INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIA v. SOUTH AFRICA;
LIBERIv.SOUTH AFRICA)
VOLUME IX
1966
COUR INTERNATIONALE DEJUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIEc. AFRIQUE DU SUD;
LIBÉRIAcAFRIQUE DU SUD)
VOLUME IX The present volume contains the continuation of the oral arguments
on the merits in the South West Africa cases and covers the period
27 April to 15 June 1965. The beginning of the oral arguments on the
merits (15 March to 26 April 1965) is published in Volume VIII, pages
ro5-712. The proceedings in these cases, which were entered on the
Court's General List on 4 November 196o under numbers 46 and 47, were
joined by an Ortler of the Court of 20 May 1961 (South West Africa,
Order of 20 May I96I, I.C.J. Reports I96I, p. 13). Two Judgments
were given, the first on 21 December 1962 (South West Africa, Preli
minary Objections, Judgment, I.C.f. Reports I962, p. 319), and the
second on 18 July 1966 (South West Africa, Second Phase, Judgment,
I.C.J. Reports I966, p. 6).
Cross references correspond to the pagination of the present edition,
the volume being indicated by a roman figure in bold type.
The Hague, 1966.
Le présent volume contient la suite des plaidoiries sur le fond relatives
aux affaires du Sud-Ouest africain, et porte sur la période allant du 27
avril au 15 juin 1965. La première partie des plaidoiries sur Je fond (15
mars-26 avril 1965) est publiée dans le volume VIII, pages ro5 à 712.
Ces affaires ont étéinscrites au rôle généralde la Cour sous les n°• 46 et
47 le 4 novembre 1960 et les deux instances ont étéjointes par ordon
nance de la Cour le 20 mai 1961 (Sud-Ouest africain, ordonnance du 20 mai
I96I, C.I.]. Recueil I96I, 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 I962, p. 319) et le 18 juillet 1966 (Sud-Ouest africain,
deuxième phase, arrêt, C.I.J. Recueil I966, p. 6).
Les renvois d'un mémoire à l'autre ont étémodifiés pour tenir
compte de la pagination de la présente édition. Lorsqu'il s'agit d'un
renvoi à un autre volume de la présente édition, un chiffre romain
gras indique le numéro de ce volume.
La Haye, 1966. CONTENTS - TABLE DES MATIÈRES
PART II. ORAL ARGUMENTS (continued)
DEUXIÈME PARTIE. PLAIDOIRIES (suite)
ANNEXES TO THE MINUTES (continued)
ANNEXES AUX PROCÈS-VERBAUX (suite)
Page
9. Argument of Mr. Gross (Ethiopia-Liberia), 27-28 IV 65. . 3
Premature submission of the proposal . . . . . . . . . 4
Purposes asserted by Respondent to underlie its proposal 8
Applicants' contentions in respect of issues of fact. . . . . 16
No purpose would be served by inspection in loco or by calling
witnesses . . . . . . . . . . . . . . . . . . . . . . 24
The facts are beyond dispute. . . . . . . . . . . . . . . 27
Task of the Court should it be called upon to examine all the
facets of the factual situation . . . . . . . . . . . . . . 29
Respondent's obligations pursuant to Article 22 of the Cov-
enant and Article 2 of the Mandate . . . 32
Political questionsand legal questions . . . . . . . . . . . 32
International supervision over the Territory . . . . . . . . 35
The concept of good or bad faith and the concept of authorized
purpose . . . . . . . . . . . . . . . . . . . . . . . 37
International legal norms and international standards . . . . 42
Reply to Judge Sir Gerald Fitzmaurice's questions (28 April) . 44
Areas proposed to be examined . . . . . . . . . . . . . . 47
Inspection in the Republic of South Africa. . . . . . . . . 50
The Applicants' submission . . . . . . . . . . . . . . . 53
IO. Argument of Mr. de Villiers (South Africa). 28 IV65. . . . . 54
If no value judgmen t asked, factual enquiry would be irrelevant 54
II. Argument of Mr. Gross (Ethiopia-Liberia), 28-30 IV 65. . . . 56
Reply on the subject of a value judgment . . . . . . . . . 56
Reply to the President's question concerning Submissions 3
and 4 . . . . . . . . . . . . . . . . . . . . . . . . 58
Met!iod suggested by the Applicants for taking evidence from
witnesses . . . . . . . . . . . . . . . . . . 63
"Value judgment" by the Court . . . . . . . . . . . • 64
I2. Argument of Mr. de Villiers (South Africa), 30 IV65. . . . 66
Whether inspection irrelevant depends on Applicants' case. 66
Applicants rely only on norm or standards. . . . . 66
Good intentions or results irrelevant . . . . . . . 67
Do factùal allegations in the pleadings still stand?. 67
Paragraphs 187-190 of Chapter V of the Memorials 68
Allegations inthe Reply. . . . . . . . . . . . 70X SOUTH WEST AFRICA
Page
Norm refers to relativelyfew adverse aspects of Respondent's
policy. . . . . . . . 72
Training of engineers . 73
Nature of restriction. 73
Number affected . . 74
Necessary to draw dividing lines 75
Applicants rely also on standards . 76
What are standards? . . . . . 76
How should Court apply them?. 77
Contents of norm . . . . . . . . 77
What is the distinction between differentiation and dis-
crimination? . . . . . . . . . . . . . . . . . . . 78
Does such distinction depend on fact? . . . . . . . . . 80
Sum·mary of eventualities which would render inspection
necessary . ·. . ·. ·. . . . . . . . . . . . 80
(a) If an alternative factual charge remains . . . . 80
(b) If existence of nonn justified on a factual basis. 80
Weight of scientific authority . . . . . 81
'(c) If standards required factual enquiry 82
·(d) If a. qualification in the norm requires a factual
enqmry . . . . . . . . . . . . . 82
Respondent not prepared to concede that inspection un-
necessary . . . . . . . . . . . . . . . . 82
13_.A~gÙ~ent of Mr. ç.ross (Ethiopia-Liberia), 3 v 65. . . . 83
Reply to Mr. de Villiers . . . . . . . . . . . . . . . 83
Apartheid is a per se violation of the provisions of Article2,
.paragraph 2,of the Mandate . . . . . . . . . .. . . .. . 84
The "value judgment". . . . . . . . . . . . . . . . . . 85
Divergence of views between the Applicants and the organized
international community on the one hand, and Respondent
on the other . . . . . . . . . . . . . . . . . . . 87
14. Argument of Mr. de Villiers (South Africa), 3 v 65 94
Basis of Applicants' case relevant to inspection proposai. 94
Do factual allegations stilltand? . . 95
Submissions 3 and 4 still unamended 96
What facts are admltted. 97
Explanations. . 97
Education . . . 97
Land ownership 98
Influx control . . . . . . . . 98
·Advantages of separate development 98
Disadvantages of alternative policy . 98
Respondent's state of mind . . . . . . IOO
The population of South West Africa is m favour of
separate dcvelopmcnt . . . . . . . . . . . . . . 101
The necessity of interim measures. . . . . . . . . . IOI
Applicants' apparent case as at present formulated (assuming
that above facts admitted). . . . . . . . . . . . . . IOI CONTENTS XI
Page
Standards involve a factual enquiry. . . . . . . . . . • ro2
Witnesses to be called. . . . . . . . . . . . . . . . ro2
Purpose of evidence . . . . . . . . . . . . . . . . . ro3
Can be avoided only if Applicants rely solely on judgments
of internationalbodies. . . . . . . . . . . . . . . ro3
Judgment on legal questions could render inspection redun-
dant . . . . . . . . . . . . . . . . . . . . . ro4
Application for inspection not too early and not too late. 106
Not too late . . . . . . . . . . . . . . . . 106
Not too early . . . . . . . . . .. . . . . . ro6
Sorne reasons for opposing inspection are frivolous ro8
Real reason for opposition . . . . . . . . . . 108
Hearing of witnesses on inspection . . . . . . 109
Petitioncrs . . . . . . . . . . . . . . . . no
Motivation of Applicants not relied upon by Respondent no
What the Court will see in South West Africa III
Whether the norm could apply . . . . . . II2
Nursing Act . . . . . . . . . . . . . . .. II4
Whether useless for a committee to go. . . n5
How could impressions be recorded . . . . n5
Whether States outside Africa should be visited n6
Conditions on visit to South Africa . . . . . . n6
Limitation also as regards other States. . . . . . . II7
Court would virtually become administrative supervisory
organ . . . . . . . . . . . . . . . . . . . . . . 117
Convenience, expense and time . . . . . . . . . . . . II7
Practical arrangements . . . . . . . . . . . . . . n8
Certain decisions of the Court would avoid necessitv of
factual enquiry . . . . . . . . . . . . . . . .· . . II8
Extent to which factual enquiry necessary for issues under
Article 6. . . . . . . . . . . . . . . . . . . . . n9
Proposai re depositions by witnesses not acceptable . . . r20
15. Statement by Mr. Gross (Ethiopia-Liberia), 4 v 65 . . . . . 122
Agreement that might be reached between the Applicants and
the Respondent with regard to the depositions . . . . . . 122
16. Reply by Mr. Gross (Ethiopia-Liberia), 7-19 v 65 . . . . . . 124
Reply to Judge Jessup's question (of 19 April) . . . . . . . 124
Question of the survival of international supervision . . . . 125
Historical circumstanccs upholding the Applicants' general sub-
missions . . . . . . . . . . . . . . . . . . . . . . 125
Mr. Nicholls' statement . . . . . . . . . . . . . . . . 142
Proposai for a temporary trustecship committee . . . . . 143
Question of the survival of international supervision (cont.) 15r
Pledge given by Respondent in 1946 . . . . . . . . . . 152
Chinese draft resolutions. . . . . . . . . . . . . . . . . 160
Respondcnt's dcsire to incorporate the Territory . . . . . . 161
Interpretation of Article 80, paragraph 1,of the United Nations
Charter . . . . . . . . . . . . . . . . . . . . . . . 162
Consequences of the lapsing of Article 6 and of the first para
graph of Article 7 of the l\fandate. . . . . . . . . . . . 165XII SOUTH WEST AFRICA
Page
Respondent's interpretation of the first paragraph of Article 7 166
Resolution adopted by the House of Assembly of the South
African Parliament and Respondent's communication of 23
July 1947 . . . . . . . . . . . . . . . . . . . . . . 171
Respondent's repudiation of its earlier statement . . . . . . 174
Case of Palestine . . . . . . . . . . . . . . . . . . . . 175
New facts alleged by Respondent to justify review of the 1950
Advisory Opinion . . . . . . . . . . . . . . . . . . . 187
United Nations supervision over the Mandate for South West
Africa. . . . . . . . . . . . . . . . . . . . . . . . 190
States alleged by Respondent to consider that the Trusteeship
Council did not intend to exercise supervision over the
Mandate. . . . . . . . . . . . . . . . . . . . . . . 196
Attitude of the Trusteeslùp Council towards Respondent's
policy................ ·. . . . . . . . 207
Article 73 (e) of the Charter . . . . . . . . . . . . . . . 217
States which, according to Respondent, did not consider that
the Mandatory was required to report to the United Nations 220
Decision of the United Nations as to hearing petitioners . . . 224
Judicial decisions on international supervision: the Court's
holdings on administrative supervision and judicial protec-
tion. . . . . . . . . . . . . . . . . . . . . . . . 227
Respondent's refusai to submit to international supervision . 232
The Odendaal Commission report . . . . . . . . . . . . . 233
The Applicants' 5th and 6th Submissions . . . . . . . . . 235
The Applicants' 9th Submission . . . . . . . . . . . . . 239
Various arguments advanced by Applicants and Rcspondent on
