way of repetition, there does not appear to be a
dispute between our attitude and that of the Applicants, but that the
dispute cornes in at the next stage. We say the further logical con
sequence of that meaning of Article 7 is that on dissolution of the
League and upon loss of all League memberships there ceased to be
any States with the necessary competence to invoke Article 7, with the
result that Article 7 practically became incapable of performance and
inoperative. That consequence, we submit, must necessarily follow from
the meaning of Article 7, unless there was some special reason to prevent
it, unless there was some special cause or ground which could have the
effect that States could either retain or acquire the competence to
invoke Article 7, despite the fact that they did not have the qualification
or no longer had the qualification prescribed therein, so that this special
ground for still being able to invoke the jurisdiction of the Court relative
to matters concerning the Mandate would then have to be based on
something other than membership of the League. It would have to be
some special ground providing for such competence despite absence of
the qualification of membership of the League. And the Applicants'
argument in this regard is in effect an attempt to invoke such special
reasons of the kind that I have mentioned. In order to achieve its effect
of resulting in jurisdiction of the Court at the instance of such parties,
such a special ground or reason would have to be based on the consent
of the Mandatory because that is the fondamental requisite for jurisdic
tion of this Court.hat consent, because of the meaning of the text which
I have exhaustively dealt with, is not provided for in the text expressly.
It would therefore have to be found either by way of an implication
to be read into the text, or it would have to be found outside the text
altogether. And, as I have said, it would have to be something which
involves the consent of the Mandatory to the effect that such other
State, nota Member of the League, would have the competence to invoke
Article 7. lt seems common cause, Mr. President, that such consent
outside of the text of Article 7 was never expressly given, and the only
question that could then remain is whether it was ever tacitly given,
either as I have said, as an implication in Article 7 itself, or on any
other occasion. Here again, one is to have reference to the two main
occasions on which it would be likely, on which one could expect such
consent to have been given, if at all. The first would be at the time of
entering into the Mandate Agreement-something to be read as being
part and parcel of the arrangement or the contract then made. Or the
alternative would be at the transition stage during the years 1945 and
1946 when the United Nations were founded and when the League was
dissolved. ARGUMENT OF MR. DE VILLIERS I7I
The Applicants, on the two grounds which they invoke-special
grounds-attempt to atlribute to themselves the competence to invoke
Article 7.In the first one of these, succession, they attempt to found that,
upon analysis, on an implication to be read into Article 7 itself, that is,
something said to be tacitly agreed upon at the time when the Mandate
Agreement was entered into. They state their contention in this form
at page 446 (I) of the Observations:
"Put in the fom, of the analysis of Judge Lauterpacht stated
above, a holding by the Court that United Nations Members have
succeeded to the fonctions of League Members vis-à-vis the Man
date would be 'no more than an example of legitimate application
of the principle of effectiveness to basicinternationalinstruments' ."
Their contention then seems to be basically that United Nations
Members have succeeded to the fonctions of League Members vis-à-vis
the Mandate. That appç-ars to be the succession contention relative to
Article 7. The line of reasoning in support of that contention is to be
found over the pages 440 (1) and following, as far as page 446. As I under
stand the line ofreasoning, Mr. President, it amounts to this, that this con
tention of succession rega.rding Article 7 is really a corollary to the con
tention of succession regarding Article 6, something which followed as
a consequence from the alleged succession of the United Nations to the
supervisory fonctions of the League regarding Mandates. But then there
are certain additional links in the chain which have to be filled in for
purposes of the contention of succession regarding Article 7. They
are separately advanced by the Applicants, and I shall deal with them
in due course. The steps in the reasoning appear to be in the first place
that the legal interests l)f Members of the League in the performance
of the Mandate encompassed a good deal more than their own material
interests as States and the interests of their subjects or nationals; it
encompassed also the due performance by the Mandatory of the sacred
trust of civilization, and that the competence of Members of the League
therefore to invoke Article 7 was particularly directed towards this
purpose, towards seeing, in the interest of the inhabitants, that the
sacred trust of civilization was duly complied with. We find that basic
proposition stated in the Observations at varions places, first at page 441
(1), where there is a reference to a passage in our Preliminary Objections
where we dealt with the legal position on the basis of the League being
a legal persona.Vvesubmitted there that on that basis the legal interests
of Members of the League as distinct from the League itself would have
been confined to matter:; which operated for their benefit and for the
benefit of their national,;. Now the Applicants answer that by saying:
"Respondent und,~rstands the 'benefit of the Members' to mean
material benefits in 1erms of trade and commerce or specific benefits
to their nationals in such terms as rights of entry, freedom of action
for missionaries, etc. This is far too narrow and technical a con
ception of 'benefit'or 'interest'. If these had been indeed the sole
interests ofthe Members of the League, one could understand and
possibly even admit a contention that such 'legal interests'
lapsed with the termination of the League's existence. But the
'interests' of the Members of the League in the Mandate, properly
understood, encompassed the achievement of the 'material and172 SOUTH WEST AFRICA
moral well-being and the social progress of the inhabitants' of the
Mandated Territory as a 'sacred trust of civilization',"(Observations,
. p. 441 (1).)
' There is then further comment along the same lines..I have pointed.
out before that the Applicants apparently missed the point here, that
we were'there dealing with the matter purely on the basis of the League,
being viewed as a legal persona, and also that for purposes of our First
and Second Objections, we make the same assumption as they do, that
Article 7 of the Mandate had the wide effect of enabling Members of the
League to invoke the jurisdiction of the Court in matters not only
affecting their own material interests, but also in cases affecting the
interests of the inhabitants alone. We make assumptions both ways, we
argue the matter on the basis of both the narrower and the wider inter
pretation of Article 7 on that point for the purposes of our First and
Second Objections. Of course, the point itself is the subject of our Third
Objection where we deal exhaustively with our contention for the
purposes of that objection, that the narrower of those meanings is to
be assigned to Article 7. In any event, this is the basic proposition
made by the Applicants for the purposes of their contention of succession
regarding Article 7. They start off with the proposition that the legal
interests of the Members of the League had this wide purpose to which
I have referred.
The first stage in their reasoning then is that the purpose of Ar
ticle 7 was to secure judicial supervision of Mandatory administration
also, and particularly, for the purpose of seeing that there was due
performance of the sacred trust of civilization.
The second stage in the Applicants' reasoning is that such judicial
supervision, like administrative supervision in pursuance of Article 6,
is to be regarded as a necessary, an indispensable, an inseverable element
of the Mandate institution which must necessarily survive if any
portion of the Mandate is held to survive. That we find stated very
pertinently at several places in the Observations. At page 441 (1), we find
in the last paragraph but one:
"In this true sense, the legal interests and responsibilities of
Applicants could not and did not lapse so long as the Mandate
exists and so long as Respondent occupies or administers the
affairs of the Mandated Territory. The continuance of their legal
interests and responsibilities as Members necessarily imports their
capacity (and duty) to invoke the powers of this Court under Ar·
ticle 7 of the Mandate."
Necessarily imports a power and capacity. At pages 441-442 (1), we find:
"Respondent's Second Objection, in addition to ignoring the
foregoing principles, would undermine the jural relationship en
visaged by the Mandates System as linking the four essential
elements of that system [I stress, Mr. President, essential, the four
essential elements of that system]: the Mandatory, the League of
Nations, the Members of the League, and the Permanent Court of
International Justice.
Irrespective of the theory upon which rests the inescapable and
judicially settled conclusion that the Mandate did not die with
the League's dissolution, these four sides of the quadrilateral jural ARGUMENT OF MR. DE VILLIERS 173
system must survi,e, ifany one of them is held to survive as part
of the Mandate." (Observations, pp. 441-442 (1).)
So there, definitely, there is a submission that if any portion of the
Mandate survives, then a.lifour portions must survive, including judicial
supervision. And, at thE bottom of pages 442-443, we find this passage:
"The Mandate is a creature of the organized international com
munity, as well as the subject of a legal interest of such community
and its Members. Its existence today rests upon the continued
vitality of the authority conferred upon Respondent by the organ
ized international C·Jmmunity and by the continued vitality of the
rights of such community and its Membcrs to ensure that the Man
date is properly adrninistered."
Just to go back, for the purpose of analysis; the existence of the Mandate
rests inter alia upon the continued vitality of the rights of the commu
nity and its Members to ensure proper administration of the Mandate.
So that again the sugge~tion is that there can be no existence of a Man
date unless there is a continued vitality of a right on the part of States
to ensure compliance with the Mandate.
And, finally, a.t page 443 (1), we find:
"Although they have been succeeded or replaced by other organs,
the Court in its x950 Advisory Opinion ruled that the Mandate
survived, and consequently, that international supervision of the
Respondent, as Mandatory, endures."
By that "international supervision" in the context, read with the pre·
vious portion ofthe page, they refer both to "administrative" supervision
and to the so-called "judicial" supervision.
So again, the suggestion here also-the second step in the reasoning
in this succession contention-is that this judicial supervision was a
necessary, indispensable, inseverable element.
The third step is what has already appeared from the passages I
have read, and that is that the competence to invoke the jurisdiction
of the Court for the purposes of such judicial supervision was conferred
upon Members of the League, notas :Membersof the League, but in their
capacity as members for the time being of the "organized international
community", the further consequence of this submission then being that
competence was intendecl to be available to all States of the capacity of
members, for the time being, of the "organized international commu
nity"-just as the contention, for purposes of Article 6, was that admin'
istrative supervision was vested in the Lcague as the appropriate inter
national institution at the time of the "organized international commu
nity" and was intended to be available to any later institution of that
.capacity as long as the "l',fandateexisted. I need hardly read the passages
on this particular point. The point emerged to some extent from the
passages I have read. 1 ,:ould, in addition, refer, at page 441 (1) of the
Observations, to the third paragraph from the end of the page:
"The 'legal intere.,ts' of the Members embraced the fulfilment of
their duties as members of the organized international community
and were not confill€,dto their possibilities _ofmaterial advantage in
an immediate and narrow sense. The Mandate agreement, like
Article 22 of the Co'renant of the League upon which it was based, SOUTH WEST AFRICA
174
conceived of the 'interests' of the Members in terms of the fondamen
tal interests of the international community in the achievement and
maintenance of international peace and security and the promotion
of human rights and fondamental freedoms."
The passage at the bottom of page 432 (1), running on into page 443,
which I have read, is pertinent on this point also. Then at page 443 we
find that the text goes on:
"The only question is, which representative of the organized
international community does one look to, the League of Nations
or the United Nations, the organ in existence when the Mandate
was conferred or the organ now in existence?"
I proceed to the next section on that page, headed "Membership in
the United Nations", and there we fmd that the passage begins with:
"Administrative and judicial supervision of the Mandatory by the
international community, as has been noted by Applicants, is a key
feature of the Mandates System. It represents the 'securities for the
performance of this trust' required under Article 22 •.Necessarily,
the framers of the Mandates System entrusted such supervision to
the appropriate international institutions created at the time the
System itself was devised."-(Observations, p. 442 (1).)
"administrative" to the League and "judicial" to the Permanent Court,
and Members of the League then, for that purpose, got the necessary
competence to invoke the jurisdiction of the Court-that is the line of the
argument being put there.
And finally, at page 446 (1), we find in that paragraph after the
quotation from Judge Lauterpacht:
"Hence, the authors of the Covenant endowed the members of the
League of Nations, the Organ then representing the international
community ofcivilized nations, with the right to institute the judicial
proceedings."
So that then is the third step in the-reasoning in support of the succession
contention relative to Article 7.
The fourth step follows upon the thfrd, and that is, that the United
Nations has replaced the League of Nations for purposes of the Mandate,
the United Nations now being the "appropriate international institution''
of the "organized international community" and, as such, vested with
the administrative supervisory power in-succession to the League, and
the Members of the United Nations, consequently, being vested with the
competence to invoke the judicial supervision in succession to Members
of the League. And that we find stated at these various pages to which I
have referred. At page 442 (1), where there is that reference to "the four
sides of the quadrilateral jural system", we find there is a reference to the
replacement of the various organs by others, and in the case of (b} we see
that:
"The League of Nations has been replaced by the United Nations";
and
"(c} Members of the League, including Applicants, are today
Members of the United Nations." ARGUMENT OF MR. DE VILLIERS
175
At page 443 (1), after posing the question ''which[organ] of the organized
international community does one look to? ", Applicants proceed:
"The majority Opinion applied the doctrine of succession and
looked to the United Nations."
There is a reference to the minority Opinion and then:
"Applicants have urged confirmation of the l\fajority Opinion ...
since such view appears more responsive to the purposes of the
Mandate." (Observat/ons,p. 443 (1).)
And then at page 445 we find this stated, in the second paragraph:
"The Court, in dett~rmining that the International Court of Justice
has replaced the Permanent Court and that the United Nations has
replaced the League d Nations for purposes of the Mandate, similarly
applied the principle of succession, explicit in one case and implicit
in the other, in order to give effect to the purposes of the Mandate.
The Court recogniŒd that the failure of the League of Nations
and the Permanent International Court, as such, to endure in their
original forms, is irrelevant to the fondamental principle that Res
pondent as Mandato ry remains responsible to the organized inter
national community for the discharge of the 'sacred trust of civil
ization'."
And finally, at page 446 towards the end of the reasoning:
"Even though 'civilization' in the form of an organized internatio
nal community is no l,mger embodied in the League, the same powers,
objectives and principles are now represented by the United Nations.
United Nations Members have the same essential attributes as did
Members of the League, namely, membership in the organized
international community and, thereby, parties to a Charter, or
covenant, the purposes of which include supervision over non-self
governing territories, .includingrust territories and mandates.
Put in the form of the analysis of Judge Lauterpacht stated above,
a holding by the Cour::that United Nations Members have succeeded
to the fonctions of Lrngue Members vis-à-vis the Mandate would be
'no more than an example of legitimate application of the principle
of effectiveness to ba,,ic international instruments'."
That, then, is the line of r,~asoning-the four steps: judicial supervision;
intended to be an indisprnsable feature of the Mandates system; that
supervision was intended to be vested in League Members in their
capacity as members of the "organized international community"; and it
therefore now vests in the Members of the United Nations as members
of that "organized international community".
Mr. President, I proceed now to our comment on the crucial aspects
of the line of reasoning whichl have just examined; first of all, as to the
basic premise that Article 7 was intended to provide for judicial super
vision, and for that purpo:;e to relate to the interests of the inhabitants.
That, as I have indicated already, is attacked in our Third Objection, and
if that attack should be sound, then that would really dispose also of the
whole premise for this Iine of reasoning of the Applicants for purposes
of the First and Second Objections. The Applicants virtually concede
that in the passage to whkh I have referred, where they say that if the SOUTH WEST AFRICA
narrower view is taken of the legal interests of Members of the League,.
one could understand and possibly even admit a contention that such·
legal interests lapsed with the termination of the League's existence.
That is at page 443 (1) of the Observations. But we meet them also on the
common ground of the assumption that the wider interpretation is, for
this purpose, to be given to Article 7. We do that for the purposes of the
First and Second Objections, and for record purposes I might state that
that is particularly clearly stated in the Preliminary Objections at pages
36The next point Iwant to emphasize in regard to this line of reasoning is
that it seems evident, both by the way in which it is presented by the
Applicants and from its very substance, that the contention of succession
relative to Article 7 is dependent upon the contention of succession
relativeto Article 6.It must in the nature of things be so. The contention
about Article 7 appears to be that the United Nations or its General
f\ssembly has now become the appropriate organ of the "organized inter
national community" for purposes of supervision-administrative super
vision-of Mandatory administration; that happened by virtue of a
succession for purposes of Article 6; and thus it is because of the United
Nations now being that appropriate organ of the "organized international
community" that Members of the United Nations are to be regarded as
appropriate States for the purposes of invoking the judicial supervision.
Thus we find also that the Applicants state, in a passage which I have
already read in the Observations at page 429 (I), that: ··
"The interconnection, then, between Articles 6 and 7, is this:
according to the Majority view of Article 6, Applicants have stand
ing to invoke Article 7 by virtue of membership in the United
Nations ..."
I stress, Mr. President "according ta the Majority view of Article 6,
Applicants have standing to ü;woke Article 7 by virtue of membership
in the United Nations", the second flowing from the first. They state
at page 445 (1), in a passage which Ihave also read, that "the United Na
tions has replaced the League of Nations for purposes of the Mandate",
and there is that long passage at page 446 which I have read, where they
indicate that Members of the United Nations have the samc essential
attributes as did Members of the League. Now what, on analysis, are those
essential attributes? We look at the passage again, at page 446; they are
sa.id to be:
"... membership in the organized international community and,
thereby, parties to a Charter, or Covenant, the purposes of which
include supervision 0ver non-self-governing territories, including
trust terri tories and mandates".
And why "including mandates", Mr. President? Because in that same
passage there is suggèsted that the same powers embodied in the League.
are now represented in the United Nations. One can hardly see how any
powers relative to Mandates could be said to be embodicd in the United
Nations unless it were by some process of succession relative to Article 6,'
Mandates.se of this present 111andate,and similar articles in the case of other
Therefore, Mr. President, because both in its essence and its manner of
presentation, this contention of succession regarding· Article 7 is depen-· ARGUMENT OF MR. DE VILLIERS 177
dent on that regarding A1ticle 6. It is thus for my purposes really sufficient
to refer the Court back, with respect, to the full argument which I have
addressed to the Court :oncerning Article 6, whereby I demonstrated
with submission that the contention of succession in that regard is
completely unfounded. That being so, all premise is removed for a con
tention of succession ref~arding Article 7. I will, however, proceed to
deal with certain of the crucial aspects of the argument pertaining to
succession as regards Article 7. But this is, with respect, to be viewed as
being additional to the argument regarding succession which I have
already addressed to the Court for purposcs of Article 6.
First of all, then, for --:batpurpose I refer again to the suggestion of
inseverability or indispensability of the judical supervision, which is
one of the crucial stagesin the reasoning of the Applicants. Mysubmission '
is that that proposition is, in regard to Article 7, even more demonstrably
unfounded than in the case of Article 6, where the same suggestion of
inseverability was made. The same suggestion was made regarding
Article 7 in the Memorial:; (p. gr); it was there suggested that there could
not be a Mandate without this judicial supervision, and we dealt with that
suggestion very fully in our Prelirninary Objections, at pages 373-375 (1).
We analyzed it, and we stated our contentions there as to why that sug
gestion was unsound. But we find that the Applicants, in their Observa~
tions, do not refer at allto the arguments which we propound at those
pages in the Preliminary Objections; they do not attempt to meet them;
they merely repeat their assertions of inseverability in different phraseo
logy from that which has already been contained in the Memorials.
Mr. President, I submit that, when we look at the basic provisions in
the Charter, in Article 22, and we find there that the authors of the
Charter themselves did not find it necessary to provide for judicial super~
vision regarding Mandat(, administration, then it becomes very difficult
for anybody to assert tbat this was intended to be a key feature, an
indispensable part of the Mandate system. The Court will recall that
there is nothing regarding compulsory jurisdiction, let alone judicial
supervision of the Mandate, in Article 22 itself; the provision was made·
specifically by agreemem between. the Council of the League and the
various Mandatories, and for that reason, the historians tell us, we find
that Article 7, the second portion, begins with the words "The Mandatory
agrees that ...". That is the significance of that phraseology which is em
ployed in this instance and not in the others. That is a spccial voluntary
agreement entered into b,~tween the Maridatories and the Council of the
League, not provided for in Article 22 itself. And it becomes difficultto
see how there could then be any suggestion of indispensability. So, for
instance, let us assume tt,.at during the lifetime of the League, .the exist
ence of the Permanent Court had for some reason or other corne to an end,
so that Article 7 of the Mandate became incapable of performance. Could ·
anybody then have seriously suggested thatthat meant the end ofthe whole
Mandate? I submit not. And yet, if this contention as to inseverability
were to be regarded as sound, ifit is correct to say that judicial super
vision in terms of the compromissory clause must survive if any one of
the portions of the Manda.te is held to survive, then that must have been.
the consequence, namely that upon the rendering impossible of perform
ance of the compromissory clause, say, for instance, because the Court
referred to in it went out of existence, then the whole Mandate system178 SOCTTff WEST AFRICA
would fall to the ground and the Mandates would ail have to be regarded
as terminated.
And then we find this very significant thing. Where it is the Applicant~
who stress that one finds in the trusteeship system of the United Nations
principles analogous to those of the Mandate system of the League, and
where the arrangements as between administering authorities and the
United Nations which correspond to the Mandates are called trusteeship
agreements, then, if there was any conception of indispensability of
judicial supervision in a system of that kind-in a system of supervision
over the government of backward territories, with a view to performance
of a sacred trust of civilization-then surely one would have expected that
that judicial supervision would have been provided for in each and every
one of these various trusteeship agreements under the United Nations.
What do we find in fact? We fmd in the case of the present United
States trusteeship of the Pacifie Islands formerly held by Japan under
mandate, that in the Japanese Mandate Agreement there was a .
provision corresponding to our Article 7-I think it was Article 7, too,
in that Mandate. When the trusteeship agreement was proposed to the
Security Council by the United States in regard to those same islands,
there was no provision for such compulsory jurisdiction, and nobody
commented aboutit. Nobody raised the point: "But surely this must be
regarded as a key feature of this type of system of trusteeship over
territoriesand peoples of this kind."
Similarly, Mr. President, when Australia submitted· trusteeship agree
ments in regard to Nauru and in regard to New Guinea, we find that the
corresponding Mandates in respect of these territories had contained
compromissory clauses, the same as Article 7, but these draft trusteeship
agreements did not contain such clauses and they were eventuallyadopted
without anyone raising any point about this at all. This was in the General
Assembly. And the omission is the more significant because of the fact
that other trusteeship agreements, submitted in regard to other previous
Mandated territories at about the same time as these, did contain com
promissory clauses. It becomes the more significant then that nobody
raised the point that: "Here are two cases of submission of trusteeship
agreements and something which is to be regardcd as indispensable, as
a key feature of the whole system, as inseverably connected up with it,
but that is omitted from these trusteeship agreements." We deal with
that point in the Preliminary Objections at page 374 (1), and we deal also
with the point of the omission of judicial supervision from Article 22
itself, but yet we find no reply to that in the Observations of the Appli
cants.
I submit, Mr. President, that the Applicants fail to distinguish between
the existence and the fusticiabihty of international legal relationships. It
is a very common feature, as all the Members of the Court would know,
of international legal relationships, that they could exist as matters of
rights, duties and obligations between ··States-without-there·-being
justiciability of those legal relationships-special agreement, special
consent to the jurisdiction of an international tribunal being required
for the additional element of justiciability. And the Applicants, in sug
gesting that there must necessarily be justiciability of legal relationships
pertaining to a Mandate, miss the point completely and their suggestion
is,in my submission, without any foundation. ARGUMENT OF MR, DE VILLIERS 1
79
I deal next, Mr. Preûdent, with a portion of Applicants' argument
which seeks to equate m-::mbershipin the League with membership in the
"organized international community", and thus to build a bridge towards
United Nations membership as a substitute qualification for invoking
Article 7. That argument, in my submission, is a mere device, and it is a
fallacious device. I have demonstrated, with submission, the similar
fallacy in the similar argument pertaining to Article 6. Here it is not
difficult to demonstrate the same fallacy. We find that in the express
words of Article 7, if we !~ivethem their natural meaning in the context
indeed, if we give thern any rneaning of which they as words may be
capable-they do not refer, and they are incapable of being read as
referring,to anything other than another Member of the League of
Nations; they do not rder as language to anything else. If they are
therefore to be taken to have the significance contended for by the
Applicants, then, Mr. PTEsident, it would mean tha t one would have to read
something by implication into Article 7, something which is not there.
Therefore the argument, if it is to be sound at all, must rest on an
implication as to the tacit common intent of the parties, and it must
rest on a proper investigation as to such intent. The words that would
have to be read in by implication would have to be something like these
perhaps somebody can think of a shorter formulation, but even though
shorter the concept wo·,.ildhave to be something of this nature: the
clause would have to read-instead of "another Member of the League
of Nations", one would Jind "another Member of the League of Nations
inits capacity as a member of the organized international community
forthe time being, and 2.nylater member of the organized international
community for the tim1~being, whether or not such a State then is,
or ever was, a Member ·Jf the League of Nations". That would be the
concept to be read into Article 7 if the contention of the Applicants
were to be sound. Mr. President, indeed that contention, because it
includes and necessarily must include States that never were Members
of the League, that conclusion is really not only a suggestion of something
additional to the explicit text of Article 7; it conveys a notion which is
indeed contrary to the text, in opposition to it, because the text, given its
natural connotation, confines the ambit of potential adversaries in Court
proceedings to League Members; it draws the line there-it provides for
a numerus clausus, if I may put it that way-a closed circle of States who
could potentially take a Mandatory to court; and the line is drawn with
reference to League membership, and League membership alone. Now, if
we are to read into it an implication which provides for States other
than League Members to be able to invoke Article 7, that is.a notion
which is really contrary ·::othe notion conveyed by the natural meaning
of the text, and the contention then in effect means that the text must
be taken as not giving ~maccurate expression of the intentions of the
parties. We have seen in the analysis of the principles of interpretation,
particularly those of actuality and of natural, ordinary meaning, that in
order to demonstrate a :·?roposition of this kind very special and very
convincing reasons wou).d have to be established. On analysis, Mr.
President, what reasons are advanced by the Applicants, what do they
attempt to establish by way of special or convincing reasons? I submit,
far from the reasons whi.ch they do advance being either good or con
vincing, we find that they rest in the first place on the false premise of
inseverability or indispensability of judicial supervision, with which 180 SOUTH WEST AFRICA
.I have dealt; they involve an artifi.cial and fallacious device of equating
"Member of the League" with "member of the organized international
community", and that again with "Member of the United Nations",
without any enquiry into the intentions of the parties in that regard.
I gave the Court examples when dcaling with this same point relative
to Article 6, examples demonstrating, with submission, that the mere
fact that one can have a label which fi.tstwo things, one c6mmon label
.for the two, does not mean that when there is a contract which refers
to one, that contract can also be taken as referring to the other. Because
that must always remain a question of intent, and without reference
and enquiry into the intent, one can have two results which are poles
apart: one which obviously is within and one which obviously is outside
the intention of the parties. I do not have to repeat those examples.
The Applicants do not enquire into intentions; the nearest they come
to that is to refer to the principle of effectiveness, and that, in the
circumstances, Mr. President, in my submission cannot assist them.
They cannot invoke that principle in the sense of assisting in a choice
between alternative meanings of a text because, as I have demonstrated,
what they are contending for is not in the text at all, on any reading of
the text. They are.seeking to invoke that principle as a factor of proba
bility to assist, together with the other evidential material, towards
an implication of tacit intent; although they don't call it so, that is the
effect of their argument on analysis. And when we have these other
factors as to the actual contemplation of the authors of the Mandate
system, the indications of actual intent, then this general suggestion
regarding effectiveness cannot be of much assistance. \Vhen we have the
direct evidence afforded by the fact that there is nothing in Article 22
itself concerning compulsory jurisdiction; when we have the contem
'plation of Members of the United Nations at the time of the trusteeship
agreements to which I referred, then it must be difficult to say that there
was a necessity even for purposes of effectiveness of this so-called judicial
supervision, or that there was any common intent regarding that element
as being of such importance, even from a point of view of effectiveness.
When we find, Mr. President, that we have a Mandate institution
which is btought into existence by contract but which, according to the
Opinions of the Court in 1950, could have operated internationally as
between the Mandatory and ail States that gave recognition to that
special status of the terri tory and to the Mandatory'stitle in that regard -
a circJe therefore of potential interested parties extending beyond the
circle .of Members of the League-then we fi.nd that nevertheless, in the
compromissory clause, the circle of potential adversaries in court pro
ceedings is limited to Members of the League. That being so, how could
one then attribute to the parties to the Mandate Agreement a contem
plation that there may one day be a new international organization
.which may replace the League after its as yet uncontemplateddissolution,
and that there must now be a tacit agreement upon the fact that if ~hat
new organization would resemble the League to the extent of poss1bly
fittingthe name of "representative of the organized international com
·munity", then members of that organization must be regarded as being
jncluded in the consent to jurisdiction contained in Article 7; surely it
is a most far-fetched proposition, totally unrelated to any realistic view
as to the probable intent, the probable contemplation, of the parties
to the Mandate Agreement. I cannot imagine how the bystander, to ARGUMENT OF MR. DE VILLIERS r8r
which we have referred, could possibly have expected any positive ans
wer, any harmonious an:,wer, from the parties to the Mandates Agree
ment if he had posed a question of this kind to them. Jurisdiction can
exist by virtue of consent, actual consent, on the part of the respondent
State. and there is no substitute for it. This suggested application
of the principle of effediveness in this instance would really, if ac
ceded to, result in a situation whereby jurisdiction is found to exist
in a case where there is no satisfactory demonstration of actual consent.
These are my submissions regarding this Iine of contention of the
Applicants.
Mr. President, in th(: development of their contentions regarding
succession, the Applicants make a submission, apparently by way of
analogy, regarding Artide 37 of the Statu te of the Court, on the question
of succession as between i::ourts-between the Permanent Court and this
Court-and they appear to suggest that whereas that succession was
expressly provided for in Article 37 of the Statute of the Court, and that
that express provision was relied upon by this Court in its Opinion in
1950, the Court might well have corne ta the conclusion that there
was implicit succession which would have operated even in the absence
of Article 37. That is hovr I understand what they suggest at the bottom
of page 443 (1) of the Observations. They say:
"The Court held that the refcrcnce in Article 7 of the Mandate
to the Permanent Court of International Justice should be replaced
by reference to the International Court of Justice. Although stressing
Article 37 of the Stai:ute of the Court, which makes specific provision
for the substitution. there is excellent authority that even in the
absence of Article 37 the Court might well have ruled the same way."
That "excellent authority" is said to be two-fold. One is an extract
from the Report of Committee I of the San Francisco Conference, the
extract being cited at page 444 (1) of the Observations; and the other isan
extract from the separai:e Opinion of Judges Sir Hersch Lauterpacht,
Wellington Koo and Sir Percy Spender in their joint dissenting Opinion
in the Aerial Incident cai;e. Now, Mr. President, as a matter of fact, the
extract from the Report of the Committee is also quoted in that very
joint dissenting judgmer,t in the Aerial Incident case, but it is quoted
more fully than by the Applicants. The Applicants quote the second
portion of the passage a~,cited in the joint Opinion, and they also omit
a word after the words "in a sensc". On reference to the original, one
finds that the word omitted is "therefore". They indicate that there is
an omission, but I am merely strcssing that the word omitted is "there
fore". The word "therefore" is found in the context to refer back to
what is stated in the previous paragraph, that paragraph bemg one which
is quoted in the joint Opinion in the Aerial Incident case. Now I would
like to read that to the i:.:ourt.The previous paragraph states:
"The creation of 1:henew Court will not break the chain of con
tinuity with the pa1t. Not only will the Statute of the new Court
be based upon the :3tatute of the old Court, but this fact will be
expressly set down in the Charter. In general, the new Court will
have the same organization as the old, and the provisions conceming
its jurisdiction will follow very closely those in the old Statu te...
To make possible the use of precedents under the old Statute, the SOUTH'. WEST AFRICA
182
same numbering of the Articles has been followed in the new
Statute." (Aerial Incident case, p. 159.)
One sees then the significance of the word "therefore" in the next
passage, which is:
"In a sense, therefore, the new Court may be looked upon as the
successor to the old Court which is replaced." (Aerial Incident case,
p. 159.)
The "therefore" indicates what that sense is, and it becomes perfectly
plain from the previous paragraph that there was no suggestion of any
general succession in law. It was only in the sense of having a Statute
which is based upon the old one, having the same organization, having
provisions following very closely those of the old Statute and having the
same numbering of articles; it is in those particular senses that the new
Court may be looked upon as a successor of the old Court, but in those
alone, as is emphasized by the very final sentence:
"The succession will be explicitly contemplated in some of the
provisions of the new Statute, notably in Article 36, paragraph 4
(which subsequently became paragraph 5), and Article 37." (Aerial
Incident case, p. 159.)
In other words, what the Committee intimates here is that in these
general, practical,broad respects it will be possible to look upon the new
Court as, in a sense, a successor of the old one, and in addition, there
will in certain other respects beexpress provision for succession in terrns of
those express provisions. The Committee quite clearly saw that there was
no question of a general succession in the sense, for instance, that
declarations relating to the jurisdiction of the old Court could, without
new agreement in that regard, be regarded as relating to the new Court,
or that provisions in treaties or conventions in force referring to juris
diction of the old Court could now be read as referring to jurisdiction of
the new Court. The Committee stressed in its Report the necessity in
that regard of having the express provisions of Article 36, paragraph 5,
and Article 37. Indeed, by the wording of those two Articles, the Court
will recallthat the fresh consent given to those Articles by the signatures
to the Charter, that that would bring about fresh consent only as between
Members of the United Nations, and only to the extent provided for in the
Articles, and it is for that reason that in the Report of the Rapporteur
of the Commit tee we find the following:
"Acceptances of the jurisdiction of the old Court over disputes
arising between parties to the new Statute and other States, or
between other States, should also be covered in some way, and it
seems desirable that negotiations should be initiated with a view
to agreement that such acceptances will apply to the jurisdiction
of the new Court. This matter cannot be dealt with in the Charter
or the Statute, but it may later be possible for the General Assembly
to facilitate such negotiations." (U.N.C.I.O. Docs., No. 13, at pages
384 to 385 (also cited in the Aerial Incident case at p. 180).)
Itis therefore quite clear what the contemplation of this Committee
was. There was no contemplation of an implicit succession; on the ARCUMENT OF MR. DE VILLIERS 183
contrary, there are all thcsc proposais for making explicit provision for
succession where succession was desired.
The second authority relied upon is a passage from the joint Opinion
in question in the Aerial Incident case. There too, Mr. President, if
that extract is read with other aspects of the Opinion, it becomes quite
clear that there was no rnggestion on the part of the leamcd Judgcs that
thcre could be a succession in the absence of express provision therefor.
One finds, for instance, in a passage of the Opinion at page 165, dealing
with the provisions of Article 36, paragraph 5, concerning declarations,
that they said that Committee IV/r was "conccrned with the drafting and
adoption of a formula which would provide for [the] continuing validity"
of declarations relating to the Permanent Court. I skip somewhat, and
I read further at that page:
"It was the att::.chment of the declarations to the new Court
which was considered essential and it was that object which prompt
ed the adoption of the formula provided in paragraph 5 of Article
36 in order to ensure the continued validity of those dcclarations."
(Aerial Incident case, p. 165.)
It is a clear indicatic,n of the necessity of the express provision in
Article 36, para. 5, in the contemplation of the learned Judges. Further,
at page 168. we find it stated again that:
"The abject of paragraph 5 [of Article 36], clearly expressed in the
course of the preparatory work as cited, was precisely to prevent
these declarations !rom lapsing with finality for all purposes."
And further, at the sam~ page:
"The abject of paragraph 5 was to secure succession in the
sphere of the obligatory jurisdiction of the Court."
There is not the least suggestion of a contemplation that the succession
could have been implià:, could have taken place in the absence of the
express provision. The S<'.mecontemplation rcgarding Article 37 is shown
in the passage which w,: read at page 181 of the Opinion, which is as
follows:
"In particular, it is useful to draw attention to the successive
drafts of Article 37, which was intended to serve a general purpose
similar to that underlying paragraph 5 of Article 36." (Aerial In
cident case, p. 181.)
And then, at page r8z of the Opinion, we find this:
"In relation to hoth provisions [Articles 36 (5) and 37 Jthe rc
quirement of consent is supplied by the State concemed accepting
membership of the United Nations-an event which makes it a
party to the Statuk-and by its formai undertaking to observe the
obligations of the Charter, of which the Statu te is an integral part."
(Aerial Incident cas,~.p. 182.)-
that, therefore, being foe express acceptance of the provision for the
succession. It is quite clear therefore that the authorities cited by the
Applicants do not bear c,ut their proposition regarding Article 37. I may
just add a reference to the separate Opinion of Judge Cameiro in the
Ambatielos case, 1952. At page 54, he stated: SOUTH WEST AFRICA
"Even when the organ which was formerly competent has been
abolished, its powers cannot be regarded as automatically transfer
red to the new organ which replaces it. Thus, in order that this Court
might inherit the powers of the Permanent Court of International
Justice, it was necessary that this should be expressly laid down in
Article 37 of the Statute."
[Public hearing of 9 OctoberI962, afternoon]
Mr. President, I corne now to deal with the 1950 majority Opinion
regarding Article 7 of the Mandate.
That Opinion contained a finding ta the effect that Article 7 must still
be regarded as being in force. The only reasoning specifically indicated
as being applicable on this point is to be found at page 138 of the Opinion
and is stated in a single sentence. The sentence reads:
"Having regard to Article 37 of the Statute of the International
Court of Justice, and Article 80, paragraph I, of the Charter, the
Court is of opinion that this clause in the Mandate is still in force
and that, therefore, the Union of South Africa is under an obligation
ta accept the compulsory jurisdiction of the Court according to those
provisions." (I950 Opinion, p. 138.)
The expression "those provisions" in the context in the English, is
somewhat ambiguous. It might refer either to the provisions of Article 7
itselfor to the other provisions-Article 37 of the Statute and Article 80
of the Charter-to which the Court referred. But the intent appears
to be to refer to the provisions of Article 7: that seems to be the meaning
borne out by the French text.
This, Mr. President, is the only reasoning expressly directed to this
particular point. But the Applicants in their Observations suggest
that the Opinion in 1950 regarding Article 7 has ta be understood as
being based upon the finding which the majority of the Court had
already made as regards succession for purposes of Article 6. The
Court did not specifi.cally indicate whether that was the ratio for its
finding, but on analysis it seems that the suggestion may well be cor
rect. I cannot say it is; it may be. The two provisions that are referred
to in this one sentence of reasoning, Article 37 of the Statute of the
Court and Article 80, paragraph 1,of the Charter, do not deal at all with
the question which is posed by the phrase "another Member of the
League" in Article 7, or with the difficulty that arises from the fact that
there now are no longer any Members of the League. Article 37, as the
Court knows, provides for a substitution of the Courts, and Article 80,
paragraph I, is to the effect that nothing in Chapter 12 of the Charter
shall be construed as in or of itself altering the rights of any States or
peoples or the terms of certain instruments. Sa that neither of them bear
directly, or even indirectly, on this question of a substitution of anybody
else for "another Member of the League of Nations" in Article 7 of the
Mandate Agreement. Itmay conceivably, therefore, have been the under
lying idea inthis Opinion that the succession, which the Court had already
found in regard to Article 6, could also supply an answer in regard ta Ar
ticle7, although the Court did not say so specifi.cally. If that should be the
correct interpretation of the majority Opinion, then it follows that all ARGUMENT OF MR. DE VILLIERS
the argument which I addressed to the Court regarding Article 6, and
particularly the argument addressed to the Court relating to the material
now before the Court which was not before the Court in 1950 relative to
Article 6, becomes of the utmost importance also in the evaluation of the
1950 Opinion regardinr Article 7, and in considering the question
whether this Court ought now to depart from the conclusion arrived at
in 1950 regarding Articl,~ 7.
The Applicants say, ir. their Observations at page 439 (1), as follows,
at the top of the page:
''Respondent has failed to set forth any arguments not previously
advanced by it in the proceedings leading to the Advisory Opinion
of 1950 which should alter the Court's ruling that Article 7 remains
in effectand the necessary corollary that to be effective there must .
exist States with the capacity to invoke it."
But if Applicants are right in their own suggestion that the Court's
finding regarding succession for purposes of Article 6 underlay its finding
regarding Article 7, then ail the new information I brought before the
Court for purposes of Article 6 is relevant also to the Opinion in regard
to Article 7. ln any event, we point out in the Preliminary Objections,
and this is nowhere specifically dealt with or disputed by the Applicants,
that in the fi.rst place th,!re was hardly any argument in 1950 about the
question of Article 7. That may well have been because of the fact that
no question pertaining to jurisdiction was specifically formulated as a
question for the Court's attention. The Court eventually found that that
was a matter with which it ought to deal as being covered by the general
question pertaining to fhe status of South West Africa and the inter
national obligations of the Union of South Africa in that regard, and
it answered this question as being covered by those general questions.
But it was not formulated as a specific question; and indeed we find
in the argument that Dr. Steyn stated, as if it were a self-evident pro
position, that on dissolution of the League there were no longer any
Members of the League and therefore Article 7 could no longer be invoked.
And that was the sum total of the argument on that particular point.
Dr. Steyn was not confronted with any suggestion of a succession for
purposes of Article 7. H,~was not confronted with any contention of a
"descriptive meaning" te-be assigned to the expression "another Member
of the League of Natiom" in Article 7, and he was not confronted with
any suggestion of a "carry-over" for purposes of Article 7, and therefore
it was quite impossible for him to deal with any of those suggestions which
had never been put to him.
The issues in that regard, therefore, were never canvassed, and the
Court was not put in the position in which this Courtis now, of having
a fulland a detailed analysis of the meaning and of the implications of
the expression "another Member of the League of Nations", not onli
in Article 7 itself but in all the other Mandate instruments and throughout
the Covenant of the League. It was not in the same position as regards
a full analysis of the concept of succession and the underlying principles
which are invoked in support of it.
Moreover, as we have noted, and we stress in the Preliminary Ob
jections, the majority did not indicate any reasoning other than
that contained in the one sentence relative to its finding for the purposes
of Article 7. The Opinion was, to the extent we indicated in the Pre- r86 SOUTH WEST AFRICA
liminary Objections, also on this point critically received by scholarly
writers. We deal with these matters fully in the Preliminary Objections
at pages 368 (I) and 373.
Therefore, Mr. President, in all these circumstances my submission
is that also in regard to Article 7 we have made out a case not only
for de novo consideration of the whole question regarding jurisdiction
in terms of Article 7-locus standi in terms of Article 7-but also,
that having regard to all the evidential material now before the Court
and the full argument, full examination of all the legal propositions
in regard thereto, this Court could now follow the exceptional course
of coming to the conclusion that it is not to regard itself as bound
in any way, in law or as a matter of precedent, by the Advisory Opinion
of 1950, and that it should corne toits own conclusion in that regard in
· order to do justice between the parties.
My submission will be that the Court will find that it will not follow
the majority Opinion in that respect, or the minority Opinion with
which I dealt before and which was based on the "descriptive meaning"
interpretation.
Mr. President, although I have dealt very fully and thoroughly with
the 1950 Opinions in regard to the various issues now before the Court,
the Court would have notice<l that I have hardly referred at all, except
on two isolated points, to the Opinions of 1955 and 1956. That is be
cause of the fact that both the later Opinions were, by the form of
request addressed to the Court by the General Assembly, based on the
prior assumption of the correctness of the 1950 Opinion regarding suc
cession-or, shall I say, regarding the obligation on the part of the 1~an
datory now to report and account to the General Assembly of the Umted
Nations in substitution for the Council of the League. That is so very
evident from the wording in respect of both the requests addressed to
the Court. First, in the case of the 1955 Opinion on Voting Procedure
(I am reading from the official report, at page 69), the operative portion
of the Assembly resolution reads:
"Requests the International Court of Justice to give an advisory
opinion on the following questions:
(a) Is the following rule on the voting procedure to be followed
by the General Assembly a correct interpretation of the advisory
opinion of the International Court of Justice of II J uly r950..."
Then follows the suggested rule, and the second question is:
"(b) Ift~~sinterpretation of the advisory opinion of the Courtis not
correct...
Then follows a further question as to what voting procedure should be
followed. In fact the Court, in each instance-all the Members of the
Court-found an affirmative answer relative to the first question, and
the second therefore fell away. The very basis of the question to the
Court was therefore to interpret the 1950 Opinion of the Court in this
particular respect and to determine whether the rule on voting procedure
corresponded to a correct interpretation of that Opinion. The Court in
fact said so in its majority Opinion, at page 71, that it was to confine
itselfto that basis: ARC-UMENT OF MR. DE VILLIERS 187
"The scope of Question (a) is thus limited by the wording used
and by the reference to the General Assembly's acceptance of the
Opinion previously given by the Court. It is therefore essential
that the Court should keep within the bounds of the question put
to it by the Geneul Assembly.'' (I950 Opinion, pp. 71-72.)
The same applies, even more specifically as far as the wording is con
cerned, to the Advisory Opinion of 1956 on the Admissibility of Hearings
of Pe#tioners by the Committee on South West Africa. The operative
portion of the resolution reads as follows (at p. 24 of the I.C.J. Report):
"Requests the International Court of Justice ta give an advisory
opinion on the follo'.vingquestion:
'Is it consistent with the advisory opinion of the International
Court of Justice of II July 1950 for the Committee on South
West Africa, estilblished by General Assembly resolution ... to
grant oral hearings ta petitioners on matters relating to the Ter
ritory of South ·west Africa?'."
Again, the question is simply: "Is it consistent with the advisory opinion?"
And although there wa,; a division of opinion in the Court-between
the Members of the Court-as to the correct answer to this question, the
opinions in both respects proceeded on the basis of the correctness of
the 1950 Advisory Opinion and on the necessity of interpreting it for
the purposes of answering this question.
The fact that that was so is particularly forcibly illustrated by the
position of Judge Read. It will be recalled that Judge Read was one of
the two Judges who gav,~a minority opinion in 1950 on the question of
administrative supervision of the Mandate. He came to the conclusion
that that supervision h:;.d corne to an end with the dissolution of the
League, and that there had been no succession or any other process by
which the United Nation:;, or any organ thereof, was substituted for the
Council of the League ai; a supervisory organ. That was his opinion in
1950. But in 1956, when the Court divided on this question as to oral
hearings of petitioners and as to how it should be answered, the majority
of the Court gave an answer which might be regarded as, in practice, more
favourable to the oral hmrings of petitioners and the minority gave an
opinion which was less favourable in that regard. But Judge Read
joined the majority. In o!:her words, to him it was quite clear that his
fonction now was not to reconsider the question whether there had been
any succession or any similar process whereby there was a substitution
of supervisory organ and an alteration in our obligation in that regard;
his fonction was purely t.Jinterpret the majority opinion on a particular
point raised in the request of the Assernbly. Therefore, Mr. President,
both the opinions having proceeded on the basis of the correctness of
the 1950 Opinion in that respect, it does not, in my respectful submission,
serve any useful purpose to analyze these opinions, except on the specifi.c
points that I have discussed here and there. I may point out further that
in the 1956 Opinion there appears to have been a difference of opinion
as to the correct interpn:tation of the 1950 Opinion on the question of
Article 6 of the Mandate. The majority indicated in their reasoning that
they considered that the 1950 Opinion on that point was founded on an
idea of succession, of powers going over to the United Nations-powers
of supervision-whereas the minority considered that that was not so,r88 SOUTH WEST AFRICA
that it was rather a question of a maintenance of a status quo, of an
existing situation, and that for the purposes of maintaining that existing
situation it was important to have regard inter alia to the willingness
expressed by the Union of South Africa to regard itself as continuing
to exercise its Mandate, to continue to administer the territory in ac
cordance with the provisions of the Mandate, and to "continue to render
reports to the United Nations". I have already pointed out that in this
latter respect the reference rested on a wrong factual premise, that there
was in fact never an expression of willingness on the part of the Un.ion
Govemment to continue to render reports to the United Nations, if by
that is understood reports in pursuance of Article 6 of the Mandate
relative to compliance or otherwise with the Mandate obligations.
Otherwise, that difference of opinion was purely related to the parti
cular issues in the case before the Court and does not appear to be of
assistance to the reasoning or the argument in the present case.
I have corne, therefore,to the end of the issues regarding the suggested
succession for purposes of Article 7, and I submit that, for the reasons
that have been stated, those contentions of the Applicants regarding
suggested succession for this purpose are not sound and should not be
accepted by the Court.
I proceed now to dea:lwith the second ground advanced by the Appli
cants as to why competence to invoke Article 7 could still exist on the
part of States who are not possessedof the qualification prescribed therein,
namely membership of the Lea??e. This second ground which the Appli
cants advance is the so-called 'carry-over principle". \Vefind that dealt
with at pages 446-448 (1) of the Observations. '
Now, Mr. President, may I first read at page 446 the broad concept
of this carry-over principle as it is stated by the Applicants themselves
in application to the case of the League and its Members:
"There is at the very least a de facto carry-over of the League's
responsibilities to the extent that an important fonction of the
League continues beyond the League's formai existence."
The Applicants do not say here what fonction they mean, but ostensibly
they mean the fonction of supervising Mandatory administration.
"Such a de facto carry-over not only justifies the presence of
Respondent in the Mandated territory, but it also keeps alive the
legal interests of the League and its Members in the Mandate.
Hence, States, such as Ethiopia and Liberia, which were members
of the League at the time of the League's dissolution, remain within
the description of 'another l'vlemberof the League' for purposes of the
Mandate." (Observations, pp. 446-447.)
The next paragraphs proceed to explain what is meant by this so-called
principle of "de facto carry-over"-de facto survival of an entity which
has been formally dissolved. The Applicants point there to the statutes
of certain of the States of the United States of America, by which statutes
express provision is made to enable a dissolved corporation to continue
de factoin existence until it bas wound up its corporate affairs. That is the
first group of statutes referred to; the description of it is in the Observ
ations: "Thus, in many States of the United States of America, a dissolved
corporation remains de facto in existence until it winds up its corporate
affairs." Secondly, the Applicants state: "Other States of the United ARC;UMENT OF MR. DE VILLIERS
States enable persons who were corporate directors at the time of a
corporate dissolution to me as trustees on any daim of the corporation."
Again there is a referenΠto a number of specific statutes. And the Appli
cants proceed:
"This is but another way of recognizing the continuing vitality
of the rights and obligations created by the corporation prior to its dis
solution. The 'carry-over' principle of dissolved corporations is im
plicit in the rule that suit may be brought on behalf of the defunct
corporation only by former directors." (Observations, p. 447 (1).)
Now, Mr. President, in my submission the briefest study of these statu tes
to which reference is m.Ldeby the Applicants by way of example, very
clearly shows the followfng: in the first place that this so-called "carry
over principle" does not exist; that in so far as one can speak of a "carry
over", it opera tes by virtue of express provision to that effect in each
one of these statutes: tb.at is why it is possible to have a "carry-over".
It is a similar provision as we know, providing for daims of a company
to be brought by a Iiqujdator, for instance, for purposes of liquidation.
ln some cases in these statutes one fmds the arrangement that a former
director fulfilsthe fonction which a liquidator might fulfil under other
circumstanccs. There aΠvarious arrangements pertaining to the varions
types of companies, coni:ained in the various specific types of legislation
for the regulation of company affairs. But in so far as there is a keeping
alive of rights and oblige.tians on the part of the defunct company, that
is so, not because of any principle which recognizes a continuing vitality
of those rights after the corporate existence has corne to an end, but
because of specific and prccise provision in a statute to the effect that
that will be so for the p-,1rposesof liquidation: so that in so far as there
may have been a dissolu.tian of the company to a certain extent before
the liquidation process has been completed, the liquidation process itself
is protected from the effoct of that dissolution.
That is the first point that emerges. The second point is that in each
case the provision enables acts to be performed "on behalf of the defunct
corporation"-not on behalf of its former members, but on behalf of the
corporation itself, in pursuance of rights that had been held by the cor
poration, and not in pursuance of individual rights of its former members.
And thirdly, we find that in each case the provision has a limited purpose;
it exists purely for the purpose of the winding-up of the affairs of the
corporation, and for no other purpose whatsoever.
Therefore I submit that the analogy which the Applicants seek to
draw from these provisions and the case to which they seek to apply it
the case of the exercise of a competence to invoke compulsory juris
diction of a court in terms of Article 7 of the J\fandate Agreement-that
that analogy is completely without foundation.
I could now refer-on the points of distinction that I have mentioned
-to the provisions of the statutes. We find on the first one, namely that
in each case there is express provision for the so-called carry-over-we
find that there are, broaà.ly speaking, two methods of providing for liqui
dation. One is this: that what is envisaged in the legislation is that a
certain event occurs-Ia-0se of time, or an order of court, or something
similar-which has the "effect of dissolving the corporation. But t~en
there is specific provision to exempt from the effect of that dissolution
the corporate existence for the purposes of liquidation; there is an expressI90 SOUTH WEST AFRICA
saving, then, of the corporate existence of the corporation, and provision
is made for the necessary steps to be taken for purposes of liquidation.
In other instances there is not deemed to be a dissolution at the liqui
dation stage; there is merely a cessation of ordinary business. There may
be what is called a "provisional dissolution", but the final dissolution
does not occur until there has been a complete liquidation. I could refer
the Court to examples of all these classes of provision.
I referto the California statute, the very first one in footnote r at page
447 (1) of the Observations. Here we have, on the first page, Chapter V,
Section 5400, headed "Purposes for which Continued", and the Section
provides:
"A corporation which is dissolved by the expiration of its term
of existence, by forfeiture of existence, by order of court, or other
wise, nevertheless continues to exist for the purposc of winding up
its affairs, prosecuting and defending actions by or against it, and
enabling it to collect and discharge, obligations, dispose of and
convey its property, and collect and <livideits assets, but not for the
putpose of continuing business except so far as necessary for the
winding up thereof."
Clear and express provision, therefore, that despite dissolution in other
respects, it nevertheless continues to exist for the purpose of winding
up its affairs and attendant matters, but not for the purpose of continuing
business, except so far as is necessary for the winding up thereof.
There is a rather interesting annotation, a reference to American case
law in a footnote at the next page; it is an annotation to this Section
5400, and the reference is to a case of Defence Supplies Corporation v.
Lawrence \Varehouse Company. There the court is reported to have said:
"...Buta time-honoured feature of the corporate device is that a
corporate entity may be utterly dead for most purposes, yet have
enough Iife remaining to litigate its actions. All that is necessary
is a statute so providing."
That emphasizes the point, Mr. President, that what is required here
"is a statu te so providing", emphasizing the complete absence of a
"carry-over principle" such as is contended for by the Applicants.
That was an example of the type of case where there is a prima facie
dissolution but then an exemption as regards the processes of liquidation,
the company being kept corporately in existence for that purpose and
arrangements being made for that purpose. An example of the other class
will be found in the Louisiana statute, also cited in a footnote-West's
Louisiana Statutes, referred to in footnote No. 2 at page 447 (I). There we
find provision for liquidation by the court on petition based on a resolu
tion, a resolution authorizing directors or shareholders to sign and present
in the name of the corporation a petition to court praying for dissolution.
And there is specific provision that where a corporation is being liquidated
-it is said that thereafter the liquidation proceedings shall be conducted
under the supervision and ordcrs of the court. Where a corporation is
being liquidated and dissolved out of court, the liquidator appointed by
the shareholders, unless so forbidden by the resolution appointing them,
may at any stage of the proceedings by a petition apply to court. So what
we can have here is that in some cases directors may be authorized to ARGUMENT OF MR. DE VILLIERS rgr
act as liquidators, or a f.hareholder or shareholders, and in other cases a
liquidator may be appointed by the court.
And then there is this specific provision in Section 62, page 319 of this
photostat which is filed with the Court:
"Corporate existrnce continues until the certificate of dissolution
is issued by the Secretary of Statc. At any time before tcrmination
of corporate existen:e, a voluntary dissolution may be revoked in the
following manner ..." (West's Louisiana Statutes Annotated, p. 319.)
But the specific provision is that corporate existence continues until this
certificate of dissolution is issuedby the Secretary of State, and that,
according to these other provisions, takes place only at the end of the pro
cess of liquidation. Indced, earlier on in that same Section 62 the pro
vision is"\Vhen a corporation has been completely liquidated ..."; it says
"A. If the proceeding is mbject to the supervision of the court, the court
shall make an order declaring the corporation to be dissolved". In other
words, this is a case where the dissolution itself is withheld until the
process of liquidation ha,; been completed. And secondly: "If the proceed
ing is out of court, the Iiquidator shall sign and acknowledge a certificate
stating that the corporation has been completely liquidated and is dissolv
ed"~so that at tha t stagc only does the dissolution propeytake effect, and
in the meantime there has been a corporate existence because it has
never bcen terminated for purposes of the liquidation.
The Statutes to which I have referred, of Califomia and Louisiana,
merely serve as examplcs of the various types of cases which we find.
They also serve as examples out of the first two gioups referred to by
the Applicants at page 447 (I). The same situation, as dealt with in them,
emerges from ail the otht:r Statutes; one gets the same types of variations
-sometimcs a provision is for a trustee, sometimcs it is for a shareholder,
sometimes for a director, sometimes for a liquidator, but in all cases
the keeping alive of the corporate existence of the corporation for the
purposes of liquidation Ü;expressly achieved. The third type of legislation
to which reference is made by the Applicants is this-we fmd it at
page 447. They say:
"Civil law countries have similar legislation, which keep alive
and carry-over the l.egal existence of rights and duties of dissolved
entities." (Observations, p. 447 (1).)
There too, merely as an example, I refer to the Argentina Code of
Commerce, Article 435. We find that in footnote No. 3; it reads as follows:
"The [dissolved] corporation is considered existent, only for the
purpose of its liquidation. The use of the corporate name by the
liquidator empoweri, him only to liquidate and to contract obliga
tions which are a natural and immediate consequence of the li
quidation."
So, again, express provision for the corporation to be considered existent
but only for the purposE,s of its liquidation. And, there again, that type
of example is found repeated in all the other statutory provisions, not
in exactly that form but the principle remains the same, in the sense
that there is no principle, as contended for by the Applicants: the
"carry-over", where neŒssary, is achieved by express statu tory enact
ment, and the very fact that so many different forms exist, different
formulas, different ways of dealing with such matters specifically and SOUTH WEST AFRICA
expressly in the Statute, indicates the total absence of any principle
in that regard.
Secondly, Mr. President, even if, by any stretch of legal adaptation,
one could formulate a principle of international law from these municipal
legislative provisions,then surely the circumstances to which the legis
lative provisions apply must show some analogy with the circumstances
to which it is now sought to apply such a principle. The analogy, in
my submission, fails altogether for various reasons. In the first place,
as I have already stated, each one of those provisions ta which the
Applicants refer enable acts to be performed on behalf of the defunct
corporation only, and they do not embrace acts in furtherance of the
interests of former members of the corporation or of some other cor
poration. Now let us see what the Applicants seek to do here. Here, in
instituting these proceedings, they do not daim to be acting on behalf
of a defunct League of Nations. On the contrary, they daim to be
exercising their own rights, as they say, as members of an "organized
international community"; rights which are at the same time duties to
see that a sacred trust is performed; but their rights, not those of a
defunct League. And, indeed, in the Observations at page 456 (I), they
introduce also further rights and interests which they daim to be
representing. In dealing there with another aspect of our Objections,
they say in the second paragraph, at page 456:
"In disputing and negotiating with Respondent in the United
Nations during the past several years, Applicants, therefore, have
been upholding their own legal interests in the proper exercise of
the Mandate; but they have been doing more than that. They have
also been upholding the collective Iegal interest of the :Members of
the United Nations and the interests of the Organization itself.
In instituting these proceedings, Applicants have moved to protect
not only their own legal interests but the legal interests of the United
Nations (which, itself, may not be a party to a contentious pro
ceeding), as well asthe legal interests of every other Member State
similarly situated."
So there the analogy fails. The next aspect in which it fails is that the
legislation provides for the carry-over of the special powers, the special
and one purpose only,
extension of corporate existence for, one purpose,
and that is the winding up of the affairs of a dissolved corporation so
as to bring it completely to an end, and not the indefinite continuation
of the activities of the dissolved corporation as if there had been no
dissolution. In other words, the idea is ta bring about a liquidation of
legal rights and interests of such corporations and not to keep them
alive. But now, what are the Applicants sceking ta do? They are not
seeking to perform an act with a view to liquidation of the League sa
as to bring its corporate existence and its affairs completely to an end;
they are seeking to keep alive indefinitely supervision of a particular
kind over Mandatory administration; they want ta keep alive that
supervision as if there had been no dissolution of the League; they
want to go on beingregarded as Members of the League for that particular
purpose, although there has for a long time been no League and although
there have for a long time been no Members of a League. It is an activity
which they had as Members of the League, which was available to them
during the lifetime of the League, that is what they wish to carry on; ARGUMENT OF MR. DE VILLIERS 193
they are not seeking to liquidate, to bring to an end League activities.
Therefore, again, the analogy fails.
Mr. President, I submit that when we go to the foundation of this
"carry-over" suggestion, it cornes down to the same principle that
we have been discussing before, and that is the question of the effec
tive intent of the pan:ies that brought about the relevant arrange
ments. A "carry-over'' of the nature contended for by the Appli
cants could operate only if there was an effective intent in law to
bring that about. The "carry-over" in the case of these municipal
law provisions operates by reason of the effective intent of the legis
lature in those particuh•.r cases, the effective intent to which expression
is given in the legislation, so as to have effect in law. That is what
brings about such a "carry-over". In the case of an organization like
the League which did not have legislation governing it, but whose
Covenant was derived from an international agreement, as a constitutive
instrument, there the effective intent would have to be cither that of
the founders of the Le~tgue as expressed in the Covenant itself, or, in
the absence of specific provision of that kind in the Covenant, there
would have to be ad hoc resolutions and arrangements by Members of
the League, by its competent organs, to bring this about. We know that,
in fact, there was in the case of the League no provision in regard to
liquidation-no detailed provision at any rate-in the Covenant, and
that special provision therefore had to be made at the last session of
the League. It is, therefore, to the arrangements made at that stage
that we have to look in ordcr to find whether there was any effective
intent to bring about such a carry-over as is suggested by the Applicants.
And we find, Mr. President, that although vcry specific provision was
made for all the practical aspects of the. liquidation, although express
provision was made for fonctions and activities to be carried on after
the League's dissolution, to be carried on by another organization,
namely the United Nations, and although express provision was
made in regard to the iuture of Mandates after the dissolution of the
League, in not one of these instances was there any provision which could
effectively bring about a carry-over of the nature contended for. And
the omission is a very i;ignificant one. Indeed, from the very wording
of the last resolution of the League regarding Mandates, it is clear that
there could have been r,o such intent because there, in the third para
graph if I remember correctly, it is recorded that the Assembly rccognizes
that the League's functi.ons with regard to Mandates have corne to an
end. Surely one would riot expect such a recording in that resolution
if there was any intent to provide for a continuation, for a limited
purposc and a limited time, of a fonction with regard to Mandates, for
that to be exercised by way of a carry-over by ex-Members of the League.
One finds indeed, Mr. President, in the very final resolution of the
League, as adopted on 18 April 1946, that there is express provision
for dissolution of the League and for liquidation, and then for a carry
over of a limited naturn for the purposes of that liquidation. I refer
to the League of Natiom, Official Journal, Special Supp!ement 194, at
page 269. The first clause of the resolution reads:
"With effect from the day following the close of the present
session ofthe Assembly, the League of Nations shall cease to exist
except forthe sole p;1rpose of the liquidation of its affairs as provided
in the present resolution."194 SOUTH WEST AFRICA
So there we have an example of a dissolution of the corporation, with
the express exception for the purposes of liquidation. The second
sub-paragraph of the first clause reads:
"The liquidation shall be effected as rapidly as possible and the
date of its completion shall be notified to all the members by the
Board of Liquidation provided for in paragraph 2."
Paragraph 2,then, reads:
"The Assembly appoints the persans named in the Annex to
form a 'Board of Liquidation', hereinafter called the Board, which
shall represent the League for the purpose of cffecting its liquidation.
Subject to the provisions of this resolution and other relevant
decisions taken by the Assembly at the present session, the Board
shall have full power to give such directions, make such agreements
and take all such measures as in its discretion it considers appro
priate for this purpose."
So here we have a complete provision for a real carry-over for the
purposes of the liquidation of the League, but nothing relating to Man
dates or fonctions in regard to Mandates; and one would, indeed, not
expect it here because there was a special resolution regarding 111.andates.
The final Article of this resolution, No. 21, is to be found at page 284
of the Special Supplement, and it reads as follows:
"On completion of its task, the Board shall make and publish
a report to the govemments of the members of the League giving
a full account of the measures which it has taken and shall declare
itself toe dissolved. On the dissolution of the Board, the liquidation
shall be deemed to be complete and no further daims against the
League shall be recognized."
There we find everything provided for in regard to liquidation and a
closing date on which that liquidation of the Leaguc shall be deemed
to be complete.
Mr. President, I submit that the Applicants really therefore are
begging the question when they say that there is at least a de facto
carry-over of the League's responsibilities to the extent that an im
portant fonction of the League continues beyond the Lcague's fonnal
existence. If they mean by that "important fonction" the exercise
of supervision through this form of competcnce to invoke the compulsory
jurisdiction of the Court, in order to substantiate their proposition
they would have to refer to effective intent on the part of the League
to bring that about, and they do not even attempt to do so. All the
indicationsofwhattook place at the last meeting of the LeagueAssembly
militate against there having been any intent to achieve such a carry
over. Such a carry-over with regard to competence to invoke Article 7
was obviously not regarded as a fit subject for a carry-over in terms of
the resolution to which I have just referred dealing with the actual liqui
dation. The resolutions designed to facilitate the future exercise of powers,
fonctions and activities previously exercised by the League were con
fined to non-political fonctions and they were confined to possible
assumption thereof by the United Nations. The resolution on Mandates
made no provision regarding future supervision of Mandatory admini- ARGUMENT OF MR. DE VILLIERS
195
stration, contained no rderence to it at all, or to rights in general then
vested in the League l'ifombers.or the competence in particular of such
Members to invoke compulsory jurisdiction. AU those things rcmained
unsaid. And particularly in view of the recognition that the League's
functions with respect to Mandates would corne to an end with its
dissolution, it seems inconceivable that if there had been any intent to
achieve such a carry-ovn it would not have been expressly provided for.
I proceed, therefore, to the next statement of the Applicants in support
of their carry-over argument. We find that in the Observations at page
447 (1):
"An analogous principle of municipal law may be found in the
widely held doctrine that legal relationships established under a
statute by statutor:r authority survive the expiration of the statute
or statutory authority in the absence of provision to the contrary.
Particularly is this so when a saving clause is employed in the
legislation repealing the statute or dissolving the statutory author
ity."
Now those two statements, Mr. President, in my submission, are logically
inconsistent. If there should be a widely-held doctrine that Iegal re
lationships established nnder a statute by statutory authority survive
the expiration of the statute or statutory authority, then why would a
saving clause be necessary to bring that about, to bring about their
continued existence? A saving clause may sometimes by employed ex
abundanti cautela, through a surfeit of caution, in order to make quite
sure that a certain result does not follow. But its normal purpose is
exactly to prevent, in a specific instance, a consequence which would
otherwise follow from ·the statute. And, therefore, if the normal conse
quence ofrepeal, or expù~ation, of a statute is to leave alive relationships
established under that :;tatute, then one would never require a saving
clause to keep those re:1ationships alive. Therefore, the very fact that
saving clauses are employed for such a purpose tends to refute the
existence of any such principle as is suggested.
In fact, there is no such principle. It is quite true that in municipal
law the repeal of a statnte, or the terrnination of a statutory authority,
does not always result in termination of legal relationships which have
been established in pun;uance of the statute or through the agency of
that statutory authority. Very often vested rights do corne into existence
and they are not affected by repeal of the statute or the termination of
the authority. One can have a statute providing for expropriation for
certain purposes and for a board that would supervise the expropriations,
decide whether they were warranted and determine compensation. There
may be expropriations which are completed, the compensation may have
been paid, transfers ma:; have been registered in countries where there
is a system of registration, or conveyances may have been made in the
other countries, and th1: whole transaction may have been completed.
Then that would certainly not be interfered with by the eventual repeal
of the statute or the 1:ermination of the existence of the statutory
authority.
But whether that wouid be so or not must depend on the circumstances
of each particular case. It must again be a result of applying the effective
legislative intent to the particular situation with which one is dealing.
For that purpose, it is necessary to have regard to the nature and the196 SOUTH WEST AFRICA
content of the existing relationship on the one hand and to the intent
and the effect of the repealing statute on the other hand. If one finds
that the nature of the existing relationship is such that it is completely
dependent upon the operation of the statute or the existence of the statu
tory authority, then obviously the repeal of that statu te, or the termina
tian of the existence ofthat statutory authority, must automatically result
in the end of that legal relationship, unless it is specially kept alive-just
as the opposite may be true, that if there is no dependence upon the
continued existence of the statute or the authority, then the repeal or
dissolution would not affect the continued existence of the particular
relationship, again in the absence of specific provision to the contrary.
Therefore one cannot generalize in the manner in which the Applicants
suggest. The question is one for interpretation in_each particular instance.
If there is a provision in a statute, for instance, obliging the citizens of
a particular region, or of a particular age group, to. submit themselves
for active training every Saturday then they are under an obligation
-that is the legal relationship--to offer themselves for training at the
particular institute, on every Saturday. But as soon as that is repealed
then that obligation falls away-that is the end of the legal relationship,
unless it should specifically be kept alive for a group that has just been
forrned and has not completed a certain course of training.
One can quote all these examples, but there is no principle involved
except the principle of giving effect to the legislative intent.
And when we look now at the situation regarding Article 7 of the
Mandate, it corresponds ta the type of case that is dependent upon the
continued existence of the organization, in this particular case. By reason
of the agreed content of Article 7, its operation was made dependent
upon there being another Member of the League to invoke it, and there
fore dissolution of the League and cessation of all memberships must
necessarily result in that clause becoming inoperative, in the absence
of some specific provision, some special provision, keeping it alive in
some other form than before, or on a new basis. Therefore that generali
zation does not assist the Applicants.
Nor does the following one assist them, Mr. President. I read again
from page 447 (1):
"Rights and obligations-according to which property may have
been exchanged, or upon which promises may have been made, or
by which a fiduciary may have been entrusted with property not
his own-are not considered to disappear merely because an entity
or authority goes out of existence and is not succeed'ed by another
entity which explicitly assumes its rights and obligations. Modern
civilized systems are too sensitive to justice to permit so illogical
and inequitable a result." (Observations, p. 447 (1).)
Mr. President, I know of no justification for any such generalization.
Again the ques"tion must be one of effective intent in each particular
case; the intent of the legislature, the intent of contracting parties, the
intent of a testator, or whatever the situation may be with which we
are confronted. If in the light of such intent we fmd that the dissolution
of an entity or authority leaves an existing right or obligation unaffected,
then caedit questio. But if we fmd in the light of such intent that the
right or obligation is rendered incapable of continued existence by the
dissolution of the entity or authority, then that right or obligation must ARGUMENT OF MR. DE VILLIERS
197
necessarily disappear on such dissolution unless there is specific provision
for the contrary. And ttere can, in my submission, be nothing illogical or
inequitable involved in thus giving effect to the intent which creates
and which controls legal rights and obligations.
Finally, Mr. President, we find that the Applicants state, at the
bottom of page 447 (1), that:
"With respect to the Mandate, the Iegal relations established by
the League continue to exist. In addition to the reasons already
set forth to support this conclusion, there is an act of the League
of Nations which in effect constitutes a 'saving clause' of the kind
referred to above. This act of the League is the adoption of its
Resolution of Aprii. r8, 1946, and particularly paragraphs 3 and 4
thereof..." (Observa!ions, pp. 447-448.)
And then those paragraphs 3 and 4 are set out. Now how this could be
said to be a "saving clause" relative to competence to invoke Article 7
I do not know, Mr. President. It does not mention that subject. It
recognizes that on termination of the League's existence its fonctions
with respect to Mandat,~d territories would corne to an end. It refers to
·possible future arrangements that may be agreed between the United
Nations and the respective Mandatory Powers. But it makes no reference
whatsoever to any continued relationship in regard to Mandates between
a Mandatory and other Members of the League, let alone any reference
to a continued possible competence to invoke Article 7.
If there were to be found an effective saving clause, as contended for
by the Applicants, it vmuld have had to provide to the effect that,
notwithstanding dissolution of the League, and notwithstanding loss of
all League memberships, States that were Members of the League at the
date of dissolution woulclnevertheless continue to retain the competence
to invoke Article 7. And there is nothing which is contained in this
resolution which could, even remotely, suggest tpat there was any such
contemplation involved in it.
I submit, therefore, Mr. President, that there is no substance what
soever in any of these so-called ''carry-over" arguments of the Applicants,
and that, as far as their merit is concerned, they are to be re)ected. I
wish to refer to only tw,) further aspects of the "carry-over" argument.
One of them is that although the Applicants refer to the dissenting
Opinions of Judges McNair and Read in 1950, to the fact that they found
a basis for saying that Members-States that were Members of the League
at the time of the dissolution-could still have the competence to invoke
Article 7-although that is referred to, and ostensibly supported by the
Applicants as their secor1dstring, their "carry-over argument", in actual
fact, on analysis is totali.y different from the line of reasoning employed
by Judges McNair and Read. It does not support that line of reasoning
of a "descriptive" meaning and, in fact, jettisons that line of reasoning.
It assumes that there would be a loss of competence to invoke Article 7
but for a special arrangement, a special contemplation of this carry-over.
Secondly, Mr. President, the Applicants state that they rest their
contentions as to Article 7 on "either or both bases". At page 443 of the
Observations they say:
"Applicants, nevertheless, rest their submission on jurisdiction
on either or both bases."
I submit that they cannot rest them on both bases, Mr. President, SOUTH WEST AFRICA
198
because the bases are mutually inconsistent, and ifthey are both to be
advanced they would have to be advanced as alternatives. If there
should be a succession, as contended for by the Applicants, which took
this competence now from Members of the League to Members of the
United Nations, then there would be no occasion, no necessity, no scope
whatsoever, for inferring any intent as to a carry-over. The two things
are, as conceptions, mutually inconsistent with one another. "Carry
over" would surely only be provided for in respect of an activity which
would otherwise corne to an end, and if there is provision, tacitly or
otherwise, for a succession as contended for by the Applicants, then
there would be no occasion for a "carry-over".
Finally, Mr. President, if the majority Opinion regarding Article 7
in 1950 is to be regarded as resting upon a succession regarding Article 6,
by reason of a tacit understanding or agreement arrived at during the
transition period, then that finding in the majority Opinion would be
totally inconsistent with this suggestion of the Applicants as to "carry
over", and to that extent then the Applicants contention would be in
conflict also-in direct conflict-with the majority Opinion on this point.
This is quite apart from the variance to which I have referred before,
namely that in regard toits actual finding in regard to Article 6 the ma
jorityüpinion appeared to rest that finding on a tacit understandingwhich
it inferred from the events during the transition period, whereas the Appli
cants do not attempt to support that; they attempt to found the succes
sion for which they contend on something to be read into Article 6 of
the Mandate Agreement as originally agreed upon.
Mr. President, I will conclude in a few minutes. I merely wish to
refer to page 438 (1) of the Observations relative to these last remarks
which I made. There the Applicants state in the second paragraph:
"It follows from either the majority or minority analysis that
Applicants are competent to invoke Article 7, and that Respondent's
contention is inconsistent with the view of every member of the
Court."
The analysis that I have put forward to the Court, with submission,
shows that the boot is somewhat on the other foot: that this "carry-over"
contention advanced by the Applicants is not supported either by the
majority or the minority view in 1950, and that the succession advanced
by the Applicants is something different from the succession found in
the majority Opinion in 1950. This is particularly significant because of
the fact that the new information and facts not before the Court in
1950, and now presented by us, deal particularly with the transition
period, and indicates that there could be no basis for finding tacit assent
there, as the Court apparently did in 1950.
Mr. President, the conclusion to which the portion of the argument
with which I have just dealt lcads, is that stated by way of alternatives
in our second and third contentions, namely, that by reason of there
no longer being any Members of the League, Article 7 has ceased to be
in force as a treaty or convention, or altematively, if it is still so in
force, then there are no States competent to invoke it. That by itself,
stated in these two alternatives, is an objection to jurisdiction and we
submit it is sound. That, taken in conjunction with our argument re
garding Article 6, and our argument regarding Articles 2 to 5, leads to ARC UMENT OF MR. DE VILLIERS 199
the other conclusion, which we submit is also sound and which is our
first contention, namely, that the Mandate as a whole has ceased to be
a treaty or convention in force within the meaning of Article 37 of the
Statute of the Court. Na.turally, success on one or the other of these
would be sufficient foronr purposes.
I wish to express my appreciation to you, Mr. President, and to all the
Members of the Court, for the patience and the courtesy accorded to
me during the argument. 200 ::.OUTH WEST AFRICA
3. ARGUMENT OF Mr. MULLER
(couNSEL FOR THE GOVERNMENT OF SOUTH AFRICA)
AT THE PUBLIC HEARINGS OF IO AND II OCTOBER 1962
[Public hearing of IO October I962, morning)
Mr. President and Honourable Members of the Court.
Before proceed.ing with my argument I would like to associate myself
with the remarks of my learned friends, Dr. verLoren van Themaat
and Mr. de Villiers, in paying respect to this Court. It is indeed an
honour for me to appear before this Court. I intend now, if itpleases
the Court, to present our argument on the Third Objection.
For the purposes of this Objection it is assumed that, despite the
dissolution of the League of Nations, Applicants would still be entitled
to invoke the provisions of Article 7 of the Mandate for South West
Africa in an appropriate case-that is, in a case where there exists
between the Applicants and Respondent a "dispute" as envisaged in
Article 7.
This Objection raises the question whether the conflict or disagreement
alleged to exist between Applicants and Respondent constitutes a
dispute as envisaged in the Article.
The Applicants contend that there is such a dispute. Their contention
in this respect is set forth at page gr (I) of the Memorials, where they say
that they for their part allege, and Respondent for its part denies, that
Respondent has violated and is violating Articles 2, 4, 6 and 7 of the
Mandate.
We, on the other band, Mr. President, contend that the alleged
conflict or disagreement is not a "dispute" envisaged for adjudication
by the Court in terms of Article 7 of the Mandate-more particularly,
in that the said conflict or disagreement does not affect any material
interests of the Applicant States or their nationals. That, then, is the
crisp issue between the Applicants and Respondent.
In stating our case, however, with regard to this Objection, it is
necessary at the outset to deal with certain general remarks made by
the Applicants at page 450 (I) of their Observations. In the first place
they say that the Third Objection is devoted to "an attempt to insert into
Article 7 a requirement which does not exist". Now, Mr. President,
this comment on the part of the Applicants is, we submit, without
substance. We rely for our contention not on an insertion in Article 7
of words not appearing in the text, but on a proper construction of the
word "dispute" in the context in which it does appear. It is therefore
not a case of reading something into the text, but of reading properly
what in fact already appears in the text.
In a broad sense the word "dispute" may embrace a difference of
opinion, disagreement or conflict of views between persans or States.
It may in that very broad sense include disagreements or conflicts
concerning rnatters in which the disputants themselves have no legal
interests or rights. In a compulsory jurisdiction clause, however, such ARGUMENT OF MR. MULLER 20I
as Article 7, there is ,tqualification inherent in the meaning of the
word "dispute", and that qualification is a confinement of the subject
matter in dispute to something in which the disputants themselves
have legal rights or interests. We submit that this limitation flows as
a Iegal conception and as a matter of logic from the intended fonctions
of courts of law. In int~:rnational law, as in municipal law, courts exist
for the adjudication and settlement of daims arising from legal rights
or legal interests; the courts are not there for judicial expression on
differences of opinion or on conflicts of views unrelated to the legal
rightsor legal interests of the litigants.
It follows in our submission, Mr. President, that in the absence of
any contrary direction or indication in Article 7 of the Mandate, the
word "dispute" must be given its generally accepted meaning in the
context of a compulsory jurisdiction clause, and that is a disagreement
or conflict between the Mandatory and another Member of the League
conceming the legal rights or interests of such other Member in the
matters before the Court. Such matters must of course, in compliance
with Article 7, relate to an interpretation or application of the provisions
ofthe Mandate.
Mr. President, we are mindful of the fact that in Article 7 the word
"dispute" is flanked b:r the words "any" and "whatever", the ex
pression being "any di~.pute whatever". It could, however, not have
been intended by the use of these two words "any" and "whatever"
to render justiciable at the instance of a Member of the League a dis
agreement or difference of opinion with the Mandatory regarding a
matter in which such M,~mberwas not meant to have a legal right or a
legal interest.
We submit that the Judgment in the Mavrommatis case fumishes
clear support for that proposition-that is, that in order to invoke
the compulsory jurisdidion clause in any mandate, an applicant must
have a legal right or an :interest in the matter intended for adjudication
by the Court. The majority of the Court in the Mavrommatis case
defined a dispute at page II of the reported Judgment as "a disagreement
on a point of law or fact, a conflict of legal views or of interests between
two persans". But, Mr. President, the majority was careful in demon
strating that the applicant in that particular case had a legal interest
in the matter in dispute. A legal interest on the part of the Government
of the Greek Republic was involved, so the majority held, on the basis
of a principle in international law that a State is entitled to protect
its subjects when injured by acts contrary to international law com
mitted by another Stah:, with the result, then, that in taking up the
case of its subject the applicant State was "in reality asserting its own
rights". (P.C.I.J., Series A, No. 2, 30 August 1924, p. 23.)
Itis also clear, as we indicated at pages 377-379 (1) of the Preliminary
Objections, that also in ·the five dissenting opinions in that case a legal
right or interest was regarded as necessary for locus standi on the part
of the applicant. We have set out, at pages 377-379 of the written
Objections, quotations from the opinions of the dissenting judgments
in the Mavrommatis case, and there is no need for me to read them
again. But it is clear that the views of all the Judges in that case with
regard to this aspect of jurisdiction rest on a sound legal basis, and
that can easily be demonstrated. Let us assume, for instance, that
instead of the Greek Government, some other Member of the League202 sounr WEST AFRICA
of Nations at the time had attempted to espouse the cause of Mr. Ma
vrommatis. Would the Court have had jurisdiction in such a case?
Surely the answer must be an emphatic "No"! And why would the Court
not have had jurisdiction when such other Member of the League fitted
the description of States entitled to invoke the compulsory jurisdiction
clause, and when the matter in conflict was one concerning the inter
pretation or application of the provisions of the Mandate? The reason,
of course, is that in the hypothetical case that I have postulated the
applicant State would have had no legal interest in the disagreement
or conflict between the Mandatory and Mr. Mavrommatis, who was
not its subject. In such a case there would not have been a dispute
as envisaged in the compulsory jurisdiction clause, and therefore no
locus sümdi on the part of the applicant State.
If the word "dispute" in Article 7 embraced all disagreements or
conflicts, irrespective of any legal right or interest on the part of the
State seeking to invoke the Article, then surely there would have been
no cause for the Court in the Mavrommatis case to have enquired, as it
in fact did, into the legal rights of the applicant State.
At page 457 (I) of their Observations, the Applicants refer to our con
tention that no dispute is envisaged by Article 7 unless the subject-matter
affects a material interest of the Applicant State or îts national. Then
they go on to say that, in support of its contention, Respondent cites,
inter alia,the Mavrommatis case; and they submit later, at the same
page, that the opinions in the Mavrommatis case do not in fact support
Respondent's view. At pages 446-467 (I) of their Observations the Appli
cants deal with the M avrommatis case, but nowhere do they state a denial
of our contention that that case is clear authority for the proposition
that a State, in order to invoke the compulsory jurisdiction clause,
must have a legal right or interest in the matter submitted for adjudi
cation to the Court.
At page 450 (I) of their Observations, the Applicants quote the definî
tion of a"dispute" from the Majority view in the Mavrommatis case, that
is, as defined by the Majority, "a disagreement on a point of law or fact, a
conflict of legal views or of interests between two persons". The Applicants
then say that "this definîtion ... is in complete accord with a number
of subsequent definitions of the term 'dispute' rendered by the Per
manent Court as well as by this Court", and they state that "the only
disagreement [in the cases to which they refer] appears to have centred
upon the question of when a disagreement or conflict must have been
manifested". (Observations, pp. 450-451 (I).)
That statement is correct as far as it goes. But in none of the cases
referred to by the Applicants, nor in any other case that we are aware
of, has there ever been an attempt to bring to Court as a dispute in
contentious proceedings a matter in which the Applicant State had no
legal interest or right,ither directly or through its subjects.
In fact, Mr. President, the Applicants themselves seek to found
their case as to locus standi" on the contention that they (as former
Members of the League of Nations or as Members of the United Nations)
have a legal interest in the matters presently before this Court; they
say, at pages 91-92 (I) of their Memorîals, as follows:
"The Applicant has a legal interest in seeing toit through judicial
process that the sacred trust of civilization created by the Mandate
is not violated." A:,:~GUMENT OF MR. MULLER 203
This contention is rep1:ated at page 463 (I) of the Observations, where ~
we find the following:
"... it was indeed ;;he intention of the founders of the Mandates
System to grant to each Member of the League a 'legal interest' in
the observance by the Mandatory of its obligations for the benefit
of the inhabitants of the Mandated territories".
Now, this contention of the Applicants, that is, that they have a legal
interest in seeing to it, through judicial process, that the sacred trust
of civilization is not violated, can be sound only if, upon a proper
construction of Article 22 of the Covenant and the Mandate instrument,
certain conclusions folkw. And the first conclusion must be that the
Members of the League were intended to have individually a legal interest
in the observance by the Mandatory of the conditions imposed in the
Mandate for the benefri: of the inhabitants of the territory, even in
cases where the breach of these obligations by the Mandatory did not
affect the material interests of individual League Members, either
directly or through their nationals. And the second conclusion that must
follow is that, in view o1such a legal interest, if it is held to exist, each
Member of the League, if it considered that the Mandatory was not
observing its obligations towards the inhabitants, was entitled not only
to raise the matter in tlie League for its consideration and attention,
but also to take it up directly with the Mandatory and, failingsatisfaction,
to institute contentious proceedings against the Mandatory with regard
thereto.
The answer to both th,~above questions must depend on the intention
of the parties. Of coursE, the intention of the parties must, primarily,
at least, be ascertained from an interpretation of Article22 of the Cove
nant and the Mandate instrument.
With regard to the first of the propositions that I have stated as
conclusions which must follow from the Applicants' contention, a con
sideration whcther individual League Members were intended to have a
legal interest inthe observance by the Mandatory of its duties towards
the inhabitants is necessary, not because there must be read into Article 7
a requirement which is not included in the text, but because the word
"dispute" in the very context of a compulsory jurisdiction clause bears,
as I have indicated, an inherent qualification, that qualification being
a disagreement or conflict relating to a matter in which the Applicant
who moves the Court bas a legal right or legal interest.
If, after due consideration, it is found that individual League Members
were not intended to have such a legal interest, then it follows that the
Applicants have no legal interest in the matters which are presently
before the Court, and ccnsequently there would then be no dispute as
envisaged in Article 7, for adjudication by the Court. That in itself would
put an end to the matt1:r in that this particular Objection must then
succeed, with respect; and that is so without reading into Article 7 a
requirement which is not included in the text thereof.
If, however, it were to be found that League Members were intended
to have a legal interest in the observance by the Mandatory of its
obligations towards the inhabitants, then, and then only, docs it become
necessary to consider the second of the propositions which I have stated,
that is, whether that legal interest was intended to be exercised by the
League Members collectively, that is, by raising of matters for discussion 204 SOUTH WEST AFRICA
L in the League itself, or whether it was intended for individual League
Members to be taken up in the form of disputes with the Mandatory
to which the provisions of Article 7 could apply.
The second general remark made by the Applicants concerning our
contention that no dispute can exist unless the subject-matter of the
dispute affects the material interests of the Applicants States or their
nationals, is to be found at page 450 (I) of the Observations. There the
Applicants say:
"Applicants submit that Respondent's contention is not only
erroneous in substance, but also misconceived in logic. If relevant
at all, Respondent's contention relates not to whether a 'dispute'
exists, but to whether or not the dispute relates to the 'interpretation
or the application' of the Mandate. Applicants accordingly will dis
cuss the contention under that heading in this Chapter."
Now, Mr. President, this submission of the Applicants, we submit,
attracts to itself the very label which they seek to fix to Respondent's
contention, namely a misconception in logic. Our contention is not con
cerned with the question whether the subject-matter of the dispute falls
within the category interpretation or application of the Mandate. We
assume, for the purposes of our argument, that it does so fall. Our
contention is concemed with the question whether the Applicants have
a legal intcrest inthe matters complained of by them and if so whether
that interest was intended to be enforceable by judicial process in terrns
of Article 7 ofthe Mandate.
Both these questions, as I have already indicated, tum upon the
meaning of the word "dispute" in the compulsory jurisdiction clause.
To illustrate the correctness of this view we can again have regard to
the M avrommatis case.
Let us assume that instead of the Government of the Greek Republic
another League Mcmber at the time had attempted to espouse the cause
of the Greek citizen Mavrommatis. The Court surely would have had no
jurisdiction-not because the subject-matter of the daim would have
been any different from what it in fact was, that is one conceming the
interpretation and application of the Mandate, but because of the absence
of any legal right on the part of the Applicant and therefore the absence
of a dispute as envisaged in the compulsory jurisdiction clause.
We wi!l therefore deal with the matter under what we conceive and
contend to be the correct rubric, namely whether there is a dispute, and
not under the heading chosen by the Applicants, namely whether the
dispute concerns the interpretation or application of the Mandate.
Having clarified the issues, I will now deal first with our contention
that it was not intended that League Members should individually have
legal rights or interests in the observance by the Mandatory of the
conditions imposed in the Mandate for the benefit of the inhabitants of
Mandated territories, so far as the non-observance thereof would not
affect the material interests of individual League Members either directly
or through their nationals.
This contention raises, in the first place, the question whether the
League of Nations was a legal persona or not.
At page 308 (1) of our written Objections, we cited weighty authority
for the view that the League of Nations was a corporate body endowed
with legal personality. ARGUMENT OF MR. MULLER 205
Nowhere in their Observations do the Applicants contest the propo
sition that the League was a legal persona. On the contrary, at page
448 (1) of their Observations, the Applicants state as follows:
"Respondent's argument misses the central point. If the League
still existed as such, and a State withdrew from membership, there
would still remain a corporatebody and a membership thereof which
could assure compliance with the Mandate."
A recognition then on the part of the Applicants that the League was a
corporate body. And, in fact, they propound an argument at page 446 (1)
of their Observations which seeks to apply to the League the operation
of a so-called carry-ove;: principle, a principle which, according to the
Applicants, is, by virtuE of certain statutory provisions in the laws of
various States, applicabie to corporations.
We have already dealt with the carry-over, or so-called carry-over
principle, but I mercly rder to it at this stage of my argument as proof
of the Applicants' acce))tance of the proposition that the League was
a legal persona. .
Now, with the League as a legal persona, it is only natural and logical,
we say, that the obligations imposed for the benefit of the inhabitants
would have been owed to the League on whose behalf the Mandatory
undertook to exercise the Mandate. League Members would then, by
virtue of their memberEhip, be entitled to participate in the League's
supervision of the Mandate, but would individually, vis-à-vis the Man
datory, have no legal right or interest inhe observance by the Mandatory
of its duties to the inhabitants.
It may be argued that in contracting with the Mandatory the League
obtained rights not only for itself but also for the individual Members.
either by way of a contract of agency or a contract for the benefit of
Members as third partie:;.
That the League in so contracting obtained for its individual Members
a legal interest in the provisions of the Mandate in so far as the non
observance thereof could affect the material interests of the Members
or their nationals is not disputed by us.
With regard to the provisions of the Mandate which were intended
solely for the benefit oi: the inhabitants, the non-observance whereof
could not affect the material interests of individual League Members or
of their nationals, the position, we submit, is, however, entirely different.
The provisions of Artide 22 of the Covenant and those of the Mandate
itself appear to exclud~ the possibility that League Members were
intendcd to have a legal interest in matters not affccting their material
interests, that is in mat-ters which could affect only the inhabitants.
Thus, in paragraph 2 of Article22 of the Covenant, there is a provision
in explicit tcrms that th<:Mandate should be exercised "on behalf of the
League". It did not proYidc that it should be exercised on behalf of the
League and its Member~. This provision was rcpeated in the preamble
to the Mandate instrnmrnt.
Then Article 7 of the Mandate made provision for modification of the
terms of the Mandate with the consent of the Council of the League.
Article 7 reads as followf :
"The consent of tile Council of the League of Nations is required
for any modification of the terms of the prcsent Mandate ..."206 SOUTH WEST AFRICA
There was no provision which required that the consent of individual
League Members be obtained, nor even that individual League Members
be consulted with regard to any proposed change of the terms of the
Mandate.
Another point is that paragraph r of Article 22 of the Covenant
provides that the securities for the performance of the sacred trust of
civilization were embodied in the Covenant itself. And the only securities
mentioned in the Covenant were those prescribed in paragraphs 7 and 9
of Article 22. These paragraphs read as follows:
"7. In every case of mandate. the Mandatory shall render to the
Council an annual report in reference to the territory committed to
its charge ...
9. A permanent Commission shall be constitutcd to receive and
examine the annual reports of the Mandatories and to advise the
Council on all matters relating to the observance of the mandates."
The Covenant did not provide, or contemplate, any accounting by a
Mandatory for its administration of the Mandate to individual League
Members, the only provisions, as I have indicated, being paragraphs
7 and 9 providing for accounting to the League itself. Moreover, the
1\fandatory's annual report had to be to the satisfaction of the Council.
Individual League Members had no say with regard to the nature and
scope of the contents of such a report.
When, thcreforc, the Covenant of the League, in Article 22, provided
in explicit terms that the Mandate would be exercised on behalf of the
League and not on behalf of the League and its Members; when Article
22 was intended to embody the securities for the performance of the
sacred trust and provided for accountability to the League only and not
also to its Members, and when in addition the Council, in framing the
Mandate instruments, retained for itself the right to consent, without
reference to individua1 League Members, to any modification of the terms
of the Mandate, surely then it would be strange if in the Mandate in
struments it was intended to confer on individual League Members a
legal interest in the observance by the Mandatory of its obligations, in
so far as such obligations affected only the inhabitants of Mandated
territories. Surely ifthat were the intention, it would have been stated
in explicit terms.
Mr. President, having tested the Applicants' contention against the
provisions of the Covenant and the Mandate instrument, let us have
regard to the probabilities of the mattcr, because our submission will be
that Applicant's contention also runs counter to the probabilities.
Supcrvisory fonctions with regard to Mandates wcre, in express terms,
reserved not for the Assembly of the Leaguc but for the Council-a
particular organ of the League with limited membership-acting with
the assistance of another particular body, the Permanent Mandates
Commission. We say that it could hardly hav~ been the intention that
in addition to the supervisory fonctions of the Council each and every
Member of the League would, by virtue of an individual legal interest,
stand in the position of a custodian of the rights of the inhabitants of
Mandated territories.
One cannot conceive of the Council intending, and the respective
Mandatories agreeing, that despite the express reservation of supervisory
fonctions to the Council, individual League Members would be entitled AnGUMENT OF MR. MULLER 207
to assert legal rights with regard to the Mandatories' legislative acts
and administrative meamres concerning the inhabitants of Mandated
territories.This could bring about interference by individual League
Members in all aspects of Government policy and political situations
involving the peoples of Mandated territories.
Surely the position of a i\fandatory would, to say the least, have been
extremely invidious under such circumstances. In accounting for its
administration to the Cüuncil of the League it may have satisfied that
body on all matters affocting the inhabitants, but still an individual
League Member, disagredng with the Mandatory and with the unanim
ous views of the Membern of the Council, and perhaps even with ail other
Members of the League, could, by virtuc of its legal rights, seek to impose
on the Mandatory its own particular views as to the proper administration
ofthe Mandate. And the Council's position in such circumstances would
have been equally invidic,us: the very conferment, we submit, on indivi
dual League Members of powers equal to, and concurrentwith, thoseof the
Council relative to Mandate administration would have tended to under
mine the Council's authority in that field.
One needs but look at the functions entrusted to the varions organs
ofthe League to realize that a right such as claimed by the Applicants for
themselves as individual League Members could never have been in
tended.
A League of Nations publication-The Mandate System-Origin
Principles-Application--makes it clear that the right to take decisions
in regard to Mandate questions belonged solely to the Council of the
League. We cite from tltis publication at page 385 (1) of the written
Objections:
"Thus the role oi the Assembly consists in the exercise of a
certain moral and very general influence in this domain. [That is
relative tomandate administration.] Its function may be said to be
to mai.ri.taintouch bctween public opinion and the Council.
The right to take à"ecisionsin regard to mandate questions belongs,
however, to the Council. It exercises its supervision with the aid of the
Permanent MandateE;Commission, instituted by the Covenant itself.
The Covenant provides that this Commission is 'to receive and
examine the annual reports of the Mandatories and to advise the
Council on all matters relating to the observance of the mandates'.
It is therefore essentially an advisory body-a body whose duty it
is to examine and report-designed to assist the Council in carrying
out its task. Its work is preliminary in character. Constitutionally,
it has no power to take decisions binding on the mandatory Powers or
to address di"rectrecommendations to !hem. Its conclusions are not
final until they have been approved by the Council."
It is clear, then, as we read from that publication, that the Permanent
Mandates Commission-a body of experts-provided for in the Covenant
as an important cog in the system of Mandate supervision, was not
even entitled to address a recommendation to a Mandatory; and even the
Assembly composed of all the Member States could take no decisions in
regard to Mandate questions. Surely, then, it could not have been in
tended that an individull League Member would have the right to
decide for itself what me,15ures should be adopted by a Mandatory, or208 SOUTH WEST AFRICA
should not be adopted, and then to assert a right against the Mandatory
in that regard.
The Applicants' contention must result in at Ieast the acceptance of
the possibility that an individual League Member could assert rights
against a Mandatory with regard to matters of policy in Mandate admin
istration.
But even more, it must result also in the acceptance of a possibility
that in the exercise of its individual rights a League Member could,
on its own, seek to dictate to a Mandatory the adoption of a particular
policy, and that so, despite the fact that such a policy may have been
considered unwise by the Mandates Commission, outvoted by the General
Assembly and even rejected by the Council of the League.
Furthermore, the Mandatory could stand in the midst of conflicting
demands upon it by different Members who do not see eye to eye with the
Mandatory and with each other as to policies to be applied in Mandate
administration. One Member could favour a particular policy, another
Member an entirely different policy.
Surely the question whether such a situation could ever have been
intended need but be asked to answer itself.
We therefore contend that individual Members of the League were not
intended to have a legal right or interestin the observance by the Man
datory of conditions imposed in the Mandate for the benefit of the in
habitants of the Mandated territory, the non-observance of which could
not affect the material interests of the individual League Members, either
directly or through their nationals.
That League Members were meant to have certain legal rights in the
administration of Mandated territories is clear. Each of the Mandate
instruments contained provisions apparently intended also for the benefit
of Member States and their nationals. We have, for example, the open
door provisions appearing in all the A and the B Mandates and we have
provisions in the C Mandates relative to the rights of freedom of move
ment of missionaries who are nationals of League Members. Then there
were also contained in the Mandate instruments other provisions,
primarily intended for the benefit of the inhabitants, but the non
observance of which could, however, affect also the material interests of
individual League Members. To mention, as examples, the provisions with
to the slave trade, provisions with regard to traffic in liquor if
regard
these provisions were violated by a Mandatory it could perhaps affect a
neighbouring State which, being a Member of the League, would then
have a right to object and would have a legal right to assert in that
respect. But in our submission it follows, not orùy from a proper construc
tfon of Article 22 of the Covenant and the Mandate instrument, but also
from a consideration of all the probabilities that League Members
were not intended to have a legal interest of the kind contended for by
the Applicants, namely a legal interest to see to it that a Mandatory
observed its obligations to the inhabitants, and that so even where a
League Member was unable to point at any matter affecting its own
nationals or itself.
We say that, inasmuch as the Applicants do not, and in truth cannot,
contend that they or their nationals are affected by the matters in conflict
in these cases, their legal interests are not involved and there is accord
ingly no dispute as envisaged in Article 7 of the Mandate for adjudica
tionby the Court. AEGUMENT OF MR. MULLER 209
But, Mr. President, if, contrary to what I have just submitted, it
should be held that individual League Members were intended to have
a legal interest in the ob~,ervance by a Mandatory of all its obligations,
including also the obligations intended solely for the benefit of the
inhabitants, the non-obsuvance whereof could not affect Member States
either directly or through their nationals, then the further question arises,
and that is, whether such interest, in so far as it concerned the well
being of the inhabitants, was intended to be exercised only by partici
pation in League procetdings regarding Mandates, or also by direct
action against a Mandatory and invocation of Article 7.
Individual League Members could have had such a broad interest as
I have indicated, only if it should be held, contrary to the weighty
authority relied on by us, and apparently accepted by the Applicants,
that the League was not a legal persona and that all the Mandatory
obligations were consequently intended to be owed to the individual
League Members; or, if the League should be regarded as a legal persona,
that, despite the provisions of Article 22 of the Covenant and the Man
date instrument, and de,;pite the anomalies and implications which I
have mentioned, it was intended that a legal interest in the observance
of all the provisions of the Mandate should vest not only in the League as
a corporate body but alsc, in the individual League Members.
Again, in that respect, 1he enquiry centres around the provisions of the
Covenant and the Mandate instrument and around the probabilities of
the case.
Looking first at the Cc,venant and the Mandate instrument, we find
that according to paragraph I of Article 22 of the Covenant securities
for the performance of the sacred trust of civilization were embodied
in the Covenant itself. With regard to supervision of the Mandatories
in the exercise of their Mandates, the Covenant made provision only for
supervision by the Council of the League.
There was no mention in Article 22 of the Covenant, or in any other
part of the Covenant, of a forrnof judicial supervision, or, for that matter,
any form of supervision c,ther than that to be exercised by the League
itself.
· We say, then, that it is unlikely that, in the absence of any provision
to that effect in the Coveuant, Article 7 of the Mandate was intended to
establish a form of judicial supervision. If it were so intended, one would
surely have expected it te-be expressed in very clear terms.
Moreover, where provi~ion was made for supervision by the League
itself,what need was there for an additional and independent supervisory
body? The League was empowered to deal with all matters pertaining to
Mandate administration. :lndividual Members could raise for discussion
in the organs of the League any matters pertaining to Mandate admin
istration and, in that manner, they could assert whatever legal rights they
had in the observance by the Mandatory of its obligations in so far as the
inhabitants were concerned. In any matter which involved a legal ques
tion concerning the interpretation or application of the provisions of the
Mandate, the League coule!have had resort to the Court for an advisory
opinion. •
We say that it is unlikEly that the Council of the League could have
considered that there would be need for judicial supervision of the nature
contended for by the Applîcants. In our submission such a view on the
part of the Council would have been tantamount to an acknowledgment210 SOUTH WEST AFRICA
in advance of a possible failure of its supervision; and, surely, the Council
must have foreseen the danger of confüct or interference with its own
supervision.
In this respect attention is again drawn to the anomalous situations
which could arise if, in addition to the League's supervision, individual
Member States were entitled to interfere with the exercise bya Mandatory
of its legislative and administrative powers.
The position becomes all the more anomalous if such interference
was armed with the right of subjecting the Mandatory to legal procee
dings.
A Member of the League, being dissatisfied with the Mandatory's ad
ministration, and not being content with the Council's approval thereof,
could demand a change under threat of legal proceedings. The position
could arise where different States make different and even conflicting
demands on the Mandatory which, if not resolved by negotiation, could
be submitted to the Court.
Now, how could a Mandatory whose administration carried the appro
val of the League negotiate for a change which could conflict with the
views of the Council? Concessions made to one Member could still be
rejected by another, or the others; and the Mandatory's willingness to
effect changes and to negotiate a settlement would have been of no avail,
resulting in its having to defend judicial proceedings at the instance of
one or other, or perhaps even both such States.
The very idea of such negotiation sounds unreal-not only in the com
plicated circumstances that I have just mentioned, but in any case
involving matters of policy, as applied in legislative measures and
administrative acts.
Furthermore, as we have indicated at pages 386-388 (I) of our written
Objections, the Court could then be called upon to fonction as an
umpire in matters of a purely political nature, namely, to pronounce
upon the soundness of a Mandatory's legislative acts and administrative
measures involving the material and moral well-being and the social
progress of the inhabitants of a l\fandated territory.
In our submission, such a role could not have been intended for the
Court; we say it is a role outside the normal fonctions of Courts of law.
The compulsory jurisdiction clause was meant, we submit, for the
protection of Member States, that is, to obtain judicial pronouncement
on matters which affect their material interests, either directly or
through their nationals. I have already mentioned examples of the
material interests of States that could be affected.
In our submission, the Applicants' contention that the purpose of the
clause was to establish a judicial supervisory organ in the Mandates
system, is not only in conflict with the provisions of Article 22 of the ·
Covenant, but, as I have indicated, is also against all the probabilities.
To invoke the clause, as the Applicants attempt to do, with the
intention, as they say, of. benefiting only. the inhabitants of South
West Africa, and without being able to point at any matter affecting the
material interests of the Applicants themselves, or of their subjects,
is,in our submission, an attempted application of the provisions of the
clause towards a purpose for which they were not intended.
In the premises, Mr. President, we submit that the Applicants have
no locus standi in the present proceedings and it follows then, in our
submission, that the Court accordingly has no jurisdiction. ARGUMENT OF MR. MULLER 2II
Mr. President, I deal next with the Applicants' reply to the con
tentions raised by us in regard to this Objection. They deal with it
at pages 456 (1) to 473 of the Observations, under the heading: "The
Dispute Relates to the foterpretation and the Application of the Provi
sions of the Mandate." Now, as I have already stated, this is an inap
propriate rubric for constderation of this Objection.
The Applicants start off by quoting from the majority view in the
Mavrommatis case, that 2.dispute covered by the compulsory jurisdiction
clause in the Mandate imtruments
"may be of any nature; the language of the article in this respect
is as comprehensiv,~ as possible (any dispute whatever...); but in
every case it must relate to the interpretation or the application
of the provisions of ·~heMandate". (Observations, p. 456 (1).)
The Applicants then proceed to restate the matters with regard
whereto there exists a conflict or disagreement between them and
Respondent, in order to demonstrate that these matters concern the
interpretation and the application of the provisions of the Mandate.
Now, for the purposes of this Objection we have, of course, assumed
that the matters now before the Court are covered by the provisions
of Article7 of the Mandate, in so far as that Article requires that matters
for adjudication must relate to the interpretation or the application of
the provisions of the Mandate.
Our contention, as aclvanced in the written Objections, and as I
have already dealt with in argument, is that the conflict or disagreement
between the parties does not constitute a "dispute" as envisaged in
Article 7 of the Mandate.
Our case in this respect is very tersely put by the Applicants at
page 457 (1) of their Ob!,ervations, where they say as follows:
"Respondent, however, contends that no 'dispute' is envisaged
by Article 7 unless the subject-matter affects a material interest
of an Applicant Stat~ or of its national."
Now, correct as this étaiement may be, it does not bring out the
grounds underlying our contention. These grounds are: firstly, that the
word "dispute" in a jurisdiction clause such as Article 7 connotes a
conflict or disagreement concerning matters in which the Applicant
has a legal right or interest. The second is that the Applicants as in
dividual League Members were not intended to have a legal right or
interest in matters such as those now before the Court unless their
material interests were affected either directly or through their nationals;
and inasmuch as their material interests are not affected, their legal
rights or interests are n,)t involved, and therefore it cannot be said
that there is a dispute in terms of Article 7. Finally, that even ifit can
be said that the Applicants have a legal right or legal interest in the
matters presently before the Court, we say it was not intended that
such right or interest could, in the absence of anything affecting the
material interests of the Applicants or their nationals, give rise to a
dispute envisaged in Article 7 for the adjudication by the Court.
In proceeding, the Applicants state that Respondent cites in support
of its position the "Mavrommatis case, the case of Jerusalem-Jatfa
District Governorand anotker v. Suleiman Murra and others, and the views
of four writers, Feinberg, Judge McNair, Wessels and Schwarzenberger".212 SOUTH WEST AFRICA'
(Observati·ons,p. 457 (1).) That this statement is not entirely correctwill
be shown later when I deal specifically with these authorities.
A further statement by the Applicants is that ''Respondent also
asserts general principles, including its view that the framers of the
Mandates system did not intend that a dispute of the sort involved
here [i.e. the proceedings presently before the Court] would be covered
by Article 7''.(Observations, p. 457 (1).) · · ·
Now, this statement is correct as far as it goes, but it conveniently
omits any reference to the fact that for our contention we rely to a very
great extent on the provisions of Article 22 of the Covenant and on
the provisions of the Mandate instrument.
The Applicants follow up, in their Observations at pages 457-458, with
certain submissions. Those submissions are: that "the opinions in the
M avrommatis case and the J erusalem case do not ... support Respondent's
view"; secondly, that "two of the scholarly authorities cited by Res
pondent do not support Respondent's contention, and a large number
of other scholars, expert in the Mandates system, support Applicants'
view"; thirdly, that "the framers of the Mandates system intended
that the type of dispute involved in the instant cases should be covered
by Article 7 of the Mandate"; and in the fourth place, that "even if
Article 7 were interpreted as requiring a so-called 'material interest',
such an interest is present" in the cases now before the Court.
I will deal with each of these four submissions in the same order in
which they are dealt with by the Applicants in their Observations.
In regard to the first part of the.Applicants' argument, there appears
under the heading: "The Purpose and History of the Compromissory
Clause in the Mandates System", the following passage, at page 458 (1):
"The announced intention of the founders of the Mandates
System, the circumstances surrounding the creation of the System,
and the nature of the structure they created, demonstrate that the
Permanent Court of International Justice was designed to be an
integral part of the supervisory machinery of the system. It was
intended to adjudicate, at the instance of any Member of the League,
disputes affecting the interpretation and application of the Mandate
with respect to the well-being of the inhabitants of the Mandated
terri tories."
That is a statement in general of the Applicants' contention. Now,
on what is that contention founded?
First,the Applicants at that very page point to a so-called "overriding
concern demonstrated by the founders of the Mandates system for the
well-being and development of the inhabitants" of Mandated territories.
They refer in this respect to President Wilson's expressed view that
the "purpose [of the system] was to serve the people in undeveloped
r,arts,and to safeguard them against abuses"; the Applicants say that
'the concept of the 'sacred trust', the explicit norms and standards
imposed on the Mandatory, and the unprecedented machinery of inter
national supervision, all had their animating principle in the desire of
advanced nations to protect and assist peoples not yet able to stand
for themselves". (Observations, p. 458 (1).) They go on to quote this Court
in its Advisory Opinion of 1950 to the effect that "the Mandate was
created, in the interest of the inhabitants of the territory, and of hu
manity in general, as an international institution with an international AliGUMENT OF MR. MULLER 213
object-a sacred trust c,f civilization". (I950 Opinion, p. 132.) They
then draw the conclusion that "inasmuch as the well-being of the in
habitants of Mandated territories constitutes the essential purpose of
the Mandates system, it is impossible to accept Respondent's contention
that the Court may not entertain disputes which are primarily concerned
with the well-being of sw:h inhabitants" (Observations, p. 458 (1)) their
contention then being that it is impossible to accept Respondent's
contention that the well-being of the inhabitants may not be protected
by contentious proceedings.
But supposing, for the purposes of argument, that the Applicants are
correct in saying that th,! well-being of the inhabitants constituted the
essential purpose, or an essential purpose, of the Mandates system, how
does the conclusion follow that such well-being was intended to be
protected by judicial proŒedings at the instance of individual Members
of the League?
Surely the question as to whether there was meant to be a form of
judicial supervision depends upon the intention of the authors of the
Mandates system, that is, the authors of the Covenant; and their
intentions must, primarily at least, be gathered from an interpretation
of the provisions of the Covenant.
Let us then look at the provisions of the Covenant to see what was
the intention of the authors of the Mandates system. Article 22 of the
Covenant provided that foe tutelage of the inhabitants should be exer
cised on behalf of the Lt·ague, and there is no provision, as I have in
dicated, for it to be exerdsed on behalf of individual League Members,
as one would have expected if the intention were to confer on individual
League Members rights e,1forcible by judicial process with regard to the
well-being of the inhabitênts.
Article 22 recorded that the securities for the performance of the
sacred trust, that is the 3ecurities for the protection and promotion of
the well-being of inhabitants of Mandated territories, were embodied
in the Covenant, and as I have indicated, Article 22 prescribed securities
only in the form of certain supervisory machinery to be found in the
Council of the League and in the Permanent Mandates Commission.
No other form of supervision was either mentioned or contemplated in
Article 22, or, for that matter, in any other part of the Covenant.
The Council of the League was empowered, in terms of paragraph 8
of Article 22, to define in each case the degiee of authority, control or
administration to be exercised by the Mandatory. The Council was not
authorized to create additional supervisory machinery not provided for
in the Covenant.
In the light of these explicit provisions of Article 22, how can it
then be said that Article 7 of the Mandate was intended to create an
additional security or safeguard in the form of judicial supervision?
The Applicants, however, with remarkable facility, we submit, disregard
entirely the express provisions of Article 22 of the Covenant and, more
over, they avoid the argument propounded by us with reference thereto.
Nowhere in their Observations do they take us up on our contentions
that, by reference to the Covenant and the provisions of the Mandate,
it is clear that the intentions of the authors of the system did not include
an idea of a judicial supervisory organ. 214 SOUTH WEST AFRICA
[Public hearing of IO Octoberz962, afternoon]
Mr. President, I am still dealing with the Applicants' reply to our
contention that Article 7 of the Mandate was not intended to introducc
a form of judicial supervision into the Mandates system. The Applicants
at page 459 (I) of their Observations make the statement that "It is
significantthat the authors of the Mandates system includcd a supreme
judicial power within the organic structure of that system". But this state
ment, we say, is far removed from the realities of the situation. As I have
already indicated, the authors of the Mandates system described the
structure of that system and prescribed the supervisory machinery for
the system in Article 22 of the Covenant, which, as I have indicated,
makes no mention of a judicial power, supreme or otherwisc. ln fact,
as far as we are aware there was not even any discussion with regard
to judicial power or judicial supervision when the .Mandates system was
planned, that is, before and at the time of drafting of the Covenant.
If the compulsory jurisdiction clause in the Mandate instruments was
intended to introduce a form of judicial supervision, it would indeed
mean that the Council of the League, which body was empowered to
define only the dcgree of authority, control or administration to be
exercised by the Mandatory in each case, and which body purported,
according to the preamble in each of the Mandate instruments, to do
only that, in fact went further; that it excceded its authority and created
supervisory machinery for the Mandates system not contemplated by
the authors of that system; and moreover, as Applicants wish to sec it,
machinery of superior authority to that prescribed by the authors of
the system, namely, as the Applicants tcrm it, a supreme judicial
authority. Surely such a suggestion cannot be accepted as a matter of
probability.
How do the Applicants proceed further in their argument? They say
at page 459 (I) of their Observations that:
"Mandatories wcre required to agree when a Mandate was confcr
red that disputes concerning the Mandate bctween themselves and
another Member of the Organization to which they belonged would
be submitted to the Permanent Court of International Justice."
Now of course the respective Mandatories did agree to the compulsory
jurisdiction clause in each Mandate instrument. If that is what the
Applicants intend to convey, we have no quarrel with regard to the
statement. If, however, they intend something more than that, then we
say it is without any justification.
Next, at page 459 (1) of the Observations, cornes the statement of the
Applicants that "The Court, itself, was, like the Mandates system, a
creation of the Covenant". Now, how this fact supports the Applicants'
contention is not clear tome.
They go on at page 459 to say that:
"Far from objecting to the establishment of a supreme judicial
authority, the Council not only accepted it as an ancillary of the
Mandates System by 'confirming' the instrument in which it ap
peared, but also amended the original draft so that the Mandatory,
and only the Mandatory, would be subject to compulsory jurisdiction
at the instance of another Member of the Leaguc." AF:GUMENT OF MR. MULLER 215
Now let us analyze the contentions wrapped up in this statement.
The fact that the Council confirmed each of the Mandate instruments
with a compulsory jurisdiction clause in the text shows, of course, that
it did not abject to such a clause; but that the Council saw the purpose
of that clause as the establishment of a supreme judicial authority or
that it regarded the judicial authority provided for in the clause as an
ancillary of the Mandates system is, of course, a view expressed by the
Applicants without advancing any basis for it. The amendment by the
Council of the draft compulsory jurisdiction clause referred to by the
Applicants at that page is dealt with in the report submitted to the
Council by Viscount Ishii. At page 459 (I) of the Observations there is a
refcrence to this report and, with respect, I think it is a wrong reference.
The first footnote at pag,~459 of the Observations is "See Report to the
Council of the League of Nations submitted by Viscount Ishii, February
20, 1922, League of Nations Off. J., No. 7 (r922}, p. 849 at 854". \Ve
find the report in the eighth Official Journal of that year at the very page
to which the Applicants refer, and I want to quote from that report the
portion that is material. It deals with Article 13 of what was proposed
as the British draft Mandate for East Africa; and that portion of the
report reads as follows:
"The Council will perhaps dcsirc to alter the first paragraph of
this article so that it shall read as follows:
'The ]Yandatory agrees that any dispute whatever which may arise
between himself a11d another Member of the League of Nations,
relatingto the interpretation or application of the provisions of the
present mandate, ivhich cannot be settled by negotiation, shall be
submitted to the Permanent Court of International Justice provided
for in Article I4 oj'the Covenant of the League of Nations.'
A similar alteratim1 has been made by the Council in the draft C
mandates. It was inspired by the consideration that Members of the
League other than the Mandatory could not be forced against their
will to submit their differences to the Permanent Court of Inter
national Justice."
Now although the report does not record the wording of the relevant
clause as originally draftcd, the reasons advanced in the report for the
suggested amendment are clear. The intention was that only Manda tories
should, by virtue of the clause, be subject to the jurisdiction of the Court;
but that does not indicafo any intention to subject them to jurisdiction
in the form of supervisory machinery. And the further conclusion which
the Applicants draw from the fact that there was such an amendment,
namely a conclusion that it was consistent with their fiduciary role that
Mandatories were require(l to consent to the Court's jurisdiction, we say
is unfounded, that is if ü is intended to convey a notion of judicial
supervision imposed for the benefit of the inhabitants of a Mandated
territory. The Applicants, in fact, advance nothing in support of such
a notion.
Also at page 459 (I) of the Observations the Applicants go on to say
that "Compulsory jurisdiction in Mandate matters was instituted, then,
for the same reason that the Mandatory was required to submit annual
reports to the Council". Now this statement, advanced in the form of a
conclusion; and presumably based upon what the Applicants had stated216 SOUTH WEST AFRICA
in their Observations up to that point, is not only in conflict with the
express provisions of Article 22 of the Covenant and with the other
provisions of the Mandate itself, but we say it is not supported by any
historical fact or circumstance-it rests purely and simply on the Appli
cants' own views as to the purpose of the clause in question.
Applicants develop their conclusion further by saying that the League
"was not content to depend solely upon the conscience, or, indeed,
the competence of the Mandatory for the proper exercise of the
Mandate. Rather, it devised a system whereby the Mandatory's ad
ministration of the Mandated territory was made subject to the
authority of the League and its Members to require the Mandatory
to report, account, and, if necessary, submit to adjudication."
(Observations, p. 459 (1).)
Mr. President, this of course is a convenient way of telescoping certain
provisions of Article 22 of the Covenant and certain provisions of the
Mandate instrument. We submit, however, that there is no justification
for doing so.In terms both of the Covenant and the Mandate instrument,
the Mandate was to be exercised on behalf of the League and the Man
datory was obliged toreport to the Council of the League. No authority
or right of interference was conferred on individual League Members
with regard to the Mandatory's duty to report and account. On the other
hand, the compulsory jurisdiction clause specifically provided that the
Mandatory would submit to the jurisdiction of the Court at the instance
of another Member of the League, and then only in respect of disputes
between the Mandatory as such and that other Member. No provision
was made for the League to resort to judicial proceedings against the
Mandatory, or to refer its disputes with the Mandatory for adjudication
by the Court in contentious proceedings. By so telescoping the provisions
relative to accounting to the League and the provisions of Article 7 of
the Mandate, the Applicants attempt to claim rights for League Members
which they were not intended to have. And they extend the provisions
of Article 7 to the League as an organization. Again that is something
which was not intended or expressed in the Mandate.
The Applicants also state that the Permanent Court was intended as
an integral part of the system's supervisory machinery protecting the
inhabitants, and that the authorities so classify and regard it; and
further that each Member of the League, under the defined circumstances,
was empowered to invoke the jurisdiction of the Court to ensure that
the basic purpose of the Mandates system-the well-being and develop
ment of the inhabitants~would be fulfilled. Now, save for the reference
to the views of the authorities, judicial and scholarly, which I will deal
with later, this statement is a mere repetition of the Applicants' con
tention which I have already dealt witli, and there is nothing advanced
in support of it.
As an indication of the intention of the authors of the Mandate system,
the Applicants draw attention at page 459 (1) of their Observations to the
fact that in one of the Mandate instruments, namely that for the Man
dated territory of Tanganyika, there appeared an additional paragraph
which provided that Members of the League could bring before the
Court claims on behalf of their nationals for infractions of their rights
under that particular Mandate. AF:GUMENT OF MR. tfULLER 217
Now the Applicants say that as a matter of history tlus additional
paragraph appeared in E·.1t1he Mandate instruments and that at some
stage before the final c0:1firmation of the Mandates-though it cannot
be established at what particular stage-the additional paragraph was
excised from ail the Mandate instruments save that of the Mandate for
Tanganyika. "This history", the Applicants say further, "creates pro
found difficulty for Respondent's contention that a 'rnaterial interest' of
a State, or its nationals, must be affected before the compromissory
clause may be invoked since itdemonstrates that there was at least some
original thought that the general paragraph did not provide for the
daims of nationals at all." (Observations,p. 460 (1).) In this respect the
Applicants also refer to 1he views expressed by two Judges of the Per
manent Court in the Mavrommatis case, the Judges being Judge de
Bustamante and Judge Oda, their view being that "Members of the
League were not empowi!red under the compromissory clauses, lacking
the addidional paragraph continued [sic] in the East Africa Mandate,
to protect the rights of their own nationals before the Court, but could
protect only interests of a general nature". (Observations, p. 459 (1).)
Now, in the first place, we say that the lustory of the additional
paragraph found in the Tanganyika Mandate is not clear. It is not even
clear whether the additional paragraph was originally inserted in all the
Mandates, including the C Mandates, and later excised from all but the
Mandate for Tanganyika, or whether it originally appeared only in the
B Mandates, or for that matter only in the Mandate for Tanganyika.
It will be noted that the Applicants do not refer to any writings or any
record of history for their staternent at page 460 (1) of the Observations
to the effect that the additional clause originally appeared in all the Man~
dates and was later excisEd from all except the Mandate for Tanganyika.
However, even if the Applicants' statement is correct in so far as the
lustory goes, we subrnit that no conclusion which supports the Applicants'
general contention can b~,drawn therefrom.
I will deal later with the Mavrommatis case and the views expressed
by the majority, as well as the dissenting judges, in that case. At tlus
stage I wish rnerely to mention the fact that the majority decision in
that case was to the effoct that the compulsory jurisdiction clause in
the Mandate for Palestine, wluch did not indude the additional para~
graph, allowed for the protection by Members of the League of therights
of their nationals.
But even if it isconceded tha t there mayhave been some original thought
to the contrary, that does not mean that the compulsory jurisdiction
clause in the forrn in whi,:h it appears in all the Mandates, and without
the additional paragraph found in the Mandate for Tanganyika, was
intended to be invoked for the protection of the interests of the in
habitants of Mandated territories. Apart from the individual rights of
their nationals, States, a~ such, also have rights. Although the chapter
of lustory referred to by the Applicants may have a bearing on the ques
tion whether it was intended that Member States should be entitled to
enforce the daims of theü: nationals, it has no bearing on, and does not
refute, our contention that Member States were intended to invoke the
compulsory jurisdiction clause in assertion of their own rights in matters
affecting their material interests, and that the clause was not intended
for espousing the cause o1the inhabitants of Mandated territories.218 SOUTH WEST AFRICA
Also under the heading "The Purpose and History of the Compromis
sory Clause in the Mandate System'' Applicants comment, at page 460 (1)
of their Observations, upon certain arguments advanced by us in support
of the contention that the probabilities are against the creation by means
of the compulsory jurisdiction clause of a system of judicial supervision.
In response to our submission that to assume a need for judicial
supervision would have been tantamount to an acknowledgment in
advance by the Council of the League of probable failure by it to perform
adequately the supervisory fonctions entrusted toit, the Applicants say
that "judicial recourse implies no distrust of administrative supervision.
On the contrary, its purpose in the Mandates system is to enforce the
Mandate through contentious proceedings, a power not vested in the
administrative or executive organs''. (Observations, p. 460 (1).)
This line of reasoning by the Applicants proceeds on their assumption
that the authors of the Mandate system must have considered it essential
that Mandates be enforceable through contentious proceedings. Working
on this assumption, the Applicants point to the fact that the only method
of initiating contentious proceedings is through States, for, as they say,
only States may be parties to such proceedings; and therefore, say the
Applicants, the purpose of the compulsory jurisdiction clause in the
Mandate is to enforce the Mandate through contentious proceedings.
Building further on their initial premise, Applicants say that States are
not custodians, that their right toinstitute judicial proceedings is not an
interference with the policies adopted by the Mandatories, that the
"State does not supervise; the State, rather, requests the Court to ad
judicate a dispute. In doing so it may act as the instrumentality by
which the Supervis::-ry Organization as a whole may obtain a binding
decision by a contentious proceeding." (Observations, p. 460 (1).)
How far is this argument not removed from the realities of the legal
situation as provided for in the Covenant and the Mandate instruments?
In the first place, as regards Applicants' assumption, Article 22 of the
Covenant, which prescribed the securities for the performance of the
sacred trust, made no provision for enforcement of the Mandate through
contentions proceedings, nor does the Mandate instrument.
Secondly, the compulsory jurisdiction clause made provision for ad
judication of disputes existing between a Mandatory and another Member
of the League of Nations; it made no provision for differences which could
exist between the Mandatory and the organs of the League.
And finally, there is no provision indicating an intention that the
League, as the supervisory organization, should be entitled to obtain a
decision in contentious proceedings through the instrumentality of a
Member of the League of Nations.
The compulsory jurisdiction clause did not subject individual League
Members to the Council's decisions conceming Mandate administration,
and ifthat clause brought into existence a form of judicial supervision,
then we say there is justification in our comment that individual League
Members would stand in the position of custodians of the rights of the
inhabitants of Mandated terri tories, that they could interfere in Mandate
administration, and that so, even in disregard of the decisions of the
Council.
The Applicants' reply to our argument that if there was a form of
judicial supervision aMandatory might satisfy the Mandates Commission
and yet be attacked judicially by individual Members on the same point ARGUMENT OF MR. MULLER 219
is that this underlines the importance of the judicial jurisdiction in order
to obviate unresolved dü;putes between the Mandatory, on the one hand,
and Member States on trre other.
This, of course, is no =i.rgumentin answer to our complaint. Nor is it
an answer to say, as the Applicants further do, that ifthe Mandatory's
position in such a dispm:e were to be based upon decisions or policies of
the Council and the Commission, the Court would no doubt give due
weight to such a record. No doubt the Court would take into consider
ation the decisions of the Council and/or the views of the Commission,
but that would not resol-,e the difficulty foreseen by us.
The Court would, in such a case, still have to decide between the
opposed contentions, and the possibility of a decision against the Man
datory, even though its policies may be favoured by the Council, cannot
be ruled out. And furth,~rmore, even though the Court may, in such a
case, find in favour of a Mandatory, there would still have been the
expense and inconvenience involved in contentious proceedings.
Mr. President, in our written Objections it was contended, at pages
384-385 (1), that on analysis of the functions of the various organs of the
League in its supervision of Mandate administration, and the implications
resulting therefrom, there is support for our denial of the contention that
the Court was intended i:o act as an independent supervisory authority
at the instance of individual League Members. In this respect, we drew
attention, as I have also done in the present argument, to the limitation
of powers of the Mandates Commission and of the General Assembly of
the League relative to Mandate administration, and we indicated that
if the compulsory jurisdiction clause was intended to provide a form of
judicial supervision, then, with regard to Mandate administration, it
would mean that the powers of individual League Members far exceeded
those of both the Mandates Commission and the General Assembly.
How do the Applicants react to that contention? We find their reaction
at page 461 (I) of the Observations where they say:
"So far as concerns Respondent's implied critîcism that the Court
might be induced 'to act as an independent supervisory authority',
the fact is that only one contentious case, prior to the instant cases,
was instituted under the compromissory clauses of the several Man
dates, and that the instant cases were brought only after years of
unavailing negotiations with Respondent."
Now the prior case refr:rred to by them is, of course, the M avrommatis
case, a case in which a Member State espoused the daim of its own
national and did not appear in the role of a custodian on behalf of the
inhabitants of a Mandakd territory.
The fact that, in addition to the Mavrommatis case, the present cases
are the only ones yet brought to Court under the compulsory jurisdiction
clauses of the several Mandates is no proof of judicious exercise of the
alleged right to invoke judicial supervision. No State, other than the Ap
plicants in the present use, have ever claimed locus standi before the
Court as the protector and custodian of the rights of inhabitants of
Mandated territories.
A further reply by the Applicants, on the very same page-461 (I) of
the Observations-is:
"Respondent's fear that the Court would be improperly used, or
that the threat of proceedings would be used, minimizes the im-220 SOUTH WEST AFRICA
portance of the requirement that under Article 7 the Court may
entertain only disputes that 'cannot be settled by negotiations' ..
This is an explicit bar to improper or excessive use of the com
promissory clause."
I must say that Respondent's own experience with regard to negotia
tions in the present conflict hardly bears this out. Though invited to
negotiate with regard to the position of South West Africa, it has, at the
same time, been made clear to Respondent that the majority of States in
the United Nations would not be satisfied with any settlement of the
conflict which would not result in the territory being brought within the
United NationsTrusteeship system; and, Mr. President, that is so despite
the Court's Opinion that Respondent was not obliged to do so. This is
a matter which I will develop fully in connection with our Fourth Ob
jection; I merely mention it here relative to the suggestion that nego
tiation, or the requirement for negotiation, would be a bar to the im
proper use of the compulsory jurisdiction <:clause.
At page 46r (1) of the Observations, Quincy Wright is relied upon by
the Applicants for the proposition that the League organs were not ail
eventually responsible to a supreme authority, but were mutually inde
pendent. This, I must say, is rather in discord with the Applicants' own
description of the Court at page 459 of the Observations, where they refer
to the Court as the "supreme judicial power", and the "supreme judicial
authority, within the organic structure of the Mandates system".
In any event, even accepting Wright's statement of the position to be
correct, how does that justify the conclusion drawn by the Applicants,
at page 46r of their Observations, that the "principal role of the Court
is to adjudicate disputes brought to it, within the terms of the com
promissory clauses by Members of the League, when administrative
resources have been fully, and, as in the instant cases, exhaustively
employed".
That clause itself does not refer to administrative resources at all, nor
is there any indication in the Mandate instrument that the right to
invoke the clause was to be dependent in any way upon prior adminis
trative action. The clause, of course, requires prior negotiation, but
negotiation with regard to disputes existing between the Mandatory and
another Member of the League of Nations, and not with regard to a
possible difference between the Mandatory and the Council, or, for that
matter, any other organ of the League.
Upon the Applicants' contention, the compulsory jurisdiction clause,
in order to ensure for the Court the role which Applicants ascribe to it
in the Mandates system, would have to be construed as if it provided
something like this-I have formulated the words which I think would be
required to meet with the Applicants' description of the fonctions of the
Court-it would read this way, I think:
"If any dispute whatever should arise between the Mandatory and
the Council of the League of Nations relating to the interpretation or
application of the provisions of the Mandate, such dispute, if it cannot
be settled by the administrative resources of the League of Nations,
shall be subnütted to the Court by any Member of the League acting for
and on behalf of the League."
Now, with respect, Mr. President, the clause does not so provide. AF:GUMENT OF MR. MULLER
22I
In support of our contention that the Court was not meant to function
as a supervisory authority in Mandate administration, we stated, at pages
386-387 (1) of our Objections, that it is unlikely that the Council of the
League and the Mandate-ries intended that the Court should pronounce
on matters ofpolicy affecting the material and moral well-being and social
progress of the inhabitants as this could involve decisions of a purely
political character normally considered to be outside the functions of
courts of law. This is a point of particular importance in the instant
cases, where the matters alleged to be in conflict centre around political
issues, and where the Court is invited to pronounce on Respondent's
policies of government in South West Africa. The Applicants' reply to
our contention is at pages 461-462 (1) of their Observations, and it is to
this effect, that "while Articl2 of the Mandate] is broad in scope, it must
be remembered that in interpreting and applying it the Court would have
the advantage of the particular standards set forth in the other Articles
of the Mandate and in the Covenant". They say, further:
"These standards were the distillation of a century or more of
experience in colonial administration and were included in the consti
tutional documents of the Mandates System, because the ideals they
expressed were being put into practice by the System itself. The
Court, therefore, would have, in interpreting and applying the Man
date, a framework of law, doctrine, and practice upon which to
rely." (Observations, p. 462 (1).)
Now, the Applicants have omitted to state where these particular
standards, or norms, are to be found in these documents. Article 23 of
the Covenant did contain provisions with regard to the treatment of
native inhabitants. We find the provisions there to read as follows
(Article23, paragraph (t-), of the Covenant):
"Subject to, and in accordance with the provisions of international
conventions existing or hereafter to be agreed upon, the Members of
the League:
(b) undertake to ,:ecure the just treatment of the native inhabi-
tants of terri tories under their control."
Surely these wide provisi,Jns could, in no sense, serve as norms or stand
ards in determining whether particular legislative measures or adminis
trative acts are in conflict with the provisions of Articl2 of the Mandate.
The Mandate instrumentE, like Article 22 of the Covenant, also contained
provisions intended to operate as safeguards in the interests of the in
habitants of Mandated krritories. We find such provisions relating, for
instance, to the prohibition of the slave trade, forced labour, traffic in
arms, traffic in liquor, and the like. If these provisions constitute the
standards referred to by the Applicants, then it is difficult to see how
these so-called standards could be of any assistance to the Court in a
consideration of the propriety, wisdom or soundness of legislative mea
sures and administrative acts which do not touch upon and, are not in
conflict with, the provisions intended to prevent particular named abuses
and vices.
If, however, these proYisions in the Mandate instruments are not the
standards to whlch the Applicants refer, then, with respect, we would
liketo know what are thoi;e standards which, in the Applicants' language,
constitute a "framework of law, doctrine and practice", and we would like222 SOUTH WEST AFRICA
to know where they are to be found in the Mandate instrument or in
the Covenant.
The Applicants go on to say that, although the words "material and
moral well-being" in Article 22 of the Covenant are broad in scope, they
embody meaningful norms in the context of the subject to which they
pertain. They say that "in the international society, the norms applicable
to the 'administration of territories whose peoples have not yet attained
a full measure of self-government' reflect the consensus of all the Mem
bers of the United Nations" (Observations, p. 462 (1)) and they say that
these norms include principles and doctrines recorded in Articles 73 and
76 of the United Nations Charter. Now, if one looks at the Articles refer
red to, as they are dealt with and quoted at page 462 of the Observations,
one finds that they provide for the following:
"... to promote to the utmost ... the well-beingofthe inhabitants of
these territories, and, to this end:
a. to ensure, with due respect for the culture of the peoples
concerned, their political, economic, social, and educational ad
vancement, their just treatment, and their protection against abuses;
b. to develop self-government, to take due account of the political
aspirations of the peoples, and to assist them in the progressive
development of their free political institutions,according to the
particular circumstances of each territory and its peoples and their
varying stages of advancement ..."
Of course, Mr. President, the answer to this line of reasoning presents
itself.In considering as a matter of probability whether the Council of
the League and the respective Mandatories intended, when the Man
dates were framed in the year 1920, that the Court should be involved
in political disputes, it is, of course, out of place to have regard to the
Articles of the United Nations Charter which were framed some 25 years
later. They can be of no assistance to interpret or to ascertain the in
tentions of the authors of the Mandate system. In any event, the provi
sions of the Charter to which the Applicants refer are broad statements
of po1icy which can hardly serve as standards or norms in considering
the propriety or expediency of legislative measures or administrative
acts of a Mandatory.
Mr. President, at page 384 (1) of the written Objections we stated that
a form of judicial supervision was not necessary inasmuch as the League
was fully empowered to deal with all matters pertaining to the adminis
tration of Mandated territories, and that the League could, with regard
to any legal question conceming the interpretation or application of the
provisions of the Mandate, have obtained an advisory opinion from the
Court. The reaction of the Applicants to that statement is found at
page 462 (1) of their Observations, where they say this:
"In the light of its refusa! to accept and implement this Court's
Advisory Opinion of 1950, Respondent's argument that compulsory
jurisdiction isnot needed for disputes involving the welfare of the
inhabitants becanse the Council of the League conld itself reqnest
an advisory opinion from the Court, has a somewhat ironie ring."