the subjcct of international supervision. . . . . . . . . 240
Scheme of the Applicants' arguments on the legal issues relating
to breaches of the sacred trust (Article 22 of the Covenant
and the second paragraph of Article 2 of the Mandate) . . . 242
A. lntroductory remarks-legal issues pertaining to the con-
tent and applicability of the norm and the standards . . 244
Necessity of focusing upon legal principles . . . . . . . . . 244
Views regarding the norm and the standards attributed to the
Applicants. . . . . . . . . . . . . . . . . . . . . . 246
Reasons for quoting scientific authorities . . . . . . . . . 250
Pointlessness of enquiring into Respondent's intentions . . . 252
A normand standards are recognized by the international com-
munity . . . . . . . . . . . . . . . . . . . . . . . 255
B. Reply to Judge Sir Gerald Fitzmaurice's question 8 (7May) 264
Reply to Judge Sir Gerald Fitzmaurice's question ro . . . . 265
Subordination of the first paragraph of Article 2 of the Mandate
to the second:
I. Judicial interpretationof the Mandate . . . . . . . . 265
2. Article 22, paragraph 6, of the Covenant . . . . . . . 268
3. Preparation and conclusion of the trusteeship agreements 269
C. Enumeration of the laws and measures, methods and prac
tices, relating topartheid, which constitute perse violations
of the nom1 or standards of non,discrimination . . 279
Norms and standards applicable . . . . . . . . . . . . . 281 CONTENTS XIII
Page
C. Enumeration of the laws and measures, etc. (cont.). 285
r.Economie aspects. . . . . . . . . . . . . . . 285
2. Political life . . . . . . . . . . . . . . . . . 288
3. Civil liberties . . . . . . . . . . . . . . . . 289
4. Educational advancement and social development 294
Reply to questions propounded by Judge Sir Gerald Fitz
maurice (7 May)-Summary of the Applicants' attitude in
the matter of legal issues (norms, standards, authoritative and
objective criteria, the concept of discretionary powers put
forward by Respondent) . . . . . . . . . . . . . . . . 299
1. Character of the legal obligation contained in the second
paragraph of Article 2 of the Mandate . . . . . . . . 303
2. Legat criteria applicable to the interpretation of Articl2
of the Mandate . . . . . . . . . . . . . . . . . . 304
3. Arguments Respondent might advance in rebuttal of the
charge of violating Article2 of the Mandate . . . . . . 304
D. Evolution, content and applicability of the standards and
the norm . . . . . . . . . . . . . . . . . . . . . . 306
Reply to Judge Sir Gerald Fitzmaurice's questions I, 2,3, 4
and 9 of 7 May . . . . . . . . . . . . . . . . . . . 307
Norm and standards; resemblances and differences . . . . 309
Discussion of the norm and standards: general observations 3u
Criticism of the Respondent's contentions as to the intention
and role of the norm and standards recognized by the orga-
nized international community . . . . . . . . . . . . . 3n
Processes by which the standards were evolved by the compe-
tent organs . . . . . . . . . . . . . . . . 326
The United Nations Charter . . . . . . . . . . 327
The resolutions. . . . . . . . . . . . . . . . 327
The Trust Territories Agreemento;-declarations and draft
declarations . . . . . . . . . . . . . . . . 336
The International Labour Organisation . . . . . . . . . . 337
The standards now qualify as legal norms in accordance with
Article 38 of the Statute of the Court . . . . . . . . . . 342
Factors influencing the development of international law . . 343
The unanimous consent of ail States is not essential to the
formation of an international norm or of international
standards . . . . . . . . . . . . . . . . . . . . . 345
The normand Article 38 (1) (a) of the Statute of the Court 346
The norm and Article 38 (1) {b) of the Statute of the Court 347
The norm and Article 38 (1) (c) of the Statute of the Court 353
The normand Article 38 (1) {d) of the Statute of the Court 357
Replies to Judge Sir Gerald Fitzmaurice's series of ten questions
(7 May) . . . 359
Introduction . . . . . 359
Question r . . . . . . 360
Question 2 . . • . • • 361
Question 3 . . . . . . 362
Questions 4, 5, 6 and 7 363
Question 9 . 363
Question 8 . . . . . . 364XIV SOUTH WEST AFRICA
Page
Reply to Judge Sir Gerald Fitzmaurice's question of 13 May 365
Reply to the President's questions (13 May) . . . . . . . 366
The Applicants' submissions . . . . . . . . . . . . . 373
17. Rejoinder of Mr. de Villiers (South Africa), 24 v-r8v165 377
lntroductory comments . . . . . . . . . . . . . . . 377
Applicants' reply was longer than thcir argument in chief 377
Change of ground in reply . . . . . . . . . . . . . . 377
Scheme of oral rejoinder. . . . . . . . . . . . . . . 377
\Vhether supervisory powers transferred to United Nations. 377
Increased importance of this issue in oral reply . . . 377
Militarization and unilateral incorporation. . . . . . 377
Norms and standards . . . . . . . . . . . . . . 378
Large parts of Respondent's case not traversed in oral
reply . . . . . . . . . . . . . . . . . . . . . . 378
Applicants' case in chief divided broadly into inter
pretation of mandate documents and events in 1945-
1946 and inferences relative to agreement . . . . . 379
No further argument to support contention of a general
_obligation of"internationalaccountability" 379
Lacunae in argument on events of 1945-1946 . . . 379
Consent to be established by necessary inference 379
Specific provision for other transfer . . . . . . 380
Registration under Article 102 of the Charter. 380
Report of Board of Liquidation. . . . . . . 380
Suggested proposai for incorporation in 1935 . 380
Non-applicability of estoppel . . . . . . . . 380
Non-applicability ofcy-pres . . . . . . . . 380
Effect of findings on advisory opinions and judgments on
preliminary objections. . . . . . . . . . . . . . . 380
Analyses of 1950 Opinion and 1962 Judgment . . . . . 381
Applicants' terms of abuse are no substitutc for reasoning.. 381
Applicants have now made it plain that they rely on consent
by Rcspondent to transfer of supervisory fonctions . . . 382
Rcspondent showed Jack of consent in its opening argu-
ment . . . . . . . . . . . . . . . . . . . . . . 383
In reply Applicants relied largely on Nicholls' statement .384
Analysis of App1icants' case in reply. . . . . . . . . . . . 384
Respondent and certain mandatories supported proposai for
temporary trusteeship committee . . . . . . . . . . . 384
Temporary trusteeship committee was intended, inter alia,
to supervise mandates prior to establishment of trustccship
council . . . . . . . . . . . . . . . . . . . . . . 385
Temporary trusteeship committee proposai rejected since it
might delay establishment of trustceship council. . . . 387
By design an alternatiYe method of pledges was adopted. . 387
Two kinds of pledges . . . . . . . . . . . . . . . . 387
Compromise pledge to carry out ail obligations of mandate 388
Summary of Applicants' case. . . . . . . 389
Proposa! for temporary trusteeship committee . . . . . . . 390 CONTEN T XV
Page
Background of establishment of Preparatory·commission and
its Executive Committee. . . . . . . . . . . . . . . 390
Terms of reference of Committee 4 of Executivc Committce. 390
Its recommendations regarding mandates . . . . . . . . 390
Recommendations of Exccutive Committee regarding trust-
.eeship system-proposa! for temporary trustceship com
mittee. . . . . . . . . . . . . . . . . . . . . . . 391
Suggested functions of temporary trusteeship committee . 392
Suggested duration of temporary trusteeship committee . 392
Its interim powers . . . . . . . . . . . . . . . . . 392
_Cç,nclusion-no supervision regarding mandates . . . . 393
American suggestion that supervisory powers over mandates
be exercised . . . . . . . . . . . . . . . 393
Treatment of matter in Preparatory Commission 394
Discussion on 29 November 1945 .......... , 394
.Objection by U.S.S.R. . . . . . . . . . . . . . . 394
Nicholls' statement-its content, meaning and signif
icance. . . . . . . . . . . . . . . . . . . . . 395
Did not refcr to South West Africa . . . . . . . . 396
D_idnot contemplate an obligation to report . . . . 397
No other delegate spoke in favour of a supervisory
function for tcmporary trusteeship committec . . . 399
No niche for Nicholls-Applicants have not relied upon
him before . . . . . . . . . . . . . . . 399
1962 Oral Proceedings . . . . . . . . . . 400
'Proposai by United States for interim reporting 400
Never discussed . . . . . . . . . . . . . 403
System of pledges. . . . . . . . . . . . . . . . 404
Pledges to put territories under trusteeship fell away. . . 404
Reasons for rejection of proposa! for temporary trustecship
commi ttee . . . . . . . . . . . . . . . . . . . . . 404
Contention re compromise pledge unsubstantiated and
unfounded . . . . . . . . . . . . . . . . . . . . 404
References to statemcnts of United Kingdom and Autralia in
Executive Committce of Preparatory Commission 406
Contention re compromise pledge (cont.). . . . . . . . . 406
Fraser's statement at San Francisco.· . . . . . . . . . 407
Declarations in fact made in the General Assembly by
mandatories . . . . . . . . . . . . . . . . . . 408
Declarations before final League Assembly . . . . . . 410
Applicants' interprctation based upon submissions
regarding pledge system . 4n
Use of the word "plcdge" 4n
Australia . . . . . . . . . . . . 4n
Switzerland . . . . . . . . . . . 412
No pledge perceived by other delegates 412
Chinese draft proposais . . . . . . . . . . . . . . . . 413
Summary of facts showing lack of consent on Respondcnt's
part to transfcr of supervisory powcrs . . . . . . . . . 416XVI SOUTH WEST AFRICA
Page
Respondent's conduct after dissolution of the League 417
Proposa! for incorporation . . . . . . . . . . . 418
Relationship between Article 6 and Article 7 (1) 4r8
Legislative argument . . . . . . . . . . . . . . 4r9
Consent cannot always be associated with supervision
examples . . . . . . . . . . . . . . . . . . 419
Other methods of modification of status . . . . . . 420
Opinion of Judge McNair . . . . . . . . . . . . 420
1950 majority opinion does not support Applicants . 420
Letter of 23 July r947 to Secretary-General . 423
Where previously dealt with . . . . . . . . . . . . 423
\Vhy parliamentary resolutions referredto . . . . . . 424
Extent of reliance by Court in 1950 . . . . . . . . . 427
Summary-limited material now relied upon by Applicants 427
Attitude of other States . . . . . . . . . . . . . . . . . 427
What is meant by "supervisory power" . . . . . . . . . 427
To be relevant, must be counterpart of accountability by
virtue of an obligation under the Mandate . . . . . . 428
Applican ts misconstrued Respondent' s contention. . . . 428
Respondent's contention consistent and clear. . . . . . 429
Applicants never addressed themselves to true issue. . . 432
Distinction between power exercisable by the United
Nations, and allocation of fonction among its organs . 432
Effect of Articlero of the Charter. . . . . . . . . . 433
Scheme of Article ro of the Charter . . . . . . . . 434
Article ro does not define powers or fonctions of the
United Nations . . . . . . . . . . 434
r950 Opinion. . . . . . . . . . . . . . . . . . 435