Now, Mr. President, the Court's 1950 Opinion was obtained with
regard to the international status of South West Africa as a result of
the happening of events not foreseen by the authors of the Mandates ARGUMENT OF MR. MULLER 223
system. Respondent ha:; advanced reasons, and in our respectful sub
mission, valid reasons, why it could not accept the 1950 Opinion in toto
surely a right which Rcspondent has in terms of the Charter and the
Statute of the Court. Respondent's conduct does not detract from the
argument that in the foresight of the authors of the Mandates system,
there was no need for judicial supervision, and that such a form of
supervision was not intended .
. The Applicants proceed, at pages 462-463 (1) of the Observations, to
say:
"The cases at bar are perhaps the strongest vindication of the
foresight of the founders of the Mandates System in providing for
contentious proceedings against a Mandatory ta énforce the pro
visions of the Mandates for the benefit of inhabitants of Mandated
territories."
Of course, this is a ,~uestion begging argument formulated on the
prior acceptance of the •:orrectness of the Applicants' contention. Their
case is that the Court has jurisdiction in the present proceedings. They
conveniently accept that their case is made out; and ifthe Court has
jurisdiction, then there must be attributed ta the founders of the
Mandates system a foresight of the events following upon the dissolution
of the League. Once having attributed such foresight, then of course the
present cases serve in vindication of the attributed foresight.
Finally, say the Applkants at page 463 (I) of their Observations:
"The purpose of the Mandates System, itsorganizationalstructure,
and its experience mpport the judgment of Norman Bentwich to
the effect that the Court...",
and they quote Normar:- Bentwich:
"[The Court] stands there, behind, as it were, the Mandates Com
mission and the Council of the League, as the supreme guardian of
the rights of nations in the fulfilment of the international trust
which is conferred on the Mandatory, and as the embodiment of
international justice,It is the Palladium of justice in the develop
ment of the Mandated countries, just as the Mandates Commission
is the Areopagus."
Against that, i\fr.Pre1:ident, we submit that an analysis of the Appli
cants' argument reveals that nothing in fact has been advanced in their
Observations, either as a matter of historyor as a matter of probability,
which lends support to the contention that individual League Members
werc intended to have a legal interest in the observance by l\fandatories
of the obligations impm.ed for the benefit of inhabitants of Mandated
territories, or, that the •:=ourtwas intended to serve at the instance of
individual League Memt,ers as a supervisory authority, or, in the words
of Bentwich, as a supreme guardian in the structure of the Mandates
system. On the contrary, not only the probabilities point the other
way, but also the very provisions of the Covenant and the Mandate
instruments. In terms oi these documents, as I have indicated, there is
no provision for nor any contemplation of a form of judicial supervision
as one of the securities for the due performance of the sacred trust of
civilization.
I corne now to a part of the Applicants' Observations headed: "The
Weight of Authority", a.nd there they deal with judicial and scholarly
authority, in that order, as from pages 463-471 (1) of the Observations. SOUTH WEST AFRICA
224
Under judicial authority they first refer to the Mavrommatis case.
Before dealing with that case I must draw attention to a misstatement
at page 457 (1) of the Applicants' Observations with regard to the reliance
placed by Respondent upon the judgment in that case. At that page
of their Observations (457), we find this statement: "In support of its
position, Responden t cites the Mavrommatis case...", and they refer to
another case and other writers also. In any event. in so far as the ref
erence is to the Mavrommatis-case, that that is cited by Respondent in
support of its case, we say the statement is not correct. To put the matter
in its true perspective, it is necessary fortoturn back to the Applicants'
Memorials, at p;:i.ge92 (I). There the Applicants ventured the bald state
ment that "in the Mavrommatis case, the Court took it for granted that
Article 26 of the Palestine Mandate ... embraced disputes pertaining to the
welfare of the inhabitants of the Mandated terri tory".
We could not agree with that statement, and took the matter up at
page 390 (I) of our written Objections. We pointed out there that "no
where in the written Judgment of the Majority of the Court [in the Ma
vrommatis case] is there the least indication of support for the Applicants'
statement that the Court took it for granted that the compulsory juris
diction clause embraced disputes pertaining to the welfare of the in
habitants of the Mandated territory".
We indicated there also that indeed a contrary view on the part of
the majority is suggested in a portion of the judgment where it was
accepted that Member States could renounce the rights conferred on
them in the Mandate instruments, and presumably therefore also the
right to submit disputes to the Court, which, as we went on to show, in
the opinion of Schwarzenberger conflicts with the idca that the com
pulsory jurisdiction clause was intended to serve the interests of in
habitants of Mandated territories.
Attention was also drawn by us to the fact that out of the five dis
senting Judges, only two, namely Judges de Bustamante and Oda,
expressed views in their separate Opinions which can be regarded as
supporting the contention of the Applicants.
The Applicants again take up the matter at page 463 (1) of their Obser
vations, where they discuss the Mavrommatis case. There it will be
noticed that they expound the issues in that case, and say:
"... one of the key issues before the Permanent Court was whether
jurisdiction was defeated because the Applicant was espousing the
daim of one of its nationals against the Mandatory". (Observations,
p. 463 (1).)
We agree with that statement regarding the issues expounded in the
case. They go on to say that in holding that the dispute was subject to the
compromissory clause, the Court emphasized that as the language of the
clause was as comprehensive as possible, the dispute may be of any
nature provided it related to the interpretation or application of the
provisions of the Mandate.
Now, again we agree with this statement, but we must at the same
time draw attention to the fact that in the judgment of the Court in the
Mavrommatis case a legal right or legal interest on the part of the Appli
cant in the matter in con:flict was regarded as a necessary requirement
for a dispute to be justiciable as such.
This aspect, though fully dealt with by us at pages 377-379 (1) of our ARGUMENT OF MR. MULLER 225
Objections, is not touchcd upon by the Applicants in their Observations.
We must therefore conc:Iude that our submission in that respect is not
contested by the Applicants.
· Applicants say further, with regard to the Mavrommatis case, at the
bottom of page 463 (1) of the Observations:
"The significance of the Court's holding is not that the right of
Greece to espouse the daim of her national was recognized, so much
as that the right of espousal was strongly resisted and the Permanent
Court was divided ün the question. In other words, there was doubt
on the part of certain Members of the Court that the compromissory
clause was applicable at all to disputes concerning nationals of
Member States. Respondent, on the contrary, contends that this
is one of the two w.·.ajprurposes for the clause."
First of ail, for the purposes of our contention, no significance attaches
to the question whethff the interests of .Member States alone or of
Member States and their nationals are contemplated by the clause. In
any event, the M avrow.matis case at least, in so far as the majority
opinion is concerned, Ü; clear authority for the proposition that the
compulsory jurisdiction clause was intended to serve the interests of
the nationals of Member States and a fortiori,we say, the interests of
Member States themsel,es. Respondent contends that these were the
only purposes for the clause, and not, as the Applicants reproduce
Respondent's contention, namely, the two major purposes for the clause.
The Court in the 111avrommatis case was not called upon to decide
w~ether any other purpose was intended for the clause: for instance
to the purposes which I have just stated, it was
whether, in addition
intended to embrace disputes pertaining to the welfare of the inhabitants;
and the majority in the Mavrommatis case did not express themselves
thereon.
The Applicants submi-t, nevertheless, at page 464 (I) of their Observa-
tions:
"from a reading of the Minority Opinions and the broad scope of
the Majority Opinion, Applicants submit that it was taken as
axiomatic by the Court that Article 26 of the Palestine Mandate
(the counterpart to Article 7) embraced disputes pertaining to the
welfare of the inhabitants of Mandated territories".
I repeat what we have contended in the written Objections, that
nothing in the majority opinion in that case permits of such a conclusion,
but that on the contrary, the fact that the majority regarded the rights
of individual States undcr the Mandate as renounceable, suggests a view
that the compulsory jurisdiction clause was not intended to introduce
a form of judicial supervision. And incidentally, this last point is not
touched upon by the Applicants at all in their Observations.
Asto the minority in the Mavrommatis case, there were five dissenting
opinions. Lord Finlay, at pages 42 to 43 of the rcported judgment,
indicated the class of case which in "his opinion the compulsory juris
diction clause was, prir;iarily at all events, intended to meet, and he
did not include therein actions in the interests of the inhabitants. Judge
Moore did not deal with the question now under considcration, and
Judge Pessoa, at page ,38 of the report, expressed the view that the
Court could not in terms of the compulsory jurisdiction clause "be called 226 SOUTH WEST AFRICA
upon to protect the rights of individuals, but only those of States";
and that is a view which does not support the Applicants' contention.
Only two of the Judgcs in the Mavrommatis case, namely, Judges
de Bustamante and Oda) expressed views in the passages from their
opinions cited at page 464 of the Observations which can be regarded
as supporting the Applicant's contention. But Mr. President, even that
is doubtful, because these Judges refer to applications with a view to
the protection of general interests, and acts of a general nature affecting
the public interest, without mention at ail of the inhabitants of the
Mandated territory.
Mr. President, if regard is then had to what is said in the pleadings
regarding the Mavrommatis case, that is in the Memorial of the Applicants,
and our written Objections, it will be clear that we did not cite the M av
rommatis case in support of our contention. It was the Applicants who, in
the first instance, referred to the case in support of their contention,
and we dealt with, and refuted, that proposition by the Applicants.
In their Observations, in further support of their contention, the
Applicants also quote at page 465 (I) of their Observations an extract
from the dissenting Opinion of Judge Nyholm in the third Mavrommatis
case, that is the case of "The Readaptation of the Mavrommatis Jerusalem
Concessions-the reference of the report is Series A, No. n of October
roth, 1927-and this is what the Applicants say with regard to a
certain passage appearing in the Opinion of Judge Nyholm; the Appli
cants say, at page 465 (1):
"Speaking in the third Mavrommatis decision, Judge Nyholm
emphasized that the Court's supervisory jurisdiction constitutes
a form of 'guarantee' that Mandatories would 'act in accordance
with the principles adopted in the interests of the cornmunity of
nations by the Covenant'. He said:
'Mandatories were not to infringe the rights either of States
or of individuals. Each State therefore has a right of control
which it may exercise by applying to the Court.' "
If regard is had to the Opinion of Judge Nyholrn, one finds that
he nowhere speaks of supervisory jurisdiction. What the Applicants have
done, in our submission, is to extract frorn Judge Nyholm's Opinion
certain words and sentences whkh, read out of context, could bear the
meaning contended for by the Applicants and could be read in support
of their contention; but if these words and phrases, or words and sen
tences are put back into context, and are read in the context, they do
not support the Applicants' contention, On the contrary, I subrnit they
underwrite the Respondent's contention. This is what Judge Nyholm
said, if one starts reading the Opinion at a stage before the passage
extracted by the Applicants. He was dealing with Article 26 of the
Mandate for Palestine, the jurisdiction clause in that Mandate, and said,
(at page 25 of the Report):
"ln order to determine tlie scope of the jurisdiction obtained
by the Court frorn the Mandate for Palestine, which is the sole
source of the Court's jurisdiction to consider the i\fandate, regard
must be had (r) to the character of the Mandate and especia1ly to
the reasons which led the League of Nations to insert in the Mandate
a clause giving jurisdiction to the Permanent Court of International ARGUMENT OF MR. MULLER
227
Justice, and (2) to the structure of the Mandate in order to ascertain
in what manner, by which Articles of the Mandate, and within
what limits, this jurisdiction has been established ... as regards
the first point, the historical development of the Mandate system
shows that the mê.ndatory Powers were to carry out this task
under the control of the League of Nations to which they were
bound to submit annual reports." (P.C.I.J., Series A, No. II,
roth October, 1927. p. 25.)
It is to be noted th;;t with regard to the control over Mandates
the leamed Judge mentioned only the League and not the Court.
The Opinion goes on as follows:
"The institution of this control was due to the fact that the
Powers did not wish to leave a mandatory at liberty to govem a
mandated territory entirely at its discretion. Certain limits were
to be fixcd, not or,.ly with a view to harmonizing the principles
established under the varions ·mandates, but also with a view to
establishing special rules in regard to each country, that is to say,
a guarantee that the administration should act in accordancc
with the principles adopted in the interests of the community of
nations by the Covenant." (P.C.I.J., Series A, No. II, roth October,
1927, p. 26.)
It is to be observed that Judge Nyholm was speaking of a guarantee
not with regard to the interests of inhabitants of Mandated territories
but with regard to the interests of the community of nations, i.e. the
Members of the League. He went on to say:
"The g11arantee which offered itself consisted in conferring on
the Court a new international institution~jurisdiction to decide
any questions regarding the interpretation and application of the
Mandate." (P.C.I.J., Series A, No. II, roth October, 1927, p. 26.)
And then follows the extract quoted by the Applicants:
"Mandatories were not to infringe the rights either of States or
of individuals. Ead, State therefore has the right of control which
it may exercise by applying to the Court." (P.C.I.J., Series A,
No. II, roth OctobEr, 1927, p. 26.)
Now Mr. President, the quotation should not have stopped there if
one is to understand co:-:Tectlywhat. the leamed Judge was expressing
as his view because the Opinion goes on to say:
"It is true that there is no provision giving the Court jurisdiction
as regards the relations between individuals and the Mandatory,
but it is to be presumed that, if a subject of a ceTtain State suffered
injury, bis government would, if necessary, takc action on his
behalf." (P.C.I.J., ~,eries A, No. II, 10th October, 1927, p. 26.)
In the language then of Judge Nyholm, the purpose of the compulsory
jurisdiction clause was to serve the interests of States and of their
subjects. Nothing in his Opinion suggests that the Court's jurisdiction
was meant for supervisic,n of Mandate administration in the interests of
inhabitants of l\fandated territories.
We turn next to the case of J erusalem-] atfa District Governor and
another v. Suleiman Murra and others. At pages 386 and 387 (1) of the228 SOUTH WEST AFRICA
written Objections, we advanced an argument with reference to this
particular case, and this is what we said, at the bottom of page 386 (1):
"The fonctions of Courts of Law do not normally extend to
the realm of politics; and where a legislature or an administrative
body acts within the scope of powers conferred upon it, it is not
the function of Courts of Law to enquire into the policy or soundness
of its acts.
This general principle was recognized in the case of Jerusalem
Jaffa District Governor and another v. Suleiman Murra and others, as
being applicable also in regardto the administration of the Mandated
Territory of Palestine under that Mandate. ln regard to certain
measures of expropriation applied by the Mandatory, the Privy
Council stated:
'Their Lordships agree that in such a case, and in the absence
of exceptional circurnstances, justice requires that fair provision
shall be made for compensation. But this depends not upon any
civil right, but (as the Chief Justice said) upon principles of
sound Iegisiation; and it cannot be the duty of the Court to
examine (at the instance of any litigant) the legislative and
administrative acts of the Administration, and to consider in
every case whether they are in accordance with the view held
by the Court as to the requirements of natural justice'."
Now the Applicants' comment at page 465 (1) of their Observations is
that we have "not read the ]erusalem decision correctly. In fact, the
case stands for the opposite of the proposition advanced by Respondent",
because they say in that case the Court was called upon to pronounce
on an administrative act of the Mandatory and did so after interpreting
Article 2 of the Mandate for Palestine.
As to the particular passage in the judgment which I have just now
read, and which was cited by us in the Preliminary Objections, the
Applicants say the following, at page 466 of their Observations:
"Only after fi.ndingthat there was no statu tory basis for reversing
the administrative act did the Court ernploy the language quoted
by Respondent. That language has no special signifi.cance; it is
the expression of a policy followed by all courts, namely, that courts
of law do not legislate. But where legislation exists-as in the
Mandate----courts will examine challenged administrative acts to
determine whether such acts violate the legislation."
Mr. President, with respect, I submit that we have not misread the
]erusalem case. I submit that our understanding of the issues in that
case, and of the Court's fi.nding, is correct as we dealt with the case
in our Preliminary Objections. The Court, in that case, was called upon
to decide whether a particular expropriation ordinance operating in
Palestine-an ordinance called the Urtas Spring Ordinance-was within
the scope of powers conferred by an Ortler in Council. That Ortler in
Council authorized the High Commissioner to promulgate ordinances as
might be necessary for the peace, order and good government of Pales
tine, subject to a condition that no ordinance should be promulgated
which should be in any way repugnant to or inconsistent with the
Mandate. l,RGUMENT OF MR. MULLER 229
In order to decide whether the particular ordinance fell within the
conferred powers, the Court had to interpret and apply a particular
provision in the Mandate for Palestine. The Court having done so, found
that the ordinance wa.s not repugnant to or inconsistent with the
provisions of the Mandate and therefore, within the powers conferred
by the Ortler in Council. Having so found, the Court used the Ianguage
which we quoted at pag,~387 (1) of our Objections and which I have just
read.
We assert that, contnry to the Applicants' statement, this particular
passage from the judgment has significance, and that it supports our
proposition that where a legislature or administrative body acts within
the scope of powers conferred upon it, it is not the fonction of courts
of law to enquire into the policy or soundness of its acts~that is whether
such acts are conduciv,~ to peace, order and good government.
Although the Court was in a position to decide in the Jerusalem case
that the expropriation ordinance in question was not repugnant to a
particular provision in the Palestine Mandate which required the Man
datory to safeguard the civil and the religions rights of the inhabitants
of Palestine irrespectiv{: of race and religion, that does not, I submit,
detract from our argument; our argument being that as a matter of
probability it was not intended by the authors of the Mandates system
that the Court should, at the instance of a Member of the League, enquire
into the policy and soundness of the Mandatory's legislative acts and
administrative measure:, in order to decide whether they conformed
with the general provi::ions in the Mandate, those general provisions
requiring that the Mandatory shall promote to the utmost the material
and moral well-being and social progress of the inhabitants of the terri
tory. And I submit that the passage quoted by us from the case which
I have just referred to supports the proposition which I have just stated.
[Public hearing of II Octoberr962, morning]
Mr. President, I am still busy with the Applicants' Observations
relative to our third Objection. At page 466 (1) of the Observations the
Applicants pass to a consideration of scholarly authority and they make
the following statement:
"Respondent cites four writers to support its limited view of
'interest' asa basis for invoking judicial supervision: Feinberg, Judge
McNair, Wessels, and Schwarzenberger."
Now, Mr. President, this statement is not entirely correct. We did
refer to these writers in the written Objections at page 390 (1), but the
submission there made was this, and I read from that page; referring
to the four writers that the Applicants have mentioned, we said the
following:
"Other scholars who have written on the subject either hold the
view that the provision in question does not confer jurisdiction in
amatter in which the particular Member State has neither personally
nor through its subjects a material interest, or raise doubts there
anent."
And secondly, we have not conceded, but on the contrary have denied,
that any form of so-called judicial supervision exists by virtue of the
compulsory jurisdiction clause.230 SOUTH WEST AFRlCA
Now, in the Observations, at page 466 (1), the Applicants deal first with
the views of the author Feinberg, who they say takes the position that a
Member State can invoke the jurisdiction clause against the Mandatory
only when the interest of a Member State or its nationals has been
harmed by a violation of the terms of the Mandate. But, say the Appli
cants, Feinberg has a broader concept of interest than Respondent, in
that he quotes, with approval, Salvioli, to the effect that it is not possible
to determine in a precise manner the nature of an interest sufficient to
justify proceedings before the Court and that the sufficiency of interest
must be decided in each case. And, say the Applicants, Feinberg also
quotes Salvioli with approval for discussing and underlining the case
of The S.S. Wimbledon, in which connection Feinberg says that the
Court there conceded that even a moral interest could be sufficient to
found jurisdiction; and he suggests that the same liberal view should
also be adopted in the application of the jurisdiction clause of Mandates.
Now, from Feinberg's treatment of the matter, one thing is clear, in
our submission, and that is that he viewed the compulsory jurisdiction
clause as a provision securing the interests of Member States and their
nationals, and not as the Applicants wish to see the clause interpreted,
that is, as existing, primarily in any event, for the benefit of the in
habitants of Mandated territories. The very example Feinberg uses in
the quotation found in the Observations is demonstrative of that view,
namely the concern displayed by a Member State for the interests of its
own Jewish population, and by reason of having a large number of Jews
in its population, also its own interest in the administration of the
Mandate for Palestine which contained provisions relating to a Jewish
National Home in Palestine.
In any event, in so far as Feinberg relies on the case of The S.S. Wim
bledon as authority for the proposition that a fairly wide interpretation
of the conception of interest should be adopted, even so wide as to
embrace a moral interest, we say that the Judgment in the case of
The S.S. Wimbledon does not stand for that proposition.
In the case of The S.S. Wimbledon, the Court allowed certain States
who were not immediate parties to the dispute to participate in the
proceedings; but not on the basis of merely a moral interest. The basis
on which the Court allowed such States to participate was dealt with
by the Court at page 20 of the reported Judgment, and there the Court
said:
''The Court has no doubt that it can take cognizance of the
Application instituting proceedings in the form in which it has been
submitted. It will suffice to observe, for the purposes of this case,
that each of the four Applicant Powers has a clear interest in the
execution of the provisions relating to the Kiel Canal, since they
all possess fleets and merchant vessels flying their respective flags.
They are, therefore, even though they may be unable to adduce a
prejudice to any pecuniary interest, covered by the terms of Article
386, paragraph r, of which is as follows:
'In the event of violation of any of the conditions of Articles
380 to 386, or of disputes as to the interpretationof these articles,
any interested Power can appeal to the jurisdiction instituted for
the purpose by the League of Nations'." .\RGUMENT OF MR. MULLER
231
Certain States, then, were allowed to appear as co-Applicants by
virtue of the fact, as tbe Court said, that they each had a clear interest
in the execution of the provisions relating to the Kiel Canal, since they
all possessed fleets and merchant vessels flying their respective flags and
therefore, although unable to adduce actual prejudice to any pecuniary
interest,they were covered by Article 386 of the Treaty of Versailles.
The interest of such States, as the Court saw it, was not moral but in
fact material. Although they suffered no pecuniary losses as a result of
the breach complained of, they were at least potentially affected in their
material interests.
In that same case, another State, namely Poland, was allowed to
intervene in the proceedings by virtue of the provisions of Article 63
of the Statute of the Permanent Court. That Article enabled States
who were parties to a wnvention to intervene in proceedings where the
construction of the conYention was in question. And again that was nota
case of a moral interest.
The Applicants deal next with the writings of Judge McNair. We
had referred at page 390 (1) of the Objections to an article by him in the
1928 Cambridge Law j,)Urnal. \Ve pointed out that in the article the
learned author dealt with the jurisdiction clause in the Mandates, and
this is what he said with regard thereto, itia footnote at page 157 of the
article in the Cambridg,i Law Journal, Volume III, of the year 1928:
"AUthe Mandate:; contain a clause which provides that any dispute
between a Mandatory and a Member of the League which cannot
be settled by negotiation, shall be referred to the Permanent Court
of International Justice: see the Mavrommatis Palestine Concessions
Case, Publications of the Court, Series A, No.. 2."
and the learned author then proceeded:
"Is this right' of bringing a dispute with a Mandatory before the
Court only availab!e when the interests of the other party, or its
nationals, are affec1ed, or can it be used altruistically by a Member
of the League having no such interest to protect, but merely seeking
the faithful obserVc-.nceof the terms of the Mandate?"
The Applicants say that whatever doubt the learned Judge might
have entertained as to the purpose of the compulsory jurisdiction clause
when he wrote on the Mandates in 1928, had obviously been resolved in
his mind when he rendt:red his separate Opinion in the 1950 Advisory
Proceedings. In that Opinion, the Applicants say, he stressed that every
State which was a Member of the League at the time of its dissolution
still had a legal interest in the proper exercise of the Mandate, and stated
that this legal interest may be invoked to effectuate the judicial super
vision of the Mandate.
In the Objection now being dealt with, we are not concerned with
Judge McNair's view that the interests of Member States survived the
League because the expression "another Member of the League of
Nations" in Article 7 oi the Mandate, as the Judge held, was merely
descriptive. We have already dealt with that aspect of the Judge's
Opinion and for the prcsent argument it is assumed that States who
were Members of the League at its dissolution may still invoke the pro
visions of Article 7. In ·,:hisObjection we are concerned only with the
type of case for which the provisions of Article 7 were intended.232 SOUTH WEST AFRICA
Now, the kind of disputes justiciable under Article 7 of the Mandate
was not a matter specifically raised in the questions submitted to the
Court for the Advisory Opinion in 1950, and it was not canvassed in
argument. Judge McNair did not advance any reasons in his separate
Opinion for the view that the compulsory jurisdiction clause involved
judicial supervision of the administration of the Mandate-a matter
which he had left open and in doubt when he wrote the article in 1928
that I have referred to.
Also at pages 468-469 (1) of their Observations, the Applicants quote
from the writings of Bentwich, Quincy Wright, Hales, Judge Lauter
pacht, Miss van Maanen-Helmer and Chowduri, in support of the Appli
cants' contention that the Court was meant to fonction as a judicial
supervisory organ in the structure of the Mandate system. A proper
study of the writings of these authors, we submit, reveals that only
Bentwich and Chowduri appear to state that view with conviction.
The quotation from Wright appearing at page 468 (1) of the Applicants'
Observations is but one of the several passages in the book devoted to
the purpose of the jurisdiction clause, and we have indicated at page
389 (I) of our Objections that, following on that particular quotation, the
learned author went on to deal with the fact that there was an additional
clause in the Mandate for Tanganyika, and then ended the whole enquiry
on the note that it would seem broad enough to cover daims presented
by League Members on behalf of natives of the Mandated territories.
Also Hales in his work The Creation and Application of the Mandates
System, which is referred to at page 468 (1) of the Observations, puts the
matter no higher than that it would appear that a State Member of the
League need not have any interest in the dispute except that of wanting
to see a proper application of the provisions of the Mandate.
Judge Lauterpacht deals with the matter in a footnote at pagC'226
of his edition (that is the 8th edition) of Oppenheim's International Law
where he states-and I read the footnote:
"Although two Judges dissented from this part of the Opinion,
the Court was unanimous in holding that judicial supervision con
tinued and that, having regard to Article 7 of the Mandate and
Article 37 of the Statute of the Court, the reference to the Permanent
Court of International Justice was to be replaced by a reference to
the International Court of Justice. It follows that at least those
Members of the United Nations who were Members of the League
of Nations are entitled to bring before the International Court of
Justice any dispute relating to the interpretation or application of
the provisions of the Mandate."
Though the learned author there used the words "judicial supervision",
he was merely restating the Court's findings in the 1950 Opinion. We
submit it would have been more correct if he had stated that the Court
was unanimous in holding that Article 7 of the Mandate for South West
Africa is stillin force, because the majority of the Court expressed no
views with regard to the kind of disputes justiciable under Article 7,
nor did the majority use any expression conveying a notion of judicial
supervision. ·
With regard to the views of Miss van Maanen-Helmer, the Applicants
quote, also at pages 468 and 469 (1) of their Observations, a passage from
her book on the Mandates system. This passage, we submit, in no way 1,RGUMENT OF MR. MULLER
233
supports the Applicants' contention that the jurisdiction clause intro
duced a form of judicial supervision. AU that the learned author said,
and I read from the passage quoted, is the following:
"The fact that a case involving the interpretation of a mandate
has been brought bd ore the Court [she was referring to the M avrom
matis case] is an i~nportant precedent in that it shows that the
status of a mandated territory is safeguarded by international law
as well as by the supervision of the political institutions of the
League of Nations.'' (van Maanen-Helmer, E. The Mandate System
in Relation to Afri-;a and the Pacifie Islands, p. 158.)
Indeed, in the very same chapter of her book, at pages 169 to 170,
Miss van Maanen-Helmer analyses supervisory fonctions in the Mandates
System, and she makes no mention whatsoever of the Court or of the
rights vested in individual League Members with regard to supervision.
She concludes the chapter with a paragraph, at page 170, which reads
as follows:
"Thus the mandates system, with its two fundamental charac
teristics ofthe responsibility of the mandatories for administration
and the responsibility of the League for supervision is essentially
part of the system of international government instituted by the
League of Nations."
So that there is nothing in her book at all which can be interpreted
as a recognition of judicial supervision.
ln our written Objections at pages 393-394 (1), there appeared the
following statement:
"Although the Court's function, under Article 7 of the Mandate,
has colloquially bern referred to as 'judicial supervision', it is not
an exact legal description of that fonction."
In reply thereto, the Applicants say, at page 469 (1) of their Observa
tions, that the expressic,n "judicial supervision" was used, not only by
Judges Lauterpacht, McNair and Read, and some of the other writers re
ferred to by the Applicants, but was even used by Respondent's own repre
sentative before the United Nations forum, and they quote from a report
of an address by the South African representative to the Fourth Com
mittee in the year 1953. The Applicants say that there the Respondent
demonstrated a broader appreciation of the need for, and significance
of, judicial supervision.
Now, it is not correci: to say that Respondent saw a need for, and
significance of, judicial supervision. The South African representative
was explaining to the Fourth Committee the negotiations which had
taken place with the ad hoc Committee on South West Africa. According
to his explanation, the suggestion to submit to judicial supervision came
about, not because Respondent saw a need for such supervision, but
because the ad hoc Committee desired that some provision should be
made for international supervision. In fact a reference to the discussions
with the ad hoc Committee, reported in United Nations Document AJAC
49/SR 7,shows that Resp,)lldent saw no need for any forrn of international
supervision, judicial or otherwise. If one refers to that United Nations
Document, one finds the following statement made by the South African
representative, and I will only read an extract from this statement. SOUTH WEST AFRICA
234
At page 4 of the document, to which I have rcferred, the following is
found:
"It was, however, the Union Government's view that no specific
provisions for implementation were required since, in terms of inter
national law, it would be impossible for the Union to evade the
obligations assumed and since there would be adequate remedy for
breaches of the agreement in existing international machinery.
Moreover, civil contracts generally containcd no provisions for com
pliance." (U.N. Doc. A/AC. 49/SR. 7, p. 4.) ·
And the South African representative went on to explain that if some
form of supervision was desired, then South Africa would be prepared
to accept judicial supervision.
Now, the fact that Respondent offered, in the course of those nego
tiations, to suhmit to judicial supervision and to accept, in that con
nection, the compulsory jurisdiction of the Court, must, we say, be
viewcd in its proper perspective. The offer, as explained by Respondent
to the ad hoc Committee, entailcd a legal obligation to submit to the
jurisdiction of the Court, but not at the instance of any one of a large
number of States, but at the instance of two out of three States, namely
any two of the remaining Principal Allied and Associated Powers of the
First \Vorld War, with whom the proposed agreement was to be con
cluded. And, secondly, there would be no concurrent supervision by
an organization such as the League or the United Nations. In those
circumstances, we say, most of the anomalies and implications whjch
could arise under a system of dual supervision, that is a system of
administrative and judicial supervision, as the Applicants ascribe to the
Mandates system, would be avoided.
Finally, under the heading of scholarly authority, the Applicants in
the Observations, again canvass the address of Respondent's repre
sentative, Dr. Steyn, to this Court in 1950, in support of their contention
that Respondent, through Dr. Steyn, conceded that Article 7, if in force,
entitled League Members to institute proceedings to uphold the rights
of the inhabitants of South West Africa.
Mr. President, this matter was first raised by the Applicants at page
93 (1) of their Memorials, where the following two passages were cited
from Dr. Steyn's address, and I read the passages:
"It was only in their capacity as Members of the League that
third States were competent to uphold the rights of the inhabitants
of mandated territories or to daim rights for themselvcs in those
territories."
And
"Nor have individual Members of the United Nations any locus
standi in respect of the administration of South West Africa. They
could have had such a locits standi only as Members of the League."
We dealt with that matter at pages 391-393 (1) of the written Objec
tions.
There we referred to varions passages in Dr. Steyn's address from
which it is clear that he used the expression locus standi in relation to
Members of the League as their right of participation as Members in the
League's supervisory fonctions and not as locus standi in judicial
proceedings before the Court-indeed Dr. Steyn referred to the League l,RGUMENT OF MR. MULLER 235
as having locus standi in respect of supervision, whereas of course, as
we know, the League h.ad no rights under the compulsory jurisdiction
clause.
ln the light of this wnsideration we contended that where, in the
passages cited by the Applicants, Dr. Steyn said that it was only in their
capacity as Members of the League that thiid States were competent to
uphold the rights of th~ inhabitants of Mandated territories, and that
so after he had stated that Members of the League had lost their locus
standi when the League dissolved itself, he was referring not to judicial
process but to the parti:ipation in the exercise of supervisory fonctions
of the League itself.
When Dr. Steyn later remarked that individual Members of the United
Nations could have had a locus standi in respect of the administration
of South West Africa only as Members of the League, he was again
referring not to judicial proceedings but to participation as Members
ofthe League in the League's supervisory fonctions.
In taking this matter up again in their Observations, at pages 470-471
(1), the Applicants cite a further passage from Dr. Steyn's address, under
the heading "Rigl:J.tsof peoples of South West Africa", where Dr. Steyn
referred to Articles rr (2)and r9 of the Covenant and immediately thcre
after used the following language:
"Moreover, any dispute between a Mandatory and another Mem
ber of the League relating to the interpretation or the application
of the provisions oi the Mandate could be submitted to the Per
manent Court of International Justice."
Now, the Applicants' comment thereon is formulated in the following
questions, at page 47r (I) of the Observations:
"If Dr. Steyn did not consider that Article 7 was for the benefit
of inhabitants, why did he discuss it under the heading 'Rights of
Peoples of South-West Africa'? If all he meant was that League
Members could participate in League proceedings to uphold the
inhabitants' rights, as Respondent now contends, why did Dr. Steyn
mention Article 7 at all? And why did he mention Article 7 right
after mentioning Articles II (2) and r9 of the Covenant, which
provide for participation in League proceedings, and begin the
reference to Article 7 with the word, 'moreover'?"
Mr. President, the ani;wer to al! this is simple. Although the portion
of Dr. Steyn's argument in question is headed "Rights of Peoples of
South West Africa", he dealt in that piece not only with the rights of
the inhabitants, but, by way of contrast, also with the rights of States
unconnected with the interests of the inhabitants. ln the very paragraph
after that cited by the Applicants in thcir Observations, Dr. Steyn said
that it was only in their capacity as Members of the League that third
States were competent ·-:ouphold the rights of the inhabitants, or to
daim rights for themselws in those terri tories. That Dr. Steyn mentioned
Article 7 rightafter he mentioned Articles II (2) and r9 of the Covenant,
and that he began the reference with the word "moreover" has no signifi
cance in view of the fact that despite the heading to that portion of his
argument, he had in m;nd and he mentioned not only the rights of
inhabitants, but also the rights of Member States. It has as much
significance as the fact that under that ·very heading and in the very236 SOUTH WEST AFRICA
next paragraph Dr. Steyn said that Members of the League, in their
capacity as such, were competent to daim rights for themselves in
Mandated territories, and that so immediately after he had said that
Member States were competent to uphold the rights of inhabitants of
Mandated territories.
With regard to the summary appearing at page 471 (1) of the Appli
cants' Observations, under the heading "Summary", we have already
demonstrated that our contention does not rest on an attempt to import
into Article7 a further unstated requirement. Our contention isformulated
upon a proper construction of the word "dispute" in Article 7 of the
Mandate, and upon the likely intention of the authors of the Mandate
system, as gathered from the terms of Article 22 of the Covenant and the
Mandate instrument, having due regard also to all the probabilities.
Having dealt, in particular, with the views of each of the authorities,
judicial and scholarly, relied upon by the Applicants, Mr. President,
we refute the allegation by the Applicants that the two writers who
support Respondent's contention, namely \Vessels and Schwarzenberger,
are in square disagreement with Judges Bustamante, Nyholm, McNair
and Read, and all the other authors relied upon by the Applicants, as
well as with Respondent's so-called "previous position", a statement
which was made by the Applicants in the summary at page 471 (1).
Applicants conclude their contentions with regard to the third Ob
jection under a heading "Applicants have a material intcrest in the
instant cases". We fi.nd that at page 472 (1) of the Observations. They
say there first:
"Respondent devotes much attention to 'material interest' and
'legal interest' in its Preliminary Objections, but does not define
or analyze those terms.
'Legal interest' does not require extensive discussion. As Appli
cants have dcmonstrated herein, they corne within the descriptive
category of States entitled to invoke Article 7 in accordance with
its terms. Thus they have a legal interest because Article 7, to which
Respondent agreed to be bound, endowed them with such an
interest."
Now this line of reasoning, Mr. President, demonstrates the fallacy in
Applicant's argument with regard to this Objection. Instead of having
regard to the provisions of the Mandate as a whole, read in the light of
Article22 of the Covenant, in order to ascertain what rights were intended
for Member States of the League with regard to the Mandate adminis
tration and then to construe Article 7 as applicable in the assertion of
such rights, the Applicants, in disregard of the accepted rules of inter
pretation, ignore Article 22 of the Covenant and the provisions of the
Mandate other than Article 7. Looking at Article 7 only, they fi.nd that
it refers in terms to any dispute whatever relating to the interpretation
or application of the provisions of the Mandate, and then they assume,
erroneously so in our submission, that Article 7 itself was intended to
confer on individual League Members legal rights in respect of each
and every provision of the Mandate.
We say that this assumption is erroneous inasmuch as Article 7 does
not in itself purport to confer legal rights; it merely provides for ad- ARGUMENT OF MR. MULLER 237
judication of disputes, and by the term "dispute" was meant, as I have
demonstrated, a conflict or disagreement in mattcrs in which a Member
State has a legal right. The matters in which they were meant to have
legal rights cannot be gathered from Article 7, but must be gathered
from the whole of the Mandate instrument and Article 22 of the Cove
nant.
With regard to the term "material interest", lt is true, as the Appli
cants say, that we hav,) not furnished a defmition thereof. In the first
place we consider it unnecessary to do so-there is as little need for
defining that term as there is for defining the expression "material well-
.being" which appears in the Mandate instrument, an expression with
which Applicants apparently have no difficulty as to its meaning. We
use the expression "ma1erial interest" not to denote a substantial interest
but in the same sense ai;the word "material" was intended to qualify the
word "well-being" in the Mandate instrument, namely, as pertaining to
matter, for instance safoty, health, wealth and the like.It would be well
nigh impossible to formulate a definition to embrace each and every
matter which in the course of Mandate administration could have af
fected Member States of the League of Nations or their nationals.
Whether a Member Siate could validly contend that it was affected
either directlyor through its subjects by a particular act of a Mandatory
must be a matter for d1!cisionin each case. I have already, in the course
of my argument, given examples of material intèrests of States that
could be affected by ads of a Mandatory.
It is sufficient to say that in the present cases the Applicants do not
and indeed cannot m2.ke the point that they as States are affected
directly or through th,;ir nationals by any act of the Mandatory. At
most thcir case is that they are concerned about the welfare of the
inhabitants of non-ind-Jpendent territories and that they regard that
concern as of great importance. lndeed, that is a statement made by
them at page 472 (1) of their Observations, where we find this:
"Contrary to Re1;pondent's position, most States, in the increasing
ly inter-related community of nations, today regard the problems
of less developed aŒas as a matter of great importance to thcir own
welfare."
Now, of course, States in the contemporary world are, in the broad
sense, intercsted in, or should one say concerned about, the welfare of
peoples not yet able te- stand by themselves. The establishment of the
Mandates system unde1 the League and of the Trusteeship system under
the United Nations bear evidence of such concem. But the mere fact of
being so concerned does not determine the role intended for individual
States within either of the two systems. The fact that members of an
organization are entitled to participate in the decisions of that organiza
tion surely does not confer legal rights on the individual members in the
subject-matter of such decisions.
The fonctions of individual States in the "Mandates system, and their
legal rights vis-à-vis the Mandatories, can only be determined by reference
to the instruments by which that system came into force-into existence238 SOUTH WEST AFRICA
-namely the Covenant and the Mandate instruments. The same holds
good for the present day Trusteeship system where regard must be had
to the Charter of the United Nations and the Trusteeship agreements.
To say that States in the contemporary world have considcred their
interests to be involved in the welfare of the inhabitants, first of the
Mandated territories,and later of Trusteeship territories,does not
provide an answer to the question before the Court. No matter how
much they may have considered their interests involved in the wel
fare of such peoples, that in itself, surely, could not confer on them
any rights as against Mandatories under the League, or as against
administering authorities of trust territories, under the United Nations.
No doubt during the lifetime of the League some States, not being
Members of the League, were also concemed, Iike League Members,
about the welfare of inhabitants of Mandated terri tories, but could they
for that matter daim any rights as against the Mandatories? Surely
the answer is no. And the same question can be put with regard to States
who are not Members of the United Nations today, but may be as
concerned as the Applicants are about the welfare of peoples of trust
terri tories.
Furthermore, Applicants are no doubt as much concerned about the
welfare of the peoples of the trust territories in Nauru, New Guinea,
and the former Japanese Mandated islands as they are concemed about
the welfare of peoples in other trust territories. But are their rights
and recognized interests identical in respect of all such territories? A
study of the respective trusteeship agreements shows clearly that the
answer is in the negative. Although most of the trusteeship agreements
make provision for compulsory jurisdiction, the agreements for the trust
territories of Nauru, New Guinea and the former Japanese Mandated
islands do not. \Vhy is that so? Itis so by reason of the relevant treaties
and conventions which prescribed the rights of States with regard to
Mandated territories and later with regard to trust territories.
There is, Mr. President, no attempt on our part to define, as Applicants
suggest in their Observations, the permissible scope of interests of other
States. We have, as we conceive it our duty and fonction before the Court,
endeavoured to demonstrate by proper construction of the relevant
instruments, what rights and interests were intended for Members of
the League with regard to the administration of Mandated territories
and which of such rights and interests were intended to be assertable
by judicial proceedings.
The Applicants, on the other band, attempt to establish that they
have certain rights, not by reference to the instruments in which such
rights, ifthey did exist, would have been recorded, but by advancing
their own views as to the importance to them, in the increasingly inter
related community of nations, of the problems of less developed areas,
and of their concem about the welfare of the peoples of such areas. There
is no justification for the line of reasoning adopted by the Applicants.
However important Applicants may regard their concem for the
welfare of the peoples of South West Africa, that surely, in itself, can
not confer on Applicants the rights or vest in them a material interest,
in the sense under discussion, which they in fact do not possess. The
question is not whether Applicants consider their material interests to
be involved, but whether their material interests are, in fact, involved. ARGUMENT OF MR. MULLER 239
Nor can their participation with other States in debates in the United
Nations conceming South West Africa, however often that may have
occured, endow them with rights not contemplated by the Covenant
and the Mandate.
Mr. President, I repeat our contention that the material interests of
the Applicants are not affected by the matters complained of by them
in the present proceedings, and that being so, the Applicants, in our
submission, have no leg:tl rights or interests in the matters now before
the Court and there is cc,nsequently no dispute, as envisaged in Article 7
ofthe Mandate, for adjudication by the Court.
But even if it could be said that Applicants have a legal right or
interest in such mattern then, in our submission, it was not intended
that Article 7 could be ir,voked in the assertion of such rights or interests
and therefore there is ne, dispute as envisaged in that Article.
Mr. President, that is the end of my argument on the third Objection.
Mr. President, may it please the Court, I intend proceeding now with
argument on our Fourth Objection.
For the purposes of this Objection, two assumptions are made.
The first assumption is that despite the dissolution of the League the
Applicants, as former Members of the League, have retained the rights
conferred on them by Article 7 of the Mandate-in other words that
they may still invoke tte Article, but, of course, provided the require
ments of the Article are satisfied.
The second assumpti-:m is that the subject-matter of the alleged
conflict or disagreement in the instant cases concems the interpretation
and/or the application c,f the provisions of the Mandate.
But then, in order to ir-.vokeArticle 7, it still remains for the Applicants
to satisfy this Court tha·~there exists as between them and Respondent
a dispute, and that that dispute cannot be settled by negotiation.
Before dealing with the Applicants' allegations in this connection, it
is necessary to consider two questions that arise with regard to the
essential requirements for jurisdiction under Article 7.
The first question is, when does a conflict or disagreement become
justiciable as a dispute; and the second question is, under what circum
stances can it be said that an existing dispute cannot be settled by
negotiation?
Both these questions ,:ame up for consideration in the Mavrommatis
case, where the Court was concemed with Article 26 of the Mandate for
Palestine, the provision; of which Article were identical to those of
Article 7 of the Mandate for South West Africa. At pages 396-399 (I) of
our written Objections, we quoted at length from the Judgment and
dissenting Opinions in the M avrommatis case, to demonstrate that from
the views expressed by the majority of the Court and certain of the
Judges in the minority, two propositions would appear to be clear. I am
not going to read the •!xtracts again as they appear in our written
Objections, I will just refer to the conclusion which we drew at page
399 (I), the conclusion bûng that:
"Before a dispute can be justiciable:
(a) its subject-matfor must have been clearly defined; and
(b) the Mandatory must have been afforded an opportunity to
negotiate with the abject of settling the dispute. And, except
inthe rare type of case where from the very circumstances or SOUTH WEST AFRICA
the nature of the dispute it is clear that the dispute cannot in
fact be settled by negotiation, either the Mandatory must have
failed to avail itself of an afforded opportunity to negotiate, or,
the Mandatory having so availed itself, the negotiations must
have resulted in a deadlock, before it can be said that the dispute
is one which cannot be settled by ncgotiation."
The Applicants, at page 450 (1) of their Observations, cite the Judg
ment in the M avrommatis case for a definition of the word "dispute" in the
context of the compulsory jurisdiction clause, that definition being as
follows, "a disagreement on a point of law or fact, a conflict of legal
views or of interests between two persans''. Again, at pages 463-465 (I) of
the Observations, there appears an analysis of the issues and findings
in the M avrommatis case. But nowhere in their Observations do the
Applicants refute the conclusion which we drew at pages 398 and 399 (1)
of our written Objections from the Mavrommatis case and the other
decisions there referred to, i.e., the propositions which I have cited
in the extract just read from our Observations, to the effect that
before a dispute can be justiciable in terms of the compulsory jurisdiction
clause, its subject-matter must have been clearly defined, and the
Mandatory must have been afforded an opportunity to negotiate in the
sense which I have stated-unless it can be established that the dispute,
from its very nature, or by reason of the particular circumstances, is
one which cannot possibly be settled by negotiation. We must therefore
conclude that the Applicants concede the correctness of these general
propositions.
Proceeding now to the subject-matter of the dispute alleged to exist
in the instant cases, we find that Applicants formulate that dispute, and
I quote, as "a disagreement on points of law and fact as well as a conflict
of legal views and interests", and it is particularised by the Applicants
as follows, at page 89 (1) of their Memorials where the Applicants say:
"The record of the present case makes clear that, for more than
ten years, the Applicant herein has had a disagreement on points
of law and fact, as well as a conflict of legal views and interests,
with the Union. The Applicant bas maintained at all times that the
Mandate is in force; the Union, that the Mandate has lapsed. The
Applicant has insisted that the Union has violated the Mandate;
the Union has denied doing so. The Applicant has contended that
the United Nations has supervisory powers over the Union as
Mandatory; the Union has repeatedly rejected its contention. The
Applicant has asserted a legal interest in, and the right to object to,
the manner in which the Union administers the Terri tory; the
Union insists that it alone has a legal interest in what occurs in
the Territory."
The matters so alleged to be in conflict fall into two separate categories
by their very nature. The first category comprises disagreements purely
on points of law, namely whether the Mandate is still in force, whether
the United Nations has supervisory powers in respect of South West
Africa, and whether the Applicants have a legal right or interest in the
administration of that territory. The second category comprises alleged
disgreements which are not concemed only with points of law but also
involve a conflict on facts, namely whether Respondent has violated
the Mandate. ARGUMENT OF MR. MULLER
For convenience and darity as to our contentions with regard to this
Objection, these two caü:gories will be dealt with separately, commencing
with the category comprising points of law only.
ln the first place it is clear from our written Objections, and I refer
here again to page 399 (1), that we do not deny the existence of a dispute
conceming the aforesaid points of law, that is of course, Mr. President,
assuming in the Applicants' favour on the third Objection. The Appli
cants, in participating in debates in, and resolutions of, the organs and
agencies of the United Nations, have contended that the Mandate is in
force, they have contended that the United Nations has supervisory
powers over Respondent as a Mandatory, and that they, the Applicants,
have a legal rightand interest in the administration of South West Africa.
The Respondent, on tht: other hand, has in the debates in the organs
and agencies of the Urâted Nations and in correspondence with the
United Nations, rejeckd these contentions of the Applicants. The
subject-matter of the disagreement conceming these points of law
can therefore be said to be defined with sufficient clarity to constitute
a justiciable dispute. We, however, deny the allegation that the dispute
conceming these points of law cannot be settled by negotiation.
Applicants do not surnest that the dispute conceming points of law
is one \vhich, by its very nature, or by reason of special circumstances,
cannot possibly be settled by negotiation. On the contrary, they base
their case with regard thereto on alleged frustration of efforts at negotia
tion on the part of organs of the United Nations and agencies of the
United Nations appointed for the very purpose of negotiating with
Respondent, these orgar-s and agencies being the Fourth Committee of
the General Assembly, the Ad hoc Committee, the Good Offices Com
mittee, and the Committee on South West Africa. The Applicants'
statements relative to these negotiations are to be found in their
Memorials at page 93 (1), and also in their Observations at page 473 (1).
Now we do not deny that there were these efforts at so-called negotia
tion, but we make the ,;ase that Respondent has never been afforded
any real opportunity of negotiating with the object of settling the
dispute. With regard to that contention, we draw attention in the first
place to the restrictive nature of the terms of reference of the various
committees appointed a; agencies of the United Nations to negotiate
with Respondent. Thus we point out that the Ad hoc Committee es
tablished in 1950 was to confer with Respondent on, and I quote from
page 273 (1) of the Prelirninary Objections, the "procedural measures for
implementation of the Advisory Opinion of the Court". These terms of
reference were modified in 1952 to conferring with Respondent "concern
ing means of implemenbng the Advisory Opinion".
In 1953 the Committee on South West Africa was appointed to
continue negotiations wi1h Respondent, and I quote from page 280 (1) of
the Preliminary Objections, "in order to implement fully the Advisory
Opinion."
The terms of reference of the Good Offices Committee established
in 1957 were originally less restrictive, and they were, as we find at
page 286 (1) of the Preliminary Objections, to discuss with Respondent
"a basis for an agreement which would continue to accord to the Territory
of South West Africa an international status."
These wider terms of reference of the Good Offices Committee re
sulted inat least one proposai, suggested by that Committee and accept- SOUTH WEST AFRICA
able to Respondent, being formulated for consideration by the General
Assernbly. That proposai was that Respondent should carry out an in
vestigation of the practicability of partitioning South West Africa,
but this proposal was rejected by the General Assembly. At the same
tirne the General Assembly altered the terms of reference of the Good
Offices Committee to find a basis for an agreement which would "con
tinue to accord to South West Africa as a whole an international status
and which would be in conformity with the purposes of the United
Nations", and added to that, "bearing in mind the discussions at the
Thirteenth Session of the Gencral Assembly". The terms of reference
which I have just read are to be found at page 289 (I) of the Preliminary
Objections.
Now, with its terms of reference so circumscribed, the Good Offices
Committee had eventually to report that it, and I quote from page 291 (1)
of the Preliminary Objections, "has not succeeded in finding a basis
for an agreement under its terms of reference".We say that by limiting
the power of these agencies in the manner aforestated, the compass
of their respective fields of negotiation was restricted and correspondingly
the opportunity for negotiation aiforded to Respondent was also limited
to that extent.
This was a matter of particular importance inasmuch as Respondent
felt strongly that the problem of international supervision of its admini
stration of South West Africa required special consideration, with
a view to avoiding more onerous obligations for Respondent than those
which pertained during the lifetime of the League. And this, Mr. Presi
dent, was the very point on which the negotiating agencies were left
inadequate freedom, their terms o_freference directing at insistence on
United Nations supervision.
Mr. President, in negotiations through ordinary diplomatie channels
parties are unfettered in their exploration of all avenues which may
present a solution to their differences. Where, however, as in the present
case, negotiations are in advance restricted to a narrow field, the pos
sibility ofsettlement is substantially reduced, if not excluded altogether.
Respondent's repeated objections in the United Nations to stulti
fication of negotiations in the manner which I have stated was not
heeded.
Another objection voiced by Respondent at the time, as we have set
out at pages 279 and 280 (1) of the Preliminary Objections, was that while
the Ad Hoc Committee insisted that Respondent should in principle
accept United Nations supervision as a basis for negotiation, the Com
mittee declined, despite Respondent's requests, to show how machinery
for United Nations supervision could be devised without subjecting
Respondent to obligations more onerous than those assumed under
the Mandate. Nor did the General Assembly suggest a solution to this
difficulty.
It will be recalled that this Court in its 1950 Advisory Opinion stated
as follows:
"The degree of supervision to be exercised by the General As
sernbly should not ... exceed that which applied under the Man
dates System, and should conform as far as possible to the proce
dure followed in this respect by the Council of the League of Na
tions." (I950Opinion, p. 138.) ARGUMENT OF MR. MULLER
243
In this regard Respondent repeatedly drew attention to two very
important difficulties. The first was the Constitutionof the Permanent
Mandates Commission under the League as compared with the organs
of the United Nations and with the Committee on South West Africa
which was appointed in 1953 with the fonction, inter alia, of exercising
supervision over the administration of South West Africa. The Perma
nent Mandates Commission was a commission of experts, indepen
dent of their govemmmts. There is no corresponding body or organ
in the United Nations. The Committee on South West Africa was
composed of political representatives of Member States, the selec
tion of individuals beü1g left to the discretion of the States elected
to serve on the Committee. This applies also to all other councils, com
mittees and agencies of the United Nations. Thus, unlike the members
of the Permanent Mandates Commission, the members of the Com
mittee on South West Africa, in exercising their supervisory fonctions,
did not stand apart from the political views of their governments.
In the second place, the ultimate supervisory body in the League
was the Council, a body of limited membership and the voting procedure
whereof was subject to the unanimity rule. The corresponding organ in
the United Nations C•)ntemplated to exercise ultimate supervisory
fonctions in respect of South West Africa was the General Assembly, an
organ with much broader membership than the Council of the League,
and in the voting proceclure of which the unanimity rule does not apply.
Article 18 of the Charter provides only for decisions by a majority or, in
the case of certain matters, by a two-thirds majority.
If Respondent had acquiesced in the supervision of its administra
tion by the Committee on South West Africa and the General Assembly
of the United Nations, its task would definitely have been more onerous
than it was under the League of Nations. ln effect, therefore, the insistence
upon prior acceptance by Respondent, in principle, of United Nations
supervision meant the insistence upon acceptance by Respondent of more
onerous obligations as a prerequisite for negotiations.
Another frustrating feature of these so-called efforts at negotiation
was the conferment on the agencies appointed to negotiate with Res
pondent of powers, the E:xerciseof which was in direct conflict with their
office of negotiation. Thus, in addition to its powers of negotiation, the
Ad Hoc Committee was to examine reports and petitions with regard to
South West Africa and report thereon to the General Assembly. We draw
attention to that aspect at pages 273 and 276 (1) of the Preliminary Ob
jections. Likewise, in the case of the Committee on South West Africa, it
was appointed to negotiate with Respondent and also to exercise super
vision over South West ;\frica. Later its fonctions were even extended to
embrace also the stud y of legal action against Respondent. These
are matters to which we drew attention at page 280 (1) of the Preliminary
Objections.
By the purported conforment of such powers of supervision and the
exercise thereof, against which Respondent had repeatedly protested,
there was created this peculiar position that while Respondent was
invited to negotiate a settlement of a dispute, the very nature ofwhich
involved a manifest denial by Respondent of United Nations supervisory
powers, these agencies were, at the same time, exercising supervisory
powers and attempting to subject Respondent thereto as ifthe dispute SOUTH WEST AFRICA
244
with regard to supervision had already been settled against Respondent's
contention.
Moreover, the organ to which these agencies reported on the results
and developments of efforts at negotiation, i.e. the Fourth Committee
of the General Assembly, was also the organ to which these agencies
accounte<l with regard to their supervisory fonctions. And this state
of affairs was not conducive to fruitful results in negotiation, inasmuch
as the debates in the Fourth Committee were invariably marred by
disturbing features, such as, for instance, the oral hearing of petitioners.
How could Respondent be expected to negotiate under such circum
stances; circumstances which tended to frustrate the very abject of
negotiations, the very object, as we see it, being the settlement of a
dispute?
The prospects of successful negotiations were further limited by
the repeated requests of the General Assembly that Respondent should
submit South West Africa to United Nations Trusteeship, and that
so despite the Court's 1950 Opinion that Respondent was not obliged to
conclude a Trusteeship agreement. The General Assembly passed annual
resolutions urging the Respondent to do so. \Ve give a summary of
those resolutions at page 402 (1) of the Preliminary Objections.
These resolutions clearly suggested that the majority of Members of
the United Nations would not be satisfied with any settlement of the
dispute which would not result in South West Africa being brought
within the Trusteeship System. In fact, Mr. President, the last General
Assembly resolution offering negotiations before the present cases were
brought to Court, that is a resolution of 17 November 1959, invited
Respondent-and I quote-to:
"... enter into negotiations with the United Nations through the
Committee on South West Africa, which is authorized under its
terms of reference to continue negotiations with the Union, or
through any other committee which the General Assembly may
appoint, with a view to placing the Mandated Territory under the
International Trusteeship System". (General Assembly Resolution
1360 (XIV), r7 November 1959.)
This is a clear indication of what the majority of Members would be
satisfied with.
Of particular significance is the role played by the Applicants in
this connection. Not only did they sponsor and/or support the resolu
tions of the General Assembly calling for a Trusteeship agreement, but
they made it quite clear that they would not be satisfied with anything
but a Trusteeship agreement for South West Africa. Thus, for example,
at the Second Conference of Independent African States held at Addis
Ababa in June of 1960, the Liberian Representative, Mr. Rudolph
Grimes, said-and we find what I am going to quote now recorded at
page 82 (1) of the Applicants' Memorials; this is what he said: that his
Government had
"... already indicated its determination on behalf of all the Afri
can States, to pursue further action to get this territory [South
West Africa] placed under the Trusteeship Provisions of the
Charter''. ARGUMENT OF MR. MULLER
245
In this regard, I also wish to refer to a statement of the Ethiopian
Representative, Mr. Gebre-Egzy, speaking as a member of the Com
mittee on South West Africa in the Fourth Committee on the 19
October 1959. He dealt with the General Assembly resolution No.
rr43 (XII) of the 25 October 1957. This resolution appointed the
Good Offices Committee-and I quote-to:
".. discuss with the Government of the Union of South Africa a
basis for an agreement which would continue to accord to the
Territory of South West Africa an international status".
Clearly, the resolution merely refers to a status but does not prescribe
a particularstatus: and this is what the Ethiopian Representative had
to say with regard to this resolution:
"... when the Committee was discussing the wording of the text
which was later adopted as General Assembly resolution rr43
(XII) several deleg;:,.tions-among them, Ethiopia-had made clear
that the words intnnational status meant trusteeship status. The
General Assembly had been entirely right to oppose, at its 13th
session both the Territory's partition and any solution which
offered less than the full trusteeship régime as it was applied
in ail the other territories administered by Member States of the
United Nations."
And further:
"Mr. Louw had, c,nbehalf of his Government [the Union of South
Africa], renewed the offer to enter into an agreement which would
accord some international status to the terri tory; in that connex
ion, the Ethiopian delegation was obliged to state that the only
legally acceptable :;tatus for the Territory would be trusteeship
status. Nothing le,.s would be in accordance with the Charter
and the Advisory Opinion of the International Court of Justice."
(U.N. Doc. A/C. 4/~iR 914, p. 164.)
Now this statement Î3 significant not only in so far as it indicates
clearly the position takm by Ethiopia, but also in that it attempts to
justify that position by reference to the Advisory Opinion of the Court,
whereas the Court had held that Respondent was not obliged to submit
the territory to United Nations Trusteeship.
Mr. President, in the premises can it ever be said that Respondent
was afforded a real oppc,rtunity to negotiate with the object of settling
the dispute, when members of the negotiating agency, such as Ethiopia,
serving on the Committee on South West Africa, viewed their task as
one to insist on the extreme of a Trusteeship agreement, and when it
was clear from the attitude of the majority of Members of the General
Assembly that a Trustetship agreement would be the only arrangement
acceptable to them? Mr. President, we submit that it can never be said
that a reasonable opportunity for negotiation was afforded. SOUTH WEST AFRICA
[Public hearing of II October I962, afternoon]
Mr. President, I am still dealing with the conflict between Respondent
and the United Nations regarding the status of South West Africa. We
say that Respondent's willingness and desire to find a solution to the
disagreement wlùch would be acceptable to all parties concerned is amply
demonstrated by the record of events over the years r946 to 1960 as
dealt with in Chapter II, Part B, of our written Objections, that is from
pages 256-297 (1). Now, it will not be possible in argument to traverse the
whole field of history. I will however mention those matters which are
important for the purpose of my argument, and will, as I proceed,
mention for the purpose of the record the pages in the Preliniinary
Objections where such matters are dealt with.
Now, although Respondent had throughout maintained its juridical
position it nevertheless put forward concrete proposals involving im
portant concessions with a view to finding a solution.
It had in 1951 declared its preparedness to negotiate a new inter
national instrument embodying the substantive obligations of the Man
date, and, ifconsidered necessary, also an obligation to submit to the
jurisdiction of this Court. When these proposals did not satisfy the
ad hoc Committee, because the Committee felt that the United Nations
was not given a sufficient role, Respondent went further and declared
that it was prepared to accepta compromise whereby the idea of a fresh
agreement be sanctioned by the United Nations prior to the negotiation
of such an agreement. This matter is dealt with in the Preliminary
Objections, pages 274-275 (1).
Now, this still did not satisfy the Committee and, after further con
sideration, Respondent intimated its willingness to have the actual
agreement submitted to the United Nations for confirmation.
All these proposals involved concessions on the Respondent's part,
but the Committee found these proposals unacceptable because, as it
indicated:
"it did not allow for a full implementation of the advisory opinion"
(of the Court},
those were the words of the Committee, and also that they
"could not therefore be considered as within [the Committee's]
terms of reference".
In this respect, I refer to the Preliminary Objections, page275 (1), where
the reaction of the Committee is dealt with.
When these proposals were resubmitted to the Committee in 1952,
the Respondent, upon enquiry from the Committee, undertook that
under the proposed agreement the Respondent would supply annually,
to the Powers with whom the agreement was to be concluded, information
on South West Africa as eomplete as that furnished to the League of
Nations.
Still the Committee was not satisfied as it insisted on United Nations
supervision and considered that the proposed agreement should be con
cluded with the United Nations or with an agency of the United Nations.
That matter is dealt with at pages 277-278 (I) of our Preliminary Objec
tions.
With the hope that an acceptable solution could still be found, Res
pondent discussed various possibilities with the Good Offices Commit- ARGUMENT OF MR. MULLER
247
tee in 1958 when the C.)mmittee suggested that a partitioning of South
West Africa (and I quote their own words) "might provide the basis for
the solution". Respond~nt intimated that it would be prepared to in
vestigate the practicability of partitioning and, if found feasible, Res
pondent would submit proposals to the United Nations.
The suggestion of the Good Offices Committee that such an investi
gation be made was, however, as we indicate in the Preliminary Ob
jections at pages 348-3,[9 (1), rejected by the General Assembly.
Respondent neverthdess reiterated its preparedness to negotiate
further and stated its position in clear language to the Fourth Committee
on the 26 October 1959. In this respect, I refer to page 351 (1) of the
Preliminary Objections, where towards the middle of the page one has
the reply of the Respondent in the following terms:
"The South African Govemment remained ready to enter into
discussions with an appropriate United Nations ad hoc body that
might be appointed after prior consultation with the South African
Govemment and which would have a full opportunity to approach
its task constructively, providing for the fullest discussion of ail
possibilities."
This offer was repeati~d in a letter to the United Nations on 29 July
1960, but elicited no reaction. The letter is dealt with at pages 353-354
(1) of the Preliminary Objections.
On 4 November 1960, these proceedings were instituted by the Appli
cants and the Respondent has since followed a course of conduct strictly
in observance of the su~ fudice rule, despite the fact that the matters
in issue in these proceedings have since formed the subject of debate in
the United Nations.
Although Respondent, in its written Objections at pages 401-405 (1),
clearly stated its reasons for contending that it had not been afforded
a real opportunity of negotiating, as is contemplated in Article 7 of the
Mandate, with regard to the legal points in issue, the Applicants in their
Observations do not d,~al with that contention at all. They do not
refute Respondent's conclusion that negotiations were frustrated by
the following circumstances:
(i) the restrictiveterms of reference of the agencies appointed to
negotiate with Respondent;
(ii) the purported cc-nferment on, and the exercise of supervisory
powers by, the very agencies appointed to negotiate, and the
resultant creation of an atmosphere not conducive to negotiation;
(iiithe requirement of prior acceptance by the Respondent of United
Nations supervision as a basis for negotiation;
(iv) the persistent urging that Respondent submit South West Africa
to United Natior-s Trusteeship, and the expression of views by
the majority of States in the United Nations, which suggested
that they would not be satisfied with any other arrangement than
a trusteeship agreement.
Now, the AppHcants, a.tpage 473 (1) of their Observations, merely refer
again to what they term frustrated efforts at negotiation over a period
of more than ro years, and to the conclusion by the General Assembly in
its resolution of 1960, which they quote: SOUTH WEST AFRICA
"the dispute which has arisen between Ethiopia, Liberia and other
Member States on the one hand, and the Union of South Africa on
the other, relating to the interpretation and application of the
Mandate has not and cannot be settled by negotiation".
And, say the Applicants, this is a finding of fact by the highest adminis
trative organ of the United Nations, embodying a conclusion amply
warranted by an exceptionally full record.
Elsewhere in the Observations we find the Applicants stating as fol
lows (at page 455 (1), second half of the page): ·
"Further, the dispute concerns the United Nations itself as an
institution, inasmuch as Respondent disputes that the Organization
is vested with supervisory powers over the Mandate",
and, on the next page, 456 (1), the top half of the page:
"In instituting these proceedings, Applicants have moved to pro
tect not only their own legal interests but the legal interests of the
United Nations (which itself, may not be a party to contentious
proceedings), as well as the legal interests of every other Member
State similarly situated."
We do not deny that the United Nations is, by reason of its daim to
powers of supervision over the Mandate, concerned in the dispute; indeed,
if it had not been for the daims put forward by the United Nations it is
unlikely that there would have been any dispute at all and therefore
any legal proceedings.
The conclusion embodied in the resolution of the General Assembly
must therefore be seen in its correct perspective and appraised as such.
Although described by the Applicants as "the highest administrative
organ of the United Nations", the General Assembly is in fact also a
political body. The resolution of the General Assembly is no more than
the expression of a collective opinion by the States who voted for the
resolution, such States being, as the resolution shows, .involved in the
dispute as Members of an organization which is itself directly concerned
in the dispute. It is not an objective appraisal of the situation by a body
not a participant in the dispute.
The Applicants go on to say, at page 473 (1) of the Observations,
that Respondent professes the view that the dispute can be settled
by negotiation. Now, this is a distortion of Respondent's contention,
which is formulated in clear and plain language at page 403 (1) of
the written Objections. Referring there to the unsatisfactory features
of, and the circumstances surrounding, the past efforts of negotiation,
allof which had been fully set out in the written Objections, we submitted
that in the premises Respondent had not been afforded a real and genuine
opportunity to negotiate with an abject of settling the dispute. And, for
that reason, we denied that the alleged dispute concerning disagreement
on points of law is one which can not be settled by negotiation, or that
any conclusion to that effect could be drawn from the narrative of events
contained in the Applicants' Memorials, as qualified and amplified
in Respondent's written Objections.
Respondent's case is simply this, that until it has been afforded a real
and genuine opportunity to negotiate it can notbe said that the dispute
is one which cannot be settled by negotiation. Respondent's willingness
to negotiate with an appropriate United Nations body, with a view to .\RGUMENT OF MR. MULLER 249
exploring all possibilities, still stands,ut has never met with any
reaction from the United Nations. Given such an opportunity, we say
that the dispute need notbe incapable of solution by negotiation.
The Applicants say further, at page 473 (1) of their Observations,
round about the middle of the page, that Respondent:
"... omits to state ... the unspoken qualification shown by the
lengthy record: [r,amely] negotiation can succeed only upon ac
ceptance of Respondent's conditions and interpretations".
But, Mr. President, we submit that the very record to which the
Applicants refer puts the boot on the other foot. Respondent has never
attempted to circumscribe the compass of negotiations with condi
tions. Itas to the very last reiterated its readiness to enter into negotia
tions which would allow for the fullest discussion and exploration of
ail possibilities.