Applicants' contention regarding Article ro not clear 435
Palestine question . . . . . . . 436
Previous referencesta Palestine . . . . . . . 436
U.N.S.C.O.P. report clear . . . . . . . . . . 437
Certain passages never dealt with by Applicants . . . . ·437
United Nations competence based on consent of Mandatory 438
Mandate regarded as in existence . . . . . 440
Britishstatement at final League Assembly 440
Discussions inAd Hoc Committee. . . 441
References to Article ro of the Charter. 443
Attitude of British Govemment 443
Trusteeship Council-treatment of 1946 South West Africa
report. . . . . . . . . . . . . . 444
Purpose of dealing with this matter . 444
Resumé of circumstances . . . . . 444
Respondent's submission in chief . . 445
Applicants did not reply thercto . . . . . . . . . 446
Applicants no longer rely on consensus among Members of
the Council . . . . . . . . . . . . . . . . . . . 447
Activities of Council do not support inference as to obli-
gation to report 447
List of 25 States . . . . . . . . . . . . . . . . . . . 448 co:-.TENTS XVII
Page
Background and purpose of examination. 448
Certain attitudes by States irrelevant 449
The year 1947 . . . . . . . 449
1947-1949 . . . . . . . . . . . . 450
Moore's argument in chief . . . . . 45v
Respondent's answer thereto . . . . . . . . . . . 451
Applicants' reply Jimited to contending that confusion and
inconsistency existed . . . . . . . . . . . . . . . 451
Signatories of Palestine report . . . . . . . . . . . . 452
Cuba, India and Uruguay . . . . . . . . . . . . . . 452
United States of America . . . . . . . . . . . . . . 452
States which stated that United Nations empowered to
consider South West Africa report or Palestine question
(China, Philippines, New Zealand and U.S.S.R.) . 454
France .................... , . 455
Pakistan . . . . . . . . . . . . . . . . . . . . . 455
South Africa (Nicholls' statement). . . . . . . . . . . 456
States whlch voted against advisory opinion re Palestine. 456
Summary-attitude of States inconsistent with consent by
Respondent in April 1946 . . . . . . . . . . . . . 456
Resolutions of the General Assembly (141 (II), 227 (III) and
337 (IV)). . . . . . . . . . . . . . . . . . . . . , 457
Reaction of United Nations after discontinuance of reports. 458
Attitudes of delegates who voted to hear petitioners. 459
Cuba . . . . . . . 459
Brazil. . . . . . . 460
Thailand and Mexico 460
Belgium. . . . . . 460
Support for Belgium. . . . . 461
Philippines, India and Chlna . . . . . 461
Reason why States supported draft resolution 461
Conclusion-acid test fails to provide support for Ap
plicants . . . . . . . . . . . . . . . . . . . . . 463
No understanding by other States that an obligation to report
existed . . . . . . . . . . . . . . . . . . . . . . 463
The "Organized International Community" . . . . . . . . 464
History of refercnces . . . . . . . . . . . . . . . . . 464
Charter cannot grant powers to which Respondent did not
consent . . . . . . . . . . . . . 464
Necessity of international accountability. . . . . . . . . . 464
Mandate jurisprudence . . . . . . . . . . . . . . . . 465
Further grounds of necessity of supervision raised in oral
reply-legislative arguments . . . . . . 465
Other territories may require supervision 466
1950 Opinion. . . . . . . . . . . . . . . . 466
Respondent's analysis not dealt with . . . . . . . . . . 467
Applicants' attitude contributes to the need for reconsid
eration . . . . . . . . . . . . . . . . . . . . . . 467
AJ?plicants do not sayon what basis they rely on 1950 Opin-
JOn • • . • . • . • • . . . . . . . • • . • • • . • 468XVIII SOUTH WEST AFRICA
Page
Respondent's attitude a consistent one 468
Applicants' new attitude as to the "new facts" . 468
Replies to questions by 1Iembers of the Court . . 469
Question by Judge Jessup regarding applicability of Article
73 of the Charter, and questions by the President on the
same topic. . . . . . . . . . . . . . . . . . . . . 470
Would require much research and has wide legal and
political implications . . . . . . . . . . 470
Not directly in issue. . . . . . . . . . . . . . . . . 471
Application of Article 73 in practice.. . . . . . . . . 47r
Whether United Nations decides which territories
should fall under Article 73 . . . . . 472
Scope of reporting. . . . . . . . . . . 474
Political and constitutionalinformation 474
Functional areas . . . . . . . . . . 474
Petitions . . . . . . . . . . . . . 475
Article 73 (b)-self-govemment or independence 475
Activities of Committee of Twenty-four . . . . . 475
Question by Judge Koretsky re legal basis of administration
if Mandate has lapsed . 477
Discussion in pleadings 477
Not in dispute . . . . 477
Right of conquest. . . 478
.Question by Judge Sir Gerald Fitzmaurice regarding
principal alliedand associated powers 479
If Mandate continues . . . . . . . . . . . . . . . . 479
If Mandate has lapsed. . . . . . . . . . . . . . . . 480
The lapse of the Mandate as a whole as issue between the
Parties . . . . . . . . . . . . . . . 480
Respondcnt's case not met by Applicants . . . . . . . 480
Article z (z) of the Mandate . . . . . . . . . . . . . . . 482
Wholc substance of Applicants' case altcred-dramatic
change . . . . . . . . . . . . . . . 482
Their original case-deliberate oppression 483
Counter-Memorial. . . . . . 483
Reply-duality. . . . . . . 484
Present position-norm raised 484
Norm a technical one . . . 484
Standards-organized international community can dicta te
to Respondent . . . . . . . . . . . . . . . . . . 485
Worse position than under trusteeship. . . . . . . . 485
Norm-legislative power of organized international com
munitv . . . . . . . . . . . . . . . . . . . . . 486
Novel and far-reaching proposition . . . . . 486
Respondent need no longer meet original case 487
Oral evidence. . . . . . . . . . . . . 487
Two aspects of case to be dealt with:
(a) Normand standard creating process 487
(b) Application of normand standards . 487 CONTENTS XIX
Page
Respondent's interpretation of Article 2 (2). . . . . . . . 488
Large!y academic . . . . . . . . . . . . . . . . . . 488
Whether Article 2 (2) justiciable at ail. . . . . . . . 488
Applicants have not suggested any general basis of ad
judication . . . . . . . . . . . . . . . . . . . 489
No. 5 of Judge Sir Gerald Fitzmaurice's questionsreinter
pretation of Article 2 (source of discretionary power) . 491
Derived from interpretation of Article 2 . . . . . . . 492
Court's testing power flows from general principles of law
and logic . . . . . . . . . . . . . . . . . . . 492
Grounds upon which a court may find that an abuse of
discretion has occurred . . . 493
Under the Mandate . . . . . . . . . . 494
Generally in municipal systems . . . . . 494
French law. . . . . . . . . . . . . . 495
Power defined with reference to purpose . 495
Good or bad faith. . . . . . . . . . . 497
Meaning of term . . . . . . . . . 497
Effect of. . . . . . . . . . . . . 498
Not always required . . . . . . . 499
Incorrect assumption or finding of fact 499
No reasonable person could have arrived at the
finding. . . . . . . . . . . . . . . . . 500
Bona fide contravention of Article 2 (2) unlikely. 503
Direct reply to question 5 . . . . . . . . . . . . . . 505
Judge Sir Gerald Fitzmaurice's question No. 6 (relationship
between intentions and results of policy).. . . . . . . 506
Discretion to assess results of policy rests with Mandatory 506
Judge Sir Gerald Fitzmaurice's question No. 7 (whether
discretion amounts to more than initial presumption in
~fandatory's favour). . . . . . . . . . . . . . . . . 507
Respondent need only show proper exercise of discretion. 507
Relationship between intentions, purpose and good faith. . 508
Whether good or bad faith used in different senses . . . 508
'Whether the abjects of mandate become whatever Re-
spondent defines them to be . . . . . . 509
Questions 8-10 . . . . . . . . . . . . . . 510
Respondent relies on wording of Article . . 510
Question 8-relationship between two texts 510
General approach. . . . . . . . . . . . . SII
Application of this approach supports Respondent's
contention . . . . . . . . . . . . . . . . . . . 512
Question 9-whether one could balance advantages and
disad vantages . . . . . . . . . . . . . . . . . . . 513
Applicants' case based on qualitative breach . . . . . . 514
In South West Africa laws necessarilv affect different people
differentlv . . . . . . . . . . •. . . . . . . . . . 514
Advantages and disadvantages to be weighed up . . . . 516
Particular measures to be seen in their context, including
South Africa . . . . . . . . . . . . . ·. . . . . . 516 SOUTH WEST AFRICA
XX
Page
How does a court balance good against bad? . . . . . . 517
On basis of discretionary power, a decision conceming
abuse of discretion would also require balancing. . . . 517
Test could not be one of effect . . . . . . . . . . . . 518
Question ro-relationship between Article 2(r) and Article2
(2) . . . . . . . . . . . . . . . . . . . . . . . . 519
Implications of provisionthat South West Africa could be
administered as integral portion of South Africa. . . 521
I8. Rejoinder of Mr. Grosskopf (South Africa), 9-10 vr 65 . 524
Introductory comments . . . . . . . . . . . . . . 524
Submissions 3 and 4 as reformulated and interpreted 524
Scheme of the argwnent . . . . . . . . . . . . . 525
The content of the norm and standards . . . . . . . 525
Submissions 3 and 4 refer to the act of distinguishing 525
Why norm was introduced in the Reply . . . . . . 527
Memorials raised a factual charge . . . . . . . 527
Replied to in Counter-Memorial. . . . . . . . 528
In Reply an attempt to escape factual enquiry . 528
Introduction of norm . . . . . . . . . . . 528
Rule repredictable consequences of conduct . . . 528
Denial of relevance of comparisons with other terri-
tories . . . . . . . . . . . . . . . . . . . . . 530
Enhanced significance of United Nations resolutions and
reports . . . . . . . . . . . . . . . . . . 530
Summary-Court asked for abdication of judicial
functions . . . . . . . . . . 531
Developments during oral proceedings. 531
Applicants do not rely on motives 531
Rely only on normand standards. . 532
\Vhether norm already relied upon in the Memorials. . . 532
Applicants' dilemma in defining norm-avoid factual enquiry
without striking at unobjectionable differentiation . . . 534
Attempts to distinguish between permissible and impermis-
sible differentiation. . . . . . . . . . . . . . . . . 534
Reply to Judge Sir Gerald Fitzmaurice's question in the
provisional record. . . . . . . . . . . 534
Protection and choice . . . . . . . . · . 536
Distinction on basis of race, colour, etc. 537
Oral reply . . . . . . . . . . . . . . . 537
Provisional record of 13 May 1965 538
Protection and allotment of rights not opposites . . 538
Distinction between basis of allotment and reason for
allotment . . . . . . . . . . . . . . . . . . . 539
Conclusion-Applicants found it impossible to define
their norm . . . . . . . . . . . . . 539
Minorities provisions . . . . . . . . . . . 540
Oral prcsentation-protection and coercion 540
Application for inspection . . . . . . . 540
Minorities distinguished from apartheid . 540 CONTENTS XXl
Page
Still covered by norm . . . . . . . . . . . . . . 541
Abandonment of attempt at definition---organized inter-
national community has decided . . . . . . . 54z
The role of the Court-apply judgment of organized inter-
national community. . . . . . . . . . . . . . . . . 544
Organized international community will enforce judgment 545
Role assigned to Court in earlier part of the proceedings . 545
Memorials-judicial supervision . . . . . . 545
Observations-independent function of Court 546
Standards then referred to . . . . . . . . 548
Summary of preceding argument . . . . . . . . 548
Even at inspection proposai stage Applicants recognized ne
cessity of defining norm . . . . . . . . . . 549'
Observations-supervisory function of Court . . . . . . 550
1962 Oral Proceedings-supervision . . . . . . . . . . 551
Reply-difference of opinion between Council and Court. 55r
Matcrial upon which Court could draw . . . . . 552
Views of"governments expressed in United Nations 552
Main oral argument. . 553
Judicial review . . . . . . . . . 553
Material drawn upon . . . . . . 554
No longer relied upon . . . . . . 555
Reason-eliminate factual enquiry 555
Applicants have now reached conclusion that Court not
intended to adjudicate on Article 2 (2). . . . . . . . 556-
1962 opinion of Judge Jessup. . . . . . . . . . . . . 557
Ifsupervisory organs were not intended in 1920 to lay clown
binding standards, Court would on Applicants' argument
never have had jurisdiction. 557
Summary and conclusion . . . . . . . . . . . . 559'
Afterthought . . . . . . . . . . . . . . . . . 559
19. Rejoinder of Mr. de Villiers (South Africa), ro-15 v1 65 56r
Applicants' case rests only on norm and standards 56r
Wording of Submissions 3 and 4 . . . . . . . . . 56r
Format interpretation . . . . . . . . . . . . . . 56z
No case brought on the basis of purpose or effect of Re·
spondent's policy . . . . . . . . . . . . . . . . . . 563
Respondent will proceed to answer Applicants' case on this
basis . . . . . . . . . . . . . 568
The standards . . . . . . . . . . . . . .. . . . . . . . 56g.
Do not in themselves have legal force . . . . . . . . . . 569-
Interpretation of the Mandate on the basis of current stan
dards rather, than intentions of authors . . . . . 570-
Confusion bctwccn interpretation and application . . . . 570
Possible relevance ofstandards . . . . . . . . . . . 57r
Applicants now rely on an implication in the Mandate to be bound
by changing standards. . . . . . . . . . . . . . . . . . 572
Now based on presumed intentions of authors of Mandate 573-XXII SOUTH WEST AFRICA
Page
Sta~dards laid down by organs vested with duty of supervi-
sion. . . . . . . . . . . . . . . . . . . . 575
Difference in formulation . . . . . . . . . . . . . . 576
The Mandate as a constitutional-type document . . . . 577
Standards can become binding only upon basis of intention
of authors of Mandate. . . . . . . . . . . . . . . 578
Norm distinguished . . . . . . . . . . . . . . . . 578
What is the relevance of pronouncements of organs other
than those said to be vested with supcrvisory powers?. 579
Whether Respondent bound by authoritative interpretations
of Charter and International Labour Organisation Con
stitution. . . . . . . . . . . . . . . . 583
League resolution of 18 April 1946 . . . . . . . . . . 583
Summary of Applicants' apparent contention. . . . . . . 584
Suggested standard creating capacity of the supervisory
orga~, or altematively of the organized international com
mumty . . . . . . . . . . . . . . . . . . . . . . 584
Based on intentions of authors . . . . . . . . . . . . 584
Effect of ordinary meaning of words . . . . . . . . . 584
Purpose to promote well-being-fiduciary responsibility . 586
Mandate an international regime . . . . . . . . . . . 587
Need for internationally ·ctetermined criteria . . . . . . 588
Mandatory to have regard to the needs of the inhabitants,
not the needs of international life . . . . . . . . . . 589
Impractical to have international bodies dictate mcthod of
administration . . . . . . . . . . . . . . . . . . 590
Analogy with trustee . . . . . . . . . . . . . . . 590
Language of instrument indicates that Mandatory is to
decide. . . . . . . . . . . . . . 59I
Progress a variable concept. . . . . . . . . . . . . 592
The word "safeguard" in Article 22 (6) . . . . . . . 592
Interpretation of Article 2 (2) cannot provide the result
contended for by Applicants . . . . . . . . . . . 593
If the authors intended to provide for standard
creating procedure, why did they not say so?. . . 594
Unusual in Covenant for State to be bound without
its consent . . . . . 594
Article 15 of Covenant. 594
Article 5. 595
Article 6. 595
Article 24 595
Article 7. . . 595
Article 22 (8). 595
Article 8. . . 595
Provisions of Article 22 . . . . . . . . . 596
History of compromise leading up to Covenant . 597
Provisions of mandate instruments . . . . . 598
How the matter was viewed in League circles 599
Hymans report . 599
Quincey Wright . . . . . . . . . . . . 602 CONTENTS xxm
Page
Duncan Hall . . . . . . . . . . . . . . . . . . 603
Bentwich . . . . . . . . . . . . . . . . . . . 606
United Nations can have no greater powers than League 607
1950 Opinion. . . . . . . . . . . 607
Position under the trusteeship system . 607
Kelsen . . . . . . . . . 608
Lauterpacht (1955 Opinion) 6og
Summary of preceding argument 6n
Klaestad (1955 Opinion) . . . 612
Other opinions in 1955 612
Conclusion-no support for Applicants' contention 613
Applicants' alternative contention that standards are laid
dciwn, not by the supervisory organs, but by the organized
international community generally . . . . . . . 613
Sâme argument applies a fortiori . . . . . . . . 614
What _is,,comprised in "organized international com-
mumty . . . . . . . . . . . . 614
Dèalt with in Rejoindcr . . . . : . 615
Expression ·has no legal significance . 616
Karl Strùpp . . . . . . . . . . 617
Judge Morelli. . . . . . . . . . 6r7
What organizations should be included? . 619
Applicants' argumen·t baseci upon Respondcnt's membership of
United Nations and International Labour Organisation . . 619
Nature of Applicants' contention . . . . . . . . . . . . 619
Relationship between Charter, International Labour Orga-
nisation Constitutionand Mandate 619
In pari materia contention . 621
Memorials . . . . . . . 62 I
Countcr-Memorial. . . . 621
Oral proceedings . . . . 622
Resolution of 18 April 1946 622
Rejoindcr . . . . . . . 622
Oral proceedings . . . . . . . . . . . . . . 622
Comparison between Chapters XI, XII and XIII of the
Charter and Article 22 of the Covenant . . . . . . 623
Article103 of the Charter . . . . . . . . . . . . . . 623
InternationalLabour Organisation Constitution-no link
with Mandate suggested . . . . . . . . . . . . . . 624
Provisions of Charter and International Labour Orga
nisation Constitution do not establish content of stan
dards relied upon . . . . . . . . . . . . . . . . . 625
Summary-Applicants' case on standards without sub-
stance. . . . . . . . . . . . . . . 625
The allcged norm . . . . . . . . . . . . . . . . . . . . 626
Distinction between norms and standards . . . . . . . . 626
Relationship betwcen lcgal normand alleged violation of the
Mandate. . . . . . . .. . . . . . . . . . . . . . . 626
Norm admitted not to have existed in 1920 . . . . . . 627XXIV SOUTH WEST AFRICA
Page
Differentiation accepted in League times. . . . . . . . 627
Suggested undertaking by l\fandatory to comply with inter-
nationaJ Jaw . . . . . . . . . . . . . . . . . . . 628
What is meant by international law? . . . . . . . . . 629
Why agree to be bound by law which is binding in any
event? . . . . . . . . . . . . . . . . . . . . 630
Mandate cannot be amended without Mandatory's consent 632
1950 Opinion. . . . . . . . . . . . . . . . . . . 632
Even if norm existed, Court would not have jurisdiction to
determine alleged violation thereof . . . . . . . . . 632
Norm does not exist in international law, at any rate as
binding on Respondent . . . . . . . . 632
Scheme of argument . . . . . . . . . 632
Norm-creating processes in general . . . 632
Formai acts of international institutions . . . . . 632
Applicants commence by giving reasons why a new law-
creating process should exist-relevant international
context . . . . . . . . . . . . . . . 633
Court does not possess legislative powers . . . . . . . 634
Article by Judge Sir Gerald Fitzmaurice. . . . . . . 635
Applicants attempt to impose obligation on Respondent
without its consent . . . . . . . . . . . . . . . . 635
Article 38 (1) (a)-conventions. . . . . . . . . . . . 636
Applicants rely on "authoritative interpretations" of
Charter and International Labour Organisation
Constitution . . . . . . . . . . . . . . . . . . 636
Extent to which practice in international bodies could
assist ininterpretation. . . . . . . . . . . . . . 637
Omission of provisions in Charter regarding inter-
pretation. . . . . . . . . . . . . . . . . 638
Pollux in British Year Book of International Law 639
Expenses case. . . . . . . 640
Schachter . . . . . . . . 641
Summary of preceding argument 642
Expenses case (cont.) . . . . 643
Views of U.S.S.R. . . . . . . . . . 643
Debates in Committee on Peace-keeping Operations. 644
Interpretations of Article 73 . . . . . . . . . . . . . 650
Applicants do not rely on actual meaning of the provisions
but on extensions thereof-not treaty interpretation . 650
Special provision for interpretation of International
Labour Organisation Constitution. . . . . . . . . . 65r
Conclusion-interpretation cannot give rise tothesuggested
norm . . . . . . . . . . . . . . . . . . . 651
Reference by AppJicants to Article 38 (1) (a) an after-
thought . . . . . . . . . . . . . 652
Article 38(1) (b)-international custom . 652
Appiicants' contention . . . . . . . . . . . 653
Norm may become binding despite objection . 653 CONTENTS XXV
Page
Collective acts of international institutions .· . 653
Organizations do not possess law-making powers
Oppenheim ..... . 654
655
SecurityssCouncil-Kelsen . 655
655
General Assembly. . 656
Kelsen .... . 656
Goodrich ... . 657
Trusteeship Council . . . . . . . 657
International Labour Organisation 657 PART II (continued)
SECTION B
ORAL ARGUMENTS
PUBLIC HEARINGS
held /rom r5 Marctor4 July, 20 September to
_r5November and 29 November r965, 2r J1.archand
on r8 ]uly r966, the President, Sir Percy Spender, presidîng
(continued)
PARTIE II (suite)
SECTION B
PLAIDOIRIES RELATIVES AU FOND
AUDIENCES PUBLIQUES
tenues dit.r5 mars au r4 jitillet, du 20 septembre
au r5 novembre, le 29 novembrr:r965, le 2r~mars
et le r8 iuillet r966, sous la présidencede
sir Percy Spender, Président
(suite) ANNEXTOTHE MINUTES (contintted}
ANNEXEAUX PROCÈS-VERBAUX (suite)
9. ARGUMENT OF MR. GROSS
AGENT FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA AT THE PUBLIC
HEARINGS OF 27 AND 28 APRIL 1965
Mr. President and Members of the honourable Court, on 30 March 1965,
priorto commencing its statement concerning legal issues involved in the
cases at bar, Respondent addressed to the honourable Court a proposai,
or application, which in Respondent's phraseology envisages: "an inspec
tion in locoas a means of assisting this Court in coming to a just conclu
sion on the factual aspects of the case" (VIII, p.271).