It was the Applicar,ts and other Members of the United Nations
who by majority vote in that Organization imposed conditions, in the
nature of restrictive terms of reference, on the agencies appointed to
negotiate with Respondent and thereby limited the compass of nego
tiations proffered to Respondent.
Nor did Respondent limit its proposais to fall within the juridical
position as interpreted hy it. Despite Respondent's contention that since
the dissolution of the League of Nations it alone had a legal interest in the
administration of Souih West Africa, Respondent proposed without
prejudice to its legal pm,itiotonegotiate a new international instrument
embodying the substantive obligations of the Mandate and also, if con
sidered necessary, an obligation to submit to jurisdiction of this Court. It
even proposed that the idea of a new agreement be first sanctioned by the
United Nations, and that the agreement should, after conclusion, be
confirmed by the United Nations. Later Respoqdent also declared its
preparedness to investigate the practicability of partitioning South West
Africa as suggested by the Good Offices Committee.
It was the Applicants and other Members of the United Nations
who were adamant that no concessions should be made on their part
nay even more, who were adamant that Respondent should submit to
something which they knew Respondent was not legally obliged to
and that is to submit South West Africa to United Nations trusteeship.
At pages 473-474 (1) ,)f their Observations, the Applicants cite, in sup
port of their contention that Respondent has frequently avowed the
failure of negotiations, extracts from three letters written by Respondent.
Most certainly Respondent avowed the failure of such negotiations
as there were, but at ~he same time Respondent made it clear why
Respondent thought thé'negotiations did not, and could not be expected
to, lead to any positiw, results. The three letters quoted from by the
Applicants were written in the years 1954, 1955 and 1956 in response to
invitations by the Committee on South West Africa that the Respondent
should negotrate with it. In the first letter Respondent made it clear that
in view of the restricti-re terms of reference of the Committee it was
doubtful whether negotiations would lead to any positive results. This
prediction proved to be correct. And in the subsequent two letters
Respondent reiterated that while the Committee's terms of reference
stood unaltered, there was no hope that negotiations could lead to positive
results. SOUTH WEST AFRICA
In concluding their contentions with regard to this Objection, at
page 474 (1) of their Observations the Applicants say, and I quote from
page _474of the Observations:
"As the General Assembly has repeatedly found in Resolu
tions ...y overwhelming majorities, Respondent has refused, and
continues to refuse, to act on the basis of its international respon
sibilities under the Mandate, in the teeth of the Advisory Opinion
of this Court. This remains the center and core of the dispute be
tween Applicants and Respondent. The very contentions advanced
by Respondent in its Preliminary Objections clearly demonstrate
that its continuous, historie position persists. By its own conten
tions it proves, if proof is needed, that the dispute cannot be
settled by negotiation."
Mr. President, instead of attempting to answer our contention that
Respondent has not been afforded a real opportunity of negotiating a
settlement of the dispute, Applicants rely on the resolutions adopted
by the majority vote in the General Assembly of the United Nations.
As I have already stated, these resolutions must be considered in
their proper perspective. They are no more than the expression of
a collective opinion of the majority of States in- the United Nations,
which States, in Applicants' own submission, are parties to the existing
dispute. Their finding,by voting for resolutions in the General Assembly,
that Respondent has refused and continues to refuse to act on the
basis of its international responsibilities under the Mandate rests, of
course, on their own conceptions of what these responsibilities are.
We have contended, and have fully argued our contention, that the
views of these States as to Respondent's international responsibilities
are legally unsound. If our submrission as to the juridical position is
correct, as it is contended to be, then it would follow that the criticisms
contained in the resolutions to which the Applicants refer are equally
without foundation. Admittedly Respondent has not accepted in full the
Court's Advisory Opinion of 1950, but it has refused to do so on grounds
which, we respectfully submit, are sound in law.
Whatever the centre and core of the dispute between the Parties
may be, Respondent has demonstrated its desire and willingness to
fmd a solution to the dispute, but the Respondent contends, for the
reasons advanced in argument, that it has not been afforded a real
opportunity of negotiation, and that the record of events in the United
Nations does not justify a conclusion that the dispute cannot be settled
by negotiation.
I deal next, Mr. President, with the alleged conflict or disagreement
which is not concerned purely with questions of law, that is the alleged
violation by Respondent of the substantive provisions of the Mandate.
In this respect, the Applicants say, at page 91 (I) of their Memorials, to
wards the bottom of the page:
"The Applicant alleges, and the Union has denied, that the
Union has violated and is violating Articles 2, 4, 6 and 7 of the
Mandate. There is therefore a dispute concerning both the inter
pretation and the application of these Articles of the Mandate." J.RGUMENT OF MR. MULLER
ln support of their contention the Applicants refer to their partici
pation with other Members of the United Nations in debates and resolu
tionsin that Organization concerning the administration of South West
Afrïca. Now, in these dE:batesand resolutions, certain aspects of admini
stration in South West Africa have been criticized. Participation in these
debates, and in the resolutions of the organs and agencies of the United
Nations, was not confined to States which, as Members of the League
of Nations, had, prior to the dissolution of the League, a legal interest
in the administration of South West Africa. States which had never
been Members of the Lt~ague, and at no time had a Iegal interest, took
an active part in discussions in the United Nations on South West Africa
and in sponsoring and voting on resolutions concerning the administra
tion of that territory.
From the inception ,)f the United Nations Respondent had made
clear its jurïdical position with regard to South West Africa, namely,
that it was not obliged to submit a trusteeship agreement for the terri
tory, and that in the absence of such an agreement the United Nations
had no supervisory authority in respect of the territory. This attitude
Respondent maintained .:hroughout, and refused to submit reports on the
basis of accountability to the United Nations. Respondent had under
taken in 1946, as a purely voluntary acttosubmit reports for information
purposes only, but this nndertakingwas withdrawn when the conditions
under which it had been given were not observed by the United Nations
in dealing with the repo1t for the year 1946.
There was not the .;ame consistencv in attitude on the side of
other Members of the United Nations with regard to South West Africa.
During the year 1947 a great number of States participated in debates on
South West Africa in the organs of the United Nations. Particulars
of such debates were fornished by rny learned friend, Mr. de Villiers,
in addressing the Court on the First and Second Objections. We find
there that, although some States considered that Respondent was obli
ged to conclude a trusteefihip agreement for the territory, and some expres
sed the view that South West Africa was a non-self-governing territory, in
respect whereof informa1:ion was in terms of Chapter XI of the Charter
to be submitted to the United Nations, not one State denied Respon
dent's contention that in the absence of a trusteeship agreement and
unless Respondent con;ented to some other arrangement whereby
the United Nations would be endowed with supervisory powers over
South West Africa, the United Nations did not have any rights of
supervision over the administration of that territory.In fact, quite a
number of States expr,~ssed views clearly implying consensus with
Respondent's contention.
During the years 1948 and 1949 a few States did take up the attitude
that, even without a trnsteeship agreement, the United Nations was
entitled to exercise supervisory powers with regard to South West
Africa. The reasons adv.mced by these States for their point of view
was either that the provisions of Article 80 of the Charter had the effect
of endowing the United Nations with supf:rvisory authority-in that
instance we refer to the attitudes adopted by Belgium and lndia-or
that the United Nations as representative of the international commu
nity had replaced the League, which in ib, day had represented that
community-we refer in that respect to Brazil, Cuba and Uruguay. SOUTH WEST AFRICA
But the attitude then adopted by some of these States was in conflict
with views expressed by them in the year 1947.
However, it was only after the Court's Advisory Opinion had been
issued in 1950, and adopted by a majority vote in the United Nations,
that there was uniformity in the conduct of a majority of Members in
the United Nations who sponsored and, by majority vote, passed reso
lutions demanding observance by Respondent of United Nations
supervision over South West Africa, and creating machinery for the
exercise of supervisory powers. As mentioned by us at page 272 (1) of the
Preliminary Objections, Respondent explained at the time, particularly
with reference to the Chinese proposai at the last Session of the League,
why it could not accept the Court's opinion in so far as it held that the
United Nations was vested with supervisory powers over the adminis
tration of South West Africa, and Respondent maintained its attitude
of non-accountability to the United Nations.
In conformity with that attitude, Respondent throughout refused
to deal in the United Nations with complaints regarding, and criticism
of, its administration of the territory. Respondent did on occasions
participate in debates concerning the administration of South West
Africa. But this was done without prejudice to its legal position, and
merely for the stated purpose of demonstrating that the complaints
and criticisms were based on unreliable information, and without a
proper conception of conditions prevailing in the territory.
By reason of Respondent's attitude of non-accountability to the
United Nations, it has not stated its case in opposition to the allega
tions conceming the administration of South West Africa, nor have
there been any negotiations whatsoever conceming the complaints
involved in·such allegations. Now, if Respondent was right in its atti
tude of non-accountability to the United Nations-and we contend that
for the reasons stated and fully argued, relevant to the First Objection,
that it was right in that attitude-then it follows in our submission that
Respondent was also correct and justifted in its conduct of refusing
to deal in the United Nations with allegations or cornplaints concerning
the administration of South West Africa or to enter into negotiat.ions
thereanent on the basis of accountability to the United Nations.
In the premises we contend that whatever differences may, from de
bates in the United Nations, appear to exist as to certain aspects of
administration ofSouth West Africa, these differences are not defined
to such a degree as to constitute a dispute in terms of Article 7 of the
Mandate, and that, in any event, there have in fact been no negotiations
regarding such differences, so that even ifit can be said that there is a
disputf in existence, it cannot be said that that dispute is one which
cannot be settled by negotiation.
I proceed now to deal with the Applicant's Observations in reply
to our contentions on this part of the Fourth Objection. Before at
tempting to deal with our argument on this part, Applicants in their
written Observations, at pages 451 and 452 (1), create confusion for
themselves as to what our argument in fact is, by speculating on the
exclusion of contentions not embraced in the argument.
After much unnecessary speculation, the Applicants say, at page 452:
"Possibly Respondent seeks to imply that there is no dispute
because it has not joined issue with every one of Applicants' con- ilRGUMENT OF MR. MULLER 253
tentions, although, as it admits, Respondent has denied the general
allegations. If inde~d this is Respondent's position, it is erroneously
conceived."
In the first place, there is no need to seek any implication in our
argument. Our contention was clearly formulated at page 304 (1) of the
written Objections. I will not read what is stated there, but I will
-briefly répeat our contention, namely that by reason of Respondent's at
titude as to non-accoun1ability to the United Nations it has not dealtwith
the contentions put foiward in the United Nations by the Applicants
and other Member States. Respondent's attitude in this respect was
justified and necessary so as to prevent submission to United Nations
supervision. In the result, no dispute has been generated from the allega
tions and contentions raisedin the United Nationsconcerningthe adminis
tration ofSouth West Africa; and the raisingof such matters in the United
Nations did not, in view of Respondent's juridical position, afford a
reasonable opportunity for negotiation. Though Respondent has generally
de"niedthat it has violai:ed the provisions of the Mandate, it has refused
to join issue with the particular allegations and contentions advanced
in the United Nations Œgarding its administration of South ·WestAfrica.
But, say the Applicants, also at page 452 (1) of their Observations:
"... it is sufficient, by way of illustration, that Applicants allege
that apartheid violates Article 2 of the Mandate, and that Res
pondent categorically denies the allegation. It is not a necessary
characteristic of a 'dispute' that antagonists engage eà.ch other in
direct debate on each and every factual point constituting their
differences."
Now in whatsoever manner a dispute is manifested-whether in
direct debate, or by cor:Œspondence, or otherwise-at least this much is
necessary and that is that the subject-matter of the dispute must be
clearly defined before it can be justiciable.
To demonstrate this requirement, let us consider the very example
which the Applicants cite by way of illustration. If the alleged dispute
had consisted of a disagreement merely as to whether "apartheid" as a
theoretical conception violates Article 2 of the Mandate, then provided
there is clarity.onboth sides as to what apartheid actually means, then it
would perhaps have sufüced if the Applicants had alleged that apartheid
violates Article2 of the Mandate and Respondent had denied that allega
tion. But that, of courne, is not the alleged dispute presented by the
Applicants for the Court's adjudication. The Applicants make clear in
their Memorials at pages ro8 and r6r (I) what the alleged dispute is
about. At page ro8, we fi.ndthe following, at the bottom of the page:
"Since this section of the Memorial is concerned with the record
of fact,it deals with apartheid as a fact and not as a word. It deals
with apartheid in practice, as it actually is and as it actually has
been in the life of th~ people of the Territory, and notas a theoretical
abstraction."254 SOUTH WEST AFRICA
At page 16r (1) we find a statement to the same effect, also towards the
bottom of the page:
"We here speak of apartheid, as we have throughout this Me
morial, as a fact and not as a word, as a practice and not as an
abstraction. Apartheid, as it actually is and as it actually has been
in the life of the people of the Territory is a process..."
Now, the alleged dispute, clearly then, as advanced by the Applicants.
is not concemed with apartheid in theory but with particular legislative
acts and administrative measures applied in South West Africa; and
Respondent, by rea.son of its juridical position, has not stated its case
with regard thereto, with the result that the subject-matter of the
dispute has not been clearly defined.
Another argument propounded by the Applicants at page 67 (1) of their
Memorials is that they have since 1954 voted to approve and adopt the
annual reports of the Committee on South West Africa, which have set
forth detailed criticisms of Respondent's exercise of the Mandate; and
the Applicants go on to say this, at page 452 (1) of the Observations:
"If during all the time since 1954 Respondent has not seen fit
to respond to these contentions, but has continued to exercise
the Mandate without regard to the criticism supported and adopted
by the overwhelming number of the members of the international
community, it would appear that Respondent disagrees with the
criticisms. In the circumstances, Respondent's deeds have been its
words."
Again, this hypothetical argument departs from the realities of the
situation in this particular case. If there had been no response by
Respondent to the criticism contained in the reports of the Committee
on South West Africa, then there could possibly be some justification for
the conclusion which the Applicants seek to draw. Respondent, however,
repeatedly demonstrated that the criticisms contained in the reports of
the Committee were based on unreliable information and on misconcep
tions of conditions prevailing in South West Africa, and thus rendered
clearthat its conduct in proceeding with its administration of the terri tory
as before could not justify the inference now suggested by the Applicants.
lndeed, Mr. President, in the very next paragraph at page 453 (1) of
their Observations, the Applicants refer to occasions on which representa
tives of South Africa addressed the United Nations on various aspects
of administration in South West Africa. The Applicants say there, at
page 453 of the Observations, that in so doing: "Respondent stated its
position and voiced its contentions strenuously."
The records of the debates in the years 1948, 1954 and 1959 relied
upon by the Applicants, however, show clearly that Respondent's
participation in such debates was not with the abject of stating its
case in opposition to the allegations and criticisms concerning the
administration of South West Africa, but was for the sole purpose of
demonstrating that the complaints and criticisms were based on un
reliable information and misconceptions.
Thus, Mr. Louw, in addressing the Fourth Committee at its 78th
meeting on 9 November 1948 on certain aspects of the administra
tion in South West Africa, is reported at page 307 of United Nations
Document A/603, that is, the document referred to in the first footnote ,rnGUMENT OF MR. MULLER 255
on page 453 (I) of the Observations, to have prefaced his statement with
the following :
''Heintended to deal with certain points relating to the administra
tion of the Territory of South West Africa by the Union of South,
Africa, but he wished to make it clear that, although his Government
was willing to supply information, that did not mean that it rec
ognized that the United Nations had any right of supervision
over the administ:,ation of the Territory in question."
And later at page 3ro:
"Altogether, his delegation hoped that the information it had
just supplied, quite voluntarily, would help to give a better picture
of his Government's administration in the Territory of South
West Africa."
Again at the 407th meeting of the Fourth Committee on the 15 Oc
tober 1954, Mr. D. B. Sole is reported in United Nations Document
A/C-4/SR/407 to have :,aid:
"As the Fourth Committee was aware, his Government recognized
no obligation to provide the United Nations with information on
South West Africa or to comment on information obtained from
other sources. His delegation was in fact in a position to correct
all the errors of fad or interpretation in the report, but it had no
obligation, and did not propose, to do so. The report had been
submitted by a committee which his Govemment did not recognize
and it would therefore be incorrect for him to deal with it chapter
by chapter. Nevertheless, and solely for the purpose of indicating
how dangerous anô. misleading such a report could be and how it
could be used to give the world an unreal picture of the situation,
he would give a few illustrations of the Committee's errors in fact
and judgment." (P. 68.)
The document that I have just read from is that referred to in the third
footnote on page 453 (I) of the Observations.
During the year 1959, both Mr. Louw and Mr. van der Wath addressed
the Fourth Committee on behalf of Respondent. The basis on which they
were to participate in debates on affairs in South West Africa was clearly
outlined by Mr. Louw at the 900th meeting of the Committee on 8 October
1959. Mr. Louw repeated that the juridical position taken by South Africa
was that the supervis01y fonctions to the League of Nations had not
passed on to the United Nations and stated further, inter alia-I am
reading now from United Nations Document A/C.4/SR/900 at page 85
(that is the document referred to in the second footnote on page 453 (1) of
the Observations):
"The Union of South Africa did not recognize the United Nations
Committee on South West Africa, for reasons that it had stated
many times. While the Union Govemment considered that it was
not obliged to respond to the reports of that Committee, he would
on the present occai.ion deal with certain aspects of it which related
more directly to ü:ie Union Government. Mr. van der Wath, a
Member of ParliamE,nt who had been associated witli the Territory's SOUTH WEST AFRICA
administration for many years, would later provide the Committee
with information on what had been done in South West Africa, par.
ticularly with regard to the welfare of the indigenous inhabitants."
, And Mr. Louw concluded his statement by saying (at p. 87 of that
document):
"He had dealt with only a few of the more outstanding mis
statements and unjustified conclusions appearing in the report
A/4191 but they were suffi.dent to show to what extent the Com
mittee on South West Africa had been misled by information
from unreliable and prejudiced sources which did not represent
the Non-European inhabitants in the Territory."
It was on the same basis that Mr. van der Wath addressed the Fourth
Committee at its 914th, 915th and 916th meetings in 1959. These
meetings are all referred to in the footnotes at page 453 (I) of the Obser
vations.
Now the fact that Respondent has consistently disputed the general
allegation that it has violated the provisions of the Mandate-a matter
to which the Applicants draw attention at page 453of their Observations
-does not detract from our contention that the subject-matter of the
disagreement or conflict which in the present proceedings is alleged to
exist is not sufficiently defined as to be justiciable under the compulsory
jurisdiction clause.
From pages 453-456 of their Observations the Applicants devote
attention to the question what is a dispute, a point which, they say, is
also relevant to the question, what is negotiation?
In the first place, the Applicants, at page 454 of the Observations,
draw attention to the fact that Respondent does not deny that disputes
may be generated, or negotiations conducted, in the United Nations.
They put it in these terms:
"Respondent does not deny that disputes may be generated, or
negotiations conducted, in the United Nations. Indeed, as has been
shown above, Respondent concedes that a dispute does exist between
itselfand Applicants, which dispute has been generated in the
United Nations, at least on issues of law."
They say further at that page:
"lt is difficult to conceive that Respondent would seriously
contend ...that 'negotiations' cannot take place in a multilateral
forum. lndeed, the subject-matter of the dispute in the instant cases
is so particularly appropriate for discussion and consideration in
the United Nations that unilateral attempts to deal with the dispute
through channels unrelated to that body would engender confusion
and undermine the very purposes of the Mandate and United
Nations' supervision thereof."
In this respect the Applicants cite scholarly authority and state their
own views with regard to the objects and purposes for which the United
Nations was established.
Now the Applicants are correct in saying that we do not deny that
disputes may be generated in the United Nations; nor do we contend
that negotiations between States cannot take place in a multilateral
forum such as the United Nations. ARGUMENT OF MR. MULLER 257
What we do contend is that for a dispute to be properly generated,
and for negotiations to be properly conducted, in a particular forum
(that is for an opportur,ity for negotiation to be afforded in such forum)
both the subject-matte:, of the dispute and the conduct of negotiations
must fall within the competency of that forum. A State, being a member
of an international organization, cannot, against its own will, be drawn
into a dispute in that organization on a matter beyond the competency
of the organization; nor can such a State be expected to negotiate in that
organization when the professed negotiations are subjected to conditions,
the imposition of which is outside the competency of the organization.
Now, we concede that in fit circumstances it might be possible for the
subject-matter of the alleged disagreement or conflict in the present
cases to be properly raii;ed in the United Nations and for disputes there
anent to be generated in that forum, but then, we say, it must happen
with due observance of the constitution of the organization, that is the
Charter of the United Nations. For instance, matters of the nature
brought into complaint against Respondent in the present proceedings
could competently be raised for discussion in the United Nations relative,
for instance,to a Trust Territory, on the basis of accountability to that
organization by the administering authority. The Charter makes provision
for such accountability, in the case of a trust territory. But the Charter
makes no provision for accountability to the United Nations by a
Mandatory in respect oi.the administration of a Mandated territory not
converted to trusteeshiv, and there is, in our respectful submission, no
legal basis forhe exercfae by the United Nations of supervisory fonctions
in respect of such a tenitory.
When, therefore, criticism of Respondent's administration of South
West Africa was raised in the United Nations on the basis of account
ability by Respondent for its administration to the United Nations,
Respondent was, we submit, in view of its juridical position that the
United Nations had no supervisory powers in respect of that territory,
entitled to resist being drawn into disputes on that subject and to refuse
negotiations thereanen t.
In order to maintain its position, a position which we contend was
justified in law, Respondent was obliged to refrain from stating its case
m opposition to the complaints and allegations made in the United
Nations relative to its administration of South West Africa, with the
result that the difference, which arose on that subject have not manifested
themselves into a dispute, nor have there been negotiations thereanent.
Now, instead of meeting the crisp point made by us in this regard,
the Applicants say, at page 455 (I) of their Observations:
"In disputing ancl negotiating with Respondent, Applicants have
set forththeir views in the General Assembly and in its Committees,
and have likewise acted through the organs established by the
United Nations ta deal with the dispute and negotiate with
Respondent.''
As we have shown, upon a proper analysis of the events in the United
Nations, Respondent ha~;throughout avmded a disputation of allegations
concerning particular acts of violation of the Mandate, and there have,
in fact, been no negotiai:ions on that subject.258 SOUTH WEST AFRICA
That a dispute has been generated on other matters which are purely
matters of law, and that abortive negotiations were conducted in that
regard, has not been denied by us. I have already dealt with that matter
in the first part of the argument on this Objection.
Other arguments put forward by the Applicants on this part of the
Fourth Objection also avoid the point in issue. Thus, at page 451 (1)
of their Observations, the Applicants say that the subject-matter of the
dispute~the alleged acts of violation of the Mandate-covers one of the
major undertakings of the United Nations Members, and they go on to
cite the provisions of Article 73 of the United Nations Charter. Now,
if the criticism of Respondent's administration of South West Africa
had been put forward on the basis of alleged violation of the pro
visions of Article 73 of the Charter, then entirely different considera
tions would have arisen. But that did not happen: the allegations
regarding Respondent's administration were made on the basis of
accountability by Respondent to the United Nations, as if the United
Nations had succeeded to the powers and fonctions of the League of
Nations under the Mandate, which is an entirely different matter, and
not the same as a matter under Article 73 of the Charter.
Further, say the Applicants, the dispute concerns the United Nations
itself, as an institution, inasmuch as Respondent disputes that the
Organization is vested with supervisory powers over the Mandate.
Of course that is part of the whole conflict. We do not deny that
Respondent disputes the United Nations daim to supervisory powers
over the Mandate. In that respect we concede that there is a dispute,
but that does not justify a conclusion that there is also a manifested
dispute on the other matters in conflict, namely, an alleged violation of
the substantive provisions of the Mandate.
Finally, the Applicants take up their stand on the sacred trust of
civilization and they say, at page 451 (1) of their Observations:
"The dispute is of concern and interest to all States, at least
those which are Members of the United Nations. This is manifest
from the above-quoted portions of the United Nations Charter, as
well as the history of proceedings regarding the Mandate in the
United Nations. It would have been inappropriate, therefore, for
Applicants to attempt solely through their own diplomatie channels
or unilateral offices to determine with Respondent the future
course of the Mandate, 'an international institution with an inter
national object', especially in view of the fact that the United
Nations had established Organs and procedures through which
Member States could act to express their views, make their con
tentions known, and seek to resolve points at issue between them
selves and Respondent."
Now, we do not contest the allegation that matters of Mandate
administration may be of concern to all Members of the United Nations
and that the United Nations would be an appropriate forum for discussion
ofsuch matters; but then such discussions must proceed upon a pro
per legal basis and within the competency of the United Nations.
We contend that the United Nations has no supervisory powers over
the administration of South West Africa, and Member States of that
Organization, who were not Members of the League of Nations at its ARGUMEN TF MR.MULLER 259
dissolution, have no legal interest in the administration of that territory.
The Applicants, on the other hand, have contended, as they also do
in the present proceedings, that the United Nations kas such super
visory powers and that all Members of the United Nations have a Iegal
interest in the administration of South West Africa.
This conflict is the crux of the whole issue as to whether, from the
events in the United i,;'ations, it can be concluded that with regard to
allegations of violation of the substantive provisions of the Mandate,
there exists a properly defined dispute between the Applîcants and the
Respondent, and whether there has been a proper opportunity for
Respondent to negotiate thereanent.
Respondent has throughout taken its stand on what it contends to be
the juridical position and has refused to be drawn into disputes regarding
its administration of South West Afrîca, on the basis of accountability
to the United Nations whereas, on the other hand, the Applicants and
other Members of the United Nations have, at Ieast since the issue of the
1950 Advisory Opinion, raised in the United Nations complaints con
cerning the administration of South West Africa on the basis of ac
countability by Respondent to the United Nations for such administra
tion.
At page 456 (1) of their Observations, the Applicants in fact say:
"In dîsputing and negotiating with Respondent in the United
Nations during thf: past several years, Applicants, therefore, have
been upholding their own legal interests in the proper exercise of
the Mandate; but they have been doing more than that. They have
also been upholding the collective legal interest of the Members of
the United Nations and the înterests of the Organization itself.
In instituting theSE:proceedings, Applicants have moved to protect
not only their own legal interests but the legal interests of the
United Nations (which, itself, may not be a party to a contentions
proceeding), as weil as the legal interests of every other Member
State similarly situated."
Mr. President, we, I mbmit, have demonstrated that with regard to
the matters raised in the United Nations concerning Respondent's ad
ministration of South W-=stAfrica, Respondent has, in view of its juridical
position refused to account to the United Nations and to join issue with
other Members of the United Nations on such matters.
We, therefore, repeat our contention that in that regard it can not
be said that there exists a dispute, or, that if it can be said that a dispute
exists,that such disput,~ can not be settled by negotiation.
Mr. President, that concludes my argument on the Fourth Objection
and my address to the Court. I thank the Court.
Le PRÉSIDENT:Je voudrais maintenant demander à M. l'agent de
l'Afrique du Sud s'il dfaire lire les conclusions de son Gouvernement.
Dr. VERLOREN VANTHEMAATY : es, Mr. President. May it please the
Court. I now have the honour to read the submissions of the Govern
ment of the Republic o1South Africa in these proceedings. They are as
follows:
Submissions
For all or any one or more of the reasons set out in its written and
oral statements, the Government of the Republic of South Africa260 SOUTH WEST AFRICA
submits that the Governments of Ethiopia and Liberia have no locus
standi in these contentious proceedings, and that the Court has no
jurisdiction to hear or adjudicate upon the questions of law and fact
raised in the Applications and M emorials, more particularly because:
Firstly, by reason of the dissolution of the League of Nations,
the Mandate for South West Africa is no longer a "treaty or conven
tion in force" within the meaning of Article 37 of the Statute of the
Court, this submission being advanced
(a) with respect to the said Mandate Agreement as a whole, including
Article 7 thereof, and
(b) in any event, with respect to Article 7 itself;
Secondly, neither the Government of Ethiopia nor the Government
of Liberia is "another Member of the League of Nations", as required
for locus standi by Article 7 of the Mandate for South West Africa;
Thirdly, the conflict or disagreement alleged by the Governments
of Ethiopia and Liberia to exist between them and the Government
oftheRepublicofSouth Africa, is by reason of its nature and content
not a "dispute" as envisaged in Article 7 of the Mandate for South
West Africa, more particularly in that no material interests of the
Governments of Ethiopia and/or Liberia or of their nationals are
involved therein or affected thereby;
Fourthly, the alleged conflict or disagreement is as regards its
state of development not a "dispute" which "cannot be settled by
negotiation" within the meaning of Article 7 of the Mandate for
South \Vest Africa.
Thank you, Mr. President. ARGUMENT OF MR. GROSS 261
4. ARGUMENT OF Mr. ERNEST A. GROSS
(AGENT FOR THI: GOVERNMENTS OF ETHIOPIA AND LIBERIA)
{Public hearing of r5 October r962, morning}
Mr. President and honourable Members of the Court.
AU who are concem,3d in the field of international law must regard
the privilege of appearing before this Court as the climax of professional
aspiration. Theirs is the knowledge that it is possible to achieve the Rule
of Law only because this Court sits, and they well know that the reality
will be fully achieved only when nations come to regard it as a wise
exercise of sovereign responsibility to accord submission of disputes
to justice a higher priority than they do resistance to jurisdiction.
Aware of this respomdbility, the Applicants seek recourse to this high
Court, Frustration of patient effort to settle a grave international dis
pute through negotiahm makes it all too clear that if relief is not to
be found through resort to judicial process, it is indeed difficult to find
a just and orderly remedy anywhere.
For the purpose of these proceedings, I have the honour to represent
the Applicants as Agent and Counsel. I am privileged to have as col
leagues the Honourable Edward R. Moore, Assistant Attorney-General of
Liberia, and Mr. Leonad S. Sandweiss, a member of the Bar of New
York, both of whom are appearing as Counsel. The first oral argu
ment will be made by :.\frMoore this morning, and I shall follow.
Ifit pleasethe Court, I should like at this time to make a few prelim
inary observations and, for the convenience of the Court, briefly to
indicate the scheme of our argument.
Respondent's Counsel, referring during the course of his argument
to the Advisory Opinion of n July 1950, conceded the difficulty Res
pondent faces by reason of the fact that the maJor contentions which
it now advances are, and I quote learned Counsel, 'in important respects
at variance or in conflict with conclusions arrived at by the Court, or by
Members of the Court, in the Advisory proceedings of 1950"-the Ver
batim of 2 October at page 33, supra. Counsel has also conceded, and again
I quote, that "The sole •:i_uestionhere is, what weight is to be assigned to
the previous Advisory Opinion as a matter of authority", and he goes
on to say, in his own words, "Now clearly, if the factual material before
the Court now was substantially the same as the factual material in
1950 when the Advisory Opinion was considered, then that alone would
mean that the Advisor:r Opinion would be granted strong prima facie
weight as being of precedential value as an authority ...", at page 100,
supra, of the same Verbatim of 4 October.
As we understand it, the fundamental and, indeed, the sole, basis
for Respondent's contention that the Court should reconsider and
revise the 1950 Advisory Opinion is that, again in Respondent's words,
"the question now before the Court is, although the same in form,
very different in substance now because of' the presentation of new
facts ...1 quote from the Verbatim of 4 October at page roo.262 SOUTH WEST AFRICA
At an appropriate place in our oral statement, if it please the Court,
we shall endeavour to show that there is no valid, or even plausible,
basis for requesting reconsideration and revision of the 1950 Advisory
Opinion. Under these circumstances it would, perhaps, be sufficient for
Applicants to confine our argument to a demonstration that the facts
which Respondent has characterized as both "new" and "crucial" are,
indeed, neither.
Nevertheless Respondent has, in its Preliminary Objections, and in
its oral statements before the Court, argued the entire case on the
merits de novo. In the process of doing so it has, in our submission,
distorted the meaning and the reasoning of the 1950 Advisory Opinion.
We think that Opinion means what it says. We submit that there is no
ground for an argument de novo, and no ground for revising the Court's
Opinion of 1950 with respect to the Mandate for the territory of South
West Africa. The Republic of South Africa is, as the Court held, under
an obligation to submit to supervision by the United Nations and
to render annual reports to it, as well asto submit disputes concerning
the interpretation or application of the Mandate to the arbitrament
of the International Court of Justice.
ln view of the grave and historie issues raised by the charges in our
Applications concerning Respondent's asserted violations of the Mandate,
it seems important to restore to the record of these oral statements a
balance and a perspective which we feel has become distorted in the
course of Respondent's oral statements.
Responsibilities assumed by South Africa in the Mandate were based
upon its pledge to discharge a "sacred trust of civilization" and to
give "securities for the performance of this trust"-these are the
words of the Covenant of the League. Phrases of such weight and
dignity tend to lose their lustre with the passage of time, but never
their signifi.cance.
Respondent contends that the Mandate survives, if it survives at
ail, only on a basis which leaves Respondent with all the rights and
privileges of possession and of administration without international
accountability. Respondent does not fi.nd it appropriate to respond
to the Court's conclusion in the 1950 Advisory Opinion that precisely
such a result would not, in the Court's words, "be justifi.ed"-page 133
of the Advisory Opinion.
This dispute, which has subsisted for many years between Applicants
and the Republic of South Africa, involves basic issues of interpreta
tion and application of the Mandate. The dispute relates not only to
words and to phrases, but to basic undertakings; not merely to whether
the Mandatory misconstrues the narrower requirements of the Man
date, but whether if defies the very essence of the Mandate and de
prives it of all significant effect.
Patient efforts to negotiate an end to the dispute have met with
repudiation in the administrative bodies. These efforts are now rebuffed
by denial of the jurisdiction of this high Court to hear and adjudicate
the merits of the dispute.
Mr. President, the distinguished Agent for the Respondent, in his
opening remarks, properly stressed the importance to this case of an
evaluation of, and I quote his words, "of the circumstances surrounding
the creation of the Mandates system and the conclusion of the Mandate
Agreement, as well as the conduct of the parties concerned"-end of ARGUMENT OF MR. GROSS
quote. A substantial portion of the Prelirninary Objections, as the
Court will have observed, addresses itself to this matter.
If the Court pleases rny colleague, the Honourable Edward R. Moore,
will summarize for the Court the origins and nature of the Mandates
system, and will trace the evolution of that system briefly and the
major developments in the history of the Mandate involved in the case
at bar. Following Mr. Moore's presentation I shall, if the Court please,
examine and reply to Respondent's contentions in its Preliminary
Objections and in its oral statements; I shall endeavour to show that
Respondent offers no fa.ctual basis for re-opening and revising the 1950
Advisory Opinion, and that Respondent's arguments de novo lack merit
and should be rejected.
Mr. President and hc,nourable Members of the Court, this concludes
my introductory staternent and, if the Court please, the Honourable
Edward R. Moore will now address the Court. SOUTH WEST AFRICA
5. ARGUMENT OF Mr. EDWARD R. MOORE
(coUNSEL FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA)
[Public hearing of I5 Octoberz962, morning]
Mr. President and Members of the Court.
Permit me first to associate myself with the assurance of my colleague
of our feeling that we are being very highly honoured today by this
opportunity to appear before you, and to present the arguments of the
Govemments of Ethiopia and of Liberia in their dispute with the Govem
ment of the Republic of South Africa. The esteem in which we hold this
honourable Court, and its judgments and opinions, is particularly demon
strated by the manner in which we, together with other United Nations
Members, have consistently attempted to resolve our disputes with Res
pondent by the rule of law which, in the internationalcommunity, receives
its definite exposition by this Court. After the dissolution of the League,
and after the United Nations refused to consent to incorporation of the
Mandated territory by Respondent, when Respondent began to allege
that its duties under the Mandate had lapsed, and that no one else had
any legal interest in the Mandate whatever, controversy naturally arose
with respect to the Mandate. Since there was no agreement under law,
it was decided to pursue the obviously logical course, to takc the matter
to Court and to receive a definite statement of what the law is, and this
Court ruled on the law.
Having received, then, an authoritative statement of the relevant
law and being determined to settle the issue by the rule a/ law, Appli
cants and other United Nations Members again, logically enough, nego
tiated with Respondent on means ,vhereby to implement the Court's
opinion. These ncgotiations have obviously failed.
When the question subsequently arose as to whether a rule of voting
procedure in the General Assembly, relating to the Mandate, was con
sistent with the Court's opinion, again it was decided to go to Court for
the answer, which was given.
Finally, when discussion ensued on the question of whether oral
hearings to petitioners on matters relating to South West Africa was
consistent with the Court's opinion, the matter was taken to Court to
obtain a definitive answer, which also was given.
These proceedings, therefore, represent the fourth attempt at judicial
settlement of questions relating to the Mandate, and I am honoured to
be part of this delegation which is here in an effort to have the dispute
with Respondent settled finally and irrevocably, again by the rule of
law, in a contentious proceeding which will be formally binding not only
upon Applicants but upon Respondent as well.
What I shall endeavour to do at this stage of our oral submission is
to present the facts ofthiscase. After reading the Preliminary Objections
and listening to the arguments of the Respondent, we consider that the
history of the Mandate and of this dispute must be restated, however
briefly, since in significant areashey have either beenignoredor.inour ARGUMENT OF MR. MOORE
submission, not properly characterized by Respondent, and since a
proper appreciation of these facts is vital in assessing the legal arguments.
The historical propositions which wc are here to present are not novel,
but already constitute an important part of international jurisprudence.
This honourable Court, in its Advisory Opinion of II July 1950, has
already affi.rmed the validity of certain basic historical truths, and I
quote from the Court's Opinion on pages r3r and 132:
"The Territory of South-West-Africa was one of the German over
seas possessions in respect of which Germany, by Article II9 of the
Treaty of Versaille.;, renounced all her rights and tiUes in favour
of the Principal Allied and Associated Powers. When a decision
was to be taken with regard to the future of these possessions as
well as of other te1Titories which, as a consequence of the war of
1914-1918, had ceased to be under the sovereignty of the States
which formerly govcrned them, and which were inhabited by peoples
not yet able to assume a full measure of self-government, two
principles were considered to be of paramount importance [may I
repeat, of 'paramount impportance']: [these were] the principle of
non-annexation and the principle that the well-being and develop
ment of such peoplcs form 'a sacred trust of civilization'."
After characterizing the Mandate, the Court summed up by stating,
at page 132:
"The terms of this Mandate, as well as the provisions of Article 22
of the Covenant and the principles embodied therein, show that
the creation of this [new] international institution did not involve
any cession of territory or transfer of sovereignty to the Union of
South Africa. The Union Government was to exercise an internation
al fonction of administration on behalf of the League, with the object
of promoting the well-being and developnient of the inhabitants."
With the foregoing basic truth concerning the Mandate in mind, I
should like now to sketch briefly the nature and origin of the Mandates
system.
By the beginning of World \Var I, there had developed agreatpressure
for the reform of colonial policies which had existed prior thereto, not
only with regard to the so-called "scramble for Africa" which had been
going on during the nineteenth century, but with regard as well to other
colonial areas.
At the Peace Conference following the termination of hostilities, how
ever, two opposing poims of view speedily became evident.
There were those who were determined on outright annexation of the
German overseas colonies; others were so suspicious of colonial admini
stration that they wished to make the League of Nations, which was to
be established, the administrator of the territories in question.
The ensuing disputes regarding the former German colonies were re
solved, finally, largely on the basis of proposais formulated by General
Smuts and others, and I read now a part of the proposa! of General
Smuts, which had the rnost effect in the final result of the Mandates
system:
"(2) That so far at any rate as the people and territories formerly
belonging to Russia, Austria-Hungary, and Turkey are concerned SOUTH WEST AFRICA
the League of Nations should be considered as the reversionary in
the most general sense as clothed with the right to ultimate disposa!
in accordance with certain fondamental principles.
[3] These principles are: first, that there shall be no annexations
of any of these territories to any of the victorious powers, and
secondly, that in the future government of these territories and
people the rule of self-determination or the consent of the govemed
to their form of govemment shall be fairly and reasonably applied."
Although General Smuts himself, and his Government, did not at first
favour the application of the Smuts proposal to colonies in the Pacifie
and Africa, as explaincd above, nevertheless South Africa's underlaking
in assuming the Mandate conformed, basically, to the principles of the
proposa!. Indeed, the record would indicate, in our submission, that
without such an undertaking Respondent would probably not have been
permitted to administer South West Africa at all. As Temperley puts it,
"a general application of the Mandates system was insisted upon".
Thus the result of disputes, debates and negotiations was acompromise.
The victorious Powers agreed that instead of implementing either of the
opposing views above mentioned, either outright annexation on the one
hand, or direct administration by the League on the other, the former
German colonies would be put under a mandate system, with modern
States as Mandatories, under the supervision of the new international
organization, the League of Nations. The two major features of the system
constituted the compromise, which was that there was to be no annexa
tion and the undertaking that the Mandate should be for the benefit
of the people of the Territory. In order to ensure these features, Article
22 of the League Covenant called for "securities of the performance of
this trust". As Applicants have noted at page 459 (1) of their Observa
tions, the authors of this formula were not content to depend solely upon
the conscience, or, indeed, the competence of the Mandatory for the prop
er exercise of the Mandate; rather, they devised a system which was made
subject to the authority of the League and its Members to require the
Mandatory to report, account and, ifnecessary, submit to adjudication
consistent with their fiduciary role, and Mandatories were required to
consent to the Court's jurisdiction in advance.
Thus it has been shown, though one should think it unnecessary to
do so except for the curions arguments of the Respondent, it has been
shown that the formula arising from the compromise was intcnded to
bind all conccrned to its terms, not to be used as proof that originally
one or other of the parties to the Mandate Agreement, based upon the
compromise, should be allowed to convert his original ambitions into
a right.
As to the second point that not the Mandatory but the inhabitants
of a territory should be beneficiaries of the arrangement, Article 22 of
the Covenant of the League of Nations provided in paragraphs r and 2
the following :
"r. To those ... territories ... there should be applied the principle
that the well-being and development of such peoples form a sacred
trust of civilization and that securities for the performance of this
trust should be embodied in this Covenant.
2. The best method of giving practical effect to this principle is
that the tutelage of such peoples should be entrusted to advanced ARGUMENT OF MR. MOORE 267
nations who by reason of their resources, their experience or their
geographical position can best undertake this responsibility, and
who are willing to ,Lcceptit [I repeat, and who are willing to accept
it], and that this tutelage should be exercised by them as Manda
torieson behalf of the League."
Article 2,paragraph 2, of the Mandate for South West Africa reiterated
the emphasis upon the question who were to be the beneficiaries:
'The Mandatory shall promote to the utmost the material and
moral well-being a,1d the social progress of the inhabitants of the
territory subjectto the present Mandate."
Briefly, it may safely be stated that the extent of power granted a
Mandatory was based riot upon how much the League or the Principal
Allied Powers desired to award the Mandatory, but upon the needs of
the inhabitants.
Such was the compromise, the formula, for a new type of relationship
between peoples of different cultures and institutions. ln the case of
Mandates, the principle of "sacred trust" succeeded to the doctrine of
rights of conquest, and history records that the principle-though neces
sarily writ large and brnad in scope-has borne fruit and has evolved
into practical realities. The following includes a list of all the original
Mandates, or at least m-Jst of them, Mr. President, and their disposition
asof this time: ·
I. The French Mandate for Syria and the Lebanon which has resulted
in independence for both of these countries.
2. The British Mandate for Palestine, which has resulted in independ
ence.
3. The British Mandate for the Cameroons (British Cameroons) has
also resulted in independence.
+ The French Mandat!: for the Cameroons has resulted in independence.
5. The French Mandate for Togoland has resulted in independence.
6. The Belgian Mandat•:: for Ruanda-Urundi has also just recently re
sulted in independeuce.
7. The Japanese Mandate for the German possessions in the Pacifie
Ocean lying North d the Equator has been converted into a United
States trusteeship.
8. The Australian Mandate for the German Possessions in the Pacifie
Ocean situated South of the Equator other than German Samoa and
Nauru (referring, m:1.inly,to New Guinea) has been converted into
a trusteeship.
9. The New Zealand Mandate for German Samoa has been converted
into a trusteeship.
IO. The Birtish Mandate for Nauru has been converted into a trusteeship.
But, and this is the c-ne exception, Mr. President, the South African
Mandate for German South West Africa has resulted in neitherindepend
ence nor trusteeship.
In spite of the historical record I have just presented of Mandates
and what has happened to them, the consistent historical position of
South Africa since the early post-war years has been that the Mandate268 SOUTH WEST AFRICA
has lapsed and that it is accountable to no-one with respect toit. Thus
with respect to every Mandate, as I have noted, except for the one
questioned here in the sense of Respondent's attitude toward it, the
ideal of "sacred trust" has maintained its vitality for more than forty
years, manifesting itself in some instances in mdependence, and in
other instances continued tutelage in the form of trusteeships. History
can only confirm that the so-called compromise arising from the Peace
Conference in Paris has had a meaningful, creative, and, with only one
possible exception, eminently successful existence.
Applicants' statement of the history of Respondent's administration
of the territory up to the beginning of World War II has been set forth
in their Memorials at pages 37-43 (1). No further comment is required
at this time, except to point out that the policy of "doser assimilation",
to use Respondent's words at page 223 (1) of his Objections, which Res
pondent continuously sought to apply with respect to the Mandated
territory,was a matter of frequent concem to the Permanent Mandates
Commission during that period.
Illustrative of such concem is astatement by the Permanent Mandates
Cornmi~ion, which I should now like to quote, in part, for the Court's
convemence:
"The Permanent Mandates Commission notes with regret that,
in spite of all its previous discussions on this subject and ail the
correspondence exchanged between the Council of the League of
Nations and the Govemment of the Union of South Africa in
1927 and 1928, it has never received an explicit answer to its
repeated question on the meaning attached by that Govemment
to the term 'full sovereignty' used to define the legal relations
existing between the mandatory Power and the territory under
its mandate.
That question may be formulated as follows: In the official
view of the Govemment of the Union of South Africa, does the
term 'possesses sovereignty' express only the right to exercise
full powers of administration and legislation in the territory of
South West Africa under the terms of the Mandate and subject to
its provisions and to those of Article zz of the Covenant, or does
it imply that the Govemment of the Union regards itself as being
sovereign over the territory itself?
As long as no clear reply to this question is received, the Com
mission fears that a regrettable misunderstanding will subsist,
which it therefore hopes the Council may succeed in finally clearing
up."
The foregoing takes us to the period of World War Il, and the ensuing
dissolution of the Lea~e and establishll}ent of the United Nations,
I should like now to d1scuss the relevant events during this period of
transition.
In March 1945, all States parties to the United Nations Declaration
of 1942, and all other Allies were invited to take part in a conference
at San Francisco (that is the United Nations Conference on International
Organization) to agree on a Charter for the United Nations.
The problem of colonial territories was considered by Committee 4
of Commission II of the San Francisco Conference, and on II May 1945
Dr. D. L. Smit, the South African delegate, informed the Committee ARGUMENT OF MR. MOORE 269
that South Africa later intended to seek approval for annexation of
South West Africa. This statement was made for the information of the
Committee only, Dr. Smit said, and his submission was as follows:
"The Delegation of the Union of South Africa therefore claims
that the Mandate should be terminated and that the territory
should be incorporated as part of the Union of South Africa.
As territorialquestions are however reserved for handling at the
later Peace Conference where the Union intends to raise this matter,
it is here only mentioned for the information of the Conference in
connection with the Mandate question."
Meanwhile, Five Power discussions, on the basis of Australian and
British proposais made in Committee II/4, were taking place, and by
15 May 1945 a working paper could be presented to that Committee,
but not as the proposais of the major Powers, or indeed of any State,
as full agreement with regard to non-self-governing territories had not
been achieved. The paper, however, served as the basis for all further
discussion of the colorâal question, and Section A thereof developed
into Chapter XI of the Charter, while the Trusteeship system grew out
of Section B. The full history of the evolution of these Charter pro
visions is quite complex, but for present purposes, only the history of
paragraph B, 5, which in its final form became Article 80 of the Charter,
need be considered in detail.
Paragraph B, 5, the basic purpose of which appears from a heading
of a section of the Report of Committee 4 of Commission II, that is
"Maintenance of Exist ing Rights", was aptly referred to during dis
cussions as the "Conservatory Clause" and as originally presented to
the Committee providecl;
"Exceptas may be agreed upon in individual agreements placing
each territory under the trusteeship system, nothing in this Chapter
should be construed, in and of itself, to alter in any manner the
rights of States or any peoples in any territory."
At the ninth meetin1~of Committee 4 of the same Commission, the
delegate of the United ~itates amended the original draft of the proposed
Conservatory Clause so that it specifically preserved the provisions of
the Mandate instrument. The paragraph then read as follows:
"5. Except as may be agreed upon in individual arrangements,
made under paragrnphs 4 and 6, placing each territory under the
trusteeship system, nothing in this Chapter shall be construed in
and of itself to alter in any manner the rights of any States and
peoples in any tenitory, or the terms of any Mandate."
The Conservatory Clause was adopted in this first form at the tenth
meeting of the Committee at which the United States delegate furnished
an explanation of the i:•rovision.
The Summary Record of that meeting notes that:
"The delegate for the United States stated that paragraph B, 5,was
intended as a cons~rvatory or safeguarding clause. He was willing
and desirous that the minutes of this Committee show that it is
intended to mean that all rights, whatever they may be, remain
exactly the same as they exist-that they neither increased nor270 SOUTH WEST AFRICA
diminished by the adoption of this Charter. Any change is left
as a matter for subsequent agreements. The clause should neither
add or detract, but safeguard ail existing rights, whatever they
may be."
An amendment to paragraph 5 was proposed at the Thirteenth Meeting
by the United States to meet Soviet fears that a provision which pre
served rights under the Mandate system indefinitely might be seriously
abused by Mandatory Powers. (See Russel and Muther, A History of the
United Nations Charter, p. 829.) This in substance stated that nothing
in the paragraph should afford grounds for delay in conclusion of Trustee
ship Agreements, and this became Article 80, paragraph 2,of the Charter.
In introducing the amendment, Commander Stassen stated:
"Then we add a new sentence:
This paragraph should not be interpreted as giving grounds for
delay or postponement of the negotiations and conclusion of the
agreements for placing mandated and other territories, as provided
for in paragraph 3, under the Trusteeship System.
Now, there are a number of factors that corne into the amendment
that we are proposing. Let me state, in the first instance, that this
does not change the conservatory nature of the clause as we orig
inally proposed it, but it does clarify and take away some of the
possible misinterpretations that have been raised.
It is clear that paragraph 5 is intended to preserve the rights
during that in-between period from the time this Charter is adopted
and the time that the new agreements are negotiated and completed
with the new Organization. And it is not intended that paragraph 5
should be any basis of freezing etemally the situation affecting any
territory." (See the Verbatim Minutes of Thirteenth Meeting,
8 June 1945, Nos. 24, 25, U.N. Achives, Vol. 70.)
Finally, at the Thirteenth Meeting of Committee 4, Commission II, a
further United States amendment was adopted which extended the
operation of the Conservatory Clause to all international agreements
with respect to Mandated territories.
At the same time that the United Nations Charter was signed, States
agreed by separate instrument to establish a preparatory commission to
make provisional arrangements for the First Session of the General
Assembly, the Security Council, the Economie and Social Council, for the
establishment of the United Nations Secretariat and for the convening
of the International Court of Justice. Arnong the many matters con
sidered by the Preparatory Commission, in this regard, were the as
sumption of fonctions of the League of Nations by the United Nations,
the transfer of assets to the new body and the setting up of the Trustee
ship system. The Executive Committee of the Preparatory Commission
proposed the creation by the General Assembly of a temporary Trustee
ship Committee to carry out certain of the fonctions assigned in the
Charter to the Trusteeship Council pending its establishment. (U.N.
document TC n3r.)
The central purpose of the proposed Temporary Trusteeship Committee
was explained by the Chairman of Committee 4 of the Preparatory
Commission. Said he: ARGUMENT OF MR. MOORE 271
"The basic task Qf the Temporary Trusteeship Committee, as it
was contemplated, was to assist the General Assembly in expediting
the establishment of the Trusteeship System and was to remain in
existence until a sufficient number of trusteeship agreements had
been concluded to :Promote of the Permanent Trusteeship Council
in accordance with Article 86 of the Charter." (General Preparatory
Commission, Fourth Plenary Meeting, p. 125.)
A certain delay in the completion of trusteeship agreements seemed
probable, some delegates stated, and until a sufficient number of such
agreements were concluded the Trusteeship Council could not be estab
lished sothat the General Assembly would not have an expert body to
assist it in colonial problems, particularly those in regard to the estab
lishment of the new syi;tem. However, the Soviet delegate, supported
by other delegations, was of the opinion that the proposed Temporary
Trusteeship Committee might delay rather than accelerate the establish
ment of a Trusteeship Council and that its çreation was not authorized
by the Charter of the United Nations. The nature of the Soviet objection
should be understood. Jt was not argued that the General Assembly
was incompetent to supervise performance of Mandate Agreements, nor
was it contended that the General Assembly might not establish an
auxiliary organ to assist it in regard to colonial territories. The objection
was rather that the Temporary Trusteeship Committet> envisaged by
the Executive Committee was not in fact an auxiliary organ which
might be set up under Article 22 of the Charter.
At the same meeting of Committee 4 of the Preparatory Commission,
South Africa supported the view that creation of an interim body might
expedite the establishment of a Trusteeship Council and added a pro
posal, not discussed by any other delegation, that a Temporary Trustee
ship Committee might supervise administration of Mandated territories.
The summary record of the second meeting of Committee 4 reports
the South African deleg.üe as follows:
"Mr. Nicholls of the Union of South Africa said that he had
followed the arguments against the establishment of a temporary
organ most closely. It seemed to him that they were based on the
one hand on constitutional grounds; on the other, on expediency.
The delegation for the Soviet Union might be right, but that was
a legal question. The Committee might seek legal judgment on a
question ifdoubt existed amongst some of the delegations.
On the question of expediency, _itseemed reasonable to create an
interim body as tht: Mandates Commission was now in abeyance
and the countries holding Mandates should have a body to which
they could report. The delegate for Yugoslavia found difficulty in
interpreting the phrase 'States directly concerned'. Mr. Nicholls took
this to mean that any colonial power which would place colonies
under the trusteeship system. was at. liberty to do so. There. could
be no other way to urge them to do so than by setting up an interim
Committee."
Now, the nature of the Soviet legal objections to the establishment
of an interim body has dready been indicated. More importantly on a
practical level,the Sovid Union believed that trusteeship agreements
could be concluded and the Trusteeship Council established far sooner272 SOUTH WEST AFRICA
than plans for creation of a Temporary Trusteeship Committee seemed
to imply. Such a body was unnecessary and might diminish the incentive
of States to enter into Trusteeship agreements at an early date. It was
pointed out that in the event of undue delay in completion of trusteeship
agreements it was open to the General Assembly at any time to establish
any body which seemed necessary. The Soviet delegate is reported as
arguing, with reference to a Temporary Trusteeship Committee or an
ad hoc Committee, that he was not surprised that the Mandatory powers
were in favour of substitute organs, but if the problem were dealt with
along these lines, discussion could continue for months or years without
any action being taken.
The Temporary Committee would, in fact, delay these provisions of
the Charter (that is the Trusteeshîp provisions) rather than speed them
up. His Government considered it would not be advisable to establish
an artificial organ, as other more practical and more speedy means
existed.
The practical steps referred to included the making of declarations
by Mandatory Powers that they intended to place their territories under
trusteeship, and the presentation of draft trusteeship agreements.
Yugoslavia, during the third meeting of the Committee, presented
written proposais as to the course which should be adopted. It suggested
that:
"From that moment until the second part of the first session, the
States directly concerned should conclude trusteeship agreements.
If these agreements covered strategical areas, they should be sub
mitted for approval of the Security Council, but if these agreements
concerned only non-strategical areas, they could be submitted to
the General Assembly during the second part of the first session. An
ad hoc committee of the General Assembly to examine these decla
rations of the present mandatory powers could usefully be formed."
The ensuing two chief matters of debate were (1) the time within
which trusteeship agreements could be submitted, and (2) the question
of whether an ad hoc committee should be established. With respect to
the desirability of an ad hoc committee the Chinese delegate took the
view at the tenth meeting of the Fourth Committee that the whole
problem of transition was one of a short duration, and that even an ad
hoc committee was unnecessary.
"He" (that's the Chinese delegate) "pointed out that the Com
mittee was divided on the question of setting up a temporary or
ad hoc committee. Those who were opposed to a temporary organ
considered that one agreement would suffi.ce for bringing the
Trusteeship Council into being. He doubted the soundness of the
suggestion.
However it was not absolutely necessary to set up the temporary
ad hoc committee in view of the fact that the General Assembly
would have a main trusteeship committee dealing with trusteeship
matters in any case. If trusteeship agreements were submitted in
the interval between the first and second part of the first session
of the General Assembly, that main committee could decide what
was the best thing to do at the second part of the first session of
the General Assembly. It could also decide what was to happen if ARGVMENT OF MR. MOORE 273
it were not possible to create the Trusteeship Council until after the
end of the first ses~;ionof the General Assembly.
He therefore urged that use should be made of the main trus
teeship committee of the General Assembly, thus leaving the
question of a temporary or ad hoc committee for the General
Assembly itself to decide. If this plan could be adopted, it would
answer all questions."
Following a reference of the whole matter to a sub-committee, Com
mittee 4, and later th~ Preparatory Commission, it was decided not
to make a recommendation with respect to the establishment of an
auxiliary body, proposing simply that the General Assembly should
adopt those methods which appeared most appropriate.
As has been mentioned earlier, the Respondent strongly supported
proposals for establishment of a temporary trusteeship committee,
and even suggested that it might supervise administration of Mandated
territories.However, the Respondent found greater diffi.culty in ac
cepting the alternative proposals for speedy completion of trusteeship
agreements, which were adopted in the final report. At the tenth meeting
of Committee 4 of the Preparatory Commission the Respondent pointed
to the problems smaller States might experience in quickly submitting
trusteeship agreements because of the restricted staff at their disposa!,
and mentioned also th,ët in some instances it would be necessary to
consult inhabitants of Mandated territories as to their future. At the
fifteenth meeting of Committee 4 that State made certain statements.
It is to these statements I now desire to turn.
The Summary Record of the tenth meeting of Committee 4 reads as
follows:
"!\fr. Nicholls (Union of South Africa) stated that on all mate
rial points the proposals seemed to be indentical. But the time
factor had not been sufficiently considered, not only because of
the diffi.culties of the restricted staff available in small countries
but also in view of the need for consultation of the native popula
tion, notably in su-:h a territory as Palestine. The time limit in
the Yugoslav propJsal would be insufficient. He preferred that
the United Kingdom modification, 'at the earliest possible op
portunity thereafter', should take the place of the original Yugo
slav wording, 'the ~;econdpart of the first session of the General
Assembly'."
The Summary Record of the fifteenth meeting of Committee 4 of
20 December r945 repoi:is that:
"Mr. Nicholls (Union of South Africa) reserved the position
of his Delegation ·,mtil the meeting of the General Assembly,
because his country found itself in an unusual position. The man
dated territory of S-:mth West Africa was already a self-governing
country, and last year its legislature had passed a resolution asking
for admission into the Union. His Government had replied", he
said, "that accept~1ce of this proposa! was impossible owing to
their obligations under the Mandate. The position remained open,
and his Delegation could not record its vote on the present oc
casion if by so doing it would imply that South West Africa was
not free to determine its destiny. His Government would however SOUTH WEST AFRICA
274
do everything in its power to implement the Charter. For these
reasons South Africa abstained from voting on the Report of
Committee 4 in that Committee."
Advancing to some positive steps taken later in the General As
sembly, I should like to note that on 9 February 1946 the General As
sembly adopted a resolution with respect to non-self-governing terri
tories and trusteeship agreements which, with respect to Chapters XII
and XIII of the Charter, noted that:
"The General Assembly ...
Welcomes the declarations made by certain States administering
territories now held under mandate, of an intention to negotiate
trusteeship agreements in respect of somc of those territories and,
in respect of Transjordan, to establish independence.
Invites the States administering territories now held under
mandate toundertake practical steps, in concert with other States
directly concerned, for irnplementation of Article 79 of the Charter
(which provides for the conclusion of agreements on the terrns
of trusteeship for each territory to be placed under the trusteeship
system), in order to submit these agreements for approval, prefer
ably not later than during the second part of the first session of
the General Assembly."
Intent upon securing completion of trusteeship agreements at an
early date, the General Assembly had preferred not to establish an
interim body to receive reports from .Mandatory Powers, at least for
the time being.
On 12 April 1946 the Chinese delegation introduced a draft resolu
tion with respect to the Mandate system which was ultimately adopted
by the Assembly of the League. The minutes state:
"Dr. Lane Liang (China) recalled that he had already drawn
the attention of the Comrnittee to the complicated problems
arising in regard to mandates from the transfer of fonctions from
the League of Nations. The United Nations Charter in Chapters XII
and XIII established a system of trusteeship based Jargely upon
the principles ofthe mandate system, but the fonctions of the League
in that respect were not transferred automatically to the United
Nations. The Assembly should therefore take steps to secure the
continued application of the principles of the mandates system.
As Professer Bailey pointed out to the Assembly on the previous
day, the League would wish to be assured as to the future of man
dated territories. The matter had also been referred to by Lord
Cecil and other delegates."
It is noted that:
"It was gratifying to the Chinese delegation, as representing
a country which had always stood for the principles of trusteeship,
that all Mandatory Powers had announced their intention to ad
minister the territories under their control in accordance with
their obligations under the mandates system until other arrange
ments were agreed upon. Itwas hoped that the future arrangements
to be made with respect to those territories would apply in full the
principle of trusteeship underlying the mandates system." ARGUMENT OF MR. MOORE 275
However, as it had previously stated it would, Respondent placed
before the General Assembly of the United Nations "for judgment",
as it said, its plan to incorporate South West Africa. On 14 December
1946 the United Nations General Assembly considered Respondent's
plan for incorporation and, by resolution, the Assembly found itself
"unable to accede to the incorporation of the terri tory", and recom
mended a trusteeship for the territory.
In spite of the recommendation of the General Assembly that Res
pondent place the Mandated territory under trusteeship, as well as
an earlier recommendation to the same effect, Respondent declined to
do so and, obviously, has consistently declined to do so.
Respondent to this da:, views recommendations to negotiate a trustee
ship agreement as, to use their word again, "extreme".
Respondent in 1947 3Ubmitted a report to the General Assembly
for the year 1946. Respondent's report was reviewed by the Trusteeship
Council which, in 1948, üsued its comments on the report. The comments,
it may be noted, were highly critical of Respondent's administration
of the Mandated territorv. Two illustrative comments which are included
in the Memorials at pag;:S 45 and 46 (1), were as follows:
"(1) The Council, being convinced of the desirability of increased
participation by indigenous populations in the direction of their
own affairs, notes that the indigenous inhabitants of the Territory
have no franchise, no cligibility to office and no representation in
the governing bodit:s or in the administration of the Territory."
And, later on:
"(3) The Council is opposed, as a matter of principle, to racial
segregation. The Council, while lacking precise information as to
the reasons for the urban segregation policy in the Territory,
considers that great efforts should be made to eliminatc, through
education and other positive measures, whatever reasons may exist
that explain segreg2.tion."
Respondent never again submitted a report to the United Nations on
conditions in the Mandated territory.
By the end of 1949 RPspondent had refused to follow further recom
mendations from the General Assembly that it conclude a trusteeship
agreement. It was at th.: same time openly avowing that the Mandate
had lapsed, and consequently, that its duties with respect to the Mandate
had lapsed. It was evident that a definitive statement of the Iaw re
garding the Mandate Wc(S required and, accordingly, the General As
sembly deemed it advisable to ask this Court for an advisory opinion.
After receiving both wri1tcn and oral arguments from the Respondent,
as well as argument from other interested parties, the Court gave its
Opinion. Having received the Court's Opinion as to the law of the cas~,
and being determined to :,ettle the dispute with Respondent on the bas1s
of law, Members of the United Nations attempted, throughout the en
suing years, to negotiate, through various committees and agencies
of the United Nations e,tablished for that purpose. Such a basis has
consistently been charac1erized by Respondent as being "in the nature
of restrictive terms of reference", employing their phrase. Throughout the
years following the Advis,)ry Opinion, Respondent not only disputed the
Court's Opinion by unear thing so-called new facts conceming the original276 SOUTH WEST AFRICA
Chinese intention to which it alludes in its proceedings, but it also
proceeded to re-argue the case before the United Nations. Illustrative
of this argument was Respondent's statement in the Fourth Committee
of the General Assembly, which reads as follows, in part:
"... the International Court also expressed the view that the obliga
tions which South Africa had assumed originally with regard to
the sacred trust remain legally in force, i.e. that South Africa con
tinued to have an international responsibility with regard to
the sacred trust. This view was subscribed to by the majority in
the United Nations. My Government, on the other band, did not
and in fact does not-agree with this view-holding, that since
one of the two parties to the original contractual arrangement had
disappeared, the mandate had lapsed and that it could no longer
be regarded as a legally binding contract."
During this same period, Respondent's disregard of the Court's
opinion found further expression on numerous occasions. One such
occasion was a speech by Respondent's Prime Minister in 1956 before the
Senate of South Africa, in which the Prime Minister stated:
"It is well within our power, and fully within our power, to
incorporate South West Africa as part of the Union. Up to now
we have declared unto the world that legally and otherwise that
is the position, but that in the meantime we arc prepared, although
we do not for one moment recognize the rights of the United Na
tions Organization, even should we one day incorporate South
West Africa, to govern South West Africa in the spirit of the old
Mandate. So whether we will proceed at a later stage to carry out
and put into effect what weregard as our rights, over which nobody
has anything to say, that will depend on how circumstances develop
in the future."
With such divergent views, it is no wonder, Mr. President, that ne
gotiations have failed to settle the dispute between Applicants and
Respondent. Applicants have consistently negotiated on the basis of
the Court's Opinion, and Respondent has consistently negotiated on the
basis that the Court's Opinion was wrong and that, indeed, Respondcnt
has the right to incorporate the Mandated territory and no one else has
any right to object. Examples of Respondent's frequent avowals that the
dispute could not be settled are set out on pages 472 and 474 (1) of the
Observations, and there is no need to repeat them here.
Following the Court's Opinion, and after it became evident that
Respondent would not abide by the Opinion, the General Assembly
nevertheless considered it its duty to afford supervision without which
the "inhabitants of the territory are deprived of the international super
vision envisaged by the Covenant of the League of Nations", and there
fore established the Committee on South West Africa with the mission,
inter alia, to "examine, within the scope of the questionnaire adopted
by the Permanent Mandates Commission of the League of Nations in
I926, such information and documentation as may be available in res
pect of the territory of South West Africa".
Ethiopia, one of the Applicants herein, has been a Member of that
Committee. The Committee on South West Africa, in its annual report,
has sharply criticized Respondent's administration of South West 1,RGUMENT OF MR. MOORE
277
Africa. An example of such criticism, and the deep concem fclt by the
Committee, may be found in the Committee's concluding remarks in
its report for 1956, which reads as follows:
"For the third year in succession, the Committee has been unable
to escape the conclusion that conditions in the Territory after
nearly four decades of administration under the Mandates System
are for the most part-and particularly for the 'Native' majority
stiH far from meeting in a reasonable way the standards of either
endeavour or achie,·ement implicit in the purposes of the Mandates
System and in the attitudes prevailing generally today in respect
of peoples not yet able to stand by themselves. The 'Native' of
South West Africa still has no part whatsoever in the manage
ment of the Territory's affairs; he lives and works in an inferior
and subordinate status in relation to a privileged 'European' minority
and his opportunitics for advancement in lùs own right are limited
not only by the inadequacy of technical facilities but also by a
restrictive system o:,aw and practice. The Committee deplores the
existing conditions of the 'Native' and other 'Non-European'
inhabitants and th,~ slow rate of their improvement. It is even
more seriously dist-,irbed by the absence of any sign of the radical
changes which mus;: be made in these policies if they are to con
form with the principles which led to the establishment of the
Mandates System. It finds no grounds for altering its belief that
the main efforts made in the administration of the Territory are
directed a]most exclusively in favour of the European inhabitants,
often at the expense of the native population."
[Public hearing of I5 OctoberI962, afternoon]
Mr. President, before 1:henoon recess I undertook to set forth to the
Court an extract from a report of the Cornmittee on South West Africa.