Pursuant to leave granted by the honourable President the Applicants
reserved the right to deal with the matter at a later stage, as appears from
page 280 of the same verbatim record. As the Applicants stated at that
time, Respondent's proposai requires consideration of issues concerning
the merits, or certain of them, with which the Parties have not dealt in
the light of the agreed procedure of treating at this stage of the Oral
Proceedings essentially with questions of law. The justification advanced
by Respondent for raising at the outset of arguments addressed to legal
issues a proposai dcscribed by Respondent as-in its words-"canvassing
of the factual side of this case" was that, in the event the Court were to
accept the proposai, arrangements would have to be made, and again I
quote from Respondent's language, "well in advance in order t9 serve
their purpose and in order to avoid unnecessarv delav", and in that con
nection Respondent referred to several weeks ·or more of possible delay
which might otherwise ensue. Mr. President, the purported justification
for submitting the proposa! out of context accordingly presupposes that
the Court couId and should decide, in limine, prior to hearing or consider
ing the merits, whether the suggested procedure would in fact assist the
Court, or could do so, in reaching a judgment concerning the validity of
the submissions. As will readily appear from an examination of the pro
posai itself, howevcr, such a presupposition is not founded in the Appli
cants' respectful submission. Indeed, unless the Applicants misconceive
the terms upon which Respondent has submitted its proposai, Respon
dent itself suggests that certain previous decisions of an unspecified nature
would have to be made by the Court before Respondent's proposai would
become relevant for consideration or ripe for decision.
Before turning to an analysis of Respondent's proposai, however, cer
tain preliminary observations may be in order. It is assumed by the Appli
cants that no adversarial issue appropriately could arise, in respect of
the proposition which seems elemental to the Applicants, that any
method, or any measurc, which the Court might consider to be an aid to
the performance of its fonction would fall without the ambit of its ju
dicial power. Equally axiomatic is the premise that the Parties-all
Parties-would wish to co-operate with each other and with the Court
to assure that ail requisite means and facilities would be placed at the
Court's disposai to effectuate such a purpose. The Applicants accordingly
fail to understand the significance of Respondent's comment made in
the course of the oral argument in the verbatim record of I4 April 1965
that Respondent has great difficulty, that Respondent attributes to the4 SOUTH WEST AFRICA
Applicants "great difficulty with a proposition that there is to be an in
spection to compare comparable standards", in Respondent's phrase at
VIII, page 625. The Applicants, as a matter of fact, have not hitherto
expressed views concerning this matter. Furthermore, the Court in evalu
ating the merits and feasibility of the proposa! would no doubt, in the
Applicants' assumption, weigh in the scales of justice the factors of dclay,
expense and undoubted inconvenience which the Respondent's unusual
proposai would entail, and one of the elements to be weighed in such
scaie would of course be the time and manner of its presentation, as
well as a consideration of the issues of fact and law which enter into the
Court's decision thereupon.
With respect to the manner of Respondent's presentation, it seems to
the Applicants pertinent to recall that the Applicants' Reply was filed
with the Registry of this Court in June of 1964. Respondent's Rejoinder
was fi.ledin December of the same year. No mention was made, cither in
correspondencc with the Court on the part of Respondent or in its Re
joinder, of a proposai which Respondcnt now asserts would be essential
to an adjudication by the honourable Court of the validity or otherwise
of the Applicants' submissions. On the contrary, the first mention of the
proposai so far as the Applicants are aware-ccrtainly the first mention
which was brought to their notice-was in the form of a Ietter from Re
spondent's Agent following a meeting with the honourable President of
the Court earlier the same day, on 12 March 1965, two days prior to the
scheduled commencement of Oral Proceedings in this case; and in the
course of that Jetter, and pursuant to the information received by the
Applicants, Respondent's endeavour at that time was to present its pro
posa! as a matter of the gravest haste and urgency to the honourable
Court, even prior to the commencement by the Applicants of the presen
tation of their case. \Vhether the proposai submitted in this manner by
Respondent reflects an afterthought on its part, or a change of position
with respect to a necessary element in its submission of proof in this case
or of evidence thereon, is beyond the realm of the Applicants' speculation;
but it does, with respect, appear strange that a matter thus proposed for
the first time, under such circumstances and out of context, should be
indeed as important to Respondent's case as it main tains.
Respondent's proposai, Mr. President, comprises four essential and
interrclated elements. The first is the timing of its presentation; the
second, its asserted purposes; third, the areas proposed to be inspected;
and fourth, the conditions implied or suggested. For the sake of conve
nience each of these may be treated separatcly, keeping in view, however,
their essential interrelationship. First, the timing of the presentation of
the proposal-indeed, the fi.rstaspect of the proposa! arising for consider
ation is its timing.
In addition to the factors I have already mentioned relating to the
precipitate, ostensibly urgent, manner in which it has been placed before
the Court, there is, with respect to the question of timing, a dual question
of whether the Respondent has introduccd the matter prematurely, cven
from the stand point of its own theory of the case, and whether the hon
ourable Court could at this stage of the proceedings, in any event, reach
a valid and reasonable conclusion other than perhaps to defer a decision
as to methods or mcasures, if any, which the Court might consider help
ful to an adjudication of the issues in these proceedings. Respondent it
self has interposed pre-conditions to action by the Court upon the pro- ARGUMENT OF MR. GROSS 5
posal for the so-called inspection. In its address to the Court on 30 March
1965, Respondent, referring to the alleged violation of the sacred trust
provisions of the Covenant of the League of Nations and of the Mandate,
declai-ed:
"There are of course certain legal issues to be dealt with before
this fundamental, crucial issue is reached [referring to the sacred
trust]. Depending on the outcome of those legal questions, it may
be that this particular charge may not arise for decision at all."
(VIII, p. 270.)
Although Respondent did not specify the legal issues which it had in
mind in this context, it may be appropriate to speculate concerning this
mat ter in the light of Respondent's written pleadings and oral argument.
Respondent, no doubt, will clarify the matter furthcr if the Applicants
have misconceived its actual intention.
On the basis suggested, several legal issues appear to call for determi
nation prior to decision by the Court upon the proposai under discussion.
The first of these is the issue posed by the Respondent's contention,
presented as an alternative argument in the Counter-Memorial and Re
joinder, that the .Mandate, as a whole, has lapsed on the basis that Article
6 and Article 7 (1) providing for international accountability allegedly
have lapsed. In this connection it will be recalled that Respondent has
contended that the 1950 Advisory Opinion should not be followed, and
the 1962 Judgment on the preliminary objections reversed, in this respect.
Acceptance by the Court of Respondent's contention, with respect to
total lapse of the Mandate, would, of course, carry with it the demise of
Article 2 of the Mandate itself. In that event, no issue of fact or law
with respect to Article 2 would arise for decision, again quoting Respon
dent's phrase. Moreover, Respondent's alternative contention, in respect
of lapse of the Mandate, would not itself arise for decision unless the
Court should hold, contrary to the Applicants' submission, that the pro
visions of the Covenant and of the Mandate regarding international
accountability themselves have lapsed. The foregoing contentions and
counter-contentions are, at the present phase of the Oral Proceedings,
still inthe course of presentation to the honourable Court. With respect
to the legal issues relating to the asserted lapse of international account
ability furthermore, the Applicants have sought to point out that the
issue of survival, or otherwise, of provisions regarding international
supervision is related to a consideration of the /acts.Pursuant to arrange
ments readily agreed for the Court's convenience, presentation and full
treatment of such facts has been reserved for subsequent presentation
by the Parties at a later stage. As the Applicants stated, in the course
of their address to the Court on 18 March r965:
"The Applicants will set out, at a later stage of these proceedings,
the facts, and related considerations, which make clear, in our re
spectful submission, the practical necessity for administrative super
vision. Such practical necessity, as we believe will emerge clearly
from the facts, reinforces and confirms the legal considerations sup
porting the Applicants' submission, that administrative supervision
isof the essence of the Mandate and must continue so long as the
Mandate itself endures." (VIB, p. I22.)
A similar relationship between fact and law inheres in the legal issue '1
joined by the Parties in respect of the survival, or otherwise, of Article6 SOUTH WEST AFRICA
7 (r) of the Mandate, which requires the consent of the supervisory organ
for any modification of the terms of the Mandate. As the Applicants
sought to make clear, the consent to which Article 7 (r) refers must be
an informcd consent, only the same organ charged with administrative
supervision over the Mandate could be in a position to exercise an in
formed judgment in respect of proposals for modification of the Mandate's
terms.
The link between Article 6 and Article 7 (1), accordingly, as perceived
by the Applicants, is made clear by the logical nexus between the two, as
well as by the Advisory Opinion of 1950, from which relevant passages
have been quoted in VIII, pages 216-218. The references to the Advisory
Opinion of 1950, are at pages 141-143.
· Respondent contends that Article 7 (r) was dependent for its operation
on organs of the League, and that it has become inoperable and, conse
quently, has lapsed. That is the contention submitted to the Court by
the Respondent in VIII, page 523. The Applicants, to the contrary, sub
mit that Article 7 (r) remains in effect and that, in accordance with the
unanimous holding of this honourable Court in the 1950Advisory Opinion:
"... the Union of South Africa acting alone has not the competence
to modify the international status of the Territory of South West
Africa, and that the competence to dctermine and modify the inter
national status of the Territory rests with the Union of South
Africa actingwith the consent of the United Nations", (I.C.f. Reports
I950, p. 144.)
Hence, Mr. President, a legal issue has been joined between the Parties,
the resolution of which has a direct bearing upon Respondent's conten
tion that the Mandate, as a whole, has lapsed, along with Article 2 thereof,
a contention which would require adjudication prior to the proposai of
Respondent for an inspection becoming a live question for consideration
or decision.
Itwill be noted that in the foregoing discussion the Applicants have
searched Respondent's written pleadings and oral arguments for in
dications concerning the possible speculative nature of the unspecified
"legal issues", which is the only way Respondent characterized them,
upon which decisions are said by Respondent to be necessary before the
issue of alleged violations of Article 2 of the Mandate, in its language,
"is reached", and which otherwise, as Respondent said, "might not arise
for decision at ail". That, as I have said, is from the verbatim recordVIII,
page 270. But, Mr. President, the matter does not rest there.
Equally relevant to the question of prematurity, or otherwise, of Re
spondent's submission, at this time, of its inspection proposa], and, con
sequently, of the question whether the proposai is ripe for consideration
or decision, is yet another pre-condition interposed by Respondent to a
decision upon the proposai, but this time, however, in more specific
form than in the case of its earlier reference merely to "certain legal
issues", as I have previously mentioned. ln explaining its proposa!,
Respondent summarized, inselective and truncated form, certain argu
ments it intended to present to the Court at an appropriate stage of the
proceedings. In respect of factual and related issues, Respondent's sum
mary distorted the Applicants' position on the merits, possibly because
of the perceived necessities of the occasion, or possibly for other reasons,
perhaps inadvertcntly. Such distortions will be dealt with shortly, in ARGUMENT OF MR. GROSS
7
connection with a consideration of the second aspect of Respondent's
proposa!, to wit, the purposes which Respondent asserts rnight be served
by the production of expert testirnony and by the proposed inspection
in loco.
In the course of its presentation, however, Respondent referred to the
alleged violation of Article 2 of the Mandate and stated, in the course of
its presentation of the proposai under discussion: ·
"As the Court knows, our first contention in that regard, as to
the basis or criterion for adjudication, is that on a proper construc
tion of the Mandate, and on viewing the probabilities in that regard,
this Court was not intended to adjudicate on issues of that nature at
all. Of course [said Respondent], if that proposition is to be accepted
then no further question as to a decision of disputed facts, or of
evaluating those facts, or of applying policies to those facts, would
arise for this Court." (VIII, p. 275.)
In other words, if the Court should accept Respondent's first alternative
contention, to wit, that issues concerning alleged breaches of Article 2
of the Mandate are not justiciable, then its proposa! under discussiori
would not arise for consideration or action.
Respondent has thus interposed another, and this time specific, pre
condition to the necessity or tirneliness of a decision by the Court whether
the taking of testimony, either at the seat of the Court or elsewhere,
or the exercisc in some other form by the Court of its fonctions elsewhere
than at the seat of the Court, whether such a decision would be relevant
or appropria te at this tirne, prior to the accomplishment of the pre-con
dition, or satisfaction thereof, to which I have just referred.
Under these circumstances, it is far from clear why Respondent in
fact deemed it necessary, at this stage of the proceedings, to submit its
proposai for a so-called inspection in respect of issues which its first con
tention holds to be non-justiciable. The only justification advanced by
Respondent for introducing the question of an inspection, prior to the
completion of argument either on legal issues or on facts, or the presenta
tion of the latter, is that the matter should not be delayed unduly, as I
have already saicl, and I have just quoted from the verbatim record, VIII,
page 271.
Needless to say, the Appllcants share with Respondent the conviction
that there should be no undue delay in any phase of the present litigation.
As the Applicants pointed out at the commencement of these procced
ings-and I take the liberty of quoting from the verbatim record,
VIII, page ro9:
"Few, if any, legal issues undcrlying an international dispute
referred to this honourable Court or to the Permanent Court of
International Justice ... as well, for resolution by judicial means,
can have consumed so much of this honourable Court's time and
attention during the course now of almost 15 years."
And I refer, Mr. President and Members of the honourable Court, to
the commencement, the antecedents of the present litigation in the form
of the Advisory Opinion of 1950. As the record of these proceedings must
make clear, the Applicants always have sought to co-operate toward the
end that the issues herein might be justly and expeditiously determined.
They have faithfully observed self-imposed, stringent time limits, always
subject to the Court's consent, upon the preparation and filing of written8 SOUTH WEST AFRICA
pleadings. They have hoped and continued to hope that decisions by
this honourable Court will not be the subject of continuous and repeated
re-argument of the same issues, often in the same form. In short, the
Applicants adhere to the conviction that although litigants have a right
to a day in Court, there must some time be an end to Iitigation.
These comments, as to which there can be very little difference of
opinion, are occasioned by Respondent's course in submitting to this
honourable Court prematurely and out of context, a proposal which
Respondent on the one hand contends is not ripe for decision until
certain specified and unspecified 1ega1issues are first disposed of and on
the other hand, which Respondent asserts should now be decided to avoid
what would cause undue delay in making arrangements for procedures,
which would not be relevant or appropriate if Respondent's legal con
tentions and premises are sustained by the Court.
I should now like to turn to the second aspect of the matter, the
purposes asserted by Respondent to undcrly its proposai. The Appli
cants have referred to the axiomatic premise that the Parties would
wish to assure fulland expeditious co-operation in respect of any measure
or any method which the Court might consider appropriate to the
exercise of its judicial function in these cases. Toward that end, and
assuming that to be ail a part of the reason for the haste and the timing
of Respondent's proposa!, there may be, to do full credit, an assumption
implicit that although premature the Court might wish to set in train
certain pre]iminaries, at least with respect to the possibility that the
Courtmight,at somc later stage and on some assumptions nowhypothet
ical and contingent, decide that the arrangements might lead to facil
itating and expediting actions or measures by the Court which it might
corne to conclude at that future time are relevant to and in aid of the
exercise of its judicial function. Such an assumption would, of course, be
based upon the contingency that the Court decided adversely to Respon
dent's legal contentions relating to the lapse of international supervision,
ineffectiveness of the compromis~ory clause, lapse of the Mandate as a
whole, and the asserted non-justiciability of Article 2 of the Mandate.
On the basis of the foregoing assumptions or pre-conditions, it is
necessary then to examine the purposes which Respondent asserts
would be served by production of expert testimony and more specifically,
in the context of the present discussion, the proposed exercise by the
Court of certain of its fonctions, elsewhere than at the scat of the Court.
Consideration of Respondent's proposa! at this stage of the Oral Pro
ceedings, Mr. President, poses something of a dilemma in confining the
discussion to matters strictly relevant to an appraisal of Respondent's
proposai without, at the same time, anticipating issues which are still in
the course of rebuttal and response. The Applicants have adverted to the
fact that Respondcnt itself found it necessary to anticipate some such
issues prior to their having been reached in the regular order and in
doing so has, unfortunately, not wholly been able to resolve the dilemma
of selection and truncation without distortîon, which the Applicants
would be very anxious to avoid. Itseems, Mr. President, that in attempt
ing to present the proposa! for the sake of avoiding undue delay, Respon
dent has indeed created a risk of undue confusion. With respect to the
Applicants' submission of considerabons relevant tothe discussion under
proposai, it appears to the Applicants that there are three principal
grounds which Respondent advances in support thereof. Taking these in ARGUMENT OF MR, GROSS 9
order, the first is the alleged motivation underlying the Application filed
in these proceedings in November 1960; the second, the contentions of
the Applicants in respect of fact issues as described by Respondent and
thirdly, the asserted legal basis of the alleged violations of the Mandate
and the Covenant of the League, again as ascribed by Respondent to the
Applicants. Each of these three factors or reasons advanced in support
of the Respondent's proposal will, with the President's permission, be
considered in turn.
First with respect to the alleged motivation of the Applicants, which
figured largely in the presentation by Respondent in support of its
proposal in its address on 30 March 1965. Charges launched at impeach
ment of the Applicants' motive in seeking judicial recourse echo a theme
often voiced by Respondent's highest officiais. The charges gain neither
dignity nor weight nor credibility by repetition before this honourable
Court. ln the language employed by Respondent in addressing the Court
on 30 March 1965:
"The proceedings, as the Court would know from the pleadings,
are the culmination of a vehement campaign which has been waged
against the South African Government for a long period and persis
tently in the international political arena, particularly in the United
Nations ...
From the South African point of view we see that campaign as
being one of abuse and viiification, motivated on the part of its
leaders by purely political objectives with very little, if any, bearing
on the real merits of administration of the Territory of South West
Africa, or the real interests and needs of the population of that
Territory." (VIII, pp. 272-273.)
Mr. President and Members of this honourable Court, characterization
of recourse to judicial process as the culminating act of a "political
campaign" as it is called, is more than a contradiction in terms. Such a
charge strikes at the heart of the judicial process itself. Public confidence
in the rule of law and in the institutions essential to the maintenance of
a just and peaceful order should not be corroded by recrimination con
ceming the motives of those who seek resolution of legal disputes in
accordance with international law.
There is no room for doubt that weighty social, economic, political and
moral questions underly the issues joined in these proceedings. We must
all anticipate and hope, Mr. President, that this honourable Court will
continue to be the forum for arbitrament of legal issues which inhere in
many clashes of view affecting the lives and welfare of men and of nations.