As you know, and as we have noted in the Memorials of the Applicants,
this is not the only report of its kind from the Committee but is merely
representative of several reports of the same nature. Now I should like
to read the conclusion of the same report for 1958 of the Committee
on South West Africa:
"The Committee feels that it should point out that its present
assessment of conditions in the Territory is the result not of an
isolated study of those conditions but the continuation of a process
in which it has been engaged for five years. The new information
coming before it in each of thosc years has served to confirm,
not to cast doubt upJn, its conclusions as to the main lines of policy
in the administratic-n of the Territory and as to the manner in
which that policy hc::sbeen applied.
No important changes have appeared in the situation previously
described by the Committee. The life of the Territory continues to
present two distinct and separate aspects. On the one hand, the
Committee has been able to report the continued free political
activity of the 'Eurc,pean' section of the population, the influential
rote which it plays in the institutions of govemment, and the further
expansion and prosperity of the mining, agricultural and commercial
enterprises which it owns or controls or wlùch otherwise provide278 SOUTH WEST AFRICA
it with livelihood. On the other hand, the Committee has shown that
the vast majority of the population, classified as 'Non European',
continues to be deprived on racial grounds of a voice in the admini
stration of the Territory and of opportunities to rise freely, accord
ing to merit, in the economic and social structure of the Territory.
The 'European' community, which alone enjoys political rights,
shares with the Mandatory Power, to the exclusion of the 'Non
Europeans' control over the allocation and development of the
principal resources of the Territory, reserving for itself a dispropor
tionate interest in those resources. The inferior political, economic
and social status of the 'Non Europeans' results form arbitrary and
racially discriminatory laws. By means of discriminatory legislative
and administrative acts, authority and opportunity are retained
as a·matter of policy in the hands of the 'European' population,
while the 'Non European' majority is confined to reserves except
to the extent that its manpower is needed in the 'European' eco
nomy in the form of unskilled labour and under strict regulation.
The Committee therefore reaffirms its conclusion that existing
conditions in the Territory and the trend of the administration
represent a situation not in accord with the Mandates System, the
Charter of the United Nations, the Universal Declaration of Human
Rights, the advisory opinions of the International Court of Justice
and the resolutions of the General Assembly."
During the period to which I have been referring, the Liberian Dele
gate to the Fourth Committee had occasion to express the views of his
Government with respect to the administration of the Mandate. At the
575th meeting of the Fourth Committee, on December 14, 1956, he
stated:
"In view of the fact that the Union of South Africa was a 1Iember
of the United Nations and a signatory to the Charter, under which
it had certain obligations as well as rights, that South West Africa
was a Mandated Territory which the South African Government
had held as a sacred trust, and that the Charter of the United
Nations provided for the protection of the fondamental rights of
the indigenous inhabitants, it was clear that the abuse of the
international mandate by the South African Govemment could not,
and must not, be perpetuated."
And at the 659th meeting on October 2, 1957, the Liberian delegate
stated:
"The Union of South Africa had violated the Mandates System,
the Charter of the United Nations, the Universal Declaration of
Human Rights, the advisory opinions of the International Court
of Justice and the resolutions of the General Assembly. Sorne ac
tion should be possible if all the Members of the United Nations
were to co-operate. The contention of the Union Govemment that
the Mandate had lapsed with the demise of the League of Nations
was neither legally nor morally valid."
By the end of 1957, it became obvious that further legal action with
respect to the Mandate might be required. Indeed, the General As
sembly, by Resolution, requested the Committee on South West Africa
to study the question of: .\RGUMENT OF MR. MOORE 279
"What legal action is open to the organs of the United Nations
or to the Members of the United Nations, or to the former Members
of the Leaguc of Nations, acting cither individually or jointly to
ensure that the Unbn of South Africa fulfüs the obligations assumed
by it under the 1\fandate, pending the placing of the Territory
of South West Africa under the International Trusteeship System?"
Latèr the same year the Committee submitted a special report con
taining its answers. Appropriate citations are set forth at page 75 (I) of
the Memorials.
In June of r960, the ~econd Conference of Independent African States
met at Addis Ababa. Stai:esparticipating in the Conference were Ethiopia,
Ghana, Guinea, Liberia. Libya, Morocco, the Sudan, Tunisia, and the
United Arab Republic. At that Conference, the Secretary of State of
Liberia noted in part:
"In the light of the resolutions passed at the last session of
the United Nations Assembly, my Govcmment, as a former Mem
ber of the League of Nations at the time of its dissolution, has
already indicated its determination on behalf of all the African
States, to pursue fnrther action to get this territory placed under
the Trusteeship provisions of the Charter. We are pleased to know
that in this we hav-~the support and co-operation of other African
States. This matter will be discussed at this conference and it is
hoped that final decision for further action will be taken before we
adjoum."
The Conference then:after gave full consideration to the question
of South West Africa. A resolution was unanimously adopted on June
23, r960, setting forth, inter alia, that the Conference:
"r. Concludes that the international obligations of the Union
ofSouth Africa conceming the Territory of South West Africa should
be submitted to the International Court of Justice for adjudication
in a contentions proceeding;
2. Notes that th~ Govemments of Ethiopia and Liberia have
signified their intention to institute such a proceeding ..."
Thereafter, on November 4, r960, Ethiopia and Liberia filed Applica
tions with this Court in which, in effect, the Applicants requested the
Court to re-affirm its Ad.visory Opinion and in addition to adjudge and
declare that Respondent had violated the .Mandate. Applicants have
alleged, inter alia: first,at Respondent practises its policy of apartheid
in the Mandated Territory and that such practice is in violation of the
Mandate; and second, that Respondent has treated South West Africa
in a manner inconsistent with the international status of the Territory.
At the close of r960, following fourtcen years of frustration of efforts
on the part of numerous agencies of the United Nations to negotiate
with the Union, the General Assembly, in resolution r565 (XV), con
cluded that:
"... the Govemment of the Union of South Africa has failed and
refused to carry out its obligations under the Mandate for the
Territory of South West Africa, [that] the dispute which bas
arisen between Ethiopia, Liberia and other Member States on
the one hand, and fo.e Union of South Africa on the other, relating280 SOUTH WEST AFRICA
to the interpretation and application of the mandate bas not been
and cannot be settled by negotiation, [and that] the General As
sembly ... Commends the Governments of Ethiopia and Liberia
upon their initiative in submitting such dispute to the International
Court of Justice for adjudication and declaration in a contentious
proceeding in accordance with Article 7 of the Mandate."
Mr. President, th.is brings me to the conclusion of my part of the
Applicants' presentation. I have attempted to relate to the Court
that Applicants believe that the most significant aspect of the Mandates
system is the "sacred trust" for the well-being of hundreds of thousands
of human beings. I have also attempted to present accurately the
events of the period of transition between the demise of the League and
the establishment of the United Nations, showing that the goal was
trusteeship with the hope of eventual self-government on the parts of
the inhabitants of that territory.
Finally, Ihave attempted to present the facts which show how, and
why, Applicants have a dispute with Respondent, and why, in our sub
mission, the dispute cannot be settled by negotiation.
I thank you very much for this opportunity, Mr. President. My col
league, the Honourable Ernest A. Gross, will present the rest of the
arguments on the part of the Applicants. .\RGUMENT OF MR. GROSS 281
6. ARGUMENT OF Mr. ERNEST A. GROSS {coNT.)
(AGENT FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA)
AT THE PUBLIC HEARINGS OF I5 TO 17 OCTOBER 1962
[Public hec.:ringof I5 October I962, afternoon]
Mr. President, ar,.d Members of the Court.
If the Court please, I ~;hallcontinue and conclude Applicants' response
to the Oral Statements presented to the Court by Respondent's Counsel.
The distinguished Agent for the Respondent took occasion, in his
opening remarks, to nok the statement in our Observations, at page 421
(1), to the effect that the account of relevant historical facts set outin
Applicants' Memorials had "not been materially altered in the Res
pondent's version", that is, the version in their Preliminary Objections.
From this statement, Respondent's Agent drew an inference that
Applicants "do not dispute Respondent's analysis of the relevant
historical facts". ·
My colleague's presentation has, I think, made clear the distinction
that is to be drawn between a substantially similar account of facts,
on the one band, and a substantially differing analysis of the same facts,
on the other.
In the respective analyses of the facts, as between the Applicants
and the Respondent, i:nvolving interpretation and inferences to be
drawn from the same facts, there exists a wide gulf between the position
of the Parties.
We sought to make clear our conviction that Applicants and the
Respondent entertain quite different notions as to the true nature of
the Mandates system, w::well as the significance of Respondent's under
takings with respect to the Mandate.
lmmediately following our comment in the written Observations, to
the effect that Responri.ent's version of the facts had not materially
altered or differed from our own, we refer to the undue emphasis Res
pondent gives to statemmts of certain authors whose point of view is
that the "C" Mandates were, in effect, as they say, "not far removed
from annexation". Furthermore, at page 423 (1) of our Observations, we
note the stress Respond-=nt lays upon the so-called "political compro
mises''which occurred in fashioning the Mandates system. We note further
the significance of the reasoning of Respondent's analysis (on pages 216-
223 (1) of the Preliminary Objections) in this respect: for example, as to
the implicationswhich ma.ybedrawn from Respondent's comment, at page
223 (1), expressing resentment at what are characterized as our attempts
(as Applicants' attempts) to "repudiate the compromise whereby Respon
dent was induced to agree to the Mandates system being rendered appli
cable at allto the case of South West Africa". In that same context, Res
pondent characterizes our contention as involving "a unilateral im:
position upon it of suggested duties which were excludèd from those
undertaken ".
Mr. President and Members of the Court, our analysis of the historical
facts does not lead us to agree with Respondent that South Africa was282 SOUTH WEST AFRICA
"induced" to accept this undertaking. And the imp1ication of the phrase
''atall" reinforces what seems tous an implication of a grudging accept
ance of the international responsibilities which Respondent undertook
in 1920.
The Mandate itself, in its First Article, as well as in its Preamble,
reminds us that the Mandate was "conferred"-not imposed-upon the
Mandatory. And the Court, in its Advisory Opinion of 1950, noted that
by virtue of Article 22 of the Covenant of the League of Nations, the
Terri tory was "entrusted" to the Mandatory, rather than thrust upon it.
Indeed, the history is quite clear that the Respondent would have
preferred to annex the Territory outright, and this was no secret at
the time. Applicants' Memorial, at page 37 (1), quotes from an article ap
pearing in the Cape Times of September r8, 1920, in which the great
war-time leader of South Africa, Marshal Smuts, was reported to have
said: "In effect, the relations between the South West Protectorate and
the Union amount to annexation in all but name."
Several instances in which the Permanent Mandates Commission
expressed anxiety conceming Respondent's daims to "full sovereignty"
over the Territory are noted in our Memorials at pages 38-39 (1) and have
been referred to by Mr. Moore in his presentation. Accordingly, we can
not take it as accurate to attribute to Applicants an admission that
Respondent's analysis of the history of the Mandate comports with our
own. Nor would we agree, in the light of this history, that Respondent's
Agent is on sound ground in contending, as he did, that annexation
when viewed in the light of Respondent's historie attitudes towards the
matter-is "entirely irrelevant to the instant cases". We submit that
the Respondent's attitude towards the question of annexation is relevant
to an understanding of the history of this Mandate.
On the contrary, Respondent's attitude towards the Mandate and its
relations with, and its authority over, the Territory, is highly relevant,
as I have said. Itmarks their approach, not only to the Terri tory and to
the United Nations, but also to the Advisory Opinion of 1950.
When Respondent speaks in its Preliminary Objections, at page 220 (1),
of the "compromise" on which the Mandate was founded, it refers, and
accurately so, to the clash of views which arose from the secret agree
ments between some of the Allied and Associated Powers made during
World War I, envisaging post-war annexation of certain colonies (in
cluding the annexation by South Africa of German South West Africa)
as contracted with international control of these territories under a
Mandates system. My respected colleague has discussed this point.
Respondent proceeds from the point of departure of this asserted
reluctant acquiescence in, or grudging acceptance of, the Mandate, in
order to lead into its major contention that the Court lacks jurisdiction
to adjudicate the dispute in the cases at bar because Respondent's
original undertaking to submit such disputes to judicial process lapsed
with the dissolution of the League for lack of tacit, or fresh, consent to
the jurisdiction of this Court.
The contention is enmeshed in considerable verbiage but that seems
to be the essence of the point. The contention serves Respondent as the
basis for a conclusion that it owes no duty whatever to report or account
to the United Nations, or to anyone else, while at the same time pre
serving full rights of possession and administration. The contention,
which, with its extraordinary implication might be described as the .:\RGUMENT OF MR. GROSS
doctrine of "convenient partial lapse"-will be examined more closely
at a later stage of my argument.
In the course of the Preliminary Objections, as well as in its com
prehensive Oral Statements, Respondent has offered to the Court an
entire argument de nov). That argument is addressed, in effect, not to
the merits of the issues now before the Court, so much as it is to the
merits of the 1950 Adv1sory Opinion.
Respondent's concededly difficult task is to persuade the Court to
reconsider and basically revise the Advisory Opinion of 1950. The basis
of this requestis the proposition that if the Court in 1950 had known of
certain so-called "new facts", the Court could not have reached the
conclusions it did.
The Preliminary Objections of ,Respondent-so far as it lay within
our competence to give them the most painstaking and thoughtful
consideration-appear to us, with respect, to involve circular, repe
titious and elusive arguments. In our Observations we attempted,
again within the limits of our competence, to comprehend, reformulate,
clarifyand respond to, the argumentation. Moreover, we sought to do
so with an economy of words.
Applicants assumed, as has indeed I think proved to be the case,
that the Oral Statement, would be perhaps more than usually revealing.
If the Court please, thi: Oral Statements Applicants now respectfully
submit to the Court, taken together with our written Observations,
combine to reflect our bi)st effort fully and clearly to meet Respondent's
arguments as we now comprehend them, in the light of the Oral state
ments which Respondent's able and learned Counsel has submitted.
The scheme of that portion of Applicants' Statement, which I now
·have the honour to pn)sent, rests upon three, and only three, basic
propositions, each head~·d by a roman numeral.
I. The "new facts", so called, sought to be adduced by Respondent
do not justify reconsider:ition and revision of the 1950 Advisory Opinion.
II. The Advisory Opinion is sound and should govern the cases at bar.
III. Respondent's de novo argument isin conflict with the Advisory
Opinion, is not sound, and should be rejected.
Mr. President, I turn now to roman numeral I, the first of the three
basic propositions, which is that the new facts sought to be adduced do
not justify reconsideration and revision of the 1950 Advisory Opinion.
It appears that Respondent's entire justification for asking this
Court to reconsider and ,:evise the 1950 Advisory Opinion rests upon the
contention that certain so-called "new facts" of "crucial importance"
-I quote-were not known to the Court in 1950 and that, if they
had been-again I quote-the Court "could not possibly have arrived
at" its conclusions. Hence, Respondent argues, the Opinion is unsoundly
conceived and reasoned, with consequently erroneous holdings.
In the face of so unusual, if not extraordinary, a request, with so
many grave and far-reaching implications, it is noteworthy that :Res
pondent's Preliminary Objections do not introduce this vital issue
until page 345 (1), following an exhaustive de novo argument on the
merits.
So striking a reversa! of the logical and, it would seem, appropriate,
order of presentation might be taken to have possible significance.
It is fair to comment that this manner of dealing with the matter may
reflect either one or two approaches. - . SOUTH WEST AFRICA
Respondent may have injected the "new facts contention", if I may
call it that, as an afterthought, as an effort to find a cushion against
the admittedly difficult and somewhat delicate task of inviting the Court
to reverse a unanimous Advisory Opinion; or Respondent might have
displayed a merely casual attitude toward meeting the burden of satis
fying the most minimal conditions which should govem a request for
revision of judicial holdings.
Nor are Respondent's reasons for invoking so drastic a judicial
procedure clearly or consistently stated, even when the time cornes to
discuss them in its Preliminary Observations. Indeed, the reasoning is
highly confused and inconsistent.
At page 345 (1) of the Preliminary Objections, Respondent notes the
Court's reference to the League of Nations Resolution of 18 April 1946,
which the Court viewed (together with Article 80, paragraph 1, of the
United Nations Charter) as confirming the "general considerations"
set forth by the Court in its Opinion, at page 136; this holding, as I say,
is noted by the Respondent in the Written Observations at page 345 (I).
I shall address myself to the Advisory Opinion in detail under Major
Proposition II, and shall comment at that time on the significance of
these same general considerations in the Court's Opinion which are
in no way impugned or impaired by Respondent's contentions.
At the present stage of my statement I shall address myself directly
to what I have called Respondent's "new facts contention" as a basis for
revision of the Advisory Opinion.
In the Preliminary Objections, at page 345 (1), Respondent states, and
I quote:
"In what appears to have been its [that is, the Court's] crucial
Reason, No. (iii), for arriving at its conclusion under considera
tion, the Court inferred that the League Assembly Resolution
concerning Mandates, adopted on 18th April, 1946, 'presupposes
that the supervisory fonctions exercised by the League would be
taken over by the United Nations'. Thereby", continues Respon
dent, "the Court presumably meant that there must have been
a tacit agreement to that effect between the parties to the Resolu
tion."
Continuing to read from page 345 (1) of the Preliminary Objections:
"Similarly, as observed above, the factors involved in the Court's
Reasons Nos. (i) and (ii)were apparently relied upon towards
inferring a corresponding tacit agreement on the part of United
Nations Members, to the effect that Mandatories would be obliged
to submit to United Nations supervision pending or failing Trus
teeship or other agreement."
Still quoting Respondent's language at page 345 (1):
"It seems quite evident that, with knowledge of certain crucially
important facts that were not placed before the Court in 1950,
the Court could not possibly have arrived at these conclusions by
inference. Of particular importance amongst the facts and material
not presented to the Court in 1950, were the following (in time
sequence): ..." ARGUMENT OF MR. GROSS
That is the end of th,! quote at page 345 (1).
The reference in Respondent's statement to so-called "crucial Reason
No. (iii)" in the Court', Opinion relates back to the paragraph begin
ning at the bottom of page 338 {I) of the Preliminary Objections. If the
Court will follow this flash-back, it appears in a sequence of four para
graphs, beginning at page 338-that is, "crucial Reason No. (iii)" appears.
As the Court will observe from a reading of page 338 of the Prelimi
nary Objections, Respondent introduces these four paragraphs with
the comment that the Court itself characterized them as "decisive
reasons".
In purporting to surr,marize these reasons, it will be noted that the
first so-called "decisiv,~ reason" referred to by the Respondent in
fact is a summary of an entire paragraph on page 136 of the Advisory
Opinion embodyîng five important sentences to which I have referred,
and which the Court on the same page describes as "general considera
tions".
Respondent's second "decisive reason" attributed to the Court
! refer still to page 338 (1) of the Preliminary Objections-the second
"decisive reason" as summarized by the Respondent at that page, refers
to the Court's interprétation of Article 80, paragraph r, as confirming
these general considerations which appear in the full paragraph on page
136.
The third so-called "decisive reason" attributed to the Court by
Respondent purports to summarize the paragraph of the Advisory
Opinion at page 137 relating to the Resolution of the League of 18 Apnl
1946, which the Court f:aid gave a view corresponding to that of Ar
ticle 80, paragraph r. Respondent underscores the comment by the
Court that this Resolution, that is, the 18 April Resolution, "presupposes
that the supervisory fonctions exercised by the Lea~e would be taken
over by the United Nations". This, then, I think, 1s a fair analysis of
the "decisive reasons" as presented and summarized by Respondent
at page 338 (1) of the Preliminary Objections.
Reverting now to the contention of Respondent on page 345 (1) which
I quoted earlier, the Rcspondent says as follows, at page 345-I re
peat: "... with knowledg~ of certain crucially important facts that were
)1.0tplaced before the Court in 1950, the Court could not possibly have
arrived at" the conclusions derived from these decisive reasons set
forth at page 338. Respc,ndent then goes on to say: "Of particular im
portance amongst the facts and material not presented to the Court
in 1950...", and then Re~pondent lists four items; these are to be found
on pages 345-346 of the Preliminary Objections.
It is therefore entirely on the foundation of this contention that
Respondent requests tht: Court to reconsider and reverse its holdings
in the Advisory Opinion c,f1950, wherein the Court held that Respondent
remained under the obligation of international accountability, including
compulsory jurisdiction ,)f the Court, in accordance with the compro-
.missory clause of Artichi 7 of the Mandate.
Mr. President and Members of the Court, it is submitted that a re
quest of this far-reaching nature should be submitted to the closest
scrutiny; the nature and the accuracy of the premises upon which the
request by Respondent is laid must be examined, as well as the relevance
and the weight of the ma.terial sought to be relied upon. In the light of
such a scrutiny.the Court should, we submit, consider whether minimal SOUTH WEST AFRICA
286
standardsoflaw and logic justify action by the Court so grave and far
reaching in its consequence.
Mr. President and Members of the Court. I have reached the point
in which I was venturing to analyse the nature and accuracy of the
premises upon which the Respondent's request for revision is laid. I
should like to begin that study with a reference to pages 214 and 215 (1)
of the Preliminary Objections of Respondent and, in particular, call the
Court's attention to paragraph Eon page 214. This is in the introductory
material. The Court will note that at that point, which is the first mention
of the "new facts contention" in the Preliminary Objections, Respondent
says as follows:
"Certain of the submissions advanced by Respondent in support
of the Preliminary Objections are not in accord with conclusions
arrived at, or views expressed by, the Court or some of its Members
in the Advisory Opinion of 1950. Respondent recognizes that,
although advisory opinions have no binding force, they are entitled
to the greatest respect. Respondent submits, however, that where
good reasons exist therefor, an advisory opinion may be departed
from in subsequent contentious proceedings."
And then, on page 215 (1) of the Preliminary Objections, in the last full
paragraph Respondent-and I quote-says:
"In every instance in which Respondent in these proceedings
urges a departure from conclusions stated or views expressed in
the 1950 Opinion, it submits that good reasons exist therefor.
The said reasons are dealt with separately in Respondent's argu
ment relative to each instance of suggested departure. In the main
they will be found to relate to features of the 1950 proceedings,
such as the lack of presentation, or of adequate presentation, to the
Court of material information of vital importance, factual and
otherwise. Moreover [says the Respondent], the issues cannot, in
any true sense, be regarded as "identical in every respect to those
in the prior proceedings", either as regards the /actsor as regards
the conclusions of law to be drawn therefrom. The Court's jurisdic
tion was not the issue in the 1950 Opinion, which was primarily
intended for the guidance of the General Assembly in respect of a
general question submitted to the Court."
This then seems to be the basic premises upon which the request for
revision of the 1950 Opinion is laid. I said a few moments ago that
the subject itself was not introduced for discussion until page 345 (1),
after a rather exhaustive argument on the merits in connection with
the First Objection.
At the bottom of page 344 of the Preliminary Objections, Respondent
defines its major premise in somewhat more precise terms. It is in
paragraph (/) on page 344:
"When regard is had to the considerations set out in the above
quotations, it is self-evident that in the absence of knowledge of
certain relevant facts, a conclusion arrived at in reasoning by
inference may be vitally different from what it would be if all the
facts were known and considered."
As a general proposition this is, of course, self-evident. ARGUMENT OF MR. GROSS 287
Nevertheless, it is an entirely different thing to assert, as Respondent
does in the next paragrnph, at page 345 (1), that the Court must be pre
sumed to have lacked knowledge as to certain facts merely on the ground
that, as is asserted, such facts "were not placed be/ore the Court", or, as
it is also put by Respondent, were "not presented to the Court".
Moreover, the confusion between the two premises, that is, of what was
presented to the Court and what was known to the Court, the confusion
between the two premises was compounded by Respondent's Counsel
in the course of his oral statement before the Court.
ln the Verbatim of 2October, at pages 33 to 34,supra, Counselconceded
that the contentions now advanced by Respondent are in important
respects at variance or in confl.ict with the Advisory Opinion. Counsel
then went on to say:
"Now that is, of course, a difficulty which wehave to face squarely,
and we do so, Mr. President, with the greatest respect, by contend
ing that we are now presenting to the Court certain material,
factual and otherwise, of very great importance which was not
be/ore the Court in 1950 and which, had it been before the Court
in 1950, could have made all the difference to the conclusions even
tually arrived at in the majority Opinion. [Respondent's Counsel
continues] We submit, therefore, that this is one of those highly
exceptional cases where although the issues may now in form appear
to be still the same a.sthey were in 1950, they are in substance really
different-[reallyJ different questions for this Court to decide,
because [says Counsel] the factual material to which this Court
has to apply the law is different from the factual material that was
be/ore the Court in : 950, and I need not ask this Court to perform
the invidious func1ion of preferring its own reasoning to that of
an earlier tribunal because, as I have said, in essence and in sub
stance [because of the diffcrence in the factual material] the issues
are now different. The ta.sk to be performed by the Court is in
substance a different one." ( Italics added.)
Reverting to the same proposition two days later, Ieamed Counsel
said at the Verbatim of 4 October, at page 99, supra, and I quote:
"The sole questic,n here is, what weight is to be assigned to the
previous Advisory Opinion as a matter of authority. Now clearly,
ifthe factual material be/ore the Court now was substantially the
same as the factual material in 1950 when the Advisory Opinion was
considered, then that alone would mean that the Advisory Opinion
would be granted f.trong prima jacie weight as being of preceden
tial value as an authority, but when it is found that the question
now be/ore the Court is, although the same in form, very different in
substance now because of the presentation of new facts, then that
must affect the value that could be given to the Advisory Opinion
as a matter of preŒdent, as a matter of authority. That is the
only logical proposition that is before the Court [said Respondent].
We say it goes so far that the real question to be decided now by
application of the law to the facts is in substance different from
what it was in 1950, although the form of it still remains the same
and, therefore,that the Advisory Opinion, has under these peculiar288 SOUTH WEST AFRICA
circumstances virtually no precedential weight in the present
circumstances. That is our contention as we advance it and we
submit that that contention remains sound whatever the reason
may have been that the facts were not presented to the Court
in 1950 when they might well have been presented." (ltalics added.}
If the Court please, I should like now to turn to an examination of
the four so-called "new facts" which Respondent characterizes in its
Preliminary Objections, at page 345 (1) as I have said, as "crucially im
portant", so crucial indeed that, if they had been "placed before the
Court in 1950, the Court could not possibly have arrived" at its con
clusions, and so "crucially different", that a matter of "substance''
arisesnow which was not in effect "before the Court" in 1950 or decided
by the Court. The first of these refers to what is termed "Respondent's
express reservation" at the San Francisco Conference during the drafting
of the Charter. That is at page 345 of the Objections.
In our Observations we pointed out that in fact Respondent had
itself made explicit reference to this matter in its own written statement
to the Court in 1950, at the place cited in footnote Ion page 431 (1) of our
written Observations.
Respondent corrected the record before our written Observations
had been received. That is correct, as Respondent justly points out.
Respondent's Counsel, during his oral statement to the Court on
4October, at page 97,supra, ofthe Verbatim, refers to the four factorslisted
at page 345 (I) of the Preliminary Objections. With respect to the first
point, the one under discussion, Respondent's Counsel said:
"The first one [that is the first point] is not really important-!
will not deal with it for the moment-! will revert toit later."
Then he went on, as he said, to "emphasize the importance of the
second, third and fourth".
As he had promised, Counsel did subsequently revert to the first
point, but not until after he had completed his effort to show the im
portance of the other three.
When hereverted tothefirst point, at pages101 to 102,supra, of the Ver
batim record of 4 October, conceding that the Preliminary Objections
were inerror in respect of the lirst point and explaining how the error
took place, Counsel says, at page 102, supra:
"But the whole question is really unimportant ... the matter is
formy purposes not important-that is why I said before I was not
placing particular reliance on it because, in effect, there is implicit
in the body of the statement as it is in the text at pages 25-26
[referring to the pages in the Preliminary Objections at which is
quoted the text of the South African statement at San Francisco
there is implicit in the body of that statement, [says Counsel] the
same as is conveyed explicitly in this further paragraph in the foot
note, and I am prepared to leave the matter at that."
I have tried to say, Mr. President, that I do not understand the
implications or the logic of that contention, but I fail to see how it
bears upon the question of why the point had ceased to be important.
Counsel does not explain the contradiction between the Preliminary
Objections, which describe Respondent's express reservation at San
Francisco as "crucially important" to the Court's fmdings-one of the ARGUMENT OF MR. GROSS 289
four facts which conveit the "substance" which was before the Court in
1950 to that which is hefore the Court today. He does not explain the
contradiction between 1he reference in the Preliminary Objections to this
as a crucially importani: point, and his willingness, in his oral statement,
to dismiss this point HS unimportant and, as he said to "leave it at
that".
Inasmuch as the "new facts" comprise Respondent's entire case for
a revision of the 1950 Opinion, Respondent's omission of an explanation
as to how and why this point lost its "crucial significance", suggests
that this change might have taken place upon Respondent's discovery
that the point had, after ail, been presented in 1950 to the Court. In any
event, this first point is Respondent's first casualty in the campaign for
revision of the Opinion.
Mr. President and Members of the Court, I have concluded my dis
cussion of the first point by commenting that the first point is the first
casualty.
I should now like to turn to the second point. This is called in the Pre
liminary Objections "crucially important" and Respondent's Counsel
has, during the course of his oral statement, referred to these four points
-including this one-as a "new fact". The Preliminary Objections, at
page 345 (1), cite the sŒond "crucially important" fact, as it is termed,
which was assertedly nût placed before the Court in 1950, and contend
that, with the knowledge of this fact, and of course the other three as
well, in Respondent's words, the Court "could not possibly have arrived"
at its conclusions. .
Now this second new fact, Mr. President, concerns the rejection by the
Preparatory Commission at London of its Executive Committee's propo
sai for a temporary tmsteeship committee. Respondent comments, at
?,age345 (1) of the Prelirninary Objections, that such action, and I quote,
'negatives a tacit intem:ion on the part of the United Nations that such
fonctions would be transferred or assumed". It will be noted that this
comment does not relate to the 18 April Resolution of the League of
Nations but to the asse:rted lack of "tacit intention" on the part of the
United Nations to assume the fonctions.
With respect to the s~cond so-called new fact, Respondent is in error
in two major respects. In the first place, the point was indeed explicitly
presented to the Court in 1950. Secondly, the true significance of the
action taken likewise was explicitly presented to the Court in 1950.
Mr. President, one of those who made statements before this honour
able Court in 1950 was the late, and greatly respected, Dr. Ivan S. Kerno,
the legal officer of the United Nations. Appearing before the Court on
16 May 1950 as representative of the Secretary-General of the United
Nations, he made a statement, the first part of which was delivered in
French, the second part in English. With your leave, Mr. President, in
view of my regrettably faulty command of the French language, may I,
through you, Sir, request the Court's interpreter to read to the Court, in
the language in which it was spoken, the passage in which Dr. Kerno
discusses this point? I rder to the first full paragraph at page 161 of the
Volume of Pleadings, Ord Arguments and Documents on the International
Status of South West Africa and the Advisory Opinion of II July 1950.
With the President's permission, could thP interpreter read that passage,
in its original text, as ddivered to the Court?290 SOUTH WEST AFRICA
[Read by the French interpreter]
"La Commission préparatoire, où se trouvaient représentés tous
les Membres des Nations Unies, se réunit à Londres, en novembre
r945, dès l'entrée en vigueur de la Charte. Elle ne retint pas la
proposition tendant à créerun comitétemporaire de tutelle en raison
des objections d'ordre constitutionnel exprimées par certains de ses
membres et de la crainte qui fut formulée que l'établissement d'un
organe temporaire n'ait pour effet, non pas de hâter, mais au con
traire deretarder la constitution du Conseil de Tutelle. La Commis
sion préparatoire décidadonc de présenter à l'examen de l'Assemblée
générale un projet de résolution qui soulignait les inconvénients d'un
délai de l'entrée en vigueur du régime international de tutelle que
l'Organisation des Nations Unies avait pour tâche d'établir. Le
projet déclarait que, des trois catégories de territoires auxquels le
régime de tutelle pouvait s'appliquer en vertu de l'article 77 de la
Charte, seuls les territoires sous mandat pouvaient êtredéfinisavec
exactitude. En conséquence, la Commission préparatotre recomman
dait que l'Assemblée généraleadresse un appel aux Etats adminis
trant des territoires en vertu d'un mandat de la Sociétédes Nations,
afin que ceux-ci prennent, de concert avec les autres États directe
ment intéressés,les mesures nécessairespour la mise rapide en appli
cation de l'article 79e la Charte tendant à la conclusion d'accords
de tutelle pour chacun des territories à placer sous ce régime."
["The Preparatory Commission on which all the Members of the
United Nations were represented, met in London in November r945
as soon as theCharter came into force. It did not accept the proposai
for the establishment of a temporary trusteeship committee in view
of the objections of a constitutional nature expressed by some of its
members and of the fear expressed that the creation of a temporary
organ might have the effect of delaying rather than of expediting
the constitution of the Trusteeship Council. The Preparatory Com
mission accordingly decided to submit for the consideration of the
General Assembly a draft resolution which emphasized the undesir
able consequences of delà.y in putting into effect the system of
International Trusteeship, which it was the duty of the United Na
tions to establish. The draft stated that of the three categories of
territoriesto which the Trusteeship System could be applied under
Article 77 of the Charter, only Mandated Territories could be defined
with certainty. Consequently the Preparatory Commission recom
mended that the General Assembly should call on the States admin
istering Territories under League of Nations Mandate to undertake
practical steps, in concert with the other States directly concerned,
for the early implementation of Article 79 of the Charter with a
view to the conclusion of agreements on the terms of trusteeship
for each territory to be placed under the Trusteeship System."]
Mr. President, Dr. Kerno, representing the Secretary-General of the
United Nations, brought this matter explicitly to the attention of the
Court, as appears from the statement just read, and hc did so in the
course of an exposé of an argument before the Court in which he was
submitting, and with which argument the Court agreed, that the United
Nations had assumed the supervisory fonctions of the League of Nations
in this respect. ARGUMENT OF MR. GROSS 291
The fact that the action taken by the Preparatory Commission was
explicitly mentioned a1.the 1950 proceedings, might, indeed, produce
the same chemical reaction on Respondent's part which neutralized
the significance of the first crucial point when it was discovered that
it had been introduced.
I turn now to Respor·.dent's third alleged "new fact".
During the discussion in the First Committee of the League of Nations
Assembly, on 9 April 1946, of the main draft resolution concerning
assumption by the United Nations of fonctions and powers of the League,
the reprcsentative of China announced that he desired to submit a
resolution: ·
" ... recommending that the Mandatory powers should continue
to submit annual reports on Mandated territories to the United
Nations, and that they should agree to inspection by the latter,
pending constitution of the Trusteeship Council".
This was from the Minutes of the First Committee at page 76. The
Chairman, however, rul~d that this was out of order at that particular
stage of the proceeding~.
Three points should be noted with regard to Respondent's contention
with regard to this third point, which now moves up to the position of
the first "new fact".
In the first place, the so-called "Chinese proposai" was never intro
duced or voted upon. Ail1hat happened in this respect was that the delegate
expressed a wish to mal:e such a proposal.
In its Preliminary Objections, at page 253 (1), Respondent states:
"Dr. Liang [the representative of China] wished to propose for
discussion the following draft resolution, which he read out:"
Then Respondent quotes the text of a draft resolution, but without
giving any citation to any document in which the resolution appears. If
the Court will refer to page 253 (1) it will note that at the end of the text
of the draft resolution which the Chinese delegate expressed a wish to
introduce there is no citation to a document which one mav consult to
examine the text of the resolution itself. On a point to which 'Respondent
seeks to attach such crucial significance, and one, indeed, of only two
points left which might be called new facts, it is surely relevant to enquire
why no such citation is made. This is not intended, of course, in any way
to cast the slightest doubt upon the veracity or credibility of the assurance
that the text was read out. We are prepared to accept that, of course.
However, the text is only before the Court on the authority of the
Preliminary Objections and the point, I submit, is that a matter to which
such crucial importance is assertedly attached and at which the accuracy
of documentation is assertedly at the core of the matter, that this might
well have been dealt with in a most punctilious manner. This, indeed,
seems to be no more or l~ss than is the clear intent of Articles 43 and 62
of the Rules of Procedure of the Court. ln particular, I refer the Court to
the second paragraph of Article 62, which provides:
"The Preliminary Objections shall set out the facts, and thelaw
on which the Objection is based, the submissions and a list of the
documents in support. These documents shall be attached. It shall
mention any evidence which the Party may desire to produce."292 SOUTH WEST AFRICA
No such document is attached to the Preliminary Objections, so far as we
have been made aware, in which appears the text of the draft reso1ution
quoted by the Respondent, nor, it must be confessed, have we found any
published, or publicly available, document containing such a text. It is
not in the Minutes of Meeting as published.
[Public hearing of I6 Octoberr962, morning}
May it please the Court. At the close of rny statement yesterday
afternoon I had been speaking of Respondent's third alleged new fact.
This relates to Respondent's contention that, if the Court had known of
certain transactions which were alleged to have taken place during the
discussion in the First Committee of the League of Nations Assernbly on
9 April 1946, the Court could not possibly have reached its conclusions
regarding Respondent's international obligations. I had pointed out
that the text of the draft resolution, which the Chinese Delegate at the
League of Nations Assembly expressed a wish to propose, that the text
of the resolution is quoted at page 253 (1) of the Preliminary Objections
without citation. Respondent, at pages 345 to 346 of the Prehrninary
Objections, asserts that the so-called original Chinese proposai-and I
quote the sentence beginning at the bottorn of page 345 of the Preliminary
Objections-"had to be withdrawn becausc it became plain that certain
of the parties would not agree thereto". There is no specifi.cation as to
who the "certain parties" might have been. And again, in this context,
we fi.ndno citation in the Preliminary Objections tothis highly charged
sentence to which Respondent attaches sufficient importance to under
score. In the sentence immediately following the quoted sentence, that
is that the resolution draft had to be withdrawn because it became plain
that certain parties would not agree thereto, in a sentence immediately
following Respondent draws an important inference from this unsup
ported statement:
"Hence this history by itself renders plain that there was no room
for a tacit intention as inferred by the Court; and together with
the other factors dealt with in paragraph 32 (d) and (e) above. it
shows that the tacit understanding was the reverse, viz.that pending
'other arrangements' there would be no obligation to report and
account."
I have just quoted from the Preliminary Objections at page 346.
We thus fi.nd here yet another regrettable instance of the lack of
documentation of a fact, or in this case an important inference of fact,
as to the reason for the withdrawal of the proposal, which is highiy
relevant indeed to the conclusion drawn by the Respondent as to the
so-called lack of "tacit consent". The omission of any citation to support
the asserted reason for the withdrawal of the Chinese draft proposal,
which as I shall show in a moment is a misnomer because the resolution
was never proposed and therefore was not withdrawn, the asserted
reason for the so-called withdrawal of the Chinese draft proposal is all
the more regrettable because there is serious reason to doubt the accuracy
of the statement so far as anything goes which appears in the record.
· The records of the sessions of the First Committee of the Twenty-first
Session of the League of Nations at which the events in question here
took place are in the documentation and these records merit attention. ARGUMENT OF MR. GROSS 293
They show that on I2 April 1946, three days after the Chinese Delegate
had expressed a wish to introduce a draft proposal and had been ruled
out of order, he introduced another draft resolution and this became the
resolution of r8 April 1946. The Committee Minutes state:
"Dr. Lone Lian.~ (China) recalled that he had already drawn the
attention of the Committee to the complicated problems arising in
regard to mandaks from the transfer of functions from the League
of Nations. The United Nations Charter in Chapters XII and XIII
established a system of trusteeship based largely upon the principles
of the mandate s:rstem, but the functions of the League in that
respect wcre not transferred automatically to the United Nations.
[Dr. Liang continued :] The Assembly should therefore take steps to
secure the continued application of the principles of the mandatf.
system. As Profes1,or Bailey [who, of course was the Rapporteur of
the Committee] had pointed out to the Assembly on the previous
day, the League would wish to be assured as to the future of
mandated territories. The matter had also been referred to by Lord
Cecil and other ddegates. [And the Chinese Delegate continued :]
It was gratifyir,g to the Chinese Delegation, as representing a
country which had always stood for the principles of trusteeship,
that all Mandatory Powers had announced their intention to ad
minister the territories under their control in accordance with their
obligations under the mandate system until other arrangements
were agreed upon. It was hoped that the future arrangements to
be made with reg.:.irdto those territories would apply in full the
principle of trustecship underlying the mandate system.
The Chinese Ddegation had pleasure in presenting the draft
resolution now before the Committee, so that the question could be
discussed by the Assembly in concrete form and the position of the
League clarificd."
This is from page 78 of the Minutes.
I call the Court's attention to the fact that the Minutes reflect the
gratification and the pleasure expressed by the Chinese Delegate in
tabling the draft resolntion which was accepted by the Assembly. The
implication of Respondent's position is that the Chinese Delegate under
threat, or pressure, or inference that the resolution he originally expressed
a wish to propose could not be adopted, that the Chinese Delegate
thereupon retreated both from position and, if the Court please, from
principle. And I subnüt that the Chinese Delegate would not have
expressed his gratifica,:ion and his pleasure in submitting the draft
proposal which was acc,~pted by the Assembly if he had beaten a retreat
from the principle which he was expounding. In any event, my inference,
which is purely an inforence, seems more probable than the contrary
inference drawn by Re,pondent and unsupported in the record.
But the Minutes of the First Committee go on, and they show further
that the Chinese draft was seconded by the Delegate of the United
Kingdom, who is reported as saying:
"... that the draft had been settled in consultation and agreement
by all countries interested in mandates ·and he thought it could,
therefore, be passcd without discussion and with complete una
nimity".294 SOUTH WEST AFRICA
The reference to "unanimity" might, indeed, refer to the fact that
under the procedures of the League the Dclegate of South Africa might
have cast a veto. That is possible. I am referring, however, to the
Minutes of the Meeting which are before the Court and the inferences
to be drawn from the Minutes in so far as they show actions taken and
statements made at the sessions in question.
This report of the British Delegate's seconding statement is quoted in
Respondent's Preliminary Objections at page 254 (1), I cite that merely
for the convenience of the Court. No statements on the part of any
other delegations at the session of the Committee appear in the Minutes
of the Committee. Thcre is nothing whatever to justify Respondent's
inference that the Chinese Delegate had-I quote again-"withdrawn"
an earlier draft proposa! because it had become plain that certain of
the parties would not agree to it, and as I have pointed out, the u;;e of
the word "withdrawn" is inaccurate inasmuch as the proposai had
never been introduced.
It would seem that the "crucial importance", as the Respondent
describes it, of Respondent's third alleged new fact hinges upon a care
lessly worded, undocumented, unsupported and probably inaccurate
inference as to why the Chinese Delegate in fact decided not to con
summate his wish to propose a resolution. In concluding my comments
on the third so-called new fact, I must point out also that Dr. Steyn,
who was Respondent's able Counsel in 1950, made full written and oral
arguments in these proceedings. Itseems incredible that he should have
been ignorant of what Respondent now describes as a "crucially
important" fact in the history of the Mandate. And if he was aware of
the matter, it seems reasonable to assume that he did not regard it as
of crucial importance at all; in fact, not even of suffident importance to
mention it in the course of his extended pleadings and arguments.
Before tuming now to the fourth, and final, new fact, I think it may
be appropriate to refer to Counsel's comment, in the course of his oral
statement, that our Observations make an ambiguous comment about
this matter. He referred, and I think quite properly called the Court's
attention, to the sentence beginning at the bottom of page 431 (1) in our
Observations in which we state that:
"The facts conceming the Chinese proposa! were before the Court
in 1950, in the Writte!l Statement of the United States of America,"
I regret if this form of words, this formulation, is misleading. In
extenuation I should like to point out that on the same page of the
Observations, page 431, we quote in full the excerpt from the written
Statement of the United States to which we refer so that its actual
signification is readily ascertainable by inspection of the text.
I tum now to the fourth new fact referred to at page 346 (1) of the
Preliminary Objections: Respondent there describes two sets of materials
in a rather confusing context. One relates to the report of the United
Nations Special Committee on Palestine. The other refers to what
Respondent describes as "statements by representatives of various States
during various debates at the United Nations". I refer to page 346 of
the Preliminary Objections. More specifically, Respondent refers to
statements, or excerpts from statements, set out in the Preliminary
Objections at pages 394-397 or, in accordance with Respondent's method ARGUMENT OF MR. GROSS
of citation, Sections 34 (bto 34 (/). These are at pages 334-337 (1) of the
Preliminary Objection,.
Turning to the statements cited at pages 334-337, we find that para
graphs (b) and (c)relate to the Report on Palestine itself, and thiswill
be considered in a few moments. The only other thrce references to the
so-called practice of States in this context occur in paragraphs (d), (e) and
(/) on pages 334-337.
Paragraph (d) is a portion of a statement by New Zealand made on
22 November 1946, in a debate conceming a draft trusteeship agreement
for \Vestem Samoa. A~ the end of the quotation, incidenta1ly, on page
336, Respondent erroneously cites footnote 1, whereas the reference
should be to footnote .3of that page.
Now, paragraph (e) refers to a statement by the Soviet Delegate to
the United Nations Security Council on 2 April 1947, during a debate
on the Japanese Mandates.
And paragraph (/) rders to a statement made by the United States
representative on 19 March 1948 in the Security Council during a debate
on Palestine.
I callthe Court's attention to these paragraphs which are, as I say,
under the heading "Practice of States", which is the heading of Section 34,
on page 334 (1) of the Objections.
Mr. President and Members of the Court, the references to the state
ments by the Delegate of New Zealand in 1946, of the Soviet Delegate
in 1947, and the United States Delegate in 1948, represent therefore
three neatly spaced examples of statements made by Delegations during
a period of some two and a half years. These references, plus the Report
of the Special Committee on Palestine, comprise the whole of the fourth
"crucially important" fact, as it is called. Respondent, at page 346 (1) of
its Preliminary Objections contends as follows:
"These comments and statements show most unmistakably a
general (or at least a very widespread) understanding amongst
Members of the United Nations that no supervisory fonctions
regarding Mandat-~s (not converted into Trusteeships) had been
taken over, and thus refute any suggestion of a general tacit in
tention to the contrary.
Rad the above iacts been known to the Court in 1950, it seems
inconceivable that the Court could have arrived at its conclusion
regarding an obligation on Respondent's part to submit to United
Nations supervisiot1." (P. 346 (I) .)
It is fair to add tha.t Respondent's reference to the "above facts",
in this quotation, refer, to all four sets of "new facts," not merely to the
fourth fact. As we have seen, however, the first two actually were
presented to the Court explicitly and have dropped out of competition,
so to speak.
It is difficult to deal at length with Respondent's contention regarding
this fourth "new fact" without dignifying it beyond its desserts.
In the first place, Respondent's contention with regard to the im
portance of this fourth point ignores the weight which was given by
the Court in its Advisory Opinion to the significance of Article 80 (r),
as confirming the intent of the authors of the Charter of the United
Nations that there i;hould be a continuance of United Nations
supervision over Mandates. That is, of course, the explicit inter- SOUTH WEST AFRICA
pretation of the Court in its Advisory Opinion. Respondent, in its
argument, does not even consider it relevant enough to refer to Article
80 (1) in this connection.
Secondly, the premise upon which Respondent lays its request for
revision of the 1950 Advisory Opinion, in this respect, is that the Court
misconstrued the force and effect of the 18 April 1946 Resolution of the
League of Nations General Assembly. This seems to be the key propo
sition, although it is not expressly and clearly stated as such in the
Preliminary Objections. To the extent that it relies upon evidence to
show that the Court misconstrued the 18 April 1946 Resolution of the
League, it does not appear how statements made one or two years later
in the United Nations General Assembly could help overcome the
clear meaning of statements made contemporaneously with the League
Resolution of 18 April 1946.
Thirdly, the contention that the United States policies supported
Respondent's thesis verges on the ironie.
The history of Article 80 (r) is replete with evidence-as was dem
onstrated by my colleague, Mr. Moore, in his statement before the
Court yesterday, which appears at pages 269-270, supra, of the Verbatim
-is replete with evidence of the leadership tafŒn by the United
States inthe formulation, the steering and the adoption of Article 80 (1).
The clause, as he pointed out, was originally and significantly entitled
the "conservatory clause", and I will not trespass upon the Court's
time to repeat the history which he sets forth at pages 269-270, supra,
of the transcript. All this occurred-all this history occurred-with
regard to Article 80 (r) at the time of the adoption of the Charter in San
Francisco; it was part of the transactions from which the Charter
itself resulted. Respondent has contended elsewhere that contemporary
views and acts are of higher probative value than are those of a period
which is not contemporaneous. The logic of Respondent's contention
however is not applied to this situation and does not predude Respondent
from citing, among crucially important new facts, a statement made by
the representative of the United States some three years after the
San Francisco conference, in a highly politically charged debate on
Palestine. Moreover, ifit is appropriate for Respondent to cite a state
ment made by the United States delegation three years after its leader
ship at San Francisco in the adoption of the "conservatory clause"
if that bears upon the interpretation to be placed upon that event
it is appropriate for us to refer to the fact that in the Proceedings in 1950
before this Court, in connection with the Advisory Opinion, the United
States took a clear and carefully reasoned decision on the same matter,
a position which was wholly consistent with the United States policies
emphasized at San Francisco in 1945. It would seem that the implication
sought to be drawn from the statement of the United States delegation
in 1947, in connection with the Palestine debate, is not borne out by
the historie record.
With regard ta the Palestine Committee Report itself, the United
States written Statement stated explicitly:
"This Committee [the Palestine Committee] reported to the Second
Regular Session of the Assembly in the fall of 1947 and on the basis
of its report the General Assembly adopted Resolution 109 (III)
containing recommendations concerning the future of Palestine." ARGUMENT OF MR. GROSS 297
Tlùs is quoted from th,~United States statement before this Court. Itis
therefore obvious that the Court's attention was drawn to the Report
itself.In fairness to Kespondent's contention, I would point out that
Respondent has nowhere contended that the Palestine Report itself was
not called to the Court's attention during the 1950 proceedings, nor that
it was not directly referred to. Respondent's narrower and, I submit,
much more questionable thesis, is that because specified portions of the
Report were not plaŒd before the Court or presented to the Court,
in Respondent's submission the Court must be presumed to have
reached its conclusion ~nthe absence of knowledge of these facts. These
are two wholly different propositions.
Moreover, the construction Respondent places upon the Palestine
Report is itself open to the most serions question. It would be unnecessary,
I believe, to dwell upon the highly charged and widely publicized
debates of the United !'-'ationsand its committees regarding the Palestine
question in 1947 and 1948, these are not really relevant to the case at
bar. But in the climate of controversy at that time it was not surprising
that the Report of the Palestine Committee îtself did contain vague
and contradictory language regarding the assumption by the United
Nations of supervisory powers over the Mandate. Thus, the Committee
commented:
"The essential fi:ature of the Mandates System was that it gave
an international si:atus to the mandated territories. This involved
a positive element of international responsibility, for the mandated
territories and of international accountability to the Council of the
League of Nations.''
This is quoted from the Committee report at p. 335 (1) of the Prelimi
nary Objections. Respc,ndent underscores the last clause, that is to say,
the reference to "international accountability to the Council of the
League of Nations". Respondent does not underscore references to the
phrase "the essential fea.ture" or to the "positive element of international
responsibility".
The Palestine Comrnittee recommended that Palestine be granted
independence and that, in the interim, the United Nations should super
vise the Mandate. The Committee was obviously without the slightest
doubt concerning the competence of the United Nations to exercise
supervision over Mandates. The Committee quite understandably, how
ever, did not regard this as a satisfactory permanent solution; United
Nations Members today take precisely the same view with regard to the
Mandate for South West Africa.
Mr. President and 1,1:embersof the Court, I should like to express
regret ifmy rather detailed analysis of the "new facts" has overwhelmed
the Court with detail. I have now concluded the examination of the
precise elements involnd in the four new facts.
I should now like, ·.vith the Court's permission, to corne to some
considerations which seem to flow from the surgical analysis to which
I have subjected these iacts in view of their admitted importance to the
quest for a reopening c-fthe Court's Opinion of 1950.
Respondent's contention, it seems to us, cornes to this. If the Court
in 1950 had known of these excerpts, or facts, or material, and there is
no evidence to support the pure speculation that it did not know of
them, although it is clear that two of them were not specifically referred298 SOUTH WEST AFRICA
to, if, as Respondent contends, the Court did have knowledge of those
facts, the Court could not possibly have interpreted the r8 April r946
Resolution as confirming, along with Article 80, paragraph I, of the
United Nations Charter, the decisive reasons set out by the Court at
page 136 of its Opinion for concluding that the supervisory functions
over this Mandate are to be exercised by the United Nations. That is
their contention.
It is difficult, we submit, to take such a contention seriously. Public
records, many of which were included in the documentation of the
proceedings, are replete with instances of contradictory and confusing
expressions of view, at different times and in different contexts, by
Members of the United Nations, sometimes by the same Member at
diffcrent times. Respondent has selected from among these several
which were not documented in 1950 by the Secretary-General, in applic
ation of Article 65 of the Statute, in submitting documentation to the
Court. These carefully selected excerpts are labelled "new facts", and
the Court is asked to reverse its Advisory Opinion on their account.
The fact is that in the period 1947 to 1949 strenuous efforts were
being made by United Nations Members to induce the Respondent to
follow what this Court, in the Advisory Opinion; called-and I quote
the "normal course indicated by the Charter".
During this period vague, inconsistent and contradictory views were
expressed on the subject of United Nations supervision over the un
converted Mandates. Mr. President, I have borrowed these adjectives,
"vague", "inconsistent", and "contradictory" from Respondent's
Counsel, who thus described the same matter on 5 October at page
133, supra.
Of course, it was precisely because of the confused, vague and contra
dictory, and often shifting, statements by Members of the United
Nations, that the Members, through the General Assembly, requested
this Court for its Advisory Opinion. And now Respondent relies upon
that very confusion and vagueness to induce the Court to reverse its
Opinion.
It is respectfully submitted that Respondent's contention is a parody
of logic and history, not without, perhaps, some overtones of cynicism.
\Ve feel, therefore, and respectfully submit, that Respondent has
not laid a basis for requesting the Court to revise the 1950 Advisory
Opinion.
Counsel for Respondent, in his oral statement before the Court
at page I06, supra, commented on the discussion in the Applicants'
Observations in which we attempt to demonstrate that the alleged "new
facts" are neither new, nor crucial. Respondent contended at this point
in his argument that we had not dealt, "as a matter of merit" as he said,
with Respondent's contention that these facts are of crucial importance.
Mr. President, I hope that the Court's reading of our Observations,
together with our oral statements, may persuade the Court that we have
indeed attempted, to the best of our ability, to deal "as a matter of
merit" with Respondent's contention in this respect and to show that
its contention is without merit.
Scrutiny of Respondent's method of presenting and analyzing the
"new facts", and the analysis of the facts themselves-and this is
the main significance, I think, of the point-clearly reveals Respondent's
basic strategy in supporting its submissions to this honourable Court. ARGUMENT OF MR. GROSS
In the case of each "new fact", the alleged element of "crucial im
portance" assigned is that of so-called "tacit agreement" or "consent"
as it is altematively caUed.
The first fact, laid in 1945, was intended-abortively, because it
was actually before the Court-to show that Respondent did not ac
quiesce in "supervision by the United Nations" in 1945. I quote from
the Preliminary Objections at page 345 (1).
The second fact, laid in 1946, was intended to show that there was
no such "tacit intention" on the part of the United Nations. This second
fact also has aborted, because it was before the Court, presented by
Dr. Kerno.
The third fact, also laid in 1946, is offered as showing that there was
no "tacit intention" on the part of the League of Nations to transfer
responsibility. This relates to the interpretation of the 18 April 1946
Resolution. At page 346 (1) Respondent imputes to the Court-! think er
roneously-the intention to infer "tacit consent", as the language of
the Respondent goes. Respondent speaks of "a tacit consent inferred
by the Court". The Court inferred no such "tacit consent", in my reading
of the Opinion.
And the fourth fact, laid in 1947, is presented as refuting "any sug
gestion of a general tacit agreement", by which Respondent means
a "general understanding amongst Members of the United Nations"
that the Charter had intended the Organization to supervise Mandates
until or unless they w1!re converted into trusteeships or granted inde
pendence.
Now, the fact is that none of the four decisive reasons found in the
Court's Opinion, and they are termed this by Respondent in its Pre
liminary Objections, none of the decisive reasons underlying the Opinion
of 1950 rests on a premise of "tacit consent", whether on the part of the
Respondent, the Leaguo::of Nations, or the United Nations. The "general
considerations", as the Court itself describes them in its Advisory Opinion
at page 136, which in fact underlay the Court's conclusion, proceeded
from the very legal nature and legal consequences of the Mandate in
stitution itself. These ··general considerations", I repeat they are to be
found on page 136 of the Court's Opinion, these "general considerations"
involved the most basic concepts of the authors of the Covenant and
the authors of the United Nations Charter. These "general consider
ations", as the Court further said, "are (and I quote) confirmed by Ar
ticle So, paragraph 1".
Respondent's abortive fi.rst "new fact"-the reservation made by
Respondent at San Francisco, could, at best, be relevant only to a
construction of the Charter in general and to Article So, paragraph 1,
in particular. Precisely the same thing is true of the second abortive
"new fact", which relates to the proceedings of the United Nations
Preparatory Commissic,n and purports to bear upon the construction
of the Charter and the intentions of the authors of the Charter on this
matter.
The third incident, c,r fact-that is the incident of the Chinese pro
posed draft resolution--could not possibly or reasonably, be taken to
bear upon the intention of the authors of the Covenant of the League,
as manifested clearly in Article 22 twenty-five years earlier.
And the fourth fact--the so-called practice or views of United Na
tions Members-is another variation on the theme of the first two, 300 SOUTH WEST Al'RICA
because tlùs relates again to the intention of the United Nations Charter
in general, and Article 80, paragraph r, in particular.
Mr. President, and Members of the Court, in the light of this analysis,
the basic strategy of Respondent's entire argument is fully revealed.
It is a strategy which, indeed, marks and-1 respectfully suggest
confuses its entire argument. Respondent cannot hope to demonstrate
that if the Court had known of these facts-as it actually did in the case
of the first two of them-it could not possibly have construed Article
22 of the Covenant, the Mandate instrument, and the United Nations
Charter the way it did. One has only to look at the "general consider-
' ations" adduced by the Court at page 136 of its Opinion to establish the
validity of that proposition.
Respondent's entire effort in this proceeding, and this, Mr. President,
is why I have insistently attempted to submit these facts to surgical
analysis, the Respondent's entire effort is directed at assailing and re
pudiating the validity of the Court's rationale, in the guise of re-inter
preting and, I believe, distorting in the process, that rationale. Respon
dent's strategy, I think, is exposed. Respondent does not interpret the
"new facts" in a manner consistent with the true significance of the
Court's reasoning, or "general considerations". The Respondent, on
the contrary, interprets, or rather misinterprets, the Court's reasoning
so 8S to give a false significance to the "new facts".
This will appear even more clearly, I submit, from an analysis of the
Court's Opinion itself, to which I tum under my second major proposi
tion, and of the Respondent's contentions on the merits, which is my
third proposition. But before turning to the second and third proposi
tions, with the Court's permission, I should like to make one final
comment with regard to the "new facts" contention as I have called it,
as well as its method of presentation to the Court.
Article 6r, paragraph I, of the Statute of the Court states-and this
was quoted by leamed Counsel in bis oral argument:
"An application for revision of a judgment ['a judgment now
in contrast with an Advisory Opinion' he said] may be made only
when it is based upon the discovery of some fact of such a nature
as to be a decisive factor, which fact was, when the judgment
was given, unknown to the Court and also to the party clairning
revision, always provided that such ignorance was not due to
negligence."
That is the quotation of Article 6r, paragraph r.In our submission there
is no reason in justice or logic to ignore, in the case of request for revi
sion, and in this case a reversa!, of the basic holdings of an Advisory
Opinion, there is no reason in logic or justice to ignore even the most
minimal standards laid clown in Article 6r of the Statute of the Court,
which-as Counsel himself conceded in his oral statement of 4 October,
at page IOO, supra,-conform to the generally accepted principles
favouring the stability of judgments.
Article 68 of the Statute of the Court provides that the Court, in the
exercise of its advisory fonctions:
"shall be guided by the provisions of the present Statute which
apply in contentious cases to the extent to which it recognizes them
to be applicable". ARGUMENT OF MR. GROSS 301
Article 82 of the Rules of Procedure similarly provides that the
Court:
"shall also be guided by the provisions of these Rules which apply
in contentious cas,~sto the extent to which it recognizes them to be
applicable".
The facts which Re,pondent failed to present to the Court in 1950
all related to matters of public knowledge, all were contained in public
documents, all these documents were themselves referred to in written
.or oral statements, e,,en though excerpts referred to by Respondent
were not, in some cases., precisely quoted, or quoted at all.
Respondent has not contended, and cannot plausibly assert, that
it was ignorant in 1950 of the facts now sought to be adduced. Nothing
Respondent has contended even implies that it was ignorant of these
facts, so far as I have been able to discover in the record. Respondent
has, moreover, not ass•!rted, so far as I have seen, that such ignorance,
if it existed, was not due to negligence. Indeed, given Dr. Steyn's con
ceded competence, the probability is that his failure to make explicit
reference to such facts-and this relates only to the last three-re
flected his calculation that they were of relative unimportance to the
scheme of his argument.
Nor are the facts thë:mselves of "such a character as to lay the case
open to revision", in the words of paragraph 2 of Article 61 of the Sta
tu te. Their unsubstantial nature has, I hope, been manifest in the
course of my oral statement.
Itis submitted accordingly, Mr. President and Members of the Court,
that the Court should give due weight to the fact that Respondent has
failed to advance any reason whatever for not meeting even the most
minimal requirements ,)f Article 61 which Respondent, itself, concedes,
embody principles widely accepted in municipal legal systems.
Respondent's request for reconsideration and revision of the 1950
Advisory Opinion should, it is submitted, be rejected.
Mr. President, and M.embers of the Court, by referring to Article 61
of the Statute and the relevant Rules of the Court, I would like to make
clear that it is not submitted that the Court should, or indeed, could
appropriately, apply lit,~rally and in text these Articles and these Rules
as such, in the case of Advisory Opinions. I am referring specifically to
the minimal standards which the Article in question embodies, and which
standards conform to ·-:hegenerally accepted principles of law. For it
remains true, as Couns~l himself has conceded during the course of his
argument that, but for these new facts, the Court's Opinion would be
granted strong prima f.uie weight as being of precedential value as an
authority.
In turning now to rny second major proposition, the Advisory Opin
ion we submit is sound and should govem the case at Bar. Our second
major proposition is, of course, based on the assumption that if, contrary
to our submission, the Court should decide to reconsider the Advisory
Opinion of 1950, then c.n analysis of such an Opinion is highly relevant
to an appraisal of Respondent's de novo contentions. I have submitted
that an analysis of the Advisory Opinion is indeed also pertinent to
an appraisal of Respondent's new fact contention as well, although I
submit, Mr. President, it would not be necessary on that base alone to
go into an extensive analysis which I shall venture to undertake of the302 SOUTH WEST AFRICA
Advisory Opinion of 1950. If it is an invidious task for Respondent's
Counsel to challenge the Merits of the 1950 Advisory Opinion, as indeed
he must seek to do, it is perhaps a presumption on my part to attempt,
if I may say, to defend or expound the Advisory Opinion of 1950; I
am aware of the delicacy of the position in that respect, and yet the
1950 Advisory Opinion is, and must be, the yardstick by which Res
pondent's contentions, on their merits as well as with respect to the
new facts, must be measured.
As was expressed earlier in my argument, in my oral statement, we
do not think that a de novo argument is really called for in this case.
Therefore, in turning to an analysis of the Advisory Opinion, I would
like to state emphatically, though I do not do so with any implication,
that the Opinion requires restatement or clarification but we think it
is clear, sound, and that it means what it says.
Turning now to the Opinion itself, we take it that the Advisory Opin
ion lays down as the law of the case that the machinery for implemen
tation of the Mandate, together with all its other substantive rights
and obligations, survived the dissolution of the League. The holding in
no way distinguishes between the Mandatory's rightsanditsintemation
al duties. On this aspect only was the dissent partially at variance with
the majority opinion. The dissenting Judges found some difficulty
with the notion that continued administrative supervision might sur
vive a defunct administrative organ in this context, the majority found
no such difficulty. The leamed Judges in the dissent nonetheless joined
the full Court in upholding the survival of compulsory jurisdiction, where
the same problem, of course, did not arise since the Court has never been
defunct.
The Court rejected Respondent's contention, first made to the Court
in 1950 and now repeated in different form, that the Mandate as a whole
had lapsed. The Court found that the contention misconceived-
1 quote from page 132 of the Opinion-"the legal situation created by
Article 22 of-the Covenant". The reference to Article 22 is highly signi
ficant inasmuch as that Article embodies the concepts both of sacred
trust of civilization, from which substantive rights and obligations are
derived in the Mandate, and the concept of securities for performance
of the trust, from which obligations to account and report, as well as
to submit disputes for adjudication, are derived in the Mandate. Ana
lyzing the legal nature of the Mandate, the Court considered, and I
quote, that a "new international institution" had been created, "the
abjects of which far exceeded that of contractual relations regulated by
national law". "It is not possible", said the Court at page 132, "to
draw any conclusion by analogy from the notions of mandate in na
tional law or from any other legal conception of that law."
With respect bath to the machinery for implementation and substan
tive rights and obligations, the Court (at pages 132-133) referred to the
"international rules regulating the Mandate", which "constituted an
international status for the Territory". The fonctions entrusted to the
Mandatory possessed an "essentially international character", said the
Court, as appears particularly from the fact that by Article 22 of the
Covenant and Article 6 of the Mandate, the exercise of these fonctions
was subjected to the supervision of the Council of the League of Nations.
This fact of subjection is what the Court took as showing the essentially
international character of the Mandate institution. Respondent, as we ARGUMENT OF MR. GROSS 303
shall see, I believe distorts the meaning of this by assuming or contending
that this sentence in the Court's opinion in effect means that it was only
the Council of the League that was entitled to supervision.
It is to be noted tha~ the Court, by this language (at page 133), made
clearthat the fonctions, as they are called, comprise both the internation
al machinery for implementation and the substantive rights and unilater
al obligations ofthe Mandatory. If this were not so, the Court's reference
to Article 22 would be meaningless, since it contains both sides of the
equation.
In confirmation of the fact that the "essentially international charac
ter" of these fonctions included the machinery for implementation the
Court, inthe same contE:xt (at page 133) rcfers to Article 7of the Mandate,
relating to submission uf disputes to judicial process. This reference to
Article 7 precedes the subsequent mention of Article 7 in connection
with the Court's holding that Article 7 has survived. At this page of the
Opinion (page 133), the Court refers to Article 7 of the Mandate as con
firming the fact that rhese fonctions had an essentially international
character. Going on frorn its fmding that the international rules regarding
both substantive rights and accountability, and again I quote, "consti
tuted an international s tatus for the Terri tory", the Court said (at page
133) and, I think, reaclled an inescapable conclusion by saying so, with
respect:
"If the Mandate lapsed, as the Union Government contends, the
latter's authority vrould equally have lapsed."
This proposition, wbich seemed to the Court sufficiently axiomatic
as a matter of justification, is not referred to so far as I have discovered
on any place in Respondent's Preliminary Objections or in their oral
statements. I will corne to that in considering their contentions.
In order to dispel an:r possible doubt that by reference to the lapsing
of the Mandate, the Court was speaking of international machinery for
implementation as well as of unilateral rightsand duties, the Court-in
the very next sentence on page 133-pointed out that "to retain the
rights derived from the Mandate and to deny its obligations would not
be justified". Again, so far as I have been able to discover, this, I would
submit, most obviously tenable proposition is not referred to or comment
ed upon at any stage in the Preliminary Objections or in the oral state
ments before this Court.
The term "justified", used by a Court of law in such a context surely
has a legal as well as a moral connotation, and I shall revert to this in
discussing Respondent'i; contentions. As clearly appears from the fore
going discussion, there is no room for doubt, I submit, that the Court's
phrase, "to deny the ot,ligations", on page 133, could have no meaning
other than the obligations to account and report, as well as such unilateral
obligations and rights as may exist.