Parties to the Charter of the United Nations have undertaken no less an
obligation than this. In this very case, the United Nations General
Assembly by an overwhelming majority has seen fit to refer to this
pending litigation. The resolution- has been quoted in the Memorials
(1) at pages 84-85 and the Court's attention is respectfully addressed to
the substance of that resolution from which I should Iike to take the
liberty of reading for the record at this point. It is resolution 1565 (XV)
')f 1950:
"The General Assembly,
Recalling its Resolution 1361 (XIV) of 17 November 1959, in
which it drew the attention of Member States to the conclusions of
the special report of the Committee on South West Africa con-IO SOUTH WEST AFRICA
cerning the legal action open to Member States to submit to the
International Court of Justice any dispute with the Union of South
Africa relating to the interpretation or application of the provisions
of the Mandate for the Territory of South West Africa, if such
dispute cannot be settled by negotiation,
"Noting with grave concernthat the administration of the Territory,
in recent years, has been conducted in a manner contrary to the
Mandate, the Charter of the United Nations, the Universal Declara
tion of Human Rights and the resolutions of the General Assembly,
including [certain resolutions which are then set forth, and then
skipping several paragraphs J
r. "Notes with approval the observations of the Commit tee on South
West Africa conceming the administration of the Territory as set
out in the Committee's report to the General Assembly at its fif
teenth session, and finds that the Government 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;
2. Concludes that 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 applica
tion of the Mandate has not been and cannot be settled by negotia
tion;
3. Notes that Ethiopia and Liberia, on 4 November 1960, filed con
current applications in the International Court of Justice instituting
contentious proceedings against the Union of South Africa;
4. Commends the Governments of Ethiopia and Liberia upon their
initiative insubmitting 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, the course of this very litigation and its antecedent
proceedings during the past 15 years demonstrates how one-sided indeed
has been the remission of such issues to the judicial process and it is
difficultto see what more eloquent, if mute refutation, there could be of
Respondent's charges of political motivation than recourse to judicial
settlement of a protracted dispute which has not found solution through
the processes of debate and negotiation. And this honourable Court has
held that the issues in dispute are of a legal nature, that they inrnlve
interpretation and application of an international agreement and that
the Applicants have an interest of a legal nature in their resolution.
This honourable Court as long ago as 1950 held with unanimity that
Respondent's contention that the Mandate over South West Africa has
lapsed and I quote:
"... is based on a misconception of the legal situation created by
Article 22 of the Covenant and by the Mandate itself".
That is from the 1950 Opinion, page 132.
ln 1962, the honourable Court reaffirmed its prior opinion holding that
"the Mandate as a whole is still in force"~that is from the 1962 Opinion
at page 335.
ln the teeth of these repeated decisions, Respondent persists today in
its contention that the Mandate is not in existence and asserts a ri~ht of
administration and possession over the Territory unfettered by mter
national obligation and unanswerable to international accountability and ARGUMENT OF MR, GROSS II
at the same time Respondent levels against the Applicants accusations of
improper motive in seeking judicial recourse.
Mr. President, it is distasteful to deal with charges which call more for
disdain than for denial, but denial there must be of the charge and denial
must justly be recorded at this point.
Several comments may be additionally relevant to a true perspective
of the position of the Parties to these proceedings. The first is that, so far
as is relevant in the context of this discussion of Respondent's proposal,
and the weight and significance to be attached to evaluation of evidence
herein, as well as of the practicability or suitability of proposed proce
dures by which the Court should exercise its fonctions elsewhere than at
the seat of the Court, the first of these considerations to which I refer is
Respondent's practice-indeed, one may say tradition-of applying two
yardsticks for measuring the views of the many governments, organiza
tions and individuals who criticize or, more accurately, express revulsion
concerning the policy and practice of apartheid.
Those whom Respondent asserts lack first-hand knowledge of what it
variously describes as, in its words, "African circumstances" "African
realities"and "African standards"-and I shall have more to say about
this in a moment-are measured by a yardstick of ignorance and dis
credited for that reason. On the other hand, those cri tics who are admit
tedly and undisputedly knowledgeable are measured by a yardstick of
hostility, a rather unworthy perspective or motive and discredited on
that ground. Both yardsticks, indeed, are often brought into play at the
same time: it does not matter so long as the result is impeachment.
A striking illustration, and it is, in the Applicants' respectful view,
relevant to a consideration of ail the circumstances and implications of
the Respondent's proposai under discussion-a striking illustration of
Respondent's method and approach in the respect just described is to be
found in Respondent's comments concerning the views of governments
in respect of the policy of apartheid, which the Applicants have cited in
the form of illustrative examples in the Reply, IV, at pages 295 and
following. It is not the intention of the Applicants to burden the record
at this point with more than a reference to the citation. Further reference
has been made in the earlier proceedings at this stage.
Governments whose views are there recorded are: the United States,
the United Kingdom, France, Norway, Ireland, Poland, Japan, Malaya,
Greece, China, Mexico, the Netherlands and Pakistan. Many more could
have been cited. So far as the Applicants are aware, none of these are
African States.
Now Responclcnt's comments with respect to the views expressed
by these Governments, officially before international bodies, may be
found in the Rejoinder, V, at pages 382-383 and at pages 389-390,
inter alia. Respondent takes as a point of departure the alleged "hos
tility of the non-White world"-to use its own characterization-and
"particularly many of the newly inclependent States of Africa towards
South Africa". Such "hostility", in Respondent's phrase, Respondent
goes on to aver-
" ... has increasingly and avowedly been directed towards alien
ating the Western nations from South Africa, and in the process the
new nations have made full use, as bargaining factors, of their
voting strength in the United Nations, as well as of their actual and
potential economic and strategic importance". (V, p. 382.)I2 SOUTH WEST AFRICA
Proceeding from this conspiratorial premise, and this is the way the
facts and circumstances of this case appear to be evaluable, in Respon
dent's submission, advanced in support of this proposai under discussion,
l\.fr.President-proceeding from this conspiratorial premise Respondent
continues:
"ln the result theAfrican States [and here it is to be noted par
enthetically the qualifying word previously used 'many' is omitted
by Respondent] have managed to obtain a long list of condem
nations of Respondent's policies even by nations with close ties
with South Africa." (Ibid.)
The apparent relevance of these references, all taking place in the
context of the presentation by Respondent of its proposai under discus
sion, the apparent implications and significance of these comments, and
comrnents simHar to them-1 have quoted from the Rejoinder, I am
referring to Respondent's comments concerning hostility-are that they
have some bearing of an unspecified nature, left to innuendo and im
plication, with respect to the so-called "African reality" with which I
shall deal.
Respondent does not, however, stop with a mere blanket indictment
of the motives of the many governments which have long condemned
the policy and practice of apartheid on legal, moral and humanitarian
grounds. Again, the yardsticks of impeachment are brought into play by
Respondent in this context as follows:
"However, on analysis, the list [that is the list of condemnations,
selectively but representatively quoted in the Reply] becomes con
siderably less impressive. ln the first place, even a cursory examina
tion shows that most of the statements, if sincerely meant, were
based on entirely fallacious assumptions ... ln the second place it is
questionable to what extent the expressions of views really represent
the considered opinions of the governments expressing them, in
particular sincethe statements quoted by Applicants are ail negative
in character-they oppose or condemn a policy, without indicating
or suggesting that the spokesmen have given any real thought
to possible alternatives.'' (V, pp. 382-383.)
The full import and implication of Respondent's comment concerning
fallacious assumptions is made explicit in a subsequent passage in the
Rejoinder, to which the comment just quoted is linked by a footnote.
In the latter passage Respondent wields the yardsticks of bias, as well
as of ignorance, in appraising the views of governments, as follows:
" ... in the passages quoted by Applicants, it is apparent that the
speakers concerned either had no accurate conception of the truc
nature of Respondent's policies, or deliberately exaggerated, misrep
resented, or distorted them". (V, p. 389.)
ln respect of the significancc attributed by Respondent to failure to
indicate or suggest alternatives, that too, Mr. President, is a factor
involved, apparently, in Respondent's theory of this litigation, and is
asserted to be relevant to the Court's judicial fonction, the proposition,
as the Applicants understand it, being that unless the Court is in a
position to suggest alternatives then the Court cannot judge the merits;
and that the Court, by reason of the very nature of the judicial process,
cannot be expected to be and is not in a position to consider matters in ARGUME:'<T OF MR. GROSS
13
sufficient detail and with sufficient continuity to suggest alternatives
better than the policies and practices in the Territory of South West
Africa, specifically the policy and practice which are characterized by
the Applicants as "apartheid", in Respondent's own phrase.
In respect of the signifi.cance attributed by Respondent to failure to
indicate or suggest alternatives, as I say,the Respondent has, to say the
least, itself scarcely created a climate conducive to such a course. As will
be made clear shortly, Respondent itself concedes, and this appears from
the statements already made by Respondent, that this is precisely the
function properly to be served through processes of international super
vision,notwithstanding the fact that Respondent persistently and ener
getically has rejected such processes and has denied its obligation to
submit to international supervision of any character. That has been its
position since 1950 in the teeth of the repeated opinions and judgments
of this Court to the contrary.
Respondent's highest officiais, indeed, have stressed the unilateral
character of Respondent's approach towards this matter, and if the views
and expressions of Respondent's highest officiais are to be taken at face
value, they present aspects which appear to be relevant to the judicial
task which the Court would confront in the acceptance of the proposai
under discussion and the exercise of its functions, as proposed, elsewherc
than at the scat of the Court. One example may suflice of what 1 think
might fairly be called the unilateral character of Respondent's approach
towards its authority over the Mandate.
Thus, in explanation of its concept of the so-called "spirit of the
:'.\landate" as applied to the Territory, Respondent's Prime Minister has
recently stated-and I quote from the House of Assembly Debates of
4 May to 8 May 1964, at columns 5636-5637-the follO\ving:
"It is perfectly clear that the Government adopts the trusteeship
principle; the Government accepts its position as trustee; it acts in
the spirit of the mandate, and in accordance with that spirit it has
taken certain obligations upon itself; it has taken upon itsclf the
obligation to promote the well-being and the progress of those
people [referring to the inhabitants of South West Africa]. It has to
do what it regards as being in the best interests of the inhabitants.
lt was appointed as trustee and its duty is not to ask what others
want or how it can secure peace for itself with other States; the
question which it has to ask basically is this: How can I promote the
best interests of the inhabitants? Our policy is based on our belief
that whatever others may say, the only way in which we can test
our policy and our actions is by asking ourselves whether we are
honestly and sincerely doing what a Christian guardian can be
expectecl to do for the peoples entrusted to his care."
In its written pleadings and oral argument, Respondent has elevated
this theme to the status of a legal principle. Respondent indeed has
adopted the concept of self-enquiry and self-appraisal as the essential
measure and test of its compliance with the obligations of Article22of the
Covenant and Article 2 of the Mandate, assuming, against its contention,
that such obligations have legal existence at ail, which Respondent
continues to deny in the face of this Court's repeated holdings to the
contrarv.