The Court, as I have ventured thus far to analyze the Opinion, laid
down as the law of th•ècase that the machinery for implementation,
together with the substantive rights and obligations, survived the
dissolution of the League. That was an explicit clear holding. The Court
thereupon turned to a consideration of the two kinds of "international
obligations assumed by the Union" and, for the sake of convenience,
analyzed each kind separately. It is worthy of repetition to note again
that, in the earlier portion of its Opinion, the Court had already concluded 304 SOUTH WEST AFRICA
that both kinds of obligations had survived the League's dissolution. The
discussion by the Court of each of these two kinds of surviving obligations
embodies and elaborates the rationale of its holding.
The first group of obligations directly related to the administration
of the Territory; the second group related to the machinery for imple
mentation (that is found at page 133 of the Advisory Opinion); the latter
group of obligations was, as the Court pointed out on the same page,
"closely linked to the supervision and control of the League". And it
should be noted that, although the Court did not make explicit referénce
to the matter at this point of its Opinion, the obligation was also linked
with international judicial supervision or, as I think it might more accu
rately be called, the duty to submit to compulsory process under the com
promissory clause. This clearly appears from the Court's explicit reference
to Article 7 on the same page of the Opinion, to which I have referred,
that is page 133, in describing the essentially international character of
the functions entrusted to the Union.
Mr. President and Members of the Court, in listening to the French
translation of my comments regarding the expression used by the Court
at page 133 regarding the two kinds of international obligations assumed
by the Union, I did not, although with faulty French misunderstanding
may have missed, I did not hear the French translation refer to the
qualification I had made regarding the sentence in question. I think that
it was my fault, and an unpardonable advocate's fault, in not quoting
the whole sentence, and I should like to quote the whole sentence so that
the English and French versions will be exactly the same. As a matter of
fact I fear that what I said in my original remarks is inaccurate, or at
least ambiguous. The sentence in question appears on page 133 and
I read it in full:
"These international obligations assumed by the Union of South
Africa were of two kinds."
I had perhaps left the impression that the Court did not make it clear
that they were of two kinds but I was referring to this exact quotation,
and should have quoted the whole sentence. The fact is that the Court did
hold specifically that the obligations were of two kinds.
Returning then to my argument. ln considering the fi.rst kind of obli
gation, that is the obligation of administration, the Court reiterated that
these obligations were of such a nature that, and I quote: "they could not
be brought to an end merely because" the League of Nations had ceased
to exist, as Respondent had frankly contended before the Court in 1950.
I say "reiterated" in this context because the Court had earlier in its
Opinion, on the preceding page, had already rejected the Respondent's
contention that the Mandate had lapsed. On page 133, as a necessary
corollary, the Court reiterated that the obligations were of such a nature
that they could not be brought to an end merely because the League had
ceased to exist. ,
In this context, the Court significantly, and for the first time in its
Opinion, refers to Article 80, paragraph 1,of the United Nations Charter.
The significance of the Court's reference to Article 80, paragraph 1,of the
Charter clearly appears from the stress of phrases used by the Court,
such as: "under all circumstances" and "in all respects", phrases charac
terizing the Article's pervasive intention to safeguard the rights, all the
rights, of the inhabitants of Mandated territories .
..... ARGUMENT OF MR. GROSS 305
The Court's emphasi:, concerning Article 80, pa.ragraph r, its scope
and force and meaning, :lsreinforced by the Court's subsequent references
in the Opinion to that pa.ragraph of Article 80, particularly in the light of
the context in which the subsequent references appear.
The first reference to Article 80, paragraph 1,is, as I have said, at the
bottom of page 133 and relates to the group of obligations entrusted to
the Respondent in Articles 2-;of the Mandate read in the light of Article
22 of the Covenant. It is these obligations which, as the Court said,
represent the very essence of the sacred trust of civilization, and the
Court went on to say:
"Their raison d'6tre and original object remained. Since their
fulfilment did not depend on the existence of the League of Nations,
they could not be brnught to an end merely because this supervisory
organ ceased to exfot. Nor could the right of the population to have
the Territory administered in accordance with these rules depend
thereon."
It was precisely this c,mclusion which the Court held was confirmed by
Article 80, pa.ragraph 1,of the Charter, with the striking emphasis and
language to which I have referred. It is with reference to the survival of
these obligations on the part of the Mandatory, together with these rights
on the part of the population of the Territory, that the Court interpreted
Article 80, paragraph r.
The next reference in the Opinion to Article 80, paragraph 1,occurs at
the bottom of page 136 of the Advisory Opinion. In this context of the
Opinion the Courtis referring to the "second group of obligations" of the
Mandatory, that is to say, the obligations which "were closely linked to
the supervisory fonction:; of the League of Nations, particularly the obli
gation of the Union of South Africa to submit to the supervision and control
of the Council of the L,~ague". That is quoted from the Opinion. The
Opinion immediately thereupon, still referring of course to the second
group of obligations, the machinery for implementation, the Opinion
thereupon immediately answers the question which the Court itself has
posed and that is whether these supervisory fonctions are to be exercised
by the new international organization, that is the United Nations, and
whether the Respondent is obliged to submit to United Nations super
vision and to render annual reports to it. The Court holds, answers its
own question, in the affirmative, and it holds, on the basis of reasons set
forth on page 136, decisive reasons, which the Court on the same page
refers to as "general considerations" as well as decisive reasons, the Court
holds on this basis that the question must be answered in the affirmative
and that the obligations to account and report exist and that the United
Nations is to exercise them. Now these reasons, these decisive reasons,
general considerations, are crucial to the Court's holding, are not in any
way impaired by Respondent's "new facts" contention, as I have sought
to make clear, and they are not impaircd, I shall submit under the next
heading, they are not impaired by the de novo argument made by Res
pondent.
The reasons, set forth at page 136 of the Opinion, the "general consid
erations" or "decisive n:asons" as they are alternatively called by the
Court, comprise a pa.ragraph of five sentences, in substance as follows.
Each is, I think, pregnant with meaning; SOUTH WEST AFRICA
306
First, the obligation to "accept international superv1s10n and to
submit reports is an important part of the Mandates System". As
a matter of fact it has been regarded generally, I think the history shows,
as an essential part.
Secondly, the authors of the Covenant, said the Court, and I quote,
"considered that the effective performance of the sacred trust of civiliza
tion by the Mandatory Powers required that the administration of
Mandated territoriesshould be subject to international supervision".
Parenthetically the Court did not say that it required that they be
subject to international supervision by the Council of the League of
Nations, or by any other specific or designated agency. In this context
the Courtis talking about a "general consideration". The Covenant re
quired that the administration of Mandated terri tories should be subject
to international supervision.
Third sentence: "The authors of the Charter had in mind the same ne
cessity when they organized an International Trusteeship System."
Fourth sentence: "The necessity for supervision continues to exist
despite the disappearance of the supervisory organ under the Mandates
System." The insistent emphasis on the word "necessity" is significant.
Fifth and last sentence in this paragraph of general considerations,
or decisive reasons I shall likewise quote in full:
"It cannot be admitted that the obligation to submit to supervision
has disappeared merely because the supervisory organ has ceased
to exist, when the United Nations has another international organ
performing similar, though not identical, supervisory fonctions."
Hence the Court, on the basis of its analysis of the legal nature of this
new international institution, concluded that international supervision
was an essential feature of the institution and that this had been the
view of the authors of the Covenant and the authors of the Charter, and
the Court goes on-and I quote from page 137=
"These general considerations are confirmed by Article 80, para
graph 1,of the Charter",
and, says the Court, the League "gave expression to a corresponding
view on 18 April 1946.
[Public hearin[; of I6 October r962, a/ternoon]
Mr. President and Members of the Court, at the close of the morning
session, I had referred to the analysis of the Court and my last remarks
were that the Court, on the basis of its analysis of the legal nature of
this new international institution, concluded that international super
vision was an essential feature of the institution and that this had been
the view of the authors of the Covenant and of the authors of the Charter,
and then that the Court goes on to say (page 137):
"These general considerations are confirmed by Article 80 (r) of
the Charter and [says the Court] the League gave expression to a
corresponding view in its Resolution of 18 April 1946."
lt is in this context, relating to the survival of Respondent's obligations
to account and report to the United Nations, that the Court makes its
second reference to Article 80 (r). And in doing so, it not only holds ARGUMENT OF MR. GROSS 307
that Article 80 (1) confirms the reasons for the affirmative answer to the
question the Court has posed itself, but that such confirmation is based
upon the interpretation which the Court had already given to Article
80 (1) in its first reference to that clause. In other words, the Court,
as it seems to me, inc:irporated by refcrence its interpretation of Ar
ticle 80 (1) into this SE:condreference to it, and this in the context of
the survival of Respondent's o.bligations to account and report to the
United Nations. The Court says, at the bottom of page 136, that the
considerations supporting its holding with respect to the survival of
Respondent's obligations to account and report are controlled by
Article 80 (1) "as this clause has been interpreted above". The Court
obviously is thereby construing Article 80 (r) in a sense which safeguards,
for the people of Mandated territories, the right to have the protection
of international judicial supervision, in the sense of compulsory juris
diction of disputes arising under the compromissory clause.
The third referencc to Article 80 (1) in the Court's Opinion appears
at page 137. At this point, the Court is discussing the question whether
the right of petition had survived the dissolution of the League. Ee
ginning at the bottom of page 137, the Court held that this right "is
maintained by Article 80 (1) of the Charter, as this clause kas been
?'.nterpreteabove", again incorporating by reference the interpretation
given to the clause in its first mention eadier in the Opinion.
It will be notcd tha1: the Court thereby attributes to Article 80 (1)
the positive quality of "maintaining" the right of the inhabitants to
petition to an internati,Jnal agency. Moreover, in exactly the same way
as the Court had done in its second reference to Article 80, at page 136,
which relates to continued United Nations supervision~the Court
reaffirms, inthe context of the right of petition, the interpretationwhich
it had earlier given to Article 80, in such sweeping and, if I may say,
striking emphasis.
Finally, tp.e Court makes its fourth reference to Article 80 (1) in the
context of the discussion of the compromissory clause of the Mandate
itself, which is of cour,e the clause at issue in the cases at bar. The
precise question in issue, at this point of the Opinion, was whether
Article 7 remains in fo:,ce with the consequence that Respondent con
tinues to be under an obligation to accept the compulsory jurisdiction
of this Court. The Court answers the question in the affirmative, and
says in doing so:
"Having regard to Article 37 of the Statute of the International
Court of Justice, and Article 80, paragraph l, of the Charter."
That is at page 138.
These four successive references to Article 80 (1),each in a different
though related context, and each based on the same interpretation of
the clause, have accumulative significance in our judgment. They
demonstrate, it seems to us, that the Court was defining Article 80 (r)
so as to give a full scope and an enduring vitality to the "international
functions" which had been entrusted to the Respondent, to the "new
international institution" which had been created by Article 22 of the
Covenant and the Mar,date and to the "international status for the
territory", which had bEen created by the "international rules regulating
the Mandate". I have quoted each clause from the Court's Opinion. SOUTH WEST AFRICA
308
Having thus established the confirmatory significance of Article 80 (1),
the Court refers, at page 137, to what it calls the "corresponding view"
expressed by the League of Nations with regard to the purposes of
Article 80 (r). Specifically, the Court describes it to be the purpose of
Article 80 (1) "to provide a real protection" for the rights of the people
of Mandated territory, and concludes that those rights could not "be
effectively safeguarded without international supervision and a duty
to render reports to a supervisory organ". That is the way the Court
has construed Article 80 (I).
Now, the Court speaks of a "corresponding view" embodied in the
18 April 1946 Resolution. It says that that resolution, the League
resolutian :
"presupposes that the supervisory fonctions exercised by the
League would be taken over by the United Nations".
I think it is relevant, Mr. President, at this point, to inject a brief
reference to Respondent's contention-with which I have dealt fully
under the first major proposition-concerning the Respondent's argument
-that if the Court had been aware in 1950 of certain so-called "new
facts", the Court would have taken a different view of the 18 April
Resolution and would have reached the conclusion that Respondent's
obligation of international accountability tenninated upon the disso
lution of the League. I have, as I say, met head-on Respondent's con
tention in that regard, with all its grave and far-reaching implications.
With the Court's permission, I cal! to the attention of the Court the
precise terms in which the Opinion treats of 18 April 1946 Resolution,
the context in which it does so, and (as it seems to us) the inescapable
inferences which are to be drawn from both the treatment and the
context_
As in the case of Article 80 (r), the Court refers to this Resolution
in multiple, although closely related, contexts, which are mutually
reinforcing.
The first reference to the r8 April Resolution is at page 134 of the
Opinion. In this context the Court is discussing the first group of "inter
national obligations" assumed by the Respondent, that is to say, the
ones "corresponding to the sacred trust of civilization referred to in
Article 22 of the Covenant", as the Court said at page 133.
The Court concluded, at the same page (133) that these obligations
"could not be brought to an end merely because the supervisory organ
had ceased to exist. Nor could the right of the population to have the
terri tory administered in accordance with these rules depend thereon".
It is this view, regarding the obligations defined in Articles 2-5 of
the Mandate, that the Court, in this context, finds is confirmed by
Article 80 (1) of the United Nations Charter and by the 18 April 1946
Resolution. They are both confirmatory of "general considerations"
reached by the Court after study of the Covenant of the League of
Nations and of the United Nations Charter.
On page 134 of the Opinion, after quoting relevant excerpts from the
Resolution, the Court says:
"As will be seen from this resolution, the Assembly said that the
League's functions with respect to mandated territories would
corne to an end; it did not say that the Mandates themselves came ARGUMENT OF MR. GROSS
to an end. In confining itself to this statemerit, and in taking
note, on the other hand, of the expressed intentions of the mandatory
Powers to continue to administer the mandated territoriesin
accordance with thdr respective Mandates, until other arrangements
had been agreed 11pon between the United Nations and those
Powers, the Assembly manifested its understanding that the
Mandates were to continue in existence until 'other arrangements'
werc cstablished."
It will be noted that the Court refers to the explicit language of the
Resolution and to the expressed intentions of the Mandatory Powers
to continue to administer the Mandated territories in accordancc with
their respective 1fanda1es.
Now, the Court's secm1dreference to the Resolution of 18 April 1946-
the only referencc, incidentally, to which Respondent refers in its
presentation-appears in the context of its discussion of Respondent's
second group of obligations, that is those which the Court says are
"related to the machinery for implementation ... closely Iinked to the
supervisory functions of the League". That is at page 136 of the Opinion.
After analyzing the nature and purposes of the functions of inter
national supervision and accountability, in this context, the Court
again finds confirmation of its views in Article 80 (1),which, as I say,
the Court had interpreted earlier in its Opinion.
The Court, then, fiuds additional confirmation once more in the
"corresponding views" ,~xpressed in the 18 April 1946 Resolution. The
Court did so in the follc,wing words, at page 137 of the Opinion:
"It recognized, a3 mentioned above, that the Lcague's functions
with regard to the mandated territories would corne to an end,
but noted that Chapters XI, XII and XIII of the Charter of the
United Natians embody principles corresponding to those declared
in Article 22 of the Covenant. It further took note of the intentions
of the mandatory :,tates to continue to administer the territories
in accordancc with the obligations contained in the Mandates until
other arrangement:; should be agreed upon bctween the United
Nations and the mandatory Powers. This resolution presupposes
that the supcrvisory fonctions exercised by the Leaguc would be
taken over by the United Nations."
Now, just as in the c.ise of its prior refercnce to the Resolution, the
Court refers in this parngraph to the clear and explicit language of the
text of the Resolution which it quotes and interprets authoritatively.
At the end of the paragraph I would rcpeat the Court comments that
the Resolution "presupooses that the supervisory fonctions exercised
by the League would he taken over by the United Nations". They
(League Members) had access to Article 80 (1) of the Charter and they
interpreted it èxactly a:; this Court does in its Advisory Opinion.
Mr. President, Members of the Court, in this context it seems to us
the word "presuppose" is a strong one, since it emphasizes a premise,
or supposition, on which the Resolution is based, that the United Nations
would take over the Lrngue's supervisory function. In this context it
seems that it has a greater significance than if the Court had merely
said that the Resolution declares, or implies, or used other similar words
of interprctation of intmtion. The Resolution "presupposes" that the SOUTH WEST AFRICA
310
supervisory fonctions exercised by the League would be taken over by
the United Nations. But for such a presupposition the League might
well have taken different and other action to ensure the continuity and
survival of the Mandates until they had been converted into trusteeships
or had been otherwise terminated in accordance with their provisions
and those of the Covenant.
The Court completes its chain of reasoning on this aspect of the case
by painting out that by Article roof the Charter, the General Assembly
of the United Nations had been endowed by the Charter with competence
"to exercise such supervision and to receive and examine reports" and
that Respondent "is under an obligation to submit to supervision and
control of the General Assembly and to render annual reports to it",
that is at page 137. .
I have already referred to the Court's holding with respect to the
right of petition and to the significance given by the Court to Article 80,
paragraph 1, in connection therewith.
And, finally, with regard to question (a), the Court-as I have mention
ed-concluded that the comprorrîissory clause of Article 7 is "still in
force" having regard to Article 37 of the Statute and Article 80, para
graph 1, of the Charter, and the significance of this fourth reference to
Article 80, paragraph 1, and the reference in this context, has been
noted earlier in my argument.
In summary, Mr. President and Membcrs of the Court, it is sub
mitted that the following conclusions must inevitably be drawn from
the Opinion of 1950:
(1) Disputes regarding interpretation and application of the Mandate
are subject to the compulsory jurisdiction of this Court. Such
disputes include, inter alia, those which might arise concerning the
interpretation of Article 6 of the Mandate, or any other provision of
the Mandate, and the extent and nature of Respondent's obligations
under the Mandate; and
(2) That if the Applicants, who were Members of the League of Nations
at the time of its dissolution and are now Members of the United
Nations, if Applicants, under these circumstances, do not fall within
the class of States competent to invoke the jurisdiction of this Court,
no State does.
Under such circumstances the compromissory clause would be a dead
letter; Article 80, paragraph 1, of the Charter, the League of Nations
Resolution of 18 April 1946, as both of these documents have been
authoritatively interpreted by this Court, would be utterly frustrated.
In leaving this respectful analysis of the Advisory Opnion of 1950 I
shou1d 1ike to repeat the sense of presumption under which I felt con
strained to speak in attempting to analyze, to expound to the Court,
the interpretation of an Opinion of the Court involving the issues
precisely of the case at Bar.
I turn now to the third major proposition which relates to the Re
spondent's de novo argument, and which submits that the Respondent's
de novo argument, on the merits, is in conflict with the Advisory Opinion
and should be rejected.
\Ve have endeavoured to show that there is no basis for reviewing
and reversing the Opinion and that the basis alleged, in connection with ARGUMENT OF MR. GROSS 3II
the "new tacts" contention, is not valid, the facts being neither new
nor crucial nor possessing, indeed, any other material significance.
\Ve have sought, mc,reover, to show, even if we are wrong in these
contentions, Respondent has not complied with even the most minimal
standards widcly reflec·ted in municipal legal systems, and embodied in
the Statute of the International Court itself, to lay a basis for adducing
alleged new tacts in seeking a reconsideration and reversai of, in this
case, a unanimous Opi,1ion.
However, in turning to the Respondent's de nova argument I do so
essentially in a respechul effort to restore to the record of these state
ments a balance and a perspective which the grave issues merit, even
though it is, as I conŒde, an argument alternative to my first two
major propositions and one in which we do not regard ourselves as
necessarily involved.
Itmay be that light is shed on the arguments which Respondent now
offers to the Court by a brief rcference to the arguments propounded to
the Court by Respondent in 1950. Although the 1950 and the 1962 sets
of arguments are couched in different form, comparison of the two
reveals, I think, one esscntial difference, and one only.
I think it fair to say that the difference is that, in 1950, the same
major fallacies regarding the nature of the Mandate were presented to
the Court, but with greatcr clarity and concision than is the case today.
In its oral argument and written Pleadings before the Court in 1950
Respondent explicitly and with candour declared that it had ceased to
be under any internati-Jnal obligation whatsoever with respect to the
Mandate on the ground that the Mandate had lapsed with the dissolution
of the League of Nation:,. Respondent at that time stressed the following
contentions, which I should Iike to summarize.
During the life of the League, Respondent contended, it had owed
duties to the League, but then when that organization dissolved, these
duties could no longer be performed vis-à-vis the League. Inasmuch as
the United Nations had not succeeded to the fonctions of the League in
respect of Mandates, R,~spondent contended that the duties previously
owed to the League had lapsed. Respondent had owed certain other
duties in respect of Mandates to .Members of the League, but when the
League dissolved there were no longer any Members of the League, and
therefore, contended Respondent, these duties to other States had
lapsed.
In 1950, Respondent resorted to the municipal law concept of Mandate
in order to establish thê.tthe Mandate had lapsed. As Respondent then
viewed the Mandate, it was basically an institution requiring a mandator
and a mandatory, and il: one of the two parties, as it said, fell away, the
institution lapsed. Resp-Jndent contended in 1950 that since the League
had dissolved and the United Nations, in its opinion, was not qualified
to exercise the powers of supervision formerly exercised by the League,
there was no longer a mandator and therefore the Mandate lapsed.
Respondent's use of "mandator and mandatory" appeared to imply
only a two-party relationship, but it nevertheless conceded that League
Members, and I quote from the oral argument made by Respondent
in 1950, page 289, that the League Members "had legal rights in respect
of mandated terri tories"; but Respondent urged then, "with the dis
appearance of the League, the rights of third States who were Members312 SOUTH WEST AFRICA
of the League, must necessarily have ceased to exist". That contention
appears at page 290 of Dr. Steyn's argument before the Court.
In support of its contention concerning the extinction of the rights
of League Members, Respondent in 1950 invoked the example of
Germany's unsuccessful effort to assert rights with respect to Belgium's
administration of Rwanda-Urundi, since Germany was not then a
Member of the League it no longer possessed such rights. Respondent
cited this as showing that present League Membership, as Counsel bas
said, Lea~e Membership at the time the action is brought, is a necessary
prerequisite for the assertion by States of rights vis-à-vis :Mandatories,
and sought to apply a parity of reasoning to the situation in which the
League itself no longer existed.
Mr. President, I corne now to the close of my summary of the 1950
contentions. It will be seen, I think, that the echoes of the same con
tentions are being heard in the corridors of the Court today, twelve
years later. To conclude, however, Respondent went on to contend in
1950, that even if it could be said that the Mandate still existed, the
Respondent would nevertheless have, and I quote, "no obligations which
are international under the Mandate". Respondent at that time, in 1950,
argued as follows, and I quote now from page 288 of the Argument:
"Even if the Mandate still exists, thcre is now no international
organ competent to exercise the supervisory fonctions and control
of the League. There is no international organ to which the Union
Govemment are obliged to submit reports. There is no international
organ whose consent is legally required for modifications of the
terms of the Mandate. The League having expired, there are no
Members of the League who can daim rights in respect of the
administration of the Territory. And finally, there is no State legally
competent to refer disputes relating to the interpretation or the
application of the provisions of the Mandate to the International
Court of Justice, the competence to do so having been limited by
Article 7 of the Mandate to Members of the League."
These were Respondent's contentions to the Court in 1950 and they
were rejected in every respect. The contentions currently being advanced
have been skilfully contrived in the light of, or perhaps it would be
more accurate to say in spite of, the Advisory Opinion of 1950. Res
pondent has fashioned a new train of reasoning, one which is more
intricate and has more moving parts. In the face of the unanimous
opinion of the Court, Respondent seeks to give a different forrn to the
same basic premises which underlay Respondent's contentions in 1950.
Respondent contended in 1950, as I have shown, that because of the
Mandate's contractual origin, or consensual origin, that Mandatory's
consent, tacit or express, was prerequisite to the survival of its duty to
account to an international body other than the League, or to submit
to the compulsory jurisdiction of the Court in pursuance of the com-
promissory clause of Article 7. .
The 1962 model contention is that all of Respondent's rights are
preserved, but none of its obligations of international accountability.
Such a proposition, which I have characterized as the doctrine of
convenient and partial lapse, I think deserves thorough examination.
The Advisory Opinion itself, at page 133,. described precisely this ARGUMENT OF MR. GROSS 313
result as, and I quote the Court's word, "unjustified", I have noted
this earlier in my argument. Respondent has not taken direct or ex
press note of this obvi,Jusly just proposition of the Court, either in its
Preliminary Objectiom. or in its Oral Statements.
Respondent seeks ta support its doctrine of convenient and partial
lapse by means of an artful and self-serving misinterpretation of cer
tain legal analysis app1:aring in the separate Opinion of Judge McNair.
At page 299 (1) of the Preliminary Objections, Respondent purports
to interpret the majority Opinion as follows:
"In the 1950 Advisory Opinion the Court in effect held that,
in addition to its operation as a treaty or convention, the institu
tion known as th,:: Mandate for South West Africa acquired an
objective, or 'real' existence, as constituting a special status for
the Territory and that in this objective or 'real' aspect the Mandate
survived the disso)ution of the League."
That is the Respondent's contention and interpretation of what
it says the Court in effect held. I find no such implication or inference
to be drawn from the Advisory Opinion as we have read it. At page 299
(I) of the Objections, footnote 2 gives three citations to the Advisory
Opinion to support this very important proposition. These citations
are presumably intendtd to indicate the portions of the Opinion which
justify Respondent's wry navel interpretation of the Court's reasoning.
One citation in the footnote on page 299, is to the separate Opinion of
Judge McNair. Another citation is to the separate Opinion of Judge
Read.
The only citation-the remaining one of the three-which is addressed
to the majority Opinion itself, cites page 132. Mr. President, one searches
page 132 in vain for statements of the Court which furnish a plausible
basis for Respondent's .ingenious interpretation of the holding. Respon
dent, as I have reminded the Court, at page 299 of the Preliminary
Objections says that the Opinion "in effect" held that in addition to
its operation as a treai:y or convention, the institution known as the
Mandate for South West Africa acquired an objective or real existence, as
constituting a special status for the territory, and that in this objective
or real aspect, the M an.iate survived the dissolution of the League. It is
the last clause to which Respondent no doubt attaches the most signi
ficance. It is this last clause which I find unsupported by anything on
page 132 of the Opinion. Perhaps fair analysis of Respondent's meaning
in its contention as to ·.vhat the Court in effect held, would have been
aided by reference to the language at page 132, to any language which
Respondent regarded as supporting its interpretation of what the Court,
"in effect, held". At page 132, as the Court will note, the Opinion re
jects Respondent's 19:;o contention that the Mandate had lapsed
because the League had ceased to exist. The Court points out that the
League was not a "Mandator" in the municipal law sense, but "had
only [I quote] assumed an international function of supervision and
control". The Opinion goes on, at the same page:
"The object of the Mandate regulated by international law
far ~.x~eeded that of contractual relations regulated by national
law.
.The phrase "far exceeded", in this passage, seems to be noteworthy. SOUTH WEST AFRICA
After commenting upon the international object of the new inter
national institution, the Court found that the international rules regulating
the Mandate constituted an international status for the Territory, and
accordingly the Court concluded at the next page, page 133:
"The authority which the Union Government exercises over the
Territory is based on Mandate. If the Mandate lapsed, as the
Union Government contends, the latter's authority would equally
have lapsed. To retain the rights derived from the Mandate and
to deny the obligations thereunder could not be justified."
It is this line of reasoning and conclusions, together with rationale,
in the Court's Opinion (or somewhere in the reasoning and conclusions),
in which Respondent has searched for, or discovered, that in the Opinion
the Court had held that it was in this objective or real aspect, in which
the Mandate survived the dissolution of the League.
The Court itself goes on to say that the Union remained "under
an obligation to submit to a supervision by the new organ, that is,
the United Nations, and to render annual reports toit".Itwas in tha t sense,
of course, that the Mandate survived-the Union was under an obliga
tion to carry out its promises in the Mandate and to respond to inter
national supervision and control. It was in that sense, and in that
sense only, that the Court found that the Mandate had survived, and
it found it explicitly.
Respondent's single citation to page 132 of the Majority Opinion to
support its contention, therefore, refers to a page of the Opinion which
sets forth a rationale contrary to Respondent's thesis. Moreover, page
132, in a lawyer's sense, embodies no holding whatever; merely two
paragraphs of relevant history, followed by two paragraphs of impeccable
reasoning. If Respondent's contention to what the Court "in effect
held" implies the reference to the last sentence on page 132, then Res
pondent, I submit, is merely making a play on the words, "international
status" in that sentence.
Having thus injected into its argument a dichotomy between the
real or objective status on the one hand, and the contractual status on
the other, which is the Respondent's and not really that of the Court,
Respondent goes on to say, and I quote from the Preliminary Objections
at page 299 (I):
"The correctness or otherwise of this proposition does not re
quire to be reviewed for the purpose of Respondent's Objection
to jurisdiction ..."
Standing by itself, this statement might well arouse curiosity as to
why, then, so doubtful a proposition is brought into play in the first
place. But the mystery is solved almost at once. Respondent's Prelimi
nary Objections proceed to do precisely what the Respondent has
said is not necessary to its argument. Respondent accepts, or does
not deny, the notion that the Mandate survived in an objective or real
sense, although it submits this only arguendo; it rejects the notion that
the Mandate survived as a Convention or Treaty in force for the purpose
of founding jurisdiction under Article 37.
By contrast, Judge McNair, in his separate Opinion, says:
"In my opinion the new regime established in pursuance of this
principle has more than a purely contractual basis." (Ital. added.) ARGUMENT OF MR. GROSS 3r5
That is at page 154 ,)f the reports. Respondent, unlike the learned
Judge, strenuously seeks to sever the "contractual" or "treaty" aspects
from the "real" or "obj1!ctive" aspects, of the Mandate. Then Respondent
uses the demise of the League, as a contracting party, coupled with
a strained and unrealistic interpretation of Article 37 of the Statute,
as a vehicle for arguing that the Court has no jurisdiction. The result
of Respondent's argument is that the contractual aspect of the Mandate
is used to deprive the ,;tatus aspect of all meaning. For Judge McNair,
the status and the contractual aspects of the Mandate were complemen
tary and mutually reinforcing. He said that the new regime established
had "more than" a purely contractual basis. For Respondent, the
former neutralizes or sterilizes the latter. Now, this verbal legerdemain
has two consequences, both of which are presumably intended.
As I said, this verbal magic has two consequences, both of which are
presumably intended. The first is the contrivance of a theory which I
submit is erroneously imputed to the Court, whereby the Mandate
somehow survives, but only just enough to keep the Respondent in
unsupervised possession of the Territory. Like the Cheshire cat, the
hard substance of enforceable obligation vanishes, while the smile of
rights and benefits remains. It is precisely this consequence which the
Court said "could not be justified". lt is submitted that Respondent's
contention in this regard is directly in conflict with logic, justice and the
rationale and holding of the Court's Opinion.
Having pursued toit~ dead end Respondent's misreading, as I submit,
of page 132 of the Court's Opinion, it is now in order to analyse and
attempt to answer other contentions of Respondent, the correctness
of which may, in its ovm view, have more relevance than Respondent
attributed to its theory which I have just discussed.
In our Memorials, we submit that the jurisdiction of the Court is
founded "on Article 7 of the Mandate and Article 37 of the Statute of
the International Coun: of Justice, having regard to Article 80, para
graph r, of the United J\"ations Charter". (Page 88 (1) of the Memorials.)
Counsel, in the courne of his Oral statement, explicitly sets forth
the basic contention upon the basis of which Respondent joins issue
with Applicants. Respondent contests the jurisdiction of this Court
"to hear or adjudicate the questions of law and fact raised in the Appli
cations and Memorials". (I now have quoted from the Respondent's
submissions.)
In the Verbatim of 2 October at page 32, supra, Counsel expressed
his contention as follow5- I quote his own words:
"So our second ·::ontention is that even if the Mandate could,
in other respects, b,~said to be still in force as a treaty or conven
tion within the meaning of Article 37 of the Statute, Article 7 of
the Mandate itself ceased to be so in force."
And then continuing:
"Thirdly, Mr. President [said the Respondent's Counsel], on
basically the same argument as applies to our second contention,
namely that another Member of the League of Nations is necessary
for operation of Article 7, there followsour third contention which
is merely an alterna·;:iveway of putting the same argument and that
is that even if the Mandate, including Article 7 thereof, could
be said to be 'a treaty or convention in force', neither of the Appli-316 SOUTH WEST AFRICA
cants is qualified to invoke it as 'another Member of the League
of Nations' within the meaning thereof. And [said Respondent's
Counsel] it is mainly because of the overlapping between the se
cond contention-which is really still part of our First Objection
and this third contention which is our Second Objection-it
is mainly because of that overlapping that I trust the Court will
find it convenient if I carry on as I propose and that is to deal
with those two Objections together and not to separate them
entirely."
Candour compels us to confess to the Court that we had precisely
this difficulty in dealing with the Preliminary Objections in sorting
out what are stated as alternative or different theses, but which, as
Counsel frankly described in his oral argument, is really another way of
saying the same thing, or in his own words "an alternative way of put
ting the same argument". I will deal with this in a moment.
As Respondent concedes, at page 32, supra, of the Verbatim to which I
have just referred-that is the Verbatim of 2 October-the contention
that neither of the Applicants is qualified to invoke Article 7 as "another
Member of the League" is, as I have just said and I repeat, according
to Counsel merely an alternative way of putting the same argument,
that is that Article 7 is not in force, if I understand him correctly.
That these contentions ·are merely two ways of making the same
point is logically inescapable. It is, indeed, possible to establish it as a
quod erat demonstrandum in terms of the 1950 Advisory Opinion. I have
ventured to point out at the outset of my oral statement that Res
pondent's de novo argument is necessarily directed at the merits of
the Advisory Opinion and particularly must be directed at, or considered
as an attack upon, or a questioning of, the soundness of its rationale. I
have also earlier in my statement ventured to analyse that opinion and
point out the rationale of the Court's holding that Article 7 of the Statute,
referring in this context to the compromissory clause, is still in force:
"having regard to Article 37 of the Statute and Article 80 (1) of
the Charter and that therefore the Union of South Africa is under
an obligation to accept the compulsory jurisdiction of the Court
according to those provisions''.
I shall state my quod erat demonstrandum.
Proceeding then from the Court's holding that the compromissory
clause is a treaty or convention in force withing the meaning of Article 7
of the Statute, the following sequence of propositions may be set out:
r. If the clause is in force there must be States capable of invoking it
in an appropriate case.
2. If Applicants lack the capacity to invoke the clause, ail States do.
Respondent has not contended otherwise.
3. If no State has the capacity to invoke the clause, it would be a nullity
and Respondent would not be under the obligation to accept the
Court's compulsory jurisdiction as the Court held it to be; and
4. The conclusion must be that Applicants have a locus standi to in
voke the clause unless, of course, and here we corne to the point, the
Court reverses the 1950 holding in this regard. .\RGUMENT OF MR. GROSS 1
3 7
There is no basis &=serted by Respondent which would justify the
Court reversing its holding with respect to the validity and continuing
effect of the compromirnory clause, at least in our respectful submission,
no contention which b worthy of the Court's consideration.
[Public hearing of I7 OctoberI962, morning]
If it please the Cour;:, I should like at the outset of my remarks this
morning to make a com~ction of my statement of October 16 in the Ver
batim at page 294, suprn. There I stated, and I quote from the Verbatim,
and this is a correct reflection of what I did say, quote, "No statements
on the part of any other delcgations at the session of the Committee
appear in the Minutes -)f the Committee". That refers to the session of
the First Committee of the twenty-first session of the League of Nations
General Assembly in April of 1946, that was the third meeting of the
First Committee. On r,~-checking the record, in order to be certain of
the accuracy of my Verbatim, I did discover an error in my statement.
There are reflected in the minutes of the third meeting of the First
Committee two additional statements made by honourable delegates
at the session, one by the Australian delegate who announced the
intention of his Govemment to administer the Mandate, and I quote
"in accordance with th,~provisions of the Mandates" (at page 79 of the
Minutes), and the seceond, a statement by the delegate of France in
which he announced thit his Govemment would continue to administer
all of the Mandated territories,and I quote, "in the spirit of the Covenant
and of the Charter". Those two statements were made in addition to
Sir Hartley Shawcross' statement in which hc seconded the proposal of
the Chinese delegate. The only other action reflected in the third session
of the First Committee was the abstention on the part of the delegate
of Egypt in the vote on the Resolution of 16 April. That ends my
correction.
Mr. President, may I refer now to a photostat copy of an excerpt of
Minutes of the second meeting of the First Committee, which I reccived
at my residence through the good offices of the distinguished Registrar
last night? A scanning of the photostat copy of the excerpt reveals the
text of a draft resoluti,)n, as it is described. This is the Chinese draft
proposai referred to in the Preliminary Objections at page 253 (1). I point
ed out in the course of my argument that the text quoted, at page 253 of
the Preliminary Objections, was not cited in any document. This then is
the document to which the implicit reference is made. The document,
as I understand, was transmitted by the Head Librarian of the United
Nations headquarters in Geneva, and it is in the form of an excerpt,
as I say. Mr. President, [ think the Court should note that the text of the
draft èhinese proposal, as it is set forth in the document to which I
refer,is not identical wlth the text of the resolution quoted at page 253.
I do not contend that the differences in language are substantial in
meaning, at least my reading of them does not indicate any substantial
difference in meaning. However, it is after all the Respondent that has
introduced into this dehate the question of accuracy of documentation,
and it therefore seems a puzzling aspect of the matter that the text,
which is quoted at pag~ 253, does not correspond in language with the SOUTH WEST AFRICA
text in the document now seen by the Applicants for the first time. I do
not want to trespass on the Court's time todwell at length upon this, but
just as an indication, in the second paragraph of the text, as it is quoted
at page 253 (1), the words appear "after the dissolution of the League".
Those words do not appear in the text of the draft resolution in the
document which has been fumished by the Head Librarian of the United
Nations, and there are three or four other similar differences. Therefore,
it is not clear, on the basis of anything which is known to us, exactly
what is the source of the so-called text which is quoted at page 253 of
the Preliminary Objections.
Mr. President and Members of the Court, at the close of the session
yesterday I had undertaken to establish, in the form of a quod erat
demonstrandum, that unless Applicants have a locus standi in this
procedure, no one else does. If no State has the capacity to invoke the
compromissory clause it would become a nullity, and, unless the Court
reverses its holding that the Article is in force, it would follow that the
Applicants must have a standing.
The Respondent itself, speaking through its Counsel, at page 198,
supra, of the Verbatim, said as follows:
"Mr. President, the conclusion to which the portion of the
argument with which I have just dealt is that stated by way of
alternatives in our second and third contentions, namely, that by
reason of there no longer being any Members of the League, Ar
ticle 7 has ceased to be in force as a treaty or convention, or alter
natively, if itis still so in force, then there are no States competent
to invoke it."
Respondent has insisted, in another context, upon according a literai
interpretation of the phrase "another i\1.ember of the League", as it
appears in Article 7, on the ground that words should be given their
"normal and natural meaning".
If Article 7 is "in force", to quote the language of the Court, there
must be States competent to invoke it or it is not in force. Hence,
Respondent, contrary to its own principle, of strict and literai inter
pretation, failsto apply the same standard to the language of the Court.
Itmay be appropriate now to clear up a confusion which cuts across
much of Respondent's reasoning relative to its First Objection. Bath
in the Preliminary Objections and in oral statements, Respondent has
made an elaborate argument de novo with respect to Article 6 of the
Mandate Agreement.
In our written Observations, at page 428 (1), we comment upon the
fact that more than one half of Respondent's First Objection is devoted
to a discussion of the question whether Article 6 of the Mandate is in
effect. We remark at this point in our Observations, page 428, that the
Preliminary Objections faîl to îndicate:
"what relevance the question of United Nations supervision has
to jurisdiction, which is the sole issue in these ... proceedings".
Respondent's Counsel, himself, made the same point at page 35,
supra, of the Verbatim. He said, and I quote:
"You will have noted, Mr. President, that in our original Obser
vations [by which he was referring to the Preliminary Objections] ARGUMENT OF MR. GROSS
wedeal veryfully with a contention to the effect that the Respond
ent's obligation of report and accountability to the Council of
the League in terms of Article 6 of the Mandate Agreement has
lapsed, and that has not been replaced by, or modified into, any
obligation of report and accountability to any organ of the United
Nations. We deal, as I say, very fully with that proposition. [And
then Counsel concludes :] That, of course, is not in itself an objection
to furisdiction-we fully realize that."
That is in the Verbatim of 2 October at page 35, siipra.
Counsel, however, then procceds to argue that the question regarding
Article 6 is nevertheless important because, as we understand him,
he says it is really the Applicants who are seeking to establish the
relevance of Article 6 to the question of jurisdiction. Counsel appears
to base this attribution to us on the ground that the Applicants, as he
says, "rely on" Unitd Nations succession-I quote from the 2 Oc
tober Verbatim at pagt 35, sitpra.
But, Mr. President, it is not the Applicants who "rely on" United
Nations succession. The Court itself decided that issue in the Advisory
Opinion of 1950. We draw the necessary inference from the Court's
Opinion. We do not b,~ar the burden of sustaining the validity of the
Opinion of the International Court of Justice.
Respondent's arguments, in this respect as in others, should be
addressed to the merits of the Advisory Opinion, not to the merits
or demerits of our arguments which seek to support it and to draw
logical inferences from it. The comment in our Observations at page 429
(1) conceming the inforconnection between Articles 6 and 7 to which
Respondent's Counscl has referred, likewise proceeds from the Advisory
Opinion. Our arguments are in the light of the Opinion. Respondent's
arguments are in the t,:ethof the Opinion.
Respondent has als,) engenderecl some confusion, we think, with
regard to a comment in our Observations at page 446 (1). We say there:
"There is at the very least a de facto carry-over of the League's
responsibilitiesto the extent that an important fonction of the
League continues heyond the League's formal existence."
As I have demonstrnted, it follows inescapably from the 1950 Ad
visory Opinion that Applicants have a lorns standi, as United Nations
Members, in the cases at bar. ln the event, however, that the Court
should, for reasons vrhich are not apparent-respectfully-to the
Applicants, if the Court should reverse its holding that Article 6 is still
in force, then we would contcnd, as we do here, that Applicants must
have a locus standi as former Members of the Leaguc of Nations because
if they do not, the unanimous holding of the Court that Article 7 is in
force is reduced to a nullity. It is a perfectly logical proposition, and it
is precisely in this sensi: that we have referred to the point. If the lan
guage is elliptical I express our regret and welcome this opportunity
to clear up what seem1: to be an inescapably logical deduction.
Respondent does not address itself, at any point so far as we have
observed, to the merits and soundness of the Advisory Opinion. Its
entire argument seems to be based upon the premise that, because of
alleged "new facts", the Advisory Opinion should either be reversed
or presumably ignored, as has been Respondent's practice for the past
twelve years.320 SOUTH WEST AFRICA
I have trespassed on the patience of the Court in an effort to show
that the Advisory Opinion was not a product of ignorance of fact, and
that there is no basis for reopening it.
Whether Respondent is correct in what may be an implicit contention,
that the Opinion of the Court was the result of faulty reasoning, or
unsound rationale, is a matter which-I respectfully submit-must be
decided, and can only be decided, by the Court itself.
I have thus far, in the course of my Statement, under the heading of
major proposition 3, attempted to show that unless Applicants have a
locus standi, noState does, and the compromissory clause would accord
ingly be deprived of life, despite the Court's holding of 1950, unanimous
holding, that it is still "in force".
I tum to the alternative argument by which Respondent seeks to
rob Article 7 of its life. Respondent contends that the phrase "another
Meml;lerof the League of Nations" in Article 7 should be given a litera!
interpretation.
Respondent concedes that such a literal interpretation would nullify
the Court's holding with respect to the compromissory clause being in
force.I have quoted from the Verbatim at which that concessionismade,
Accordingly, Respondent's contention necessarily implies a rejection of
the merits of the Court's holding on this issue, as well as the rationale
of its holding.
But Respondent does not address itself to a demonstration that the
Court's holding, that Article 7 is in force, is untenable or that the Court's
reasoning in support of that holding is not sound. Respondent makes a
de novo argument, as is clear, to justify a reversai of the Opinion, but
the arguments which Respondent makes were, in essence, all before
the Court in 1950 as I have attempted to show in my analysis of Res
pondent's 1g50 contentions and of their current 1962 model. The
contention that "new facts" present "new issues of substance" to the
Court now, as Counsel has put it (at page 33, supra}, has, I trust, been
exposed.
Mr. President, what then does Respondent have to say about the
Court's reasoning and holding with regard to the crucial Article 7-the
validity of which is the sole issue in these proceedings-and,in particular,
the compromissory clause of Article 7? I have shown that unless Res
pondent succeeds in persuading the Court to reverse its unanimous
holding at Article 7,the compromissory clause is in force and Applicants
must have a locus standi.
During the course of his oral statement on 9 October, Respondent
had something to sayon the subject of the Court's Opinion with regard
to the compromissory clause. The Court's attention is respectfully
directed to the Verbatim of that day, beginning at page 184, supra,
Counsel introduced the subject with something of an understatement.
He said:
"That Opinion contained a finding to the effect that Article 7
must still be regarded as being enforced."
With respect, I think an analysis of the Opinion will show that the
Court made a quite explicit holding on the point, and not an implicit
"finding", as the Respondent characterizes it. Then Counsel goes on: ARGUMENT OF MR. GROSS 321
"The only reasoning specifically indicated as being applicable on
this point is to be found at page 138 of the Opinion and is stated
in a single sentence."
The "single sentence" 1o which Counsel refers is the sentence at page 138
of the Advisory Opinion, which reads as follows, and I quote:
"Having regard to Article 37 of the Statute of the International
Court of Justice, and Article 80, paragraph 1, of the Charter, the
Court is of opinion that this clause in the Mandate is still in force
and that, thereforc-, the Union of South Africa is under an obligation
to accept the compulsory jurisdiction of the Court according to
those provisions."
However, the ration,.Ze of the Advisory Opinion regarding Article 7
embodies more, very much more, than the "single sentence" quoted by
the Respondent. The rationale in the Opinion pertinent to the Court's
holding that Article 7 is in force begins on page 132 of the Opinion. I
refer to the Court's analysis in the last full paragraph on page 132 of
the Advisory Opinion concerning, in the Court's language, the "... legal
situation created by Article 22 of the Covenant and by the Mandate
itself". Obviously the l.egal situation created by the Covenant and the
Mandate extends to Article 7 of the Mandate as well as to any other
provision.
Rationale pertinent to Article 7 is found in the Opinion also at the
next page, on page 133, where the Court describes the international
obligations of the Respondent in the light of the legal situation created
by the Covenant and the Mandate. Indeed, at the top of page 133 is
found an explicit refer,ince to Article 7 itself, and the Court says that
Article 7 shows, and I quote, "The essentially international character
of the functions which had been entrusted to the Union" -that is in the
first full paragraph on page 133.
Above all, however, emerging from the Opinion with a force that
cannot be denied, stands the significance of Article 80, paragraph 1, of
the Charter which the Court refers to in this "single sentence", to use
Respondent's characterization. As I have pointed out, the Court, in its
Opinion, has three times prior to this point cited Article 80, paragraph 1,
as having been designed to conserve all rights of peoples of Mandated
territories to international supervision and judicial protection.
Respondent does no1 adduce any arguments or facts, except the so
called "new facts", the effect of which I have dealt with, tending to
impair the Court's reasl)ning with regard to Article 7 or to impeach the
Court's conclusion with regard thereto. The significance of the reference
in this "sentence" to Article So, paragraph 1, seems to have escaped
Respondent.
Another illustration c-fRespondent's failure directly to seek to impugn
or raise doubt concerning the soundness of the Court's reasoning, in
another context, may b~ found in connection with the Court's conclusion
at page 133 of the Opinion that-I quote-"To retain the rights derived
from the Mandate and to deny the obligations thereunder could not be
justified." As I have sb.own, the "obligations" to which the Court here
refers include the oblig.ition of international reporting and accounting,
including submission to the compulsory jurisdiction in appropriate cases
arising under the compromissory clause.322 SOUTH WEST AFRICA
Respondent nowhere in its Preiiminary Objections or oral statements
frankly or explicitly adverts to the Court's conclusion with respect to
this unjustified result which would follow, despite the fact that Res
pondent's analysis of its own legal position leads precisely to the result
condemned by the Court in the sentence just quoted from page 133. In
this respect it is submitted that Respondent's 1962 argument is somewhat
less forthrightthan the contentions which Respondent submitted to the
Court in 1950. The Court's attention is direct(:'dto the Vhitten statement
submitted at that time at pages 83 and 84 of the volume of Pleadings,
where Dr. Steyn, the able Counsel for the Republic of South Africa, said
as follows:
"The Govemment of the Union of South Africa would close this
statement by expressing their view that the Territory of South
West Africa falls, at present, under no known category in inter
national law. It was taken by conquest by the Union of South Africa
during the 1914-1918 War and subsequently placed under mandate
which has now lapsed. It is not a colony, or an independent State
or part of the territory of the Union of South Africa. Its status in
international law is sui generis, and it is being administered in
accordance with a system which is sui generis, but which is never
theless not inconsistent with the objectives of the Charter of the
United Nations."
And Counsel went on, in 1950:
"It is the considered view of the Government of the Union of
South Africa that there is no international legal limitation upon
their competence in respect of the territory and that their inter
national obligations, arising from the status of the territory, are
to be determined accordingly."
That's the end of the quote, of the frank and explicit contention made
in 1950. It was the "considered view" of the Government of the Union
that this result follows.
In the 1962 argument, Mr. President and lVIembers of the Court,
Respondent makes no statements of that explicit nature; all of Res
pondent's contentions, and this in particular, are submitted as con
tentions for the purposes of argument only, submissions arguendo; there
is no "considered view" presented frankly to the Court at this stage.
But the import of Respondent's argument, without regard to the
string which is attached to it, the import of Respondent's argument
seems to be that the only sense in which any obligations may have
survived-and, as I say, this is only contended arguendo-that the only
sense in which any obligations may have survived is on a basis which
involves no international obligations to report and account for itself,
while at the 'same time retaining all of its rights of possession and
administration. This is precisely what the Court said in its Advisory
Opinion could not be justified. Yet, instead of answering the Court's
comment, Respondent merely takes a position which makes a mockery
ofît.
It remains only to add that Respondent's theory of partial lapse, the
theory submitted arguendo,wholly ignores universally accepted principles
governing fiduciary responsibilities.The law of no civilized nation with
which Applicants are familiar accepts as a consequence of the dis- ARGUMENT OF MR. GROSS
323
appearance of dissolution of a supervisory or accounting authority that
the property ends up in the pocket of the trustee.
The doctrine of "unjust enrichment" or, in French, "enrichissement
sans cause", is ageneré.lprinciple of law recognized by civilized nations.
Itis prevalent, of course, in the civil law and the common law. In the
United Kingdom and in the United States it receives frequent expression
in the application of the rules of "money had and received", "quasi
contract", "constructi"e trust" and the like.
The principle of unjust enrichment was applied in an arbitral proceed
ing, notably in "The Lena GoldfieldsArbitration in 1930" which is cited
in the Annual Digest, 1929-1930, Case No. l and 258, cited by Lord
McNair in the 1957 British Year .Rook of International Law at page 10.
The Lena Goldfields Arbitration proceeding is discussed at length in the
article which I have j,1st quoted, and which is entitled 'The General
Principles of Law Recc,gnized by Civilized Nations". The arbitrators in
Lena Goldfield applied Article 38, paragraph I (c) of the Statute of the
Permanent Court of International Justice as a basis for holding that
the doctrine of "unjust enrichment" or "enrichissement sans cause" is
a "general principle of law recognized by civilized nations".
Mr. President and J\fombers of the Court, in the course of the French
translation, if I undcrstood correctly, reference was made to the
"legislation" of civilized States in connection with the principle. That,
of course, is undoubtedJy true, but I would point out that, in my sense
of the use of the word i:he "law" of civilized States, I of course included
"judicial" decisions as well as legislation.
The coreof this principle of "unjust enrichment" ("enrichissement sans
cause"), especially as applied to fiduciary undertakings, received its
full affirmation, it scerns to me, in the Court's holding in 1950 in the
conclusion to which I have addressed myself. The use of the term
"justified" in a legal opinion, as I have said earlier in my statement,
must undoubtedly refe;: to legal as well as moral concept.
It remains now only to deal with Respondent's Third and Fourth
Objections. There is little that needs to be added by way of detailed
discussion to the considerations we have set forth at pages 450-744 (I) of
our written Observatiot1s.
Counsel for Respond,~nt have not, so far as we have observed, raised
any points of substanc,) which are not covered in the Observations.
Mr.van Muller, speaking for the Respondent, correctly summarized the
Applicants' position in the Verbatim, at page 203, supra, when he said,
and I quote, that it was our position, and it is:
"...that the Members of the League were intended to have indi
vidually a legal interest in the observance by the Mandatory of the
conditions imposed. in the Mandate...".
That indeed is our contention.
However, it does seem that learned Counsel begged the question when,
at the same page of the Verbatim, he attributed to Applicants the
contention:
"... that is so even in cases where the breach of these obligations
by the Mandatory did not affect the material interests of individual
League l\1embers, dther directly or through their nationals ...". 324 SOUTH WEST AFklCA
Our actual contention, Mr. President, as I think appears from the
Observations, is that the test of "material interest" is irrelevant, but
that in any event we insist upon a more realistic interpretation of "ma
terial interest" than does Respondent. \Ve feel that we qualify under
both or either. Respondent's narrower conception predates the Covenant
of the League. lt reflects a perspective which was rejected in 1920.
It is surprising to hear it restated in1962.
l\foreover, much of Respondent's argument involves an effort to find
a definition of "dispute" which means something other than "dispute".
Respondent and Applicants both cite the M avrommatis case. \Ve cite it
because of its clear definition of "dispute", emphasizing as it does that a
dispute "may be of any nature", so long as it relates to the "interpreta
tion or the application of the provisions of the Mandate". Respondent
nowhere denies, nor can it deny, that this is the subject-matter of the
dispute in the cases before the Court.
Respondent appears to rely on Mavrommatis as supporting the propo
sition that a dispute must be of a "material nature", in order to be judi
cially cognizable by this Court under this article. If this were to be accept
ed, there would be no method of compelling-as distinguished from ex
horting-the Mandatory to discharge its responsibilities under the
·Mandate.
As we note in our Memorials, at page 93 (1), Respondent's Counsel in
the I950 proceedings conceded that in their capacity as Members of the
League:
"... third States were competent to uphold the rights of the inhabi
tants of mandated territories or to daim rights for themselves in
those terri tories".
That is at page 290 of the volume of the Pleadings.
Respondent's contention in this respect is but one more method of
evading the clear force and meaning of the Advisory Opinion. It nullifies
the clear intent of the Court in upholding the compromissory clause, in
the light of Article 80, paragraph 1, of the Charter. That paragraph, as
the Court said, is intended to preserve the rights of the inhabitants
of the terri tories "in all respects". Respondent never lacks ingenuity
in its search for detours around the "natural and normal" meaning of
words in the Advisory Opinion.
Counsel stresses the fact that the League Covenant makes no explicit
mention of judicial supervision over the Mandate. That is true, but he
draws the conclusion that therefore it is, in his words, "unlikely" that
"Article 7 of the Mandate was intended to establish a form of judicial
supervision". (Verbatim of IO Oct.)
But, as we attempt to show, at pages 463-469 (1) of our Observations,
judicial and scholarly authority combine to refute this inference.
Mr. President, we submit that the restrictive, artificial construction
given by Respondent to the words "any dispute whatever" which appear
in Article 7 again involves the application by Respondent of a double
standard of logic which is difficult to comprehend.
\.Vhenit suits Respondent's purpose-as in the case of the phrase "an
other Member of the League" in Article 7-Respondent contends that
words should be given their natural and normal meaning. What Respon
dent really means is that they should be given a literal signification ARGUMENT OF MR. GROSS
325
~egardless of the resu).t which might deprive the instrument of effect-
1veness.
Nevertheless, when it cornes to interpreting the phrase "any dispute
whatever" in the same -1.rticle,Respondent forsakes its principle of giving
words their literal meaning. lndeed, Respondent in this case does not
even accord the words their "normal and natural meaning". Instead of
meaning "any dispute whatever'' the phrase, Respondent submits, means
any "dispute involvin1~a material interest", and Respondent admits to
the Court that the not::.onof "material interest" is not capable of precise
definition. May I adopt Respondent's, or borrow Respondent's, style of
presentation, skilful ai; it is? It would in this case then have been the
words of the language of the authors, if they had intended to reach the
result contended for by Respondent, that instead of "any dispute what
ever", their words would have been "any dispute involving a material
interest of a third State, as that rnaterial interest may be defined from
tirneto tirne by the R,~spondent".
However, Respondent leaves until last the most extraordinary con
tention of ail. Respondent argues that it is not correct to say that this
dispute "cannot be settled by negotiation".
And how does Respondent suggest that the dispute can be settled by
negotiation and that the Court should accordingly refuse to hear and
adjudicate the merits of the dispute?
Respondent bases this contention on the ground that the Applicants
have, in effect, not rnally negotiated in good faith; that they have,
through the agency of the United Nations, been taking a peremptory,
arbitrary, inflexible position, thereby thwarting genuine efforts to
settle the dispute by negotiation. That, as we understand it, is the essence
of Respondent's contention.
And what is the Applicants' peremptory, inflexible position? It lies
in its insistence that Respondent comply with this Court's Advisory
Opinion! One might understand the argument if it were turned the other
way around. If the Applicants, or the agency through which the Appli
cants deal-that is, the United Nations-were insisting that the Respon
dent take action inconsistent with an Advisory Opinion, there might be
some plausibility in Respondent's argument in this respect.
Respondent shows, by the very contentions it makes before this
Court, why the Genernl Assembly of the United Nations, after twelve
years of frustrated effott to induce Respondent to comply with its judi
cially established obliga.tions, found,y Resolution of December 18, 1960,
that the dispute-and I quote from the language of the United Nations
Assembly's resolution--"cannot be settled by negotiation". Lest there
be any possible doubt concerning the fact, I think it may be fair to say,
Mr. President and Members of the Court, that the deadlock is now being
enacted before the eyes of the Court, in the same terms and with continued
adherence to the sarne discredited position which Respondent manifested
in the proceedings of 1950 and has manifested ever since.
If it please the Court, I shall now summarize the conclusions which,
we submit, are justified by the considerations which have been placed
before the Court in our oral statements:
l. Respondent has laid no adequate basis for reopening, reconsideration
or rcvision of the Advi:,ory Opinion of 1950.
2. The Court's Advh,ory Opinion of 1950 is valid and sound and the SOUTHWESTAFRICA
principles and holdings embodied therein are relevant to, and should be
applied in, the cases at bar.
3. Respondent's contentions with respect to the merits of the issues
at bar are not sound, are not valid; they are in confüct with the rationale
and holdings of the Advisory Opinion of July II,1950,and, accordingly,
should be rejected by this honourable Court.
Mr. President, I now have the honour to read to the Court the Sub
mission of the Governments of Ethiopia and Liberia in these proceedings.
The Submission is as follows:
MAY IT PLEASETHE COURTto dismiss the Preliminary Objections
raised by the Government of the Republic of South Africa in the South
West Africa cases, and to adjudge and declare that the Court has juris
diction to hear and adjudicate the questions of law and fact raised in the
Applications and Memorials of the Governments of Ethiopia and Liberia
in these cases.
Respectfully submitted.
Thank you, Mr. President and Members of the Court, for your cour
teous and attentive consideration.
Le PRÉSIDENT:Deux Membres de la Cour, M. le Président Basdevant
et sir Percy Spender, désirent poser des questions aux Parties et j'in
vite le Greffier à donner lecture de la question poséepar M.le Président
Basdevant.
Le GREFFIER:Dans ses conclusions soumises à la Cour le II octobre
1962, le Gouvernement d~ la République sud-africaine «conclut à ce que
les Gouvernements de l'Ethiopie et du Libéria n'ont pas de locus standi
dans la présente procédure contentieuse et à ce que la Cour n'a pas
compétence pour connaître des questions n qui lui ont étéSO!,lmisespar
les requêtes des demandeurs, cela notamment parce que l'Ethiopie et
le Libéria ne sont pas membres de la Sociétédes Nations ((ainsi que
l'article7 du Mandat pour le Sud-Ouest africain l'exige pour qu'il y ait
locus standi 11.
L'expression locus standi ici employée ne se trouve ni dans le
Statut ni dans le Mandat. L'agent du Gouvernement de la République
sud-africaine est priéd'expliquer quel est le senset quelle est la portée de
cette expression.
L'attention de l'agent des demandeurs est également attirée sur
l'emploi qu'il a fait de cette expressioàla fin de l'audience du 16 octobre.
Le PRÉSIDENT:Je donne la parole à sir Percy Spender.
Sir Percy SPENDER:Mr. President, there are some matters to which I
would be glad if the Parties would direct specific attention.
The jurisdiction of the Court is sought to be founded upon a treaty
or convention within the meaning of Article 37 of the Statute of this
Court, by virtue of which treaty or convention a Mandate was conferred
upon and accepted by the Respondent upon the terms or provisions set
out in Annex B toboth the Preliminary Objections and the Observations.
Annex B recites that the Principal Allied and Associated Powers had
agreed, in accordance with Article 22 of the Covenant, that a Mandate
should be conferred upon the Respondent and had proposed that it
should be formulated in the terms which followed. It further recited that ARGUMENT OF MR. GROSS 327
the Respondent had ur,dertaken to exercise the i\fandate on behalf of the
League of Nations in accordance with the provisions set out thereunder.
Annex B is a copy ,)fa "Declaration" of the Council of the League
which purports to confi.rm the Mandate in accordance with the said
terms or provisions and to define the degree of authority, control, or
administration pursuant to Article 22 (8) of the Covenant, and bears
date the 17th Decembiff 1920. The Mandate presumably commenced to
operate as from that day.
I would appreciate ::t if the Parties to these proceedings would give
attention to the following questions and afford their answers in as
summary and as preci"e a form as possible:
The firstquestionis: Had the terms or provisions of the Mandate as they
appear in that Declarntion, and the designation of the Respondent as
Mandatory, already bcen agreed to between the Principal Allied and
Associated Powers and His Britannic Majesty on behalf of the Respondent
prior to any action taken thereon by the Council of the League, subject
however only to the ap.Proval by the Council of these terms or provisions
to the extent it was required to define the degree of authority, control,
or administration to be exercised by the i.\fandatory under Article 22 (8)
of the Covenant, and to satisfy itself that these provisions and terms
were not inconsistent with the provisions of Article 22 of the Covenant?
If so, in what document or documents is such agreement recorded?
Question 2 :Did the Council of the League, in relation to the creation
of the Mandate, have under the Covenant or othenvise any power or
authority
(a) to determine the tcrms and provisions of any mandate other than
those which defi.ned the degree of authority, control or administra
tion to be exercised by the mandatory and to ensure that the terms
and provisions wen) not inconsistent with the provisions of Article 22
of the Covenant?
or (b) did it have any power or authority to designate a mandatory
or confer a mandate on any Power?
And did it cver purvort to exercise any such power or authority in
relation to the Mandaü:?
Question 3: Does any party to these proceedings claim that the Decla
ration by the Council (Annex B) isin itselfa treaty or convention?
Question4: If this Declaration was not in itself a treaty or convention,
what were the constitu,~nt elements which comprised the treaty or con
vention; in particular, what other agreements, if any, or what other acts
on the part of any StatE or States established the treaty or convention in
relation to the Mandate on the terms or provisions set out in the Decla
ration?
Mr. President, in the light of such answers as may be given to the
above questions, I ask answers to these final questions:
A. Who in 1920 were the parties to any treaty or convention by virtue
of which the Mandate was conferred upon the Respondent upon the
terms or provisions set out in the Declaration?
B. If States, Members of the League, were parties to such treaty or
convention:328 SOUTHWESTAFRICA
{I) Was the treaty or convention registered under the provisions
of Article 18 of the Covenant and the machinery for registration
established by the League? If so, by whom was it registered and to
whom was the certificate of registration issued?
· (2) If not registered, what significance, if any, is to be attached
to the fact of non-registration? .
C. Finally, would the Agent for the Applicants be good enough to
state who, at the date of the Application in these proceedings, were the
parties to the treaty or convention?
Thank you, Sir.
Le PRÉSIDENT:MM. les agents des Parties trouveront le texte de
ces questions dans le compte rendu de l'audience de ce jour. Il est
entendu qu'ils n'ont pas à donner leur réponseimmédiatement. Ils pour
ront le faire au cours de leur réplique et duplique, en tout cas avant la
clôture de la procédure orale.
Maintenant je me tourne vers M.l'agent de la République sud-africaine
pour lui demander quand il pourra commencer la réplique orale.
Dr. VERLOREN VANTHEMAATM : r. President and Honourable l\Iembers
of the Court, we would be able to reply to Applicants' contentions, his
Oral Statement, on Friday, but thesequestionsinvolvesomeresearchinto
history. We do not know to what extent; these are new matters brought
before us and it is difficult for us to say how much time we need in order
to give a satisfactory reply. We will be able to sayon Frida y, if the Court
pleases, but then on Friday we may ask the Court for some further time
in order to reply to these questions.
Le PRÉSIDENT:Dans ces conditions on peut admettre provisoirement
que la prochaine audience aura lieu le vendredi à ID heures 30. Si
M. l'agent se trouve dans l'impossibilité de répondre surtout à laques
tion poséepar sir Percy Spender, il s'adressera àla Cour pour demander
un délaisupplémentaire. REPLY OF MR, DE VILLIERS 329
7. REPLY OF Mr. DE VILLIERS
(COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA)
AT THE PUBLIC HEARINGS OF 19 AND 22 OCTOBER 1962
[Public h~aring of I9 October I962, morning}
Mr. President, lionourable Members of the Court
In replicating to the Applicants' Oral statement, I am sure it is not
expected of me to deal with each and every one of the points that have
been raised in the course of a two-and-a-half day statement, and I do
not propose to do so. I do not think it would serve any useful purpose.
In many respects our answers to what has now been stated in the oral
statements on behalf of the Applicants are fully on record, either in
the Preliminary Objedions or in the verbatim record of our Oral state
ment, or in both, and it would really be unnecessary, possibly even
odious, to have further repetition in that regard. I will gladly leave the
evaluation of those arguments and counter-arguments to the Court. In
some other respects als•Jthere are arguments with which I will not deal,
and where specific am:wers might not be found on the record; I am
thinking, for instance, )Ir. President, of such flights of fancy as we had,
in the suggestion that where a matter is of crucial importance it ought
not first to be dealt with at length at page 345 (I) of Preliminary
Objections,-and ifit i,,that there must be something sinister attached
toit; and that so despi-te the fact that the matter is properly introduced
at page 214 of the Preliminary Objections, that that is followed up by a
chapter on history up t,) page 214, and that there then is a development
of an argument which serves inter alia as a foundation for a proper
appreciation of the significance and the implications of the matters
dealt with at pages 345 and 346. Really, Mr. President, when we have
suggestions of that kind, my attitude is that they carry their own
answers within themselves, and that it would be an imposition on the
time of the Court to drnl with them. So I will leave also those matters
aside.
But there are certain questions that do require some attention by way
of replication. They fall in different categories. The first large division
that occurs is as between matters that are relevant to the issues of
jurîsdiction and those that are irrelevant. Again, Mr. President, with
regard to those that areirrelevant, I do not propose to saymuch; I am sure
that is not expected of me; but I would nevertheless like to say
something.
There has been a very obvious attempt at the creation of atmosphere
by reference to matters of a tendentious, political and emotional nature.
There has been a readi:ng at very great length from reports of various
political committees and bodies containing critical comment, and often
scandalous comment, about certain aspects of administration of the
Mandated territory. Thlt, Mr. President, we found regrettable in itself.
But it was the more so in the circumstances of this case, where we are
dealing with Preliminary Objections to jurisdiction, where those are330 SOUTH WEST AFRICA
matters pertaining to the merits in regard to which the issue is whether
the Court has jurisdiction, and where perforce, under the circumstances,
we have been compelled by reasons of relevancy and propriety to
refrain from answcring those allegations as to their merits as we have
stated very clearly on the Pleadings before the Court. In fact, I cannot
see what other course we could properly have adopted. But that did
not restrain the Applicants. On the contrary, itseems that their attitude
was that the victim was now securely bound and gagged, and that it
could be pilloried with complete abandon.
That, Mr. President, followed on a number of statements-perhaps I
should say misstatements-regarding the historical development of this
question. AU those misstatements had already been dealt with by us
very fully and very painstakingly in Chapter II A of our Preliminary
Objections, where we gave chapter and verse for corrections to those
misstatements. But those corrections-we find in the oral statements
presented-are simply ignored, as if they do not exist; and the original
misstatements are again presented as if they were gospel.
All this, Mr. President,appears to have been advanced as a basis and
in support of a statement which we find at page 262, supra, of the
Verbatim' record, to the effect that "... efforts to negotiate an end
to the dispute ... are now rebuHed by denial of the jurisdiction of this
high Court to hear and adjudicate the merits of the dispute". In other
words, Mr. President, the Court's displeasure is invited at the fact that
we have had the temerity to raise any objections to jurisdiction.
I must say that I am not used to this type of thing in a court of law,
and the least I say about it, probably, the better. I would merely like
to say this, very briefly. As appears from the record, the Respondent's
representatives have often had occasion to point out that criticisms of
Mandatory administration have resulted from wrong, and often from
false, factual information. Experience has shown that where observers
have taken the trouble to corne and see for themselves they have alrnost
invariably found that the Mandatory government's version of the facts
has proved to be the correct one, and that the version of its political
accusers has often proved to be fantastic to the point of being ludicrous.
And, Mr. President, under those circumstances, I know that it was a
matter of almost temptation to the Respondent Government to forgo
objections to jurisdiction and to accept the opportunity of having the
facts investigated and recorded by an international court of justice. But
then, Mr. President, it will immediately be realized what major difficulties
attach to that line of thought, particularly in this respect: that the case
as presented on the merits would require this Court not merely to make
an investigation into fact; it would also require this Court to pass
judgment, as a court of law, on the soundness or otherwise of policies
which are applied to those facts. That would be the implications of
adjudication on the merits in this case: passing judgment on policies
which are in many respects the subject of red-hot controversy, emotional
and political, in the international political arena. And, Mr. President,
when under those circumstances we ask the Court to forgo jurisdiction
on grounds which we submit to be sound, then we do not think that
we are thereby doing a disservice either to this eminent Court of law
or to the advancement of the rule of law "in international societv.
I think I have said enough on that subject. ' REPL Y OF MR. DE VILLIERS
331
Mr. President, it is 3.lmost with a sense of relief that I turn now to
matters which could be considered more relevant to the jurisdictional
issues before the Court. The first one in that regard is the manner in
which the Applicants have sought to represent certain basic aspects of
our case. For that purpose, I should Iike to invite the Court's attention
to the Verbatim record at page 26r, supra, very near to the beginning
of the oral statement on behalf of the Applicants. There, my learned
friend,Mr. Gross, put the matter as follows:
"As we understand it, the fondamental and, indeed, the sole,
basis for Respondmt's contention that the Court should reconsider
and revise the 1950 Advisory Opinion is that, again in Respondent's
words, 'the question now before the Court is, although the same in
form, very differeut in substance now because of the presentation
of new facts ...'."
We find a statement ·rery much to the same effect at page 283, supra,
of the Verbatim, 15 0(tober:
"It appears that Respondent's entire justification for asking this
Court to reconsider and revise the 1950 Advisory Opinion rests
upon the contenti·Jn that certain so-called 'new facts' of 'crucial
importance'-! quote-were not known to the Court in 1950 and
that, if they had been-again I quote-the Court 'could not possibly
have arrived at' its conclusions."
And we find something similar again at page 285, supra:
"It is therefore Entirely on the foundation of this contention that
Respondent reque~ts the Court to reconsider and reverse ...''
On the basis of that, Mr. President, if I may revert to page 262, supra,
of that record, the Applicants' leamed Agent went so far as to say:
"Under these citcumstances it would, perhaps, be sufficient for
Applicants to conJine our argument to a demonstration that the
facts which Resp:mdent has characterized as bath 'new' and
'crucial' are, indeed, neither."
Now, Mr. President, it should hardly be necessary for me to emphasize
that that is a complete misrepresentation of the case which I did advance
to the Court in this particular respect; I can hardly imagine that I could
have expressed myself so badly as to be so misunderstood. I will, in
answering this represemation, also use the phrase "new facts", although,
as I have explained before, I am not suggesting that they are new in
the sense of first arising after 1950 or that they were not available for
use in 1950; but I \vil] use that as an expression which may be con
venient in the circumstances-the Court knows what we mean thereby.
We have from the start ,mbmitted two propositions, and, I think, clearly.
We submitted firstly that a Court would never refuse to reconsider a
previous Advisory Opinion, except of course where the request should
be entirely frivolous or vexations, and secondly, that it would not
hesitate to depart from a previous Advisory Opinion if good reasons
should be shown therefor. That we did in the Preliminary Objections,
at pages 214 and 215 (1). We put it quite clearly there, and again in the
Verbatim record of our Oral statement by my learned friend, Dr. ver
Loren van Themaat, ;lt pages 21 and 22, supra. We advanced the332 SOUTE( WEST AFRICA
argument in this form; we stated at page 215 (1) of the Preliminary
Objections, that the good reason on which we would rely for a departure
from the Opinion would be found to rest largely on features of the 1950
proceedings, such as:
"...the lack of presentation, or of adequate presentation, to the
Court of material information of vital importance, factual and
otherwise".
Not only a lack of presentation of certain facts, also a lack of adequate
presentation, and not of facts only, but of material information, factual
and otherwise. Indeed I used a similar description in the Oral statement
to be found in the Verbatim at page 33, supra. And in the develop
ment of the argument, Mr. President, I emphasized repeatedly, and
particularly in regard to my argument on Article 7 of the Mandate,
the importance of new arguments, as distinct from new facts, which
have now been fully presented to the Court, and which were not can
vassed at all in 1950. That is to be found in the Preliminary Objections,
at pages 368 and 373 (1)-l am not going to read from it now-and again
in the Verbatim record of my Oral statement at pages 184-186, supra.
I emphasized there, for instance, that in 1950 there was no sugges
tion during the argument of a "descriptive meaning" that could be
attached to the phrase, "another Member of the League of Nations"
in Article 7,and that therefore it was impossible for Dr. Steyn to deal
with that. There was no suggestion of a "carry-over" which might
affect the meaning or effect of that expression, and Dr. Steyn could not
deal with that. There was no suggestion of a "succession" relative to
Article 7 in the arguments in 1950, so it was impossible for Dr. Steyn
to canvass and deal with that question. I emphasized the absence in
1950 of the full analysis that is now before the Court of the meaning
and the implications of the expression, "Member of the League of
Nations" wherever it occurs, not only in our Mandate, but also in the
other Mandate instruments and throughout the Covenant of the League.
And, on top of it all, Mr. President, if there should still have been any
misunderstanding, I made a very express statement on this subject on
the 5th October, to be found in the Verbatim on page 133, supra. This
was at the conclusion of the argument relative to the suggested suc
cession concerning Article 6. I stated there:
"I have in this regard stressed the importance of the facts which
have now been placed before the Court, and which were not before
the Court in 1950 ... Where I have stressed that, I must not be taken
to suggest that, had it not been for new facts or new information,
it would not have been competent for this Court to depart from a
conclusion earlier arrived at in an advisory opinion. It would
certainly have been competent for the Court to do so, and I submit
that if the Court was satisfied, that justice required it to do that,
it would not hesitate even in the absence of any new information.
But I submit that in this case it would be much easier for the
Court to corne toits own conclusion because of the fact that there
is this new information which in substance makes the task of
applying the law to the facts in this regard a different one from
what itwas in 1950." REPL Y OF }!R. DE VILLIERS 333
That has always bern our attitude, and it still îs, Mr. President, with
the greatest respect. \Ve submit that, even if there had been no new fact
at ail, then on a recor,sideration of the matter on its merit, the Court,
with respect, will come to the conclusion that we contend for. But
we do contend, and I maintain the contention with even more emphasis
than before, that there are these vital new facts, this vital information
factual and otherwise--but particularly relating to factual information
which was not placed before the Court and the significance of which
could therefore not be dealt with in argument, or considered by the
Court in its deliberations-which considerations, in mv submission,
make the task of appl:ring the law to the facts substantially a different
one from what it was in 1950.
The Applicants, as a result of this wrong conception of our argument
this wrong presentation of the basic aspects of our argument-have
limited themselves to a very narrow basis of replying to that argument.
That does not hurt m,~,Mr. President; my argument stands on record
in regard to both of it.,,aspects in its full perspective, that is on the one
hand, relative to these new facts and, on the other hand, based on full
reasoning on merit in support of the conclusions for which we contend.
But, on the contrary now, we find by way of contrast that the Applicants'
Oral statement has, in effect, been limited to an attempt to knock out
these new facts, as my learned friend called them, an attempt which in
my submission, as I shall endeavour to show, failed lamentably. The
Applicants' argument is confined to that, and for the rest, my learned
friend refrained almo,,t entirely from even attempting to meet any
of the arguments on the merits of the questions before the Court.
My learned friend, Mr. Gross, did promise, at the start of his argument,
that he would endeavo,1r to show, and I quote hîs words in the Verbatim
of 15 October, at pag~ 263, supra, "that Respondent's arguments de
novo lack merit and should be rejected". I stress, he would endeavour to
show that Respondent's arguments de novo lack merit and should be
rejected. But that resolution, Mr. President, seems to have wavered the
nearer it came to the .1ctual event. Because we find on 15 October, at
page 283, supra, that my learned friend set out the three propositions
which he would endeavour to establish, and the third one reads as
follows: "Respondent',. de novo argument is in conflict with the Advi
sory Opinion, is not so1nd, and should be rejected." So the further ele
ment introduced is: ":;n conflict with the Opinion"; but still we find;
"is not sound, and should be rejected". And then, Mr. President, when
it came to the actual event on r6 October where this third heading was to
be dealt with, what do we find at page 3ro, supra? We find it now put in
this form:
"I turn now to the third major proposition which relates to the
Respondent's de novo argument, and which submits that the
Respondent's de novo argument, on the merits, is in conflict with
the Advisory Opinion and should be rejected."
No further reference to being unsound, to lacking merit, but purely
that it is in conflict with the Advisory Opinion and should be rejected.
Mr. President, this is nota mere mistake in recording, and it is nota mere
slip ofthe tangue; becrnse if we analyze under that heading what was
said in support of this third proposition, we find that the whole portion
of the argument was devoted almost entirely to a comparison of our334 SOUTH WEST AFRICA
argument with what was found or held in the Opinion, and to point out
points of conflict in that regard, imaginary and real. And it ended up
on this note, towards the end of that exposition under the third heading
on 17 October, at page 319, supra:
"W e do not bear the burden of sustaining the validity of the
Opinion of the International Court of Justice."
Not a single argument addressed to the merits of our contention,
attempting to meet them in any way. After ail the drum and fife at
the start, Mr. President, really one could hardly imagine such a complete
anticlimax. Certainly in my experience I have never corne across anything
of the kind.
Mr. President, I turn next to the Applicants' argument concerning the
so-called "new facts". Itwill be my endeavour to show that even on the
artificially narrow basis which the Applicants chose for attempting to
meet our case, they have failed completely to break down the important
material on which we rely, even the important "new facts", as they so
narrowly conceived them and dealt with them. My contention will be
that, on the contrary, after this abortive onslaught of the Applicants
upon those "new facts", the material stands confirmed with even more
vigour and significance than before.
The Court will recall that we listed four factors in the Preliminary
Objections, at pages 345-346 (1), and that that listing served as a basis
for dealing with the matter by the Applicants' Agent. The fourth factor
is really a group referring to practice of States, and it was amplified
later in the verbal staternent on behalf of the Respondent on 5 October,
by what one might almost call a fifth group, also under the heading of
"Practice of States". It is an analysis of the attitudes of Members of
the United Nations over the years 1947 to 1949 specifically regarding
the South West Africa question. That, then, is the basic list.
Now, as far as the first factor at page 345 (1) of the Preliminary Objec
tions isconcerned-the express reservation at San Francisco, on behalf of
Respondent-the Court will recall that in my Oral statement I virtually
abandoned that in so far as its significance as a "new fact" was concerned.
My leamed friend, in reply, had a good deal of fun on the question why
it should suddenly now cease to be of importance. The answer, of course,
is simple. The point never ceased to be important as a factor in our
argument on the merit-in other words, as a factor militating against
any tacit understanding on the part of the United Nations founders
that there would be a transfer of powers of supervfaion from the League
to the United Nations in regard to unconverted Mandates. In that sense,
the matter still remained of importance, and I dealt with it and empha
sizedit in that form in the Verbatim at page 78, supra. The Court will
the matter dealt with there, I need not read it. It was only as
find
regards the newness of the point-the difference between what was
before the Court in 1950 and what is before the Court now-it is only
in that regard that I, as Counsel, did not feel that I could impress the
Court with the importance of that difference; because what was before
the Court in 1950 already implicitly contained what was explicit in
the further portion quoted in the footnote at page 238 (1) of the Prelimi
nary Objections.
That is the answer, of course, to all this play on the question why
the matter had ceased to be important. I do not begrudge my learned REPL Y OF MR. DE VILLIERS
335
friend the bit of fun h,~had in this regard-he certainly needed some
reward for all his paim-and I will make him a present of that one.
But then, he must not take it amiss when I say that this was the very
last one of the so-callecl "casualties in the campaign for revision", if I
may borrow his phrase. In respect of all the other "new facts" he had no
success whatsoever, as I shall endeavour to demonstrate.
He did daim success in regard to the second factor, but that is com
pletely illusory-the second factor being, and I read from our Preliminary
Objections at page 345 (1):
"The rejection by the Preparatory Commission of its Executive
Committee's propc,sal for a Temporary Trusteeship Committee,
without substitution of anything regarding possible transfer to, or
assumption by, th~ United Nations of any 'functions under the
Manda tes System'."
i\'lr. President, we had never advanced this particular subject as being
important purely in so far as a proposai for a Temporary Trusteeship
Committee was concerned, and the rejection of that proposai by the Pre
paratory Commission. The importance lay in the adjunct to that proposai,
the adjunct namely, that there was to be something express about
a possible transfer of functions regarding lvlandates; that there was to
be an investigation by this Committee of possibilities in that regard.
so that here there was a proposa! for express provision on that point;
That has always been the brunt of this point which we advanced, which
we said the Court was not made aware of; and that, in the totality of
factors bearing on the question of intent, is an important factor. But
that was not how the matter was presented to the Court by my learned
friend when he dealt wi1h it in his argument. But before I corne to that,
may I just, in support of what I have stated, refer the Court to the
passages where we dealt with this matter, and refer to the way in which it
was put there. First, in ·;:hePreliminary Objections at pages 327-328 (1).
At page 327, the Court will see under the heading (d) there is a reference
to a portion of the Executive Committee's report which dealt with the
establishment of the Trusteeship system:
"It will be recafü·d that a recommendation was made therein for
the establishment c,f a Temporary Trusteeship Committee, one of
whose fonctions would be to 'advise the General Assembly on any
matters that might arise with regard to the transfer to the United
Nations of any fonctions and responsibilities hitherto exercised under
the Mandates system'."
And then we go on ;:o say that that proposal was rejected in the
Preparatory Commission,
"... and no other proposai regarding investigation of, or machinery
for,the possible 'transfer to' or 'assumption by' the United Nations
'ofany fonctions and responsibilities hitherto exercised under the
Mandates system', was substituted for the rejected proposai".
That was the brunt of the point. And we find it dealt with as follows
in .the argument at page ~;28(I) of the Preliminary Objections, about one
th1rd down the page: SOUTH WEST AFRICA
"A specific proposal envisaging investigation and recommen
dation concerning possible 'transfer' of 'functions ... under the
i\fandate system' was rejected and nothing substituted for it."
We find the matter dealt with in the same way in our Oral statement
in the Verbatim. We fi.ndat page Sr, supra, the matter is put with refer
ence to the proposa! for a Trusteeship Committee and with the
function to advise the Assembly about this possible transfer. And the
comment in the argument is:
"So here, then, was a specific, express proposal to do something
in regard to the possible transfer to the United Nations of fonctions
of the League regarding mandates."
That is the way in which the argument is developed there. We find
the same thing at page 82, supra:
"The mere fact that there was such a proposal shows that there
was a contemplation that if there was to be a transfer of fonctions
in this regard it would have to be specially provided for."
And then, particularly significant is the statement at page ro2, supra:
"The point on which we rely is that there was in this history of
resolution XI a specific proposal for express provision in regard to
arrangements for a possible transfer of fonctions, but that that
express proposal could not muster support..."
So, Mr. President, it is no answer then to that argument to say that
from Dr. Kerno's statement the Court knew that there had been a
proposal for a Temporary Trusteeship Committee and that that proposal
was not adopted. That is no answer at all. That is quite obvious, and I
need not labour the point. The way in which the Applicants' learned
Agent dealt with the matter on 15 October was to omit any reference
to that aspect of the matter, to the aspect of a specific proposa! for a
possible transfer of fonctions. He referred to this point as if its complete
significance lay in a proposal for a Temporary Trusteeship Committee
and in the rejection of that proposal. We find that at page 289, supra,
of the Verbatim for 15 October, and I quote from the fourth paragraph:
"Now this second newfact, Mr. President, concerns the rejection by
the ·Preparatory Commission at London of its Executive Committee's
proposal for a Temporary Trusteeship Committee",
using virtually the same words as at page 345 (1) of our Preliminary
Objections, but stopping short of the crucial portion; and then the
statement continues:
"Respondent comments, at page 345 of the Preliminary Objec
tions, that such action, and I quote, 'negatives a tacit intention ...'."
We never presented that as the action that would negative any inten
tion.
The claimed success was therefore no success at all. I wish to apologize
to the Court for not mentioning the fact that to that extent the matter
was mentioned inDr. Kerno's argument. I was not aware of it as Counsel;
~ertainly the members of my team were; they realized it was not
1mportant for argument. Still, if I had known I would have mentioned REPL Y OF MR. DE VILLIERS
337
that fact, but it does not affect the essence or the substance of the
argument in the slightest.
Mr. President, in regard to the last point, I am reminded that study
of the documentation in 1950 shows that the report of the Preparatory
Commission was not put before the Court. The only information the
Court was given regarding the proposal for a Temporary Trusteeship
Committee and the rejEction thereof, was the bald statement in the late
Dr. Kerno's argument.
I pass then to Appli-;ants' argument concerning the third of the so
called new facts, that is the fact regarding the original proposal by
China at the last session of the League Assembly. Here, Mr. President,
my learned friend did not even daim success in the sense that he could
knock this out as a new fact. On the contrary, in the Verbatim record
at page 297, supra, he made the admission that ''it is clear that two
of them were not specifically referred to", this being one of the "two
of them" of which he was speaking. But my learned friend did try
everything in his power to discredit this argument, this factor, in other
ways. In my submissioa, each one of those attempts failed completely
in its purpose of robbinr this factor of its value and its significance, what
ever value the points raised by him might have had in other respects.
So, for instance, the first two points which my learned friend raised,
were entirely technical. They are to be found in the Verbatim of 15 Oc
tober at page 291, sup,a.
The first one was that this proposal was never formally introduced
and voted upon, and that it was thus wrong technically to speak of it
as something that was "withdrawn". Well, M.r. President, I make my
learned friend a present of that point also. That is quite correct. It was
never formally introduced, it was never formally withdrawn. \Vhere we
said "it had to be withdrawn because it could not muster sufficient
support", it would haw been more correct to say "it could not be
proceeded with and anc-ther one had to be substituted for it". But the
argument remains the same. I don't know what success my learned
friend daims from that point. I notice, incidentally, that when I put
the argument in the Onl statement in the Verbatim at page 97, supra,
I used the expression ·'it could not be adopted". Soit does not seem
that that point raised by the Applicants could affect the value of this
factor as we rely upon it.
Secondly, at the samt! place, at page 291, supra, the second technical
point was that there wa, no citation of a document at page 253 (1) of
our Preliminary Objections where the text of this proposai was set
out. Mr. President, that as a statement is quite correct. But how far
it brings the Applicants, as a point of substance for the purpose of
discrediting this factor, I don't know. What actually happened in
that regard was this. What we had, and from what we quoted in the
text at page 253 of the Preliminary Objections was a document in our
files. It was an informai document, it was a copy of draft minutes
obtained at the last ses1:ionof the League by our Representative there
and that we still had in ·JUrrecords. But it was not an official document
which we could file with the Court. \Ve made attempts even before the
filing of our Preliminary Objections, and again renewed them at that
stage, to get a formal dc,cument which we could file. Eventually we had
success with the assistance of the Secretariat of the United Nations.
They obtained a photŒtat for us of the original from the archives of SOUTH WEST AFRICA
338
the League at Geneva, and they forwarded that directly to the Registrar
of this Court in January of this year. In the meantime the Registrar
had made his own enquiries with us and with United Nations Agencies
for purposes of having a document for translation. We were under the
impression that the forwarding of the document at our request by the
Secretariat to the Registrar would comply with our duty of formally
filingthe document. The Registrar howcver took the document to have
been forwarded merely for his purposes of translation, and that apparent
ly explains why the document was not forwarded to the Applicants as
something that had been formally filed by us. We didn't realize that;
we only gathered that during the statement by my learned friend in
Court-on 15 October. We rectilied the mattcr immediately afterwards,
on the next day, by a formai letter under cover of which we submitted
a photostatic copy of the document and the document is now properly
filed.The Registrar on 16 October explained the matter to the Applicants
in a letter of that date. So I hope that that position is fully cleared up.
I don't know why my learned friend raised it in the first instance.
Perhaps it was quite fair to raise the query: but if he had had difficulty
about it I don't know why it was not raised in the first instance in the
Observations. At that stage the Applicants did not appear to have any
difficulty in this regard, because they accepted-at pages 431-432 (1)
the fact of there having been such a proposai and they had no difficulty
about the text. In fact they said at the bottom of page 431 of the Ob
servations: "The facts concerning the Chinese proposal were before the
Court in 1950"-a statement of course which they could not substantiate,
but nevertheless that was the attitude then adopted. If the matter had
been raised then it could have been cleared up much earlier.
I may add that the text as we have it at page 253 (1) of the Preliminary
Objections, appears also in a United Nations document which was filed
by the Applicants in support of their Memorials. It was document
A/C.4/185, setting out a speech by Dr. Donges in 1951, and that speech
contains a full quotation of the proposai as we set it out at page 253 of
the Prelimînary Objections. It is referred to in the Memorials at page 93
(1) in a footnote. But of course there it may be said that the source was
secondary-the source was the same as we had for the citation at
page 253 of our Preliminary Objections. In any event, the original is now
on record, and I don't know that anything further arises from that
point, except that the technical complaint has now shifted to something
else, and that is the so-called discrepancies between the text quoted
at page 253 of our Preliminary Objections and the photostat before the
Court as obtained from Geneva. Mr. President, in fact, ifone looks
closely at that photostat one will find that there is no discrepancy.
Corrections were made in ink to this document, which, as we know, was
a draft Minute, and every time my learned friend refers to a discrepancy,
we find that really the discrepancy is removed by the ink note; the ink
note apparently being intended to be a correction. So, for instance, in
the very first line which reads: "The Assembly, considering that the
Trusteeshjp Council", the correction inserted in ink is "of the U.N.".
That is one of the so-called discrepancies. In the third line there is the
word "transferred" in the original text which is altered in ink to "trans
formed". The one to which my learned friend drew attention was "after
dissolution of the League" which was not contained in the second para
graph, but that we find in the photostat is also inserted in ink. Soif we JŒPL Y OF MR. DE VILLIERS 339
take into account thes,~ corrections in ink, we find the two are exactly
the same. I don't know what point arises in that regard as far as the
discrediting of our argument relative to this particular matter is con
cerned.
Those, then, were the first two, or shaH we say three points in regard
to this particular matter.
The next point of attack was to call into question our statement that
this proposai "had to he withdrawn", or shall we now correctly put it,
could not be procccded with, and another one had to be substituted for it
"because it became plait.:that certain of the parties would not agree thereto"
-this last portion of the statement is drawn into question by my leamed
friend; we find that ir1 the Verbatim at page 292, supra. And, he
said, there was "no citation" at page 346 (1) of our Preliminary Objections
for that statement. Of course there was no citation, Mr. President, but
the statement is not unmotivated; it relates back to the full argument
which we presented to the Court in that respect in the Prelirninary Ob
jections at pages 329-332 (1), where we dealt fully with all the facts of the
matter, with ail the comparisons that are significant, and where we
pointed out that therc is no other inference that could be drawn frorn
the circurnstances but this one, narnely that the original proposa! could
not have mustered thi: unanirnous support which was required for a
League resolution.
I do not have to cov~r that ground again; I did do soin my original
oral statement, on 4 Oc1ober. It will be found in the Verbatim of that day
at pages 83-84, supra, where I covered that ground, and I think I
covered it fully.
Salient features, Mr. President, are these: in the first place, when wc
make that statement w,~do not do so as an outside observer who knows
nothing of what took place. South Africa was represented at the last
Assembly of the Leagm, and our representatives know what took place.
When they say there were negotiations, they know there were negotia
tions. But we do not have to rely purely upon what they say, we can
refer tothe text of the record and the statemcnt by Sir Hartley Shawcross
as cited in our Preliminary Objections at page 254 (I) where, in seconding
the ultimate proposa! which became the Assernbly's resolution, he said
tha t the proposa!
"had been settled in consultation and agreement by all countries
interestcd in mandates, and he thought it could, therefore, be passed
without discussion and with complete unanimity".
Surely, Mr. President, from that alone it becomes clear-if we compare
the resolution as adopted with the original proposai, tentative propo~al,
contained in the origind Chinese draft, it becomes clcar that resultmg
frorn discussions and cc,nsultations there had to be a switch from one
proposa! to another. If we compare the two one finds that the elements
that were eventually ornitted were the very elements pertaining to a pos
sible transfer of League functions relating to Mandates, and the inference
then becomes clear that there must have been opposition to that aspect
of the original proposai.
But we do not have to leave the rnatter there. \Ve can have regard, as
we do in this argument, to the various circumstances which pertained to
the differcnt Mandated ,:erritories and to the various Mandated Powers.
From that there arises a very strong probability that those Powers would340 SOUTH WEST AFRICA
not all have assented to a proposition like that contained in the original
Chinese proposal. \Ve know what those various circumstances were from
the statements that had already been made at that stage on behalf of
the various l\fandatory Powers. We know, for instance, in the case of the
United Kingdom that it had declared at the United Nations that it was
willing to placethe territories Tanganyika, the Cameroons and Togoland
under the United Nations Trusteeship System, but subject to the nego
tiation of satisfactory terms. That we find in the statement as cited in
the Preliminary Objections at pages 246 and 250. Page 246 relates to the
statement at the United Nations, and page 250 to the statement at the
last session of the League.
In the case of France, its statcment relative to the Cameroons and to
Togoland-its willingness to place those tcrritories under United Nations
trusteeship-was qualified with reference to the approval of the peoples
of the territories. That we find in the Preliminary Objections at pages
246-247 (1), and again at page 25!. So there were, even in those respects,
contingencies.
We find that in regard to Palestine, the United Kingdom had
made it perfectly clear that the future of that territory was reserved
for the time being, and that nothing definite could be stated about plans
for the future, or about intentions. \Ve find in the case of South West
Africa the Union had stated its intention of seeking recognition for
incorporation in the Union. And we find that in the case of the former
Japanese Mandate in the Pacifie the Mandatory was not even represented
at the last session of the League. We find also that, in regard to the
Palestine Mandate, therc was eventually a reservation by the represen
tativc of Egypt. This reservation is cited in the Preliminary Objections at
pages 254-255 (1), and it reads:
"The opinion of my Govemmcnt is that Palestine has intellec
tually, economically,and politically reached a stage where it should
no longer continue under mandate or trusteeship or whatever other
arrangements may be considered ... It is the view of my Government
that mandates have terminated with the dissolution of the Lcague
of Nations, and that, in so far as Palestine is concerned, therc should
be no question of putting that country under trusteeship."
Soit does not seem probable that the representative of Egypt could,
under those circumstances, have supported the original Chinese proposai.
We take into account further, Mr. President, the actual statements
made on behalf of Mandatory Powcrs to the organs of the League, to the
League Assembly, all of which avoidcd any reference whatsoever to
reporting and accounting after dissolution of the League, and some of
them, as I have dealt with before, very pointedly indicated that there
would be no such reporting and accounting.
So,under all those circumstances, it becomes absolutely clear: the only
inference that can be drawn is that the original proposai could not be
proceeded with because it wou1d not have mustered unanimous support.
Those arguments arc not dealt with by my learned friend-he does not
attempt to meet them at ail. He refers instead to the gratification ex
pressed by the representative of China, and he says that would not have
been possible if the representative of China had had to beat a retreat
on a point of principle. Now surely, 1fr. President, I don't know why
anyboéiyshould think that he had to beat a retreat on a point of principle REPL Y OF MR. DE VILLIERS
341
when there is a requirement of unanimity for a resolution, and after ne
gotiation he finds that certain aspects of an original proposal are not
acceptable to other delegates, and eventually they arrive at an agreed
solution which pleaset; everybody, and which he then proposes-the
representative of Chir1a still being the proposer of the agreed draft
eventually. I have never heard that the expression of gratification on an
occasion of that kind cc,uldserve as a basis for the drawing of an inference
in the teeth of such cogent and conclusive evidential material as I have
referred to.
The fifth point, Mr. President, of attack on our argument in regard to
the history regarding the original Chinese proposal, is that it seems in
credible that Dr. Steyn would not have raised the matter, ifhe had known
about it, and that he must therefore have considered it unimportant.
Now, we ail have the highest respect for Dr. Steyn's competence; but I
don't know why this Court should be asked to decide the value of any
particular consideration with reference to what Dr. Steyn may or may
not have thought of j-;as Counsel, ifhe knew of it. There is no basis
whatsoever on the record for inferring that Dr. Steyn must have known;
and as to the value which he attached toit, Mr. President, all I can say is
that we know that he addressed a committee, the ad hoc Committee, of
the United Nations on this subject on 9 July 1951, and I quote from
page 9 of the document A/AC.49/SR.7 of 17 October 1951:
"He [Dr. Steyn] then referred to the history of the resolution
submitted by the C:hinesedelegation to the League, which contained
a specific proposai. that the League's function of consideration of
reports should pa~s to the United Nations. When first submitted,
the Chairman had ruled the resolution technically out of order at
that stage. As a ffsult of subsequent informai discussion of the re
solution, in which South Africa had indicated that it could not support
it, it had been redrafted in a considerably different form and the
references to the wnsideration of reports had been deleted. Events
connected with the consideration of that resolution appeared to
provide a definite r1egation of the idea that the supervisory powers
were to pass to the United Nations and it would appear that the
League had left th,~question to the declared intentions of the man
datory powers and to possible subsequent agreement by them with
the United Nation:;."
It does not look as if he then regarded this as unimportant, Mr. Presi
dent.
I conclude, therefore, Mr. President, in regard to the third of the
so-called "new facts", that the Applicants' onslaught in their verbal
statement failed completely; the technicalities boomeranged and, as a
matter of substance, our argument stands confirmed stronger than ever
before.
I proceed to the fourth of the so-called "new facts", the group under
the heading of "Practice of States". Herc, the Applicants' leamed
Agent advanced three aguments which are to be found in the Verbatim
at pages 295 and 296, supra. The first and the third of these have
a point in common, relative to Article 80, paragraph 1, of the Charter.
I will, therefore, deal vr.ith them together, after a reference first to the
second, of which I can dispose fairly quickly. The second was to the342 SOUTH WEST AFRICA
effect that, for purposes of construing the Resolution of 18 April 1946
of the League of Nations General Assembly:
"... it does not appear how statements made one or two years later
in the United Nations General Assembly could help overcome the
clear fact of statements made contemporaneously with the League
Resolution of 18 April 1946". (P. ro.)
Now that rather puzzles me, Mr. President, I don't know which
contemporaneous statements made in the League Assembly in April 1946
are intended to be referred to. Does my leamed friend mean the state
ments which indicated the intentions of the Mandatory Powers as to
the future? Because, if so, there is no conflict whatsoever involved.
Those statements intimated as clearly as could be that there would,
in the interim, be no reporting or accounting. Perhaps my leamed friend
has in mind the gratification expressed by the Chinese representative.
If so, then that is a rather flimsy basis for suggesting a conflict. He does
not say anywhere what those contemporaneous statements are that
he refers to. So we pass on to his first and his third contentions in this
regard.
The first was stated at page 295, supra, of the Verbatim and it is put
in this way; I had better read the wording so as to make sure I have
its true significance:
"In the first place, Respondent's contention or conclusion with
regard to the significance of this fourth point ignores the weight
which was given by the Court in its Advisory Opinion to the
significance of Article 80(1) as confirming the intent of the authors
of the Charter of the United Nations that there should be a contin
uance of United Nations supervision over Mandates."
That appears to be the first point, and it goes on to say:
"This is of course expressly the interpretation of the Court in its
Advisory Opinion. Respondent, in its argument, does not consider
it even relevant enough to refer to Article 80 (1)in this connection."
The third point we find at page 296 su1ra:
"Thirdly, the contention that the United States policies supported
Respondent's thesis verges on the ironie."
Then there is a discussion with reference to the leadership taken
by the United States in the formulation, the steering and the adop
stand it correctly, is that having regard to the action there taken by the
United States in regard to Article 80 (r), the statement later made in
the debate on Palestine to the effect that the United Nations did not
stand heir to the League responsibilities regarding Mandates, should
be regarded as being in conflict with the policy adopted by the United
States relative to Article 80(1),and that that conflict should be resolved
on the basis that the later statement should be regarded as something
said in a highly politically charged debate, and therefore ruled out of
the picture. I do not understand that form of reasoning, Mr. President.
There is a distinction in the first place between the significance which
my learned friend in his argument attaches to Article 80 (1) of the
Charter, and that apparently attached toit by the Court in 1950. I will REPLY OF MR. DE VILLIERS 343
deal with the Court's interpretation and use of that Article at a later
stage. Let me refer fir:;t to the Applicants' Agent's use of that Article.
He regards the Article apparently as resulting in a position that there
should be a continuanΠof United Nations supervision over Mandates.
Well, perhaps one should paraphrase it to say that there should be a
continuance of supervision over Mandates, and that that should now
be by United Nations agencies instead of League agencies, and that there
should be an obligation on the part of Mandatory Powers to submit
thereto. That would really be a proper statement of the proposition.
Of course, Mr. Presid~·nt, Article 80 (r) does not say anything of the
kind. It is, and it purports to be, nothing more than an interpretation
clause, affording a guide to the interpretation of a certain chapter of
the Charter. It says that:
"Except as may be agreed upon in individual trusteeship agree
ments, made under Articles 77, 79 and Sr, placing each territory
under the trusteesn.ip system, and until such agreements have been
concluded, nothing in this Chapter shall be construed in or of itself
to alter in any ma.nner the rights whatsoever of any States or any
peoples or the terrns of existing international instruments to which
Members of the United Nations may respectively be parties."
Mr. President, we have a reference, at pages 269 and 270, supra, to
the history and the role played by the United States in this regard, and
on these pages we find that the Delegate stated as follows (and this, as
I understood it, was particularly relied upon by the Applicants): ·
"The Delegate Jor the United States stated that paragraph B. 5,
was intended as a conservatory or safeguarding clause. He was
willing and desirous that the minutes of this Committee show that
it is intended to m,~anthat all rights, whatever they may be, remain
exactly the same as they exist-that they neither increased nor
diminished by the adoption of this Charter."
Mr. President, in this whole explanation those still remain the key
words. Itdoes not appear that the United States made itself a party to
this magic interpretation now attempted to be placed upon the Article
by the Applicants. And if we accept that simple premise, that the
United States Delegate did not consider that this Article could be
applied outside its apparent scope and abject, namely, to serve as a
means and an auxiliary measure for the interpretation of the Charter, if
we accept that basic proposition, then there is no conflict at all between
the attitude adopted by the United States at that stage-the adoption
of Article 80-and at the later stage to which we refer in our argument
on the practice of States. Then it becomes quite unnecessary to try to
explain away what was stated later on the rather unworthy basis of
something said in the heat of a highly politically charged debate. When
we read the statement, Mr. President, at page 337 (1)of the Preliminary
Objections, it does not seem tome there was much heat in this statement.
The statement was that "the United Nations does not automatically fall
heir to the responsibilities either of the League of Nations or of the
Mandatory Power in respect of the Palestine Mandate. The record
seems to us entirely clear that the United Nations did not take over
the League of Nations Mandates system." Nor, Mr. President, could we344 SOUTH WEST AFRICA
detect much political heat in the statement by ~fr. Gerig, to which
we have already referred and whjch js to be found in the Verbat1m
at page 127, supra, if I remember correctly, in the Trusteeship Com
mittee dealing with the question of South West Africa. He stated:
"It was said here earlier this afternoon, and I did not hear any
member object, that while we all hope-my delegation as much
as any delegation feels that way-that there will be a trusteeship
agreement for this territory, we do not, in the absence of a trustee
ship agreement, have supervisory fonctions over this territory.
Therefore, I do not think we ought to imply that we do have
supervisory fonctions to ensure that the Union Govemment dis~
charges its duties under the present Mandate, admitting that it
exists." ·
I do not think my learned friend need be so concemed about the
prospect that the United States in 1945 and 1946 had a view of Article
80 (1) which did not extend it beyond its apparent scope and object.
Mr. President, I said we are to distinguish between the Court's con
templation in regard to Article 80, paragraph r, and the interpretation
sought to be placed upon it by our leamed friend, on behalf of the
Applicants. That interpretation, which attributes to the Article an
effect upon existing rights as safeguarding or protecting those rights
also against events outside of the adoption of the Charter, that inter
pretation would make the effect of the Article run counter to what
it says, and it would run counter to the explanation given by the re
presentative of the United States, when he said that it was intended
to mean that "all rights whatever they may be remain exactly-the same
as they exist-that they are neither increased nor diminished". If,
for instance, Mr. President, there should be a right which would ter
minate for some cause or other outside of the adoption of the Charter,
for instance a period of time which would bring effluction of the right,
or an agreement inter partes, or something similar; if then, Article 80
should have the effect of nevertheless keeping that right alive, then
Article 80 would not be maintaining rights exactly as they were, exactly
the same as they existed: it would be changing the existing rights. It
would then have the effect that, despite a cause inherent in the right
itself which brings it to an end, this clause nevertheless keeps it alive.
That would be changing the right, and it would be changing the corre
sponding obligation pertaining to that right. And, therefore, that inter
pretation would run counter altogether to what any basis of interpretation
of the Article might justify.
Mr. President, my learned friend went so far, if I understood him
correctly, to say that the mere fact that the Court referred four times
to Article 80, made its significance very much more than it would have
been othenvise. I really do not understand that kind of magic, and
that is why I said I distinguished between the use which my learned
friend tries to make of the Article and the use which the Court appeared
to have in mind.
The Court, if I understand correctly the Opinion of 1950, had this
in mind. It referred not to the express provisions of Article 80, because
it emphasized in that regard that the clause merely says that nothing
in Chapter XII shall be construed to affect existing rights or instruments.
It emphasized that. But the Court went on to refer to what the Article :REPLY OF MR. DE VILLIERS 345.
could be taken to have presupposed. There was the conception of a
presupposition. The C.mrt apparently had this in mind, that ail this
trouble to protect the rights against the effect of the adoption of the
Chapter would not have been taken if there had been a contemplation
that those rights in re~:ard to Mandates would corne to an end with the
dissolution of the Lee.gue. And therefore, that indicated a probable
contemplation firstly that Mandates would survive the League. And the
Court went further when it referred to the Article again. On the basis
of that presupposition the Court went on to argue that there was a
probability of a further contemplation that if Mandates were preserved,
then supervision over Mandates would be preserved, otherwise the rights
would not be effective. And that is all. The Court referred to nothing
more than what it regarded to be a general consideration of probability:
that is therefore a factor to be weighed in conjunction with all other
factors,· of probability and otherwise, which bear upon the relative intent
of the contracting parties, being in this case the authors of the Charter.
In that sense then, the factor is met by the argument which I have
adduced to the Court : the reliance placed by the Court on Article 80,
paragraph I, is met by the other evidential material which directly
indicates what the act11alintent in this regard was.
[Public hearing of I9 October I962, afternoon]
Mr. President, before I continue with the argument, I have a correction
to make, with apologies. It appears that there was yet another misunder
standing about the photostat copies of the original draft Minutes of the
League containing the original C~inese proposal. I referred this morning
to corrections in ink. They were, in fact, on the copy before me and we
had assumed that that was the way in which the photostat had been
received from Geneva a.nd that the corrections had been made there by
some official for minuting purposes. It appears now that in fact those
alterations in ink were made in this building by an official for translation
purposes, and that it is on only some of the photostat copies and not on the
others. It is not on the copy which was submitted to my leamed friends
for the Applicants, and that is why they were not aware of it. Of
course that means then that there are slight discrepancies between the
copy that was in our po:;sessionand the copy that we have obtained from
Geneva. My learned frfond himself indicated in his argument, he admit
ted, that they were ccmpletely insignificant, they did not affect the
meaning or the significance of the text. They are probably to be ex
plained on the basis of corrections made at various stages of minuting of
what took place. That is the only inference one can draw from that aspect
of the matter. My leami!d friend dealt with the matter in the Verbatim
at page 317, supra, where he admitted quite franklythat no significance
can be attached to any of the differences.
I revert, then, to our replication to the Applicants' argument concem
ing the fourth new fact-so-called-the Pqtctice of States. I had dealt
before the adjoumment with the three arguments advanced by the
Applicants in that regard and I hope that I have demonstrated that they
are entirely without merit. .
The first one referred. to a conflict, a so-called conflict, between the
attitudes adopted by States in the years 1947-1949, and something that SOUTH WEST AFRICA
would have been said contemporaneously with the League Resolution in
1946. What that something was that was said contemporaneously we
don't know; it is a mystery.
As regards the other two arguments-the first and the third-they
concem a suggested conflict between Article 80, on the one hand, and
the attitudes adopted by various States in the years 1947-1949 on the
other hand. But again, Mr. President, that suggested conflict arises only
on this highly artifi.cial and, in my submission, erroneous meaning
attempted to be assigned to Article 80 by my learned friend, On the
assumption, the very natural and reasonable assumption, that that is not
the meaning assigned toit by the States in question, then all suggestion of
inconsistency or contradiction in that regard falls away. That is the logi
caland the reasonable way of explaining away this suggested inconsisten
cy in that regard, because in fact there was none.
The only other comment that my leamed friend had in regard to this
fourth new fact-the Practice of States-was in regard to the Special
Committee's Report on the Palestine Mandate. He suggested in the
Verbatim at page 297, supra, that the language of the report on
which I relied was in some way or other "vague and contradictory". Now,
Mr. President, I amnot going to read.that language to the Court again.
I think it would be presumptuous on my part to attempt to demonstrate
to the Court how clear and how unambiguous that language in fact is,
and how precisely it accords with the submission I am addressing to the
Court on behalf of the Respondent asto what the legal situation was in
the interim period regarding possible supervision over Mandates. It is
in exact accordance, and my leamed friend bas not attempted to indicate
in what respect he suggests that there could be said to be any element of
vagueness or contradiction about it. .
He said further, at page 297, supra, that:
"The Palestine Committee recommended that Palestine be granted
independence and that, in the interim, the United Nations should
supervise the Mandate."
And his comment was:
"The Committee was obviously without the slightest doubt con
cerning the competence of the United Nations to exercise supervision
over Mandates."
Mr. President, that, of course, does not follow in the least. As appears
from the report itself, as cited in the Preliminary Objections, and as
is a well-known historical fact, the United Kingdom had voluntarily
submitted the matter of Palestine to the United Nations for action in
terms of Article 10 of the Charter. And what was being recommended
by the Committee would, if accepted, become a recommendation of the
General Assembly, which again would have to be considered by the
Mandatory Power, the United Kingdom, and would have no binding
effect whatsoever. How that could be said to demonstrate not the slight
est doubt concerning competence to exercise supervision over a Mandate
is a mystery to me. The report of the Committee is referred to in the
Preliminary Objections at pages 335-336 (1), and at the top of page 336
one finds stated in the report: 'The mandatory Power bas itself now
referred the matter to the United Nations." REPL Y.OF MR. DE VILLIERS 347
Mr. President, I conclude then that as regards this fourth factor
nothing has been advanced from the side of the Applicants to cast the
least doubt or to impair in the least the weight to be assigned to this
factor-the weight to be assigned to the clear, unequivocalattitudestated
and adopted very shortly after the period of transition in the year 1947
by fourteen States, Mémbersof the United Nations, most of whomhad
been League Members.
We corne then to the füth factor-the attitude expressed by Members
of the United Natiom specifically on the South West Africa question
over the years 1947-1949, before the Advisory Opinion of the Court,
and very shortly after the period of transition. In this regard my leamed
friend dealt with the matter, as recorded in the Verbatim at page 298,
supra, and he tried to pass off the statements made by the various
States in this regard as' 'vague, inconsistent andcontradictory"He ascrib
ed that language to mi:, he said he got it from me, that I had used that
description. I had used it, yes, but not for the statements of the States in
general. I had used it only in regard to the attempt on the part of five
States during the year:; 1948 and 1949 to find some basis on which they
could say that there was an obligation on the Union of South Africa to
submit to United Nations supervision in respect of a Mandate which had
not been converted into Trusteeship. That is to be found in the Verbatim
at page 132, supra, which very clearly demonstrates that that was
the only aspect of the matter in respect of which I had used that language.
My learned friend s~eks not only to apply that language to ail the
attitudes and all the si:atements and all the views expressed over those
years by the varions States, as I relied upon them, but he added another
description; he descrihed them as "often shifting". Mr. President, he
did not attempt to de monstrate how those descriptions apply to these
statements on which I placed special reliance. There was nothing
vague about the 1947 position, when the representatives of the Union
of South Africa clearly and unequivocally stated their understanding
that there was to be no United Nations powers of supervision in respect
of the Mandate, and when there was not a single contradiction from any
State despite the fact füat 42 of them took part in the varions debates
on the subject. There was nothing vague or contradictory or shifting
in that position.
There was nothing vague, or contradictory, or shifting in the position
of 25 States, including the Union of South Africa, who, over the years
1947, 1948 and 1949, clearly expressed the same understanding that
there was, outside of a Trusteeship Agreement, no obligation tosubmit
to supervision, no legal obligation, and no power of supervision on the
part of the United Nations in that respect. Nothing vague, nothing
contradictory, nothing inconsistent or shifting. My learned friend again
did not attempt to show how that language could in the least be said
to be applicable to the-se cases.
I had, in my oral :,tatement, read those particular statements to
the Court, I had given full references to the United Nations records, I
provided an index for the purpose of checking on us, checking on our
classifications and seei!ig whether they were fair, and we get no reaction
to that at all; the only reaction we get is the applying of these epithets,
the misapplying of them as if they had corne from me.
So this fifth factor, Mr. President, in my submission, also stands
completely unaffected by the argument to which we have been listening. -SOUTH WEST AFRICA
·. Finally, before leaving· the subject of the so-called "new facts", the
Applicants made two general submissions in that regard in their oral
statement. The first one is contained in the Verbatim at pages 299-300,
supra, and, if I understand it correctly, it rests on two legs. The fi.rst
one is that the significance of the new facts as we advance them Iay
in the premise that the Court's finding in 1950, concerning United
Nations succession to the League functions regarding Mandates, was
based on a tacit intent on the part of United Nations Members; and
a corresponding tacit intent on the part of the League Members at the
tiine of its dissolution. Now that is perfectly correct-that is a correct
appreciation of our argument in that regard. \Ve advanced those new
facts as being of special significance in that regard, because they refute
any such suggestion of tacit intent. And they are even of the utmost
importance if there should be any suggestion of a tacit intent that
originated at the time of the foundation of the League and of the 1'-fandate
system; because if there had been such a tacit intent-something that
was so clearly understood that it did not have to be recorded-then it
would surely have been brought to mind at the pertinent time of transi
tion in 1945 and 1946. But now my learned friend goes further in his
argument, and he says his interpretation of the Court's Opinion 'on that
point is that it did not rest on a finding of such tacit understanding or
consent, and that is where we corne into issue with each other.
, Now what does he say in support of this statement, that the opinion
did not rest on tacit consent? Iread from page 299, supra.It says there:
"The 'general considerations', as the Court itself describes them
in its Advisory Opinion at page 136, which in fact underlay the
Court's conclusion, proceeded from the very legal nature and legal
consequences of the Mandate institution itself."
Now what that means, Mr. President, if not related to a question of
the intent of the parties that founded the institution by their agree
ment, I don't know-unless the idea should be that there is something
of the nature of a principle of customary international law involved, or
a general principle of law recognized by civilized nations-! don't
know-that is not explained. It is "the very legal nature and legal conse
quences of the Mandate institution itself", this novel institution which
was then for the fi.rst time brought into existence by international con
vention.
We find some explanation when we go a bit further-the next sen
tence is:
"These 'general considerations' (I repeat they are to be found
on page 136 of the Court's Opinion) these 'general considerationsi
involved the most basic concepts of the authors of the Covenant
and the authors of the United Nations Charter." ·
Mr. President, if that is so, if the legal nature and the legal conse
quences are to be related to the basic concepts of the authors of the
Covenant and, later, to the authors of the United Nations Charter,
then we are dealing with one and the same thing, namely intention of
the original contracting parties. And then I don't understand this
submission that the Court's finding did not rest on a premise of tacit
consent, of tacit agreement. The Court made it clear that there was .REPLY OF MR. DE VILLIERS 349
nothing express to support its fmding, and the Court did, as I pointed
out, refer repeatedly to the contemplations, the presuppositions and the
intentions of the authors of the Covenant and of the Charter, and of
the founders of the Mandate system; so that quite obviously what the
Court had in mind mu;;t have been the tacit intent of the contracting
parties; sothat, although there is at the beginning of this submission a
negation of that premise, the submission seems to develop itself into
an acceptance of that premise, that the Court founded its conclusion
upon a ground of tacit :1greement, tacit understanding.
There may, of course, be a difference in this respect, one to which I
adverted in my argument in chief, as to when that tacit consent or
agreement could be sai,i to have manifested itself in the contemplation
of the Court. My interpretation of the Opinion, which I gave to the Court
in detail in that respect, is .to the effect that that tacit agreement or
understanding was found by the Court to exist at the time of transition,
1945 and 1946, because the general considerations related not only to
what the authors of th,~ Covenant and of the Mandate system contem
plated, but also to what the authors of the Charter contemplated, which
brings us into the period 1945-1946. They relate also, if the Court will
remember, to the consideration that at the time when the League fell
away-the original supervisory organ-then there was another super
visory organ which, in the Court's finding, was competent to take its
place. That again relates to a consideration that could have applied
only at the time of tra,1sition, in the years 1945-1946. Again, when we
corne to the supporting considerations, the first reference of the Court
was to Article 80, para.graph 1, if the Court will remember, and that
again brings us to that :oeriod, 1945, because the Court was dealing with
an underlying presuppcsition on the part of the authors of the Charter
relative to that Article. Finally, the other supporting consideration related
to the presupposition ofthe Members of the League when they adopted the
last resolution concerning Mandates, again bringing us into that period.
And therefore, my submission is that all this evidence, the new facts
on which we rely, ail of them bearing very directly on what the inten;
tians must have been du ring that period-they are ofthe utmost relevance
in overriding the generd considerations, the general probabilities, upon
which the Court relied in 1950 in the absence of this specific evidence
to the contrary which was not then available.
I submit, therefore, that despite the Applicants' submission to the con
trary in the passages to which I have referred, the interpretation remains
correct, that the Opinion of the Court rested on tacit agreement or
understanding, and that this evidence is therefore of the utmost relevance
in that regard. And I repeat, Mr. President, just to avoid misunder
standing, that that would be so even if, contrary to my submission, one
should consider the bas~c question to be what tacit intent there was in
1920, with the founding of the Mandate system and the creation of the
Mandate; because, therc again, even though all this evidence relates to
the transition period and to what happened shortly thereafter, if there
had been a clear-cut understanding as from 1920 relative particularly
to what would happen in the case of dissolution of the League, then
somebody at least must have remembered it and must have raised it
at the time of transitic,n, particularly in reaction, for instance, to an
incident such as occurred on 12 April 1946 when the representative of
China said that there was no automatic transfer of fonctions regarding350 SOUTH WEST AFRICA
Mandates from the League to the United Nations. One would on such
an occasion, for instance, have expected a reaction. One would have
expected a reaction when Mandatory Powers indicated that there was
no intent on their part to have any reporting or accounting in an interim
period. And there are the other similar occasions to which I have referred
on which one would have expected that reaction. So ail this evidence
remains of the essence and very relevant on that crucial point.
Mr. President, a further and final submission of the Applicants regard
ing the so-called "new facts", was that the Court ought in that regard
to apply, ifnot the letter, then at least the ratioor the minimum stand
ards, as it was called, of Article 61 (1) of the Court's Statute. My learned
friend sought to fortify his argument in that regard by saying that I
had admitted that what was stated in that article conformed to "the
generally accepted principles favouring the stability of judgments".
We find this point developed in the Verbatim at pages 300-301, supra.
Mr. President, in my submission there is no substance in it what
soever. I had put it to the Court-there was no question of "admit
ting" it-that the type of requirements stated in Article 61 (1) agreed
with the type of requirements generally applied in varions legal systems
where a principle of res judicata applies. But where that principle does
not apply, there is no basis, no ratio whatsoever, for putting any require
ments of that kind. That was the proposition which I made then, and
that is the proposition which I still make. lf we are to put it in terms
of the Statute of the Court, may I refer the Court to two articles which
are both very well known. Article 38 sets out the sources of law to be
applied by the Court in deciding international disputes. The last one of
these reads (paragraph d):
"Subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the varions
nations, as subsidiary means for the determination of rules of law."
And if we read that with Article 59, we find that that Article states:
"The decision of the Court has no binding force except between
the parties and in respect of that particular case."
Clearly then, this is where a previous Advisory Opinion would fall
in terms of the Statute of the Court. It would be one of the subsidiary
means for determination of rules of law. There is no question here of a
principle of res judicata applying, which prima /acie makes the opinion
final so that it cannot be reopened except on special grounds. Nobo~y
need show any special grounds for raising an argument in confüct
with a previous Advisory Opinion. To put the matter in the proper pers
pective: Itwas for the Applicants to corne and satisfy this Court that the
Court has jurisdiction. -Naturally, in their legal argument in that respect,
if there is a previous Advisory Opinion which favours the contentions
advanced by the Applicants, the Applicants could rely on it, and natu
rally, if that J?reviousAdvisory Opinion is in conflict with, or at variance
with submiss10ns that I advance, then I have to deal with it. But there
is no obligation to reopen a matter in that regard. The Advisory Opinion
is an authority, like any other authority, and the only question that
arises is a matter of its weight. And if I could adduce to the Court
special reasons why the weight that would normally be given prima facie 3.EPLY OF MR. DE VILLIERS 35I
to an Advisory Opinion does not apply in the particular case, then I
give the reasons. I give them without reference to requirements of Ar
ticle 6r, or any similar principle of law applicable in circumstances
completely different from those which now pertain. And it is only on this
question of the weight to be given, as a matter of authority, to the pre
vious Advisory Opinion. that the question of the new facts assumes such
great importance. And not only the new facts, but as I have stressed,
also the new argument:;, the new material now placed before the Court
and not available in r950.
That brings me to the end of a consideration of the Applicants'
arguments conceming the so-called "new facts". My submission is
that they failed completely to break down any of the force of the argu
ments which we advanced to the Court in that regard. If I may summarize
it in a few words, the Eignificance of those new facts lies in the feature
that it has provided direct evidence, practical, specific evidence bearing
on intent, which specific evidence overrides the general considerations
of probability on which the Court relied in 1950 in the then absence of
evidence to the contrary.
I proceed, then, to deal with the Applicants' arguments regarding
the analysis of the 19so Opinion, and, Mr. President, there is really
little for me to say about that. The Applicants' leamed Agent spent
a long time on this analysis. We find it stretching in the Verbatim
over the pages 301-304, supra, and later on, under the heading of denovo
argument, we actually find more analysis of the r950 Opinion. And over
ail that analysis, the one feature that stands out is this, that nowhere do
the Applicants attempt to advance any argument in support ofthat Opin
ion. Their arguments, .:·they themselves say, rest on the Opinion and
proceed from it. Now, ~.nso far as they seek to interpret the Opinion,
there are just three points to which I would like to draw brief atten
tion. The first one is fais, that at page 306, supra, of the Verbatim.
there is stated the submission that the analysis has shown that interna
tional supervision of Mandatory administration was an "essential
feature" of the Mandat€: institution. The submission reads:
"Hence the Cour,:, on the basis of its analysis of the legal nature
of this new international institution, concluded that international
supervision was an essential feature of the institution and that this
had been the view of the authors of the Covenant and the authors
of the Charter ..."
This submission isrepeated onthe same page, page 306, supra. The Court
will recall I dealt with this very fully in my argument in chief, and this is
now the counter-argument on that point. If we look back and see what
the submission rests on, we find one element at that page. There is a
reference to the five sentences of the general considerations, the first one
being-1 quote from that page:
"First, the obligation to 'accept international supervision and
submit reports is :m important part of the Mandates System'."
That is what the Court said. Now the Applicants argument proceeds:
"As a matter of fact it has been regarded generally, I think the
history shows, as an essential part."352 · SOUTH WEST AFRICA
Mr. President, if that is interpretation of the Court's Opinion and if
that is the basis upon which this conclusion is founded, then I need say
no more aboutit.
We frnd one other suggestion which might bear upon it, and that is
the one at pages 303-304, supra. It is one which is repeated at various
stages ofthe argument, I should say about five or six times in ail, and that
is to the effect that our contention in its ultimate consequences results
in what my learned friend has described as a "convenient, partial lapse",
which means that although the sacred trust of the Mandate institution
is still in force and effect, although the Mandatory's powers are con
ditioned with reference to his substantive trust obligations, as originally
set out in clauses 2 to 5 of the Mandate Agreement, as we assume for
purposes of argument, there will be no international supervision of the
Mandate of the two classes, as he described it "administrative", in
terms of Article 6, and "judicial" in terms of Article 7. And he said on
a number of occasions that that was the very result which the Court
described as something which could not "be justified' '. If we look at the
Verbatim at page 262, supra, that is the first time where this state
ment is made:
"Respondent contends that the Mandate survives, ifit survives
at all, only on a basis which leaves Respondent with all the rights
and privileges of possession and of administration without inter
national accountability. Respondent does not find it appropriate
to respond to the Court's conclusion in the 1950 Advisory Opinion
that preciselv such a result would not, in the Court's words, 'be
justified'." '
The reference there is to page 133 of the Advisory Opinion. I am not
going to read it all, Mr. President. \Ve fi.nd something similar in the
Verbatim at pages 303 to 304, supra. \Ve find it again on the same date
'at page 315, where there was the reference to the Cheshire cat, which
the Court might recall. And then at page 321, supra, we find a repeti
tion of the same point. Now in my submission, there is no tenable
basis for interpreting that particular portion of the Court's Opinion to
that effect. What the Court was dealing with there was the proposition,
the argument, as then advanced on behalf of the Union of South
Africa and stated at the previous page 132:
"It is now contended on behalf of the Union Government that
this Mandate has lapsed, because the League has ceased to exist.
This contention is based on a misconception ... The League was not,
as alleged by that Government, a 'Mandator' in the sense in which
this term is used in national law of certain States."
The contention was that because the Mandator, one of the essential
parties to the contract of Mandate, had fallen away, therefore the whole
Mandate had lapsed, and the conclusion was stated at the end that the
Union was left with full title and with no obligations, and that is what
the Court referred to at page 133, when it said that:
"The authority which the Union Government exercises over the
Territory is based on the Mandate. If the Mandate lapsed, as the
Union Government contends, the latter's authority would equally
have lapsed. To retain the rights derived from the Mandate and to
deny the obligations thereunder could not be justifi.ed." .REPLY OF MR. DE VILLIERS 353
What the Court wru; referring to there was a suggestion of a total
lapse of ail Mandatory obligations, but nevertheless a retention of the
rights under the Mandate. The Court said those two were inseparably
connected with one anc-ther, as the Court indeed repeated with reference
to the obligations set Ollt in Articles2 to S of the Mandate-the essence
of the sacred trust, without which the Mandate could not exist at ail.
But the Court never, in this passage, suggested that the taking away
of the two supervisory clauses-if Article 7 is to be regarded as super
visory at ail-the taking away of those two particular obligations,
would bring about an end to the Mandate, or that the Mandate could
not exist in the fonn of the substantive rights and powers on the one
hand, conditioned on the other hand by the substantive trust obligations.
There is no tenable basis for suggesting that that is what the Court
meant, or that the Court found that anywhere in its Opinion.
Mr. President, before I leave this passage in the Opinion of the Court
to which I have just rderred, at page 133, I would like to refer to one
other aspect of it. My learned friend came repeatedly on to the theme
that the way in which our case is now presented is Jess "candid" than
it was in 1950, and he •èontinually tried to assimilate the argument now
submitted to the Court to the 1950 contention on behalf of the Union
of South Africa.
Mr. President, of course the questions before the Court are different.
We are concerned here with an issue as to jurisdiction only, and I think
I have put my position in that regard quite clearly before, and quite
candidly. In order however to avoid any possible misunderstanding on·
the subject I will put it again, and I will now put it in this form.
In regard to our first proposition-the first of the three contentions
falling under the heading of the First and Second Objections, namely,
that the Mandate is ne, longer in force as a treaty or convention-the
Mandate as a whole we advance that contention in regard to the Mandate
seen as an international agreement, and we say it can no longer exist as
an international agreement. If that should have the effect that there
is no longer a Mandate at ail, it does not affect my contention; it still
means that the Court has no jurisdiction. But I need not go so far
for the purposes of an argument concerning jurisdiction. I need not
contend that. There i~ the alternative, which seems to me is to be
found in the Opinion of the Court of 1950, that is, that even in the
event of a total lapse of the Mandate seen as a treaty or convention, it
could still have an objective existence independently of treaty or of
convention. And I say I am perfectly prepared to accept that proposition
for purposes of argum~nt, because it does not affect my contention
relative to jurisdiction. I need not,at this stage, ask the Court to choose
between those two alternatives, because both have the same result as
far as jurisdiction is cŒ1cerned.
Alternatively, I hav~ my second and third contentions which rest
upon virtually the same argument, that is, that, whatever might be the
position of the rest of the Mandate Agreement, Articles 6 and 7 are no
longer in force, or, at any rate, there are no States which can invoke
Article 7. When I contend that the question can again arise: are Articles 6
and 7 severable from the rest of the Mandate, or are they not? If they
are no longer in force, does that mean that the whole of the Mandate
must be taken to have lapsed? If that should be so, Mr. President, if
we accept the basis of inseverability, then it does not hurt my argument, 354 SOUTH WEST AFRICA
then there is still no question of jurisdiction. lt may then be, as the
Court suggested, that the Republic of South Africa could no longer
rely on a Mandate as being a source of title, of authority, in respect
of the Territory of South West Africa. That could be a consequence
'of that situation, and that implication would then have to be gone
·into. But it does not arise here, in an issue concerning jurisdiction
only. Per contra, if, as I have suggested was the basis on which
the 1950 Opinions were decided, if the elements contained in Arti
cles 6 and 7 are severable frorn the rest of the Mandate institution,
theu- acceptance of my propositions concerning Articles 6 and 7 does
not result in a conclusion that the whole of the Mandate has lapsed. It
·means that the rest still survives as a trust without, however, inter
national accountabi_lity or international supervision, and without com
pulsory jurisdiction on the part of the Court. Neither of those two
alternatives hurts my contention as far as it concerns an issue of juris
diction. And therefore I think I have made it clear that I am prepared to
premtse my argument on an assumption that either of those two could
be correct.
It remains only for me, Mr. President, to refer to the Applicants'
contentions concerning what they called our de novo argument. I have
pointed out to the Court that initially the suggestion was that our
·argument as to the merits of these Objections would be dealt with and
met, as to their merits, in this section of the Applicants' argument, and
eventually it came to nothing in that respect. This section of the Ap
plicants' argument is therefore more significant for what it did not
·contain than for what it does contain.
So, Mr. President, in regard to the first of the three contentions which
I have just mentioned, namely, that the whole of the Mandate has
lapsed in so far as it was a "treaty or convention in force", we still
have no answer from the Applicants as to who could be parties today
to such a treaty or convention, if it is still in force as is contendcd by the
Applicants. There was no attempt whatsoever to answer that question,
although its significance-itscrucial significance-was stressed and fully
dealt with and analyzed in our oral statement. So that still remains
unanswered. The Applicants are satisfied to leave it on the basis that
the Court found that Article 7 is still in force and must have meant
that it was in force as a treaty or convention, and that for the Applicants
is sufficient.hey do not attempt to justify that finding with reference
to the question now pertinently raiscd as to whether there can be said
to be a treaty or convention in force within the meaning of Article 37
of the Statute of the Court.
ln regard to our second and third contentions,-both of thcm are based
on the fact that there is now no longer a League of Nations, or a Member
of the League of Nations that could invoke Article 7. There the Ap
plicants have failed entirely to deal with the interpretation which we,
as the result of an exhaustive analysis, say must be put upon the ex
pression "another Member of the League of Nations". They failed to
deal with it. And whereas in their written Observations they suggest
that our arguments can be met on the two alternative bases of either
"succession" or "carry-over", and whereas, if I understand themcorrectly
they try to argue in support of those two propositions in the written
Observations-after exhaustive analysis in our oral statement of what REPL Y OF MR. DE VILLIERS 355
they said in that regard, they corne back with nothing further in sup
port of either of those theories.
When it cornes to succession, Mr. President, we see in the Verbatim,
at page 3r9, supra, that this is what it cornes to eventually. I read
from that page:
"Counsel [referring to me] appears to base this attribution to us,
on the ground that the Applicants, as he says, 'rely on' United
Nations succession-! quote from the Verbatim at page 35, supra.
But, Mr. Presidmt, it is not the Applicants who 'rely on' United
Nations succession. The Court itself decided that issue in the Ad
visory Opinion of I950. We draw the necessary inference from the
Court's Opinion. We do not bear the burden of sustaining the validity
of the Opinion of the International Court of Justice."
That is what the succ~ssion argument has now been reduced to, Mr.
President. No attempt ,vhatsoever to argue anything on merit in support·
of that succession theory, the basis being the Court's Opinion of 1950, as
apparently some kind Df "grundnorm" about which there is to be no
question or argument.
Finally, the alternative of a "carry-over", that we also find dealt
with in one paragraph at page 319, supra, of the Verbatim. And what
is stated there? I think I had better read this, Mr. President, because
it is significant :
"The Respondent has also engendered some confusion, we think,
with regard to a comment in our Observations at page 446 (1), and I
quote, we say there:
'There is at th,~very least a de facto carry-over of the Leaguc's
responsibilities to the extent that an important fonction of the·
League continue:; beyond the League's formai existence.'
As I have demonstrated, it follows inescapably from the 1950
Advisory Opinion that Applicants have a locus standi, as United
Nations Members, in the cases at bar. In the event, however,
that the Court should, for reasons which are not apparent-re
spectfully-to the Applicants, if the Court should reverse its holding
that Article 6 is si:ill in force, then we would contend, as we do
here, that Applicants must have a locus standi as former Members
of the League of Nations, because if they do not, the unanimous
holding of the Court that Article 7is in force is reduced to a nullity.
It is a perfectly logical proposition, and it is precisely in this sense
that we have rcfer:red to the point. If the language is elliptical I
express our regret and welcome this opportunity to clear up what
seems to be an ine1:capably logical deduction."
Mr. President, of the de facto carry over as a "principle", of that argu
ment advanced in the Observations, and which I think, with submission,
we dealt with adequately in our oral presentation, of that there is nothing
left. Nothing as a justification for coming to the conclusion that, in the
absence of the succession contended for, there could still be competence to
invoke jurisdiction on the part of ex-Members of the League. No legal ar
gument advanced in ord(:r to arrive at that conclusion, the only suggestion356 SOUTH WEST AFRICA
being that, starting from the basis that the Court found that Article 7 is
still in force,d from the further basis that there must be a State or'States
that can invoke Article 7 in order to keep itin force, therefore it follows
that if there should be no succession regarding Article 6, then the only
possible States that could have been contemplated, that could bring
Article 7 in force, would be ex-Members of the League. That seems to
be the type of reasoning in this so-called "perfectly logical proposition".
The "logical proposition" leaves out of account, Mr. President, that the
Applicants themselves advance that the basis upon which the majority
of the Court in 1950 found that Article 7 was still in force, was "success
ion"; if that basis is taken away, what logic is there in attributing
to the majority opinion of 1950 a contemplation of keeping Article 7
alive on the basis of a "carry-over", so that ex-League Members could
still invoke it.I fail to see the logk of that proposition.
The Applicants do not attempt to justify the alternative of the
"descriptive meaning" interpretation found in the minority opinion of
Judge McNair in 1950.
Therefore, Mr. President, we find again that there is absolutely no
attempt at justification as a matter of legal argument, as a matter of
merit, as distinct from reliance upon the 1950 Opinion for the con
clusion that Article 7 is still in force. And in both respects in which
opposition was initially offered to our contentions, both the succession,
and the carry-over, we find this ignominious retreat.
I could, Mr. President, hardly ask for stronger support for our con
tentions than this-this obvious inability on the part of the Applicants
to advance any argument on the merits in regard to these propositions:
an inability which must in all the circumstances be taken to be a self
confessed one, because they could not have demonstrated that more
clearly than they have done in the way in which their argument has
been presented to the Court. In my submission the Applicants have
confirmed that in the light of the facts and the arguments that are now
before the Court, the Opinion of 1950 cannot stand in the three respects:
regarding Article 6, regarding Article 7, and also regarding the general
proposition that there is no longer a "treaty or convention in force"
within the meaning of Article 37 of the Statute of the Court.
Mr. President, that concludes my replication to the oral statements
of the Appiicants. My learned friend, Mr. Muller, has asked me to indicate
that he finds nothing in the oral statements to which he considers it
necessary to replicate regarding the Third and the Fourth Objections.
With the Ieave of my Iearned Agent, I want to indicate further that as
regards the questions that have been putto us by Members of the Bench,
we tried our very best to have our answers ready today, but it involved
a certain measure of research outside of the precincts of this Court and
even outside this town, and we have not entirely completed that. We
should be able-we are trying our very best-to have those answers
ready on Montlay, and we should like to present them then. I would,
therefore, with respect, Mr. President, suggest that for that purpose,
and for that purpose alone, we do not conclude our replication now.
The replication is completed as far as being a reply to the oral statements
of the Applicants, but I would like to keep it open for the purpose of
dealing with those questions and anything that might flow therefrom.
I thank the Court. REPLYOF MR. DE VILLIERS 357
Le PRÉSIDENT:Je retiens donc de ce qui a étédit que vous serez prêt
à donner votre répon,e aux questions posées par les Membres de la
Cour lundi prochain.
Mr. DE VILLIERS:That is our endeavour, Mr. President. We hope
to do so to the best of our ability on Montlay.
Le PRÉSIDENT:Alors j'espère que ce sera possible. Il est donc décidé
que la prochaine audif:nce aura lieu lundi à ro h~ures 30.
Et maintenant je m'adresse à M. l'agent de l'Ethiopie et du Libéria,
J'ai étéinformé que votre duplique orale ne serait pas longue; mais,
vu l'heure avancée, vous ne pourrez pas la terminer aujourd'hui. Alors
je vous pose la question: désirez-vous commencer ce soir pour terminer
lundi ou bien peut-être trouverez-vous plus convenable de commencer
et terminer lundi?
·Mr. GROSS:Mr. Pn-sident, I wish to comply with the convenience
of the Court. I would be prepared to commence now, but in view of
the President's gracious suggestion that it might be more convenient to
begin on Monday and conclude on Montlay, I should prefer that of
course.
Le PRÉSIDENT:Alors, il est ainsi décidé.Vous aurez la possibilité
de commencer votre duplique lundi. Encore un point: la réponse·aux
questions qui ont étéposéespar MM. les Membres de la Cour, pourrez
vous la donner aussi lundi?
Mr. GRoss: Mr. President, I understood that the distinguished Counsel
for the Respondent se.id that he would make the best endeavour to
present the reply to the questions asked by the Honourable Members
of the Court, that he would try to do so on Montlay. We shall, I think,
be in a position to amwer the question addressed directly to us, and
I would then, I believ~. say with conviction that we shall be able to,
but I am not certain as to exactly when on Montlay we will be able to do
that.
Le PRÉSIDENT:Il en est ainsi décidé.Les réponses suivront lundi,
après la réponse de M. l'agent de la République sud-africaine et après
votre duplique orale.
Mr. GRoss: That is understood, Mr. President.358 SOUTH WEST AFRICA
8. REJOINDER OF Mr. ERNEST A. GROSS
(AGENT OF THE GOVERNMENTS OF ETHIOPIA AND LIBERIA)
AT THE PUBLIC HEARING OF 22 OCTOBER 1962
[Public hearing of 22 October r962, morning]
Le PRÉSIDENT: L'audience est ouverte. Je voudrais informer les
Parties de la procédure qui a étéapprouvée par la Cour:
La parole sera donnée d'abord à l'agent de l'Éthiopie et du Libéria
pour sa duplique orale; la parole sera donnéeensuite àl'agent de l'Afrique
du Sud, puis à l'agent de l'Éthiopie et du Libéria, pour répondre aux
questions qui ont étéposéespar les juges; enfin, et dans le mêmeordre,
les agents seront invités à faire savoir si les questions des juges et les
réponses qui y ont étéfaites les amènent à amender leurs conclusions
respectives, et, éventuellement, à énoncer les conclusions amendées.
La parole est à Monsieur l'agent de l'Ethiopie et du Libéria pour sa
duplique orale.
Mr. GROSS: Mr. President and Members of the Court. In order to
economize the time of the Court, I shall turn at once to an appraisal of
points of substance raised in Respondent's statement of replication.
We are not conscious of any endeavour on our part to create an "at
mosphere by reference to matters of a tendentious, political or emotional
nature", in the language of Respondent's Counsel.
Surely, recital of the history of the Mandate and the origin and
nature of the dispute does not in itself justify attribution to us of so
improper a motive.
"In the task of ascertaining the true intentions of the parties
to these instruments, the circumstances surrounding the creation of
the Mandates system and the conclusion of the Mandate Agreement,
as well as the conduct of the parties concerned, both at the time
and thereafter, are [matters] of great importance."
Mr. President, I have just quoted a sentence from the opening state
ment of the distinguished Agent for the Respondent. Consistently with
the importance of this material, Respondent quite appropriately devotes
more than 80 pages of its Preliminary Objections to what is entitled
"Historical Background".
It is said also to be "regrettable" that we have referred at some
length "to reports of various political committees and bodies containing
critical comment".' I quote from the Verbatim at page 329, supra.
But, Mr. President, it is regrettably difficult to discover in the sad
history of this matter any other kind of comment.
Counsel for Respondent takes a long leap into the merits-without
citation of any document before the Court of which I am aware-that,
as Counsel says:
"... where observers have taken the trouble to corne and see for
themselves they have almost invariably found that the Mandatory's
[government's] version of the facts has proved to be the correct
one...".
I quote from the Verbatim at page 330, supra. REJOINDER OF MR. GROSS '359
·Documents which are before the Court, inany of which are cited in our
Memorials, show that one of the major elements of the dispute is that
committees and agendes of the United Nations have been denied direct
access to information and have, àccordingly,. been forced to rely upon
·secondary sources, often supplied at great trouble and risk on the part of
petitioners. Reference may be made to any report of the U.N. Committee
on South West Africa, all of which reports are cited in our Memorials at
pages 62-83 (1) and are before the Court. The South West Africa Commit
tee perennially records the Mandatory's failure to submit reports, trans
mit petitions, or otherwise co-operate in the ascertainment of facts and,
despite its persistent refusal to co-operate, representatives of South
Africa at the United :\fations-as Respondent's Counsel has done here
have attacked or criticized the validity of _the Committee's findings,
often in sarcastic terms. An example isfound in our Memorials at page 80
' (1). .
I turn now, Mr. Pnsident, with the leave of the Court, to a consider
, ation of the premises upon which Respondent lays its request for re
_consideration and revision of the 1950 Advisory Opinion.
. · It is now stressed that in addition to what Respondent's Counsel
has called "new facts", there are also "new arguments" which, Respon
dent contends, "have now been fully presented to the Court, and which
were not canvassed a1 all in 1950". I quote froin the Verbatim at page
332, supra.
Mr. President, the .Applicants were well aware that in the Preliminary
Objections Respondent had made the point thatits learned 1950 Counsel,
Dr. Steyn, appears to have regarded the contention that there were no
·longer· any States which could invoke Article 7 of the Mandate-the
compromissory cJause~"as a legal proposition which did not require
further argument", in Respondent's words in the Preliminary Objections
at page 368 (1). ·
We were aware also of Respondent's assertion that, in the absence of
a fullargument in 1950 supporting its contention that alitera! significance
should be given to the phrase "another Member of the League of Nations'',
in Article 7, this point, as Respondent contends, "may not have been
present in the mind of the Court". That comment cornes from the Pre
liminary Objections, ai:page 373 (1).
Among the many speculative possibilities which might explain why
Dr. Steyn did not regard it pertinent to make an elaborate argument in
support of a litera! int,~rpretation of the phrase "another Member of the
. League of Nations", m:i.ywell be that the thought that such an argument
was untenable. Dr. Steyn may also have anticipated the admission made
by Counsel during·the course of his oral statement of 2 October, and I
refer to Counsel's comments, the logic of which is impeccable:
"So [said Counsel] our second contention is that even if the Man
date could, in oth~r respects, be said to be still in force as a treaty
or convention wifüin the meaning of Article 37 of the Statute,
Article 7 of the Mrndate itself ceased to besoin force."
And Counsel continued:
"Thirdly, Mr. President, on basically the same argument as applies
to our second contention, namely that another Member of the League
of Nations is neŒ,sary for [the] operation of Article 7, there follows 360 SOUTH WEST AFRICA
our third contention which is merely an alternative way of putting
the same argument and that is..."
.And then he describes what it is. That is the Verbatim at page 32,
supra. Respondent concedes that its argument regarding the phrase
"another Member of the League of Nations" is merely an "alternative way
of putting the argument", that Article 7 itself had ceased to be in force.
Those are Respondent's own words. Now Dr. Steyn in 1950 may have
thought of this "alternative way of putting the same argument". With
. airespect to Dr. Steyn's undoubted ability, however, it is unlikely that
even with some days at his disposal, he could have elaborated the point
more skilfully than has been done by Respondent's Counsel at this
. proceeding.
The point is, Mr. President, that the fact that Respondent's Counsel
in 1950 did not elaborate an argument which, we have submitted, is
inherently untenable, does not justify an inference that the reasoning
underlying the point was not in the mind of the Court when it came to
write its Opinion.
Itseems tous, respectfully, that Respondent's first "new argument",
so to speak, has hardly more survival value than did Respondent's first
"new fact".
The second so-called "new argument" appears to bethe doctrine ofwhat
I have called "partial and convenient lapse", according to which ail of
Respondent's rights and privileges remain, but none of its obligations of
.international reporting, accounting or judicial supervision, in terms of
the compromissory clause.
We have sought to demonstrate that Respondent erroneously attrib
utes this doctrine of partial lapse to the Court and that, in any event, the
consequence of the theory, or doctrine, of partial lapse, isle~ally, logi
cally,and morally untenable. And that this is precisely what the Court
must have meant when, in its Opinion, it referred to such a result as one
which "could not be justified", in the Court's words.
Finally, with respect to the "new argument" contention, the Court's
attention is respectfully -drawn to the discussion in our oral statement
in which we sought to summarize the 1950 arguments and then to com
pare them with what I described as the 1962 model. That attempt .of
summarization and comparison starts with the Verbatim at pages 3n-
312,supra.
It is submitted then that no arguments have now been put forward
by Respondent which are either new in substance or valid in reasoning
and which support Respondent's request that the Court reconsider and
revise the 1950 Advisory Opinion.
Several brief comments now seem to be in order with regard to the
so-called "new facts", as distinguished from the "new arguments", in
the light of Respondent's statement in replication.
My first comment with regard to the "new facts" contention concerns
what may be described as Respondent's effort to rehabilitate the second
"new fact" relating to the proceedings of the United Nations Preparatory
Commission in London in 1946. The Court will, if it please, recall that
Respondent in its Preliminary Objections refers to a fact which, among
others there enumerated, is so "crucially important"-in Respondent's
language-that if it had been placed before the Court in 1950 "the
Court could not possibly have arrived at its decisive conclusions". I REJOINDER OF MR. GROSS
quote from the Preliminary Objections at page 345 (1).This "new fact"
number ii at page 3L.-S-is described by Respondent as follows, and
I quote:
"The rejection by the Preparatory Commission of its Executive
Committee's proposal for a Temporary Trusteeship Committee,
without substitution of anything regardmg possible transfer to, or
assumption by, the United Nations of any 'fonctions under the
Mandates System' ..."
That is the essence of the description of the second "new fact" at
page 345 (1) of the Prdiminary Objections.
Mr. President, in our oral statement we cited to the Court the state
ment made in the 1950 proceedings by the late Dr. Ivan S. Kerno,
representative of the :iecretary-General of the United Nations, and this
statement is quoted in our Verbatim at page .300, supra.
In adverting to Dr. Kerno's statement, we pointed out that Dr. Kerno
had not only explicitly referred to the Commission's rejection of its
Executive Committee':; proposa!, but that Dr. Kerno had also explained
to the Court the reasons underlying the Commission's action and what
the Commission had done instead.
In his replication, Ieamed Counsel for Respondent argues that our
showing that this seeünd fact thus had been before the Court in 1950
was, as he said, "completely illusory" (page 335, supra, of the Verbatim).
And why was it "illusory"? Because, he says, the real significance
of this second fact is not that the Preparatory Commission had rejected
the Executive Committee's recommendation. Rather, what is "crucially
important", Respondent submits, is that in 1950 the Court was not
told that the Commisiüon had not substituted anything regarding as
sumption by the United Nations of fonctions under the Mandates system.
This, Respondent's Counsel describes as the "brunt of the point", and
he says:
"The only infonnation the Court was given regarding the proposai
for a Temporary Trusteeship Council and the rejection thereof was
the bald statement in the late Mr. Kerno's argument."
I am citing the Verbatim, at page 337, supra.
If the Court will be pleased to read the exerpt from Dr. Kerno's state
ment quoted in our oral argument in the Verbatim at page 290, supra,
I think it will be apparent to the Court that Dr. Kerno's statement
was neither bald, nor limited to the fact mentioned by Respondent's
Counsel.
Dr. Kerno's statement set forth precisely what action the Commission
took instead, and why.
Respondent's point i;eems to be that if the Court had been told what
the Commission did no/ do-instead of what it did do-the Court could
not have reached the i;ame decisive conclusions.
Mr. President, at the risk of being facetious, if anyone in 1950 had
undertaken to tell the Court everything the Preparatory Commission did
not do, this honourable Court would still be hearing the 1950 arguments,
instead of merely hearing them again.
Mr. President and Members of the Court, before leaving the second
"new fact", brief attention sh"ould be given to a matter which sheds
further light on the stress Respondent now lays upon the point that SOUTH WEST AFRICA
the ·Court was not explicitly told what the Preparatory Commission
did not do with respect to the question of United Nations .assumption
of a supervisory fonction over Mandates. .
As I have pointed out, Dr. Kerno referred ~o the reasons why the
Commission had rejected the recommendation of its Executive Committee
for the establishment of a Temporary Trusteeship Committee. Dr. Kerno
referred, and I quote from his argument to the Court, Dr. Kerno re
ferred to:
"... objections of a constitutional nature expressed by some of its
members and of the fear expressed that the creation of a temporary
organ might have the effect of delaying rather than of expediting
the constitution of the Trusteeship Council".
That is the end of the quote from Dr. Kerno's statement to the Court.
The statement, as I say, is set forth in text in the Verbatim at page
290, supra, for the Court's convenience.
One of these members referred to by Dr. Kerno was the Soviet Union.
The Summary Record of Meetings of Committee 4 of the Preparatory
Commission sets forth the views of the Soviet Government, expressed
by its delegate, Mr. Gromyko, as follows:
"Considering that there were at present no territories under the
trusteeship system, there would be no work for such a temporary
body. In view of the solemn pledge concerning trusteeship in the
Charter, the members of the United Nations administering mandates
could inform the General Assembly that they were willing to place
them under trusteeship. They conld also present drafts of agree
ments. The General Assembly, if there was delay, could take certain
practical steps for speeding up these undertakings, even at the
first session.
' The temporary trusteeship committee would in fact delay these
provisions of the Charter rather than speed them up. His Govem
ment considered it would not be admissible to establish any artificial
organ as other more practical and more speedy means existed."·
That is the end of the quote of the statement by the Soviet delegate
at the Preparatory Commission.
The significance of the action taken by the Preparatory Commission
isthus seen in its true light, as explained by Dr. Kerno. lt reflected the
wish to speed up the process of conversion to trusteeship rather than
to terminate Mandatories' responsibilities.
Respondent's interpretation of the Commission's action-implied this
is-imputes to the Commission in London an attempt to stultify, if not
nullify, Article 80 of the United Nations Charter. In fact, as is clear, the
Preparatory Commission's purpose was to expedite the conversion of
mandates to trusteeships, not to relieve i\fandatory Powers of inter
national accountability, which is the precisely contrary result. It is true,
of course, that the Court, in its Advisory Opinion, did hold, with six
Judges dissenting, that Article 80 did not impose an obligation to
convert mandates to trusteeships, but that is not the point at issue here.
What I refer to is a reasonable interpretation of the intention of the
Preparatory Commission in London in taking the action it did.
With regard to the third "new fact"~ relating to the Chinese draft
proposai, as we said in the Verbatim, at page 290, supra, the alleged REJOINDER OF MR. GROSS
crucial importance of this third fact "hinges upon a carelessly worded,
undocumented, unsupported and probably inaccurate" statement in the
Preliminary Objections as to why the Chinese Delegate in fact decided
not to consummate his wish to propose a draft resolution. I do not
think it neccssary to dwell on this point further in my rejoinder.
Nor is it necessary, I think, to comment at length concerning Counsel's
reference to the fact, as it is, that Respondent's argument that the
significance of what took place at the last session of the General As
.sembly should not be read in the light of-and I quote Counsel's words:
"of an outside observer who knows nothing of what took place; South
Africa [as he truly sa.id] was represented at the last Assembly of the
League, and our representatives know what took place...". That is
at page 339, supra, of the Verbatim.
Mr. President, I think it is enough to say, on behalf of the Applicants,
that so were we and so do we.
Nor need much bt: said about the fourth "new fact" which, by a
process of fission, has now generated a fifth fact as well.
The original No. 4 sought to combine, under the heading "Practice
of States", the views of eleven Members of the United Nations Special
Committee on Palestine, as reflected in the Committee's report of
September 3rd, 1947, combining these views, as I say, with the vie\vs
expressed by three other States in 1946, 1947 and 1948 respectively.
This is in the Preliminary Objections at pages 336-337 (1). Respondent
cites these views ofS1ates to support a contention, and I quote Respon
dent, that the "pradice of States showed a general understanding
that the League supervisory powers in respect of Mandates had not
been transferred to, m assumed by the United Nations". That is at
page 334 (1) of the Preliminary Objections. One of the States referred
to is the Soviet Union; another the United States.
Respondent's interpretation of the Soviet position rests upon astate
ment made by Mr. Gromyko in the Security Council on 2 April 1947,
during a debate on the draft trusteeship agreement for the former
Japanesc Mandated Islands.
Respondent quotes excerpts from Mr. Gromyko's statement, at page
337 (1) of the Preliminary Objections. A fair reading of these excerpts,
I submit, shows clearly that Mr. Gromyko said-and quite correctly,
we submit-that "there is no continuity, either legal or otherwise,
between the Mandat.Jry system of the League of Nations and the
Trusteeship system laid down in the United Nations Charter". And
Mr. Gromyko added, a.gain, we think, quite correctly, that the "Security
Council is not competent to decide to what extent Japan may have
violated the conditions of the Mandate system and the duties involved
in the administration c,fMandated territories". These are excerpts quoted
in the Preliminary Objections, at page 337 (1).
Mr. President, the point at issue in the Security Council debates was
whether Japan's title to the Mandated Islands should be declared forfeit
by reason of asserted violations by Japan of the terms of the Mandate.
The Soviet delegate maintained that such a declaration by the Security
Council was not necessary; that title to the islands would be determined
in accordance with the Trusteeship system, which, of course, was designed
to supersede the Mandates system. This was wholly consistent with the
Soviet position respecting the relationship between the two systems, as SOUTH WEST AFRICA
.reflected in the Soviet delegate's comments at the Preparatory Com
mission in the preceding year, to which I have already referred.
I think that this clarifies the Soviet position, if indeed clarification is
needed, and it would seem quite untenable to argue, as does Respondent,
that the Soviet Union took the position that Mandatories' responsibili
ties terminated with the dissolution of the League. On the contrary,
the Soviet position was that the Mandatory responsibilities would be
superseded by Trusteeship responsibilities.
The United States views were exactly the same in this respect. •
In Respondent's statement in replication, Respondent's Counsel re
verted to the United States' views regarding the question wbetber the
United Nations, as Counsel put it, "took over the League of Nations
Mandate system". This form of expression is, of course, ambiguous.
I refer to page 343, supra, of the Verbatim. The real issue is whether
the United Nations Charter, and in particular Article 80 (1) thereof,
contemplated that pending conversion of Mandates into trustee
ships which was, as this Court said in 1950, the "normal course"
Members of the United Nations expected-the rights of the inhabitants
of Mandated territories would be fully protected, again as the Court
said in 1950: "under all circumstances and in all respects". That is
the language of the Court relating to Article 80 (r).
. Respondent's Counsel referred by name to the United States delegate
to the Trusteeship Council and repeats an excerpt which Counsel had
previously quoted in bis oral statement at page n7, supra. The
United States delegate, Mr. Benjamin Gerig, bas long been known as
an outstanding authority on trusteeship matters.
The debate in 1947 in the Trusteeship Council concerned information
to be furnished by Respondent in connection with the South West
Africa Mandate. A fafrreading of the record of the debate wiH show,
I believe, that Mr. Gerig was intent upon one major objective: to
obtain, as tactfully as possible, assuranceby South Africa that it would
transmit full information concerning its administration of the Mandate.
Other statements made by Mr. Gerig, and I shall quote one illustrative
ly in a moment, other statements made by Mr. Gerig show that in the
course of this debate, and with this objective in mind, be was navigating
through some diplomatie shoals. I quote the following excerpt from a
statement made by Mr. Gerig during the same debate:
"I am among those who always have believed that the mandate
does continue in force, but there are others who do not take that
view. Therefore, because of some doubt here, I raise that question.
I would add that even if it does remain in force, that thought,
namely, whether the Union Government is discharging its duties
under the Mandate, looks as if we have certain supervisory fonctions
to see toit that the Union Government discharges its responsibilities
under the Mandate."
That is from Mr. Gerig's comment at the 15th Meeting, at page 505 of
the document cited-the Minutes of the Session of the Trusteeship
Council.
Mt. Gerig's view that the Mandate continued in force so long as neces
sary to protect the inhabitants of the territories was, of course, entirely
consistent with the position of the United States taken at San Francisco
two years earlier, and I shall revert to that point after the translation. REJOIN DER OF MR. GROSS
Mr. President, I referred in some detail in my oral statement to the
leadership taken by the United States in sponsoring and steering through
to adoption the so-called "conservatory clause", that is to say, Article 80,
paragraph 1, of the Charter.
ln the course of his Statement in reply, Respondent's Counsel, at
pages 342-344, supra, of the Verbatim, undertook an extensive analysis
with respect to the c,rigin and meaning of this clause of the Charter
and he attributed to the Court the intention to rule that supervision
over Mandates was n,)thing more than what the Court considered to be
a general consideration of "probability".
In our own submissi-)n, respectfully, the Court's treatment of Article 80,
paragraph 1,the contexts in which the Court refers to the Article, and
the striking emphasis of the language with which the Court interprets
the clause, do not bear out Respondent's interpretation of the Court's
meaning. Our own approach to the point is set forth in the Verbatim at
pages 304-307, supra.
Reverting to the views of the United States at San Francisco regarding
Article 80, paragraph 1,Respondent's Counsel quotes an excerpt from
the United States delegate. He omits the next following paragraph
from the delegate's ~tatement at San Francisco, which I shall read
with the Court's permission:
"It is clear [said the delegate of the United States] that paragraph
S (that is, Article 80, paragraph 1) is intended to preserve the
rights during that in-between period from the time this Charter is
adopted and the üme that the new agreements are negotiated and
completed with the new organization. And it is not întended that
paragraph 5 [that is, Article 80] should be any basis for freezing
eternally the situ:üion affecting any territory."
It seems clear that, just as in the case of the Soviet Union and most
other Members, it was assumed that the normal course would be followed
and that all Mandate:; would either be converted into trusteeships. or
would, as has happened with the rest of them, be granted independence.
If any doubt could Œmain concerning the views of the United States
Government, they are put to rest by the position taken by the United
States during the 195c,proceedings before this honourable Court.
I should like now to i:urn briefly to the "fifth factor", as it is now called.
In his first reference to this factor, Respondent's Counsel qualified his
description of the factor and said it was that one might "almost" call a
fifth group also under the heading "Practice of States".
It is, accordingly, d,)sirable to give brief attention to this fifth factor,
and this can be done in a few sentences.
ln the first place, th,) so-called "Practice of States" covering the years
1947 to 1949 is not, and cannot be asserted to be, new material not before
the Court in 1950, even in the sweeping interpretation given by Respon
dent to the phrase "bdore the Court".
Respondent contcnds that there was nothing vague or shifting in
the position of 25 States which, over the years 1947, 1948 and 1949, and
I quote from Rcspondimt's Verbatim:
"expressed the un,Jerstanding that there was, outside of a Trustee
ship Agreement, no obligation to submit to supervision ... and no
power of supervision on the part of the United Nations in that
respect".
This is from the rg October Verbatim.366 SOUTH WEST AFRICA
Putting aside for the moment the fact that this is not "new material",
Respondent's analysis of the views of States, under the heading "Practice
of States", is to be compared with the analysis of the United States
in its Written statement submitted to the Court in the 1950 Advisory
proceedings.
ln its statement, at page ro3 of the Pleadings, the United States says:
"The general tenor of discussion in the General Assembly from
1946 to 1948 was that the mandate for South West Africa continued
in existence."
The United States statement then goes on, at page ro3 of the Pleadings,
to cite the views of II Members, including two separate statements of
the United States' views in these years, to that effect. These are two of
the years covered by Respondents in Respondent's analysis of the views
of States: 1947 and 1948.
The United States statement then proceeds:
"A minority of the members of the Assembly took the posi
tion that the Mandate had already expired; most of these prem
ised their conclusion by contending that the trusteeship system had
already in fact replaced the ;\fandate system since the placing of
Mandates under trusteeship was compulsory."
That of course was the view at the time these States referred to.
Under this heading, the Written statement refers to the Soviet Union
position as well as that of five other States.
The United States statement goes on, this time at page ro4 of the
volume of Pleadings of 1950:
"South Africa at the sessions of the General Assembly in 1946-
1947 by no means embraced the minority view but firmly supported
the view of the majority."
Finally, says the 1950 Written statement of the United States:
"Recent developments with respect to the Union of South Africa's
administration of South West Africa and the expressions of Union
representatives indicating partial or total tcrmination of the Man
date, although perhaps foreshadowed in 1947, first clearly appear in
1948. Read beside the record of contemporary events and state
ments, such bclated comments are not persuasive as to the intentions
and understanding of the Union and other States when the League
was dissoJved and the United Nations established."
That is at page ro4, from the United States Written statement of 1950.
And, Îl-fr. President, it is remarkable to note that among the States
cited by the United States statement as holding the view that the Man
date responsibilities continued in existence, six States are to be found on
Respondent's list of States which, according to Respondent's submission,
at the same time held the view that the United Nations had no supervisory
power. lt is in this respect only necessary to compare, or one may say
contrast, Respondent's analysis, as it appears in the Verbatim at page
127, supra, with the United States analysis of 1950 as it appears at pages
103 to ro4 of the Written statement submitted to the Court in 1950. REJOINDER OF MR. GROSS
Comment is not necessary. I call the Court's attention to the two sets
of analyses and leave it at that.
In conclusion, it seems that this fifth new factor does not add much fuel
to Respondent's case for reopening the 1950 Advisory Opinion.
Applicants contended, in the Verbatim at pages 300-301, supra,
that the Court should, in the exercise of its sound discretion, refuse
to reconsider the Advisory Opinion. We cited Article 6r, paragraph r,
as reflecting what Respondent itself asserts to be generally accepted
principles favouring the stability of judgments. That is the sense, if not
the language, of Respondent's contention. We submitted that the Court
should apply the minimal standards embodied in Article 6r, paragraph r.
Respondent in its i;tatement in replication reverts to this matter,
insisting that Article 6r, and the general principles it embodies, are
irrelevant,on the ground that the principle of res judicata does not
apply to Advisory Opinions.
That the principle oi res fudicata does not apply to Advisory Opinions
is correct; but that is beside the point.
As Respondent's Cc,unsel conceded, Advisory Opinions are entitled
to what he termed-justly-"strong prima facie weight as being of
precedential value as an authority". I quote from the Verbatim at page
roo,supra. In its Preliminary Objections, Respondent Iikewise conceded
that only-and I quote-"where good reasons exist therefor", should
Advisory Opinions be departed from in subsequent contentious proceed
ings-I cite page 214 (1) of the Preliminary Objections.
And in his oral stati~ment in reply, Respondent's Counsel put it this
way:
"The Advisory Opinion is an authority, like any other authority,
and the only question that arises is a matter of its weight, and if I
could adduce to the Court special reasons why the weight that
would normally b,~given prima facie to an Advisory Opinion does
not apply in the partkular case, then I give those reasons, I give
them without reference to requirements of Article 6r, or any similar
principle of law é.pplicable in circumstances completely different
from those which now pertain."
That is at pages 350-351, supra, of the Verbatim.
The difference betw,~en the Parties, then, is very simply stated. By
what criterion or yanlstick are the "special reasons" referred to by
Counsel to be evaluated? We submit that the minimal standards,
embodied in Article 61, paragraph I,of the Statute of the Court, and
general accepted principles of law, should be looked to to fumish a
criterion. Respondent, as we see it, suggests no standard or scale of
measurement whatever.
Is Respondent's own evaluation of its "new facts" and "new argu
ments" to govern?
We believe the question answers itself.
Mr. President, I venture the thought that at this time the Court may
perhaps wish a comment concerning the length of the remaining argument
in Rejoinder. I shall endeavour to telescope the balance of what I have
to say, in deference to the important questions which have been addres
sed to the parties by learned Judges and shall attempt therefore to con
clude my remarks as briefly as possible so as to Ieave time at this session
for the responses to those questions.368 SOUTH WEST AFRlCA
Respondent's contentions, with respect to our, as he says, failure to
deal with its arguments de novo, we feel reflect a misunderstanding of a
large part of the burden of our effort. We did indeed attempt to deal with
the merits of the arguments de novo, even though we thought it was not
neces.sary to do so, in view of our submission that there is no basis for
reconsideration of the Court's Advisory Opinion. We did, for example,
attempt to meet head-on the contention with respect to partial lapse;
we did attempt to meet head-on the contention with respect to its
interpretation of the clause in Article 7 relating to another Member of
the League of Nations; we did also attempt to evaluate the Court's de
cision as to Article 80, paragraph 1,and its interpretation in the light of
its history, which we have cited, and in the light of itsapparent reasons as
are to be inferred from its history. Moreover, we have attempted to meet
head-on Respondent's argument with regard to partial lapse, by referring
to universally accepted principles of fiduciary obligations which we think
demonstrate the inescapable validity of the Court's comment that the
result contended for by Respondent could not be justified. So far as
Respondent's interpretation of the Court's meaning with respect to the
point of "justification", we believe that our contentions reflect a correct
interpretation of the Opinion and respectfully leave it at that. Respondent
has attempted to reinterpret the Court's Opinion with regard to the legal
nature of the Mandate institution. Respondent does this by interpreting
the sentence on page 136 of the Court's Opinion relating to, what the
Court called, an important aspect of the international obligations assumed
by the Mandatory. In the general considerations appearing in that
same paragraph, at page 136 of the Court's Opinion, wiJIbe found several
sentences wh1ch justify, we think, our interpretation that the Court was
indeed referring to these international obligations as essential rather than
merely important and that can be found, I think, from an inspection
of the text itself, particularly of the third and fourth sentences, at
page 136 of the Opinion, in that paragraph.
Finally, if it please the Court, Counsel for Respondent have seen fit to
intimate that complex and highly charged issues underlying this dispute
should dissuade the Court from taking up the merits, that at any rate is
how the proposition sounded tous. The Court itself has supplied a short
answer to any such proposai, if that indeed is the intent of Respondent's
point. In its Advisory Opinion of July 20, 1962, relating to Certain
expenses of the United Nations, the Court said (page 155 of the volume of
Judgments 1962):
"It has been argued that the question put to the Court is inter
twined with political questions, and that for this reason the Court
should refuse to give an opinion. It is true that most interpretations
of the Charter of the United Nations will have political significance,
great or small. ln the nature of things it could not be otherwise. The
Court, however, cannot attribute a political character to a request
which invites it to undertake an essentially judicial task, namely,
the interpretation of a treaty provision."
Mr. President and Members of the Court, may I conclude in thanking
the Court for its attention, with a statement with which I opened my
comments:
"It 1s possible to achieve the Rule of Law only because this
Court sits."
Thank you. QUESTIONP SUT BY THECOURT 369
9. ANSWERS TO QUESTIONS PUT BY MEMBERS
OF THE COURT
Le PRÉSIDENT:Maintenant je donne la parole à Monsieur l'agent de la
République sud-africaine seulement pour répondre à des questions qui
ont étéposéespar de:; membres de la Cour.
DR. VERLOREN VAN THEMAAT:Monsieur le Président, la réponse à la
question poséepar M. le Président Basdevant est la suivante: l'expres
sion u n'ont pas de locus standi>>employée dans le contexte indiqué par
M. le Président BasdEvant signifie une absence de compétence des de
mandeurs à introduire ou soutenir la présente affaire conformément à ou
en vertu de l'article 7 du Mandat. L'expression locus standi est une
abréviation de l'expression locus standi in fudicio, c'est-à-dire littérale
ment une place pour se présenter à la barre, Dans la pratique judiciaire
générale,l'expression signifie la compétence de recourir à la procédure
judiciaire.
Monsieur le Président, sila Cour le veut bien, M. de Villiers répondra
maintenant aux questions posées par sir Percy Spender. Quand M. de
Villiersaura fini sa réponse, je soumettrai une requête d'amender nos
conclusions. Merci Monsieur le Président.
Le PRÉSIDENT:La ·-)aroleest à Monsieur de Villiers.
Mr. DE VILLIERS: l\frPresident, in presenting this reply to the ques
tions put by Sir Percy Spender, I would like to state at the outset that
this is the best we can present within the limited time at our disposa!.
I say that for this purpose, that if the Court, or any Member of the Court,
should feelthat we could be of further assistance by further investigation,
further research, or b:v amplification of what we state in reply to the
questions, then we would naturally be only too pleased to co-operate in
that regard, and to put before the Court anything further that may be
indicated in a request to us. Whether that should be by further. oral
representation, or in lirriting, would be a matter which we could leave
to the Court if it should wish to address a further request to us.
The questions as put by Sir Percy Spender required answers "in as
summary and as preci,e a form as possible". For that reason, we have
prepared our answers in writing and, contrary to what I have been doing
thus far, I shall more or less read the answers to the Court with a mere
deviation here and there for purposes of brief comment.
\Ve suggest that the following historical facts fumish a background
for answering the questions put by Sir Percy Spender. The first is, that
on 7 May 1919, the Ccuncil of Three, represented by Monsieur Clemen
ceau, President Wilson and Mr. Lloyd George, announced that they
had "decided on 6th May as to the disposition of the former German
colonies as follows:"and then, one of the items following was: "German
South West Africa: The Mandate shall be held by the Union of South
Africa". The quotation, Mr. President, is from the League of Nations
Official Journal of Jum:,1920, at page 206. We refer to that matter also
in our Preliminary Objections, at page 220 (1), and I can further refer the
Court in this regard to Kluyver, Docitments of the League of Nations,370 SOUTH WEST AFRICA
pages 291 and 292; H. Duncan Hall, Mandates, Dependencies and
Trusteeships, pages 145 and 146; Quincy Wright, Mandates under the
League ofNations, page 43; Temperley, A History of the Peace Conference
of Paris, Volume II, page 241.
Itwill be noted, Mr. President, that this disposition occurred before
the Covenant of the League of Nations came into force, the date of this
latter event being ro January 1920, and even before the Treaty of
Versailles was signed, that date being 28 June 1919. Therefore, I
might add that, with a view toits significance in regard to the questions
put, this was long before the Council of the League came into existence.
The next important fact, or group of historical facts, was the following.
A Commission of the Supreme Council of the Principal Allied and
Associated Powers, under the chairmanship of Lord Milner, prepared a
draft Mandate for South West Africa, together with other draft Mandates,
in the summer of the year 1919. We :findreferences to this fact in Quincy
Wright, at page 47; in the work of E. M. House and C. Seymour, What
really happened at Paris, pages 227 and 440; in the work of Temperley,
to which I have referred, Volume II, at page 237; in Duncan Hall,
at page 136.
We know from these sources that a draft was prepared, but that the
transmission of the draft to the Council was delayed because of a differ
ence of opinion regarding the question whether the open-door principle
was intended to be applicable in the case of C Mandates. Further refer
ence may be found to this point in Kluyver, at page 292; Temperley,
page 239; Quincy Wright, pages 47, 48 and 50.
Still in connection with the drafting of the Mandates, the determi
nation of the terms of the Mandates, we find that the Council of the
League, on 5 August 1920, decided to request the Principal Powers to
do certain things. We find that in a resolution of the Council of that
date. Firstly, the request was to:
"name the Powers to whom they [the Principal Powers] have decided
to allocate the Mandates".
And further, inter alia,
"to communicate toit [the Council] the terms and conditions of the
Mandates that they propose should be adopted by the Council from
following the prescriptions of Article 22".
In other words, here was an invitation to the Principal Powers by the
Council to make proposals, but proposals only in regard to terms which
they proposed should be adopted by the Council, the indications being
that the definitive action was intended to be that of the CounciL
We find further (I will give the references in a moment) that the
Council also decided in that same resolution-at any rate on the same
day-that it would:
"take cognizance of the Mandatory Powers appointed and will
examine the draft mandates communicated to it, in order to as
certain that they conform to the prescriptions of Article 22 of the
Covenant.
The Council will notifyto each Power appointed that it is investe.d
with the Mandate, and will, at the same time, communicate to 1t
the terms and conditions." ÇiUESTIONS PUT BY THE COURT
371
·The reference is to the Hymans Report, which was approved by the
Council at its San Sebastian session. We find it in the League of Nations
Official journal, No. 4 of 1920, at pages 334 et seq. There is a reference
also to the same matter in Quincy Wright, at pages 109 to rrz; and in
Duncan Hall, at pagE 146.
Next, Mr. President, we find that the minutes of the Council of the
14th December 1920, in other words, about four or five months after
the request of Augw;t, indicate that on that date Mr. Balfour, the
United Kingdom reptesentative,
"handed in draft mandates proposed by the British Government for''
a certain number of territories, and that list of territories included,
inter alia, German South West Africa. The reference there is to the
League of Nations Ofjicial journal, 2nd Year, No. 1, page II. And we
find that the minute, further reveal that the Council referred these
drafts to the Secretariat:
"to consider the Mandates and to consult other legal experts on
any points they ·:onsidered necessary".
Mr. President, the next stage in the developments was that on
17 December 1920, the Council of the League considered a memorandum
on the drafts, which had been prepared (the memorandum had been
prepared) by its Secr•:tariat, and this memorandum contained certain
suggestions for amendments which were subsequently accepted by the
Council. The fact tha't that was so, relative to certain amendments, is
referred to in the League of Nations Official journal of the 2nd Year,
No. 1, at page 12, and there isalsoareferenceinDuncanHall,atpage153.
But those sources do not reveal exactlv what the amendments were. We
know what the ultimate result was; we do not know from those sources
what the Balfour draft was on the particular points in respect of which
there were amendments.
We did not know-and I say we as representing the Respondent-did
not know that either, until this further research resulting from the
questions put by Sir Percy Spender. We have now at last succeeded in
gaining access to the document-the Balfour draft-in this regard, and
that reveals what these amendments were. But before I refer to them I
must ask the leave of the Court to do so because of the factthat the
document itself which we can offer in proof has not arrived from Geneva.
We have the assuranΠof the librarian at Geneva that the document is
there and it is being forwarded. We know exactly what the textual
points of importance are as far as the amendments are concerned, and
I am in a position to tell the Court what they are, ifthe Court would
accept them as being subject to proof and subject to our filing of the
document when it affives from Geneva. Could that please be rendered
to the Court first?
May I proceed, Mr. President? I thank you.
It appears that the amendments related to the following points.
Firstly,the fourth pangraph of the preamble of the declaration as it
now exists, Annex B to our Pleadings, that was added by the Council;
that is the fourth panigraph of the preamble which reads:
"Whereas, by the aforementioned Article 22, paragraph 8, it is
provided that the degree of autbority, control or administration to
be exercised by the Mandatory not having been previously agreed SOUTH WEST AFRICA
372
upon by the Members of the Lea~e, shall be explicitly defmed by
the Council of the League of Nat10ns."
The Council appears, if I may interpose, by the insertion of this portion
of the preamble, to have emphasized the need for definitive action on
the part of the Council and to have referred specifi.cally to paragraph 8
of Article 22 as explaining the sense in which the Council would act,
the sense of defining the degree of authority, control or administration
to be exercised by the Mandatory.
Then, a consequential amendment, or what appears to be conse
quential, was made in the last words of the preamble, or shall we say
the words following on the preamble, the last words before the operative
portion. There the original words were: "The Council hereby approves
the terms of the mandates as follows." For those words there were
substituted the present words, namely: "Confirming the said Mandate,
defines its terms as follows."
The third alteration concerned Article 7. Perhaps one should say the
third and fourth, because it entails alterations both in the first part of
Article 7 and in the second part. The original clause, as contained in
the Balfour draft, read as follows:
"The consent of the Council of the League of Nations is required
for any modification of the terms of the present Mandate."
Thus far there is no difference; but then what the draft contained in ad
dition was this:
"provided that in the case of any modification proposed by the
Mandatory, such consent may be given by a majority".
I do not know that any significance attaches to that point for our
purposes, but that was the point of difference in that regard.
Then as regards the second portion, the compromissory clause in the
Balfour draft read as follows:
"If any dispute whatever should arise between the Members of
the League of Nations relating to the interpretation or the appli
cation of these provisions which cannot be settled by negotiation,
this dispute shall be submitted to the Permanent Court of Inter
national Justice provided for by Article 14 of the Covenant of the
League of Nations."
The Court will immediately see the significance. Where we now have
a dispute between the Mandatory and another Member of the League
of Nations, the original idea was a dispute between the Members of the
League of Nations.
The Court will recall that my learned friend Mr. Muller, in dealing
with our third objection, on ro October referred to a report by
Viscount Ishii, commenting on the amendments which had been brought
about to the drafts in the Council of the League. At that stage we did
not know exactly what the formulation of the original draft was, but
one could get an indication of that from this report. \Ve frnd it in the
Verbatim dealt with at page 215, supra, and there is this citation
from the report by Viscount Ishii. I refer to the last paragraph of it.
Perhaps I should refer to the whole citation. It begins by setting
out that:
"The Council will perhaps desire to alter the first paragraph of
this article so that it shall read as follows:" QUESTIONS PUT BY THE COURT 373
and then the reading :followswith the comment:
"A similar alteration has been made by the Council in the draft C
mandates. It wa~ inspired by the consideration that Members of
the League other t han the Mandatory could not be forced against their
will to submit their differences to the Permanent Court of Inter
national Justice."
I refer to this mereiy in passing as supporting the point made there
by my learned friend, Mr. Muller, in this regard, that that original
formulation contains no suggestion whatever of any judicial supervision
ofthe Mandate. lt relates to prospective disputes between Members of
the League, and the reason for the alteration also indicates no intention
whatever of providing for judicial supervision. The reason was simply
the one as stated ther,~.
Those then were, as far as we have been able to ascertain, the
alterations actually d,!cided upon, the amendments decided upon by
the Council of the League after considering the draft as proposed by
Lord Balfour on behalf of Great Britain.
Now, Mr. President, in the light of this historical survey, perhaps I
should say against its ·,Jackground, we submit that the questions put by
Sir Percy Spender may be answered as follows:
I read out for the purposes of convenience the formulation of the
question and then the answer.
Question I.Had the tenns or provisions of the Mandate as they appear
in that declaration, and the designation of the Respondent as Mandatory,
already been agreed 1o between the Principal Allied and Associated
Powers and His Britannic Majesty on behalf of the Respondent, prior
to any action taken thereon by the Council of the League, subject
however only to the approval by the Council of these terms or provisions
to the extent it was required to define the degree of authority, control,
or administration to be exercised by the Mandatory under Article 22 (8)
of the Covenant, and to satisfy itself that these provisions and terms
were not inconsistent v,ith the provisions of Article22 of the Covenant?
If so, in what docum,~nt or documents is such agreement recorded?
Our answer is, Mr. President, that this question can best be answered
in two parts, separating the designation of the Respondent as Mandatory
from the determinatiŒ1 of the terms of the Mandate, since these two
matters were dealt with separately.
First, then,the designation of South Africa as Mandatory for South
West Africa was a func1ion of the Principal Allied and Associated Powers.
Such designation was decided upon by them on 6 May 1919 and notified
to the Respondent on 7 May 1919, for which fact we have already
cited the necessary prcof. .
Then, secondly, the terms of a draft mandate for South West Africa
were drawn up and a-oproved by the Principal Powers, subject to a
reservation by one of t;1em on the question of omission of an open-door
provision. The terms of the draft differed in the respects which I have
already indicated from the declaration as now contained in Annexure B
to the Preliminary Obj,~ctions and to the Observations.
Now, on the question whether there was any agreement to, or approval
of, the terms of this d:.:aft by the Respondent as Mandatory, on that
question we, the Respc-ndent's representatives, can, on the information
available to us, take the matter no further than to say that agreement SOUTH WEST AFRICA
374
or approval is suggested by certain factors. The first is the statement
which we find in the third paragraph of the preamble of the declaration
that:
"... His Britannic Majesty, for and on behalf of the Government
of the Union of South Africa, has agreed to accept the Mandate in
respect of the said territory and has undertaken to exercise it on
behalf of the League of Nations in accordance with the following
provisions;"
Knowing, as we do, that that was a provision which had already occurred
in the draft and was not amended by the Council, it appears to show
that there must have been prior indication of approval or assent to the
terms of the draft by the Mandatory.
The second factor is that the United Kingdom was one of the
Principal Allied and Associated Powers and thàt the Government of the
United Kingdom, under the designation "His Britannic Majesty",
formally represented the Government of the Union of South Africa in
the acceptance of the Mandate, thus rendering probable that there would
_have been consultation between the United Kingdom and South· African
Governments as to the terms of the draft.
And, thirdly, almost a corollary to the previous point, is the fact
that the draft was "handed in" to the Council by the United Kingdom
representative as one of the "draft mandates proposed by the British
Government". That was the phraseology used on the introduction of
the draft.
Therefore, Mr. President, there is no question here of a formai
document, in the sense of a treaty or convention, which can be referred
to as indicating an agreement as between the Mandatory and the
Principal Powers prior to the matter being referred to the Council of
the League. There are these indications that there was probable agree
ment as between the Mandatory and the Principal Powers as to what
these proposed terms should be, as to what the terms of the draft should
be. That is as far as the matter goes. ·
In our submission, all the available evîdence as we have dealt with it
suggests that in so far as there may have been such agreement, that
agreement was not intended to be constitutive of a treaty or convention
to corne into force between the Principal Powers and the Mandatory.
The agreement, which we infer must have been there, concerned merely
the terms of a draft mandate to be submitted to the Council for its ap
proval, in other words proposed terms for definition by the Council.
The very submission to the Council implied an acknowledgment of a
right or power on the part of the Council to disapprove and/or amend
the proposed terms, and we know that that power was in fact exercised
as regards amendment.
That submission to the Council also carried an acknowledgment, or
shall Iay a contemplation, that only appropriate action on the Council's
part would legally bring terms of a Mandate into force, that appropriate
action being definibon in terms of, or in pursuance of, Article 22 (8) of
the Covenant.
We find also that the wording and the contents of the proposed terms
show that they were not designed or intended for operation as between the
:Mandatory, on the one hand, and the Principal Powers as such, on the
other hand. They do not purport to set out a legal relationship which QUESTIONS PUT BY THE COURT 375
was to operate as bctween the Mandatory and the Principal Powers as
such. That is not the way in which they were designed, that is not the
way in which they reaè., that is not their apparent purpose at a11.
We find, therefore, that there was apparently in fact no contemplation
that such agreement as there may have been between the Mandatory
and the Principal Powers prior to reference of the matter to the Council
of the League, could fü;elf be regarded as being of the nature of a treaty
or convention. Action i.n accordance with that view of the situation, to
which reference may b~ made, is that of the United States of America,
which was one of the Prlncipal Powers that acted at the stage of allocation
of the Mandates and at the stage of preparation of draft mandates, but
who later, because of the fact that the Treaty of Versailles was not
ratified on behalf of tht: United States, entered into separate agreements
and conventions with the various Mandatory Powers in order to secure
rights in the Mandated territories such as a Mernber of the League would
otherwise have. That indicates an absence of a contemplation that by the
rnere agreement with the Mandatory as a Principal Power at the tirne
any such treaty would have corne into operation. .
We conclude, therefore, in answer to this question that there would
be no justification in law, in our submission, for saying that a treaty
or convention came int,) force between the Mandatory and the Principal
Powers by reason of the probable agreement between thern, prior to any
action taken by the Co1mcil, upon proposed terms for the Mandate.
[Public h,iaring of 22 October r962, afternoon]
Mr. President, I proceed with question 2, which read:
"Did the Council of the League, in relation to the creation of the'
Mandate, have ur·.der the Covenant or otherwise any power or
authority
(a) to determine the terms and provisions of any Mandate other
than those which defined the degree of authority, control or admin
istration to be exercised by the Mandatory and to ensure that the
terms and proviskns were not inconsistent with the provisions of
Article 22 of the C,wenant? or
(b) did it have any power or authority to designate a Mandatory
or confer a Mandate on any Power?"
and then there is a further general question under 2:
"And did it ever purport to exercise any such power or authority
in relation to the Mandate?"
Our answer is as to (i•)Article 22 did not confer on the Council of the
League any power to determine the terms and provisions of any Mandate
apart from the definition of authority, control or administration as set out
in Article22 (8).Under Article 4, paragraph 4, of the Covenant, however,
the Council could deal "rith:
"any rnatter within the sphere of action of the League or affecting
the peace of the world".
This gave the Council a general power which it was possibly entitled to
use in relation to the cn~ation of Mandates in so far as such action might376 SOUTH WEST AFRICA
be conducive ta the achievement of the purposes of Article 22 and was
not inconsistent with the terms of that Article or with the rights of the
Mandatory. We would not strenuously contesta suggestion ta the effect
that, on that basis, the Council might be said to have power ta make pro
vision for matters ancillary ta those expressly mentioned in Article 22.
As ta (b), no power or authority to designate a Mandatory or confer a
Mandate on any Power was given ta the Council of the League.
And then the general question as ta what the Council purported to
do in this regard, our answer is: the Council of the League never purported
to exercise anypower or authority such as is referred to in part (b) of the
question. In regard to a power or authority as referred to in part (a) of
the question, the Council might possibly be taken ta have purported such
exercise with reference to the compromissory clause in Article 7 of the
Mandate, with the Mandatory's consent and in accordance with the
considerations which we have mentioned above at the conclusion of our
answer to part (a) of the question.
We corne then to question 3:
"Does àny party to these proceedings daim that the Declaration
by the Council (Annex B) is in itself a treaty or convention?"
Our answer is this: in its written Objections and oral statements
Respondent proceeded on the assumption that the Mandate for South
West Africa, as recorded in the Declaration by the Council (Annex B),
was during the lifetime of the League of Nations a treaty or convention
in itself,that is, an international agreement between the Mandatory
on the one hand, and, on the other, the Council representing the League
and/or its Members. We stated several times, Mr. President, that that
proposition could be taken to be common cause as related to the period
of the lifetime of the League.
The questions now raised, however, necessitate reconsideration
of this assumption. And we submit that the alternative view might well
be taken that in defining the terms of the Mandate, the Council was taking
executive action in pursuance of the Covenant (which of course was a
convention) and was not entering into an agreement which would itself
be a treaty or convention.
This view-we put it no higher than aviewthat might be taken-would
regard the Council's Declaration as setting forth a resolution of the Coun
cil, which would, like any other valid resolution of the Council, owe its
legal force to the fact of having been duly resolved by the Council in the
exercise of powers conferred upon it by the Covenant. This view would
further regard the Mandatory's consent not as a constituent element of
an international agreement, but as something intended to assure the
unanimity required for a Council resolution or, possibly, something in
tended to prevent possible prejudice on the part of the Mandatory, seen
as a League Member whose interests were affected within the meaning of
Article 4 of the Covenant, the Article which provided for special repre
sentation of a League Member on the Council in the event of consideration
of a matter affecting that Member's interests. We point out that the
Mandatory's assent, consent, or agreement could then possibly be
viewed on the basis of meeting with the requirements underlying those
provisions of the Covenant, as being something practically necessary
with a view to an effective Council resolution. QUESTIONS PUT BY THE COURT 377
We submit further that on the basis of this view the Declaration itself
would not be a treaty or convention, just as little as any other Council
resolution would be a treaty or convention; nor would it be part of the
convention .(the Coveuant) in pursuance of whlch it was made, just as
little as any other Coi;.ncilresolution would be part of the Covenant.
Such a view might, however, :possibly require qualification regarding
the compromissory de.use in Article 7 of the Mandate, which could not
subject the Mandatory to compulsory jurisdiction without the Manda
tory's consent thereto. Therefore, even on the basis on whlch we are
proceeding now, the consent of the Mandatory may well have to be viewed
in a different light aspplied to Article7 than as applied to the rest of the
Council's Declaration. Possibly that provision in Article 7 would for this
reason nevertheless have to be regarded as being of the nature of an
international agreement.
On the other hand--we are trying to put the two points of view in
tlus regard, Mr. President-support for the view that no portion of the
Declaration was intended to be a treaty or convention 1s afforded by
certain considerations. These are, firstly that it was called a "declara
tion" and nota treaty or convention; secondly that it was not signed by
any parties; thlrdly that it contained no provision for ratification, and
was in fact not ratified by any State-the Declaration itself merely pro
viding that certified copies were to be forwarded to all the signatories of
the Treaty of Peace viith Germany; and fourthly that the Declaration
was not intended to be registered under the provisions of Article rS of
the Covenant-as appeirs from its own terms, inasmuch as it provides in its
conclusion that it was to be deposited in the archives of the League.
Perhaps I could add a fifth consideration,to this effect: that there ap
pears to have been a large measure ofuncertainty amongst the commenta
tors, and historically on the part of the organs of the League themselves
on the question whether the Council ever had treaty-making capacity at
all; and I am told, although I cannot vouch for this statement-1 have
not made the investigations myself-that there is no case on record
where the Council pur-Jorted to enter into a treaty, unless one regards
the present case as being such a case.
Then we corne to question number 4, which reads:
"If thls Declaration was not in itself a treaty or convention, what
were the constituent elements which comprised the treaty or
convention; in particular, what other agreements, if any, or what
other acts on the part of any State or States established the treaty
or convention in relation to the Mandate on the terrns or provisions
setout in the Dedaration?"
Our answer is, Mr. President, that if Annex B was not in itself a
treaty or convention, in the sense as stated at the beginning of our
answer to the third question, then the Mandate cannot be regarded as
ever having been a treaty or convention at all----except that the possible
qualification regarding the compromissory clause in Article7 should again
.be mentioned here, as Y,ehave discussed it above, in relation to the alter~
.native .viewstated in answer to the third question.
We say further in .::,nswerto this question that the Covenant was a
treaty or convention; but on the alternative view in question-the
one stated in answer to the third question-Annex B would not be
part of such a convention, just as any other resolution of the Council SOUTH WEST AFRICA
or of the Assembly of the League could not be regarded as part of the
Covenant.
In the light, then, of the above answers to the questions put, our
answers to the final questions are as follows Mr. President:
Question A: "Who in 1920 were the parties to any treaty or convention
by virtue of which the Mandate was conferred ùpon the
Respondent upon the terms or provisions set out in the
Declaration?''
Our answer is: if Annex B constituted a treaty or convention, the
parties were on the one hand the Mandatory and on the other hand the
League of Nations and/or its Members as such (as set out in our oral
statements and our Preliminary Objections, especially at pages 307 to
. 312 (1) of the latter}: that is on the qualification "if Annex B constituted
a treaty or convention", the significance of that qualification appearing
from what we have stated before in answer to the other questions.
Question B: "If States, Members of the Leagu,e, were parties to such
treaty or convention: ·
(1) Was the treaty or convention registered under the
provisions of Article 18 of the Covenant and the
machinery for registration established by the League?
If so, by whom was it registered and to whom was
the certificate of registration issued?
(2) If not registered, what significance, if any, is to be
attached to the fact of non-registration?"
Our answer is (1): Annex B was not registered as a treaty or convention
under Article 18 of the Covenant, as is apparent from the Liague of
Nations Treaty Series, the official name being Publication of Treaties
and International Engagements registered with the Secretariat of the League
of Nations. The publication is available in the Carnegie Library and we
have checked this matter in that publication.
Secondly, that·is, as to question 2 under B, the fact that Annex B
was not registered seems to indicate that it was neither intended to be
nor regarded as a treaty or convention when adopted by the Council
of the League, inasmuch as the effect of non-registration was, in tenus
·of Article 18 of the Covenant, that a treaty or convention would not be
binding.
In any event, we submit that the effect of non-registration would
appear to be-we do not put it higher than that-that the Mandate,
either as a whole or as regards any portion thereof, for example, Ar
ticle7, could not have been "in force" at ·any time as a treaty or con
vention.
These, Mr. President, are our answers to the questions; and in the
light of those answers, and in order to enable the Court to give full
consideration to the alternative possible views set out therein, our Sub
missions will require some amendment. That will be dealt with by my
leamed friend and Agent, Dr. verLoren van Themaat.
I thank the Court again for its courtesy and consideration, which
has made the experience of appearing before it a very pleasant one. QUESTIONS PUT BY THECOURT 379
Le PRÉSIDENT:Maintenant je donne la parole à Monsieur l'agent de
l'Éthiopie et du Libéria pour sa réponse aux questions posées par les
Membres de la Cour. ·
Mr. GROSS:Mr. President and Members of the Court, first, the Agent
for the Applicants haia taken note that on 17 October 1962, Judge
Basdevant drew the Agent's attention to the use he had made of the
expression locus standi at the end of the hearing on 16 October. The
Agent for Ethiopia an-:l Liberia would like to take this opportunity
to state that the phrase locus standi was used as a convenient and
informal method by which we referred to the Applicants' right and
capacity, in these cases, to invoke the compromissory clause of Article 7
of the Mandate. As M. le Président, Judge Basdevant, pointed out,
the phrase appears neither in the Statute of the Court nor in the Mandate.
Our use of the phrase wa.snot intended in any sense or significance other
than as I have explairn:d.
During the hearings on the South West Africa cases on 17 October
1962, Judge Sir Percy Spender addressed to the Parties certain questions
with the request that they direct specific attention to them and answer
them in as precise a fonn as possible.
Question I
The answer to both inquiries embodied in the first sentence is in the
affirmative. The answer to the second sentence of Question 1 is that
the fact of prior agreement is recorded in paragraphs 2 and 3 of the
preamble of the Declaration of the Council of the League of Nations,
as set forth in Annex E of the Applicants' Memorials.
Comment on the foregoing answers:
Prior to any action tal:en by the Council of the League, the designation
of the Mandatory had ah-eady been decided upon. The decision was made
by the Principal Allied and Associated Powers, acting through the
Supreme War Council, and occurred on May 7, 1919. The fact of this
decision is recorded, inter alia, in Part V, Foreign Relations of the United
States (Paris Peace Con:ference 1919, at pp. 506-608.)
The Applicants are u:'laware of any place in which the fact of prior
agreement or decision on the terms or provisions of the Mandate is
explicitly recorded, othE,r than in the preamble referred to above.
The agreement of the Mandatory to submit to the compulsory juris
diction of the Court in accordance with the terms of Article 7 of the
Mandate is set forth in Article 7 itself, which is the only Article in the
Mandate commencing with the words "The Mandatory agrees".
Question 2
The response to part (a) is in the negative.
The response to part (b) is in the negative.
With respect to the inquiry embodied in the last sentence of Question 2,
the response is also in the negative. SOUTH WEST AFRICA
Question J
The response is in the affirmative.
Comment:
(a) It is agreed by the Parties to the present proceedings that the
Declaration by the Council (Annex B of the Memorials) is in itself a
treaty or convention. Relevant citations appear passim in the Prelim
inary Objections, Observations, and oral statements of Counsel for
all the Parties, as well as in Respondent's first submission that the
Mandate is "no longer" a treaty or convention in force.
(b) President Wilson's Third Draft Proposal for the Covenant of the
League of Nations, paragraph III, provided that the "degree of authority,
control or administration to be exercised by the mandatory State or
Agency shall in each case be explicitly defined by the League {later
"Council" was substituted for "League") in a Special Act or Charter
which shall reserve to the League complete power of supervision and of
intimate control, etc." (This is quoted in the Verbatim, at page 26,
supra.)
The reference to ''Special Act or Charter" appears to be significant.
In the text of many Mandates, it will be seen that the word "declaration"
(orin the French text, "exemplaire") is replaced by the word "instrument"
(or in the French text, "acte"). I remind the Court that in the draft of
President Wilson the reference is to a Special Act or Charter which is
to embody the undertaking.
Hence it is clear that the Mandate "instrument" or "declaration",
as the terms are used interchangeably, corresponds to the "Special Act
or Charter" envisaged in the draft proposal of President Wilson, which
I have quoted.
The "declaration" or "instrument" was the formal Act of the Council
of the League which embodied and evidenced the agreement between the
Mandatory Powers, on the one hand, and the other Members of the
League, on the other, the Council of course acting for the latter.
(c) The Permanent Court in the Mavrommatis case, at page 35, as
is clear from the èontext, described Article 26 of the Palestine Mandate
as an "international agreement".
(d) As appears from the Court's Opinion in the Mavrommatis case,
at page II, Great Britain agreed that "Article 26 of the Mandate falls
within the category of matters specially provided for in Treaties and
Conventions in force."
(e) Article 80, paragraph 1, of the United Nations Charter refers
in its final clause to the "terms of existing international instruments
to which Members of the United Nations may respectively be parties".
The history of Article 80, paragraph l, as well as the reference in
Article 77, paragraph I (a), of the Charter to "territories now held under
Mandate", show that the word "instrument" in Article 80, paragraph I,
refers to the Mandate "instrument" or "declaration" with respect to
the Mandates, as it is alternatively described in the Mandates themselves.
Article 80, paragraph 1, shows that the Members of the United Nations
were regarded as "parties" to these "instruments"~ Any "instrument"
which has "parties" is, ex hypothesi, an "agreement". QUESTIONS PUT BY THE COURT 381
(f) In the Advisory Proceedings, the Separate Opinion in 1950 of
Judge McNair and the Majority Opinion-the former specifically and
the latter inferentially-treated the compromissory clause of Article 7
of the Mandate as a "treaty or convention in force". The reference to
the inferential use by the Majority Opinion refers to the phrase "having
regard to Article 37 of i:he Statute of the International Court of Justice"
which is the phrase merl by this honourable Court in referring to the
compromissory clause m the 1950 Advisory Opinion.
Question 4
In the light of the re~ponse to Question 3, supra, the inquiry embodied
in the first sentence of Question 4 is not required to be answered.
Question A
Respondent, specific:ùly, and all other States who were at that time
Members of the Leagm: of Nations were such parties.
Question B
(1) The response to the inquiry embodied in the first sentence of
Question B (1) is in the affirmative:
The response to thE: inquiry embodied in the second sentence of
Question B (1) is as follows: The Declaration contained in Annex B to
the Memorials was ordcred by the Council of the League of Nations to
be deposited in the archives of the League of Nations. The Council also
ordered that certified copies were to be forwarded by the Secretary
General of the League of Nations to all Powers signatories of the Treaty
of Peace with Germany.
Applicants have not received specific information concerning the date
or circumstances of the actual deposit of the Declaration. That such
:ieposit was in fact mad,!, however, is evidenced by the fact that certified
copies were duly forwa;:ded by the Secretary-General of the League of
Nations on 17 February 1921 to all Powers signatories to the Treaty
of Peace with Germany.
Applicants have not received information whether a "Certificate of
Registration" was issued.
Comment:
The Council of the League of Nations established at least two pro
cedures for the registra"tion of treaties. Special provision was made·for
treaties which were placed under the care of the Secretary-General of
the League. (This may be seen from a memorandum approved by the
Council of the League of Nations, meeting in Rome on May 19, 1920,
set forth in League of Nations Treaty Series, Vol. 1,Number I,at p. 9.)
.Moreover, orders by the Council pertaining to the deposit of Mandate
Declarations (or Instruments) and the transmittal of certified copies
thereof, in purpose and effect constituted a registration procedure
appropriate to the regi~tration of Mandates. The procedure which was.
followed made the Mandates public documents, thereby accomplishing
the objectives of ArticlE:18 of the Covenant of the League of Nations. ·382 SOUTHWEST AFRICA
(2) In the light of the response to Question B (r)supra,this question
does not appear to require an answer.
Question C
Respondent, specifically, as well as all other States which were
Members of the United Nations at the date of the Applications in these
proceedings, and/or Members of the League of Nations at the time of
its dissolution were such parties.
Respectfully submitted. Thank you, :\fr. President.
Le PRÉSIDENT:Maintenant, je donne la parole à M. l'agent de la
République sud-africaine.
Dr."vERLOREN VAN THEMAATM : r. President, for the reasons indicated
in our answers to the questions of Sir Percy Spender, and with the
leave of the Court, we hereby amend our Submissions by substitution
of. the following paragraph for the paragraph commencing with the
word "Firstly" :
"Firstly, the Mandate for South West Africa has never been, or,
at any rate is since the dissolution of the League of Nations no
longer, a 'treaty or convention in force' within the meaning of
Article 37 of the Statute of the Court, this Submission being
advanced
(a) with respect to the Mandate as a whole, including Article 7
thereof; and
(b) in any event, with respect to Article 7 itself."
\Ve willhand over the full text of our amended Submissions to the
Registrar.
I thank the Court.
Le PRÉSIDENT:M. l'agent de l'Éthiopie et du Libéria voudrait-il
énoncer des amendements à sa conclusion?
Mr. GRoss: Mr. President, the Agent for the Applicants does not wish
to amend its Submîssions, but respectfully requests leave of the Court
to file the conclusions in written form within time-limits fixed by the
Court on the subjects which have been introduced by the Respondent,
and in particular by reason of the amendment which Respondent has
made of its Submissions.
Le PRÉSIDENT:De toute façon ce délai, si la Cour l'accorde, ne sera
pas considérable.
M. l'agent de l'Éthiopie et du Libéria voudrait-il lire ses amendements .
ou ses conclusions amendées en audience publique?
Mr. GROSS:Mr. President, we do not intend to amend our Submissions.
\Ve would like to reserve the right·to submit conclusions in the light
of the amendments which have now been made by the Respondent in
its Submissions. \Ve do not ourselves intend to amend our Subrnissions.
In reserving this right, Mr. President, it is our feeling that in view of
the fact that, by response to, or in the form of a response to, the questions
raisedby Judge Sir Percy Spender, a substantive issue may be presented
which we should like to study. It is simply a reservation of the right
to submit comments and conclusions with respect to that Submission QUESTIONS PUT BY THECOURT
that Applicants respectfully request. If, upon study within a short time
limitset by the Court, Applicants conclude that no such memorandum
or comments are neŒssary, we shall advise the Court through the
Registrar and not take advantage of the right which we have reserved.
Le PRÉSIDENT:Alors, dans ces conditions-là, je ne déclare pas encore
la procédure orale close et je prierai les agents des Parties de se tenir
pendant un certain t,~mps à la disposition de la Cour pour le cas où
elle voudrait leur demander des éclaircissements supplémentaires.
Les Parties seront aviséesde la décision de la Cour en ce qui concerne
l'audience éventuelle.
Minutes of the Public Hearings held at the Peace Palace, The Hague, from 2 to 22 October and on 21 December 1962, the President, Mr. Winiarsky, presiding