Mr. President, in terms of Respondent's presentation to the Court of SOUTH WEST AFRICA
its proposed inspection in loco there appears to be an inter-relationship,
although of a somewhat elusive character, perceived as linking the
Applicants' alleged political motivation in seeking judicial protection of
the Mandate, a true appreciation of so-called African "circumstances,
realitiesand standards", to use the Respondent's phrase, and Respon
dent's asserted motive, state of mind, or purpose with respect to appro
priate policies for promoting to the utmost the welfare and progrcss of
the inhabitants of the Territory.
Each of these three factors and elements appears to be relevant, in
Respondent's submission, in some connected, or disconnected way that
is far from clear. All of these elements are involved in and part of the
presentation of Respondent of its proposai for an inspection in loco and
that is why it is necessary, and has been necessary, for the Applicants
to refer to matters which, on their face, might seem to be unrclated and
indeed logically would also seem to the Applicants to be very question
ably related indeed to the proposai under discussion, yet which are
asserted by Respondent as major purposes or reasons underlying the
proposai.
The first of these reasons, or purposes, the one which impugnes the
Applicants' motivation in bringing the proceedings at all, has been
referred to and little more need be said about it. Respondent's effort to
portray the litigation as a subversion of judicial process rather than a
recourse to judicial protection is, as I have said, neither credible nor
worthy of the important issues which remain unresolved despite years of
frustrated negotiation, and Respondent has not shown any relevance of
this groundless charge in any event to the proposai under discussion,
although it asserts it as a primary reason for the Court exercising these
functions, whatever thev mav be, elsewhere than at the seat of the Court.
The second factor, ;\fr. President,which might be for convenience
described as the appreciation of African reality, will be considercd
briefly here and then again in relation to the areas proposed to be
visited and the considerations underlying this aspect of the proposai.
The third factor, to wit the alleged desirability for the Court to exer
cise certain of its functions elsewhere than at the seat of the Court in
connection with its determination of Respondent's motive, or state of
mind, rcmains for consideration.
Proper appraisal of this asserted justification of the proposai requires
elucidation of the true nature of the Applicants' contention with respect
to factual and legal issues presented by the alleged violations of Articl22
of the Covenant and Article 2 of the Mandate. Although argument upon
these matters, and their legal aspect, is still under way in another
context, an effort must be made to select for discussion those questions
of fact and law which are directly relevant to full and timely considera
tion of Respondent's inspection proposai.
The Applicants' objective is avoidancc of the necessity for undue
repetition of the same points at later stages of the Oral Proceedings,
while at the same time dispelling error and confusion introduced, or
whîch might be sought to be introduced, by Respondent's mis-statements
of the Applicants' actual contentions and theories.
Before turning to an appraisal of the fact and law questions actually
in issue in the context of the discussion of the Respondent's proposai,
a preliminary comment is in order concerning an inherently inconsistent
aspect, among others, of Respondent's proposal itself. ARGUMENT OF MR. GROSS rs
One of the puzzling features of the proposai, as presented to the Court,
arises from Respondent's alternative suggestion that "an inspection be
undertaken, either by the Court, or by a committee of the Court, which·
ever may be preferred". That is the way in which the proposal is fonnu
lated in the verbatim record at VIII, page 278.
At the same time Respondent asserts, as a reason, and apparently an
important reason, for such an inspection being held at all, that "African
reality requires to be seen in order to be appreciated properly and
effectively". (VIII, p. 272.)
Respondent asserts further that personal inspection is particularly
desirable because of "the importance of seeing African reality, as dis
tinct from just reading or hearing about it". (Ibid., p. 278.)
The alternative suggestion that a committee of the Court, rather than
the full Court, might wish, or prefer, to exercise judicial functions outside
The Hague, elsewhere than at the seat of the Court, pays due deference
to the Court's possible wishes and preference in the matter. That is clear.
At the same time, it is difficult to see how the purposes asserted by
Respondent, and the importance attached to personal observation of
African reality, could be served by a procedure of a committee of the
Court engaging in such an experience. The result could only be that those
Members of the Court who did not have the opportunity to obtain
first-hand appreciation of African reality would perforce have to reach
conclusions about the matter from reading or hearing about it from
others, however respected.
By Respondent's hypothesis, however, such a procedure of appre
ciating African reality is not possible and the reliability of the source is
irrelevant.
Even if, for reasons yet to be explained, such a procedure, however,
of a committec of the Court conducting the inspection for the purpose of
witnessing African realitv, would satisfy the requirement of first-hand
knowledge, apparently nôt for that purpose necessary to be appreciated
through visual evidence, a still more formidable obstacle would arise
after the processes of observation and appreciation have taken place.
Upon Respondent's premise that persona! inspection of the African
reality is a pre-condition to a full appreciation, how could the Court, or
any Court, appropriately record, or explain, the part which such persona!
inspection has played in arriving at its judgment?
As a phenomenon which cannot be understood merely on the basis
of reading or hearing, there would appear to be no practical method, in
other words, by which the Court could accomplish the mission, in the
sense described by Respondent, and for the purposes assigned by it,
unless ail Members of the Court participating in the decision were to
do so.
This is a fcature of the proposa! which may perhaps justify clarification
in due course.
For reasons which will more fully appear, and basically striking now
at the heart of the matter, the Applicants do not consider that resolution
of the issues actually and trulv joined in these proceedings requires, or
.justifies, exercise by the Cour( elsewherc than at the scat of the Court,
of its functions.
;'\foreover, as will be shown, the undoubtedly dilatory, inconvenient,
cumbersome and expensive project to which reference has already been
made is, in the Applicants' respectful view, wholly unnecessary, inasmuch SOUTH WEST AFRICA
as the legal issues before the Court can, and should, in our v1cw, be
resolved upon the basis of the undisputed facts of record.
The Applicants' contentions in these respects obviously justify and
require at least summary analysis of such legal and fact issues in this
context. In turning to a consideration thereof, the Applicants may be
permitted to advert once again to the difficulty of assuring that ail
relevant law and fact questions are adequately and fairly presented in
the limited, though important, context of the inspection proposai itself.
Renewed reference to this problem appears to be doubly justified: first,
because the terms of Respondent's proposa! on its face indicate its
prematurity, for reasons already discussed, and secondly, because of the
very reason that all Parties would wish to do ail in their power to assist
the Court in arriving at a timely decision concerning the proposa!, on the
basis of full consideration of al! issues, fact and law, germane to the
proposa! for an inspection.
And I turn now, with the President's permission, to the contentions of
the Applicants in respect of fact issues, as such contentions bear upon
the proposa! under discussion and the purposes asserted by Respondent
to justify it.
Respondent's characterization of the Applicants' contentions in re
spect of fact issues is distorted to a degree which not only justifies, but
requires attention. ln its version of the Applicants' contentions with
regard to fact issues, Respondent appears totally to have ignored the
Applicants' directly relevant submissions embodying the cause of action
in which judicial relief is prayed. For the Court's convenience, such sub
missions and prayers for relief may be set forth at this point of the
record-I should like to read Submission No. 3:
"the Union, in the respects set forth in Chapter V of this Memorial
and summarized in Paragraphs 189 and 190 thereof, has practised
apartheid, i.e., has distinguished as to race, color, national or tribal
origin in establishing the rights and duties of the inhabitants of the
Terri tory; that such practice is in violation of its obligations as stated
in Article 2 of the Mandate and Article 22 of the Covenant of the
League of Nations; and that the Union has the duty forthwith to
cease the practice of apartheid in the Territory ;"
Submission No. 4:
"the Union, by virtue of the economic, political, social and educa
tional policies applied within the Territory, which are described in
detail in Chapter V of this Memorial and summarized at Para
graph 190 thereof, has failed to promote to the utmost the material
and moral well-being and social progress of the inhabitants of the
Territory; that its failure to do sois in violation of its obligatiçms as
stated in the second paragraph of Article 2 of the Mandate and
Article 22 of the Covenant; and that the Union has the duty forth
with to cease its violations as aforesaid and to take ail practicable
action to fulfill its duties under such Articles;". (I, p. 197.)
Mr. President, at least two salient points emerge with inescapable
clarity from these submissions.
The first of these is that Submission No. 3, which I have just read,
relates toand describes Respondent's factual conduct complained of, to
wit, the practice and measures of implementation of the policy of apart
heid; furthermore, that the essential character of the practice is ex- ARGUMENT OF MR. GROSS 17
phc1tly described, to wit, distinction as to "race, color, national or
tribal origin in establishing the rights and duties of the inhabitants of
the Territory".
Secondly, Submission No. 4 refers to generally enumerated policies,
more ;;pecifically described in the sections of the l\iemorials citcd in the
submissions, and the submission alleges that, by virtue of such policies,
Respondent has failed to promote the well-being and progress of the
inhabitants of the Territory.
l\lr. President, even the most cursory reading of these submissions
must make it crystal clear that the basis of the Applicants' contention
with respect to the alleged breach and abuse of Article 2 of the Mandate
and of Article 22 of the Covenant consists in the policies and practices
of Respondent in the Territory. Whatever the explanation may be for
Respondent's efforts-they have been persistent efforts-ta construe
the submissions in a different sense, there is no real basis, in the Appli
cants' respectful view, for confusion whatever concerning this matter.
Neither submission rests, in whole or in part, directly or by implication,
and this has been repeatedly stated, upon the premise of Respondent's
good faith, purpose, motive or state of mind with respect to the policies
and practices therein described. The Applicants' contention that such
policies a,nd practices violate Respondent's obligations in accordancc
with and pursuant to the relevant provisions of the Covenant and of the
Mandate does not place at issue Respondent's motive or state of mind
and such submissions do not, explicitly or implicitly, request the Court
to take such motive or state of mind into account, nor to adjudge and
declare with respect thereto. On the contrary, as the Applicants repeat
cdly have sought to make clear, the basis of their case with respect to
the alleged breaches and abuses of these articles renders any such con
siderations irrelevant and foreign to the cause of action truly embodied
in their submissions.
Respondent's persistent and indeed laboured effort, in its written
pleadings and in its oral arguments, to distort or alter the true meaning
and significance of these submissions will be examined in more detail in
the course of Applicants' subsequcnt response to the Respondent's
arguments which have just been completed as of last cvening. In the
context relevant here, in respect of the Respondent's proposa! for in
spection which is under discussion, it is necessary for the Applicants to
clear up confusion engendered by Respondent's misconstruction of the
submissions in order that the Court may consider and pass upon Respon
dcnt's proposai-if not now, then in due course-in the light of the
submissions as they actually are, rather than as Respondent represents
them to be.
For the purpose of such clarification, and in the light of Respondent's
effort to reconstrue the Applicants' submissions, reference must be made
to Chapter V of the Memorials and to the summarization in paragraphs
189 and 190 thereof which are referred to in the submissions themselves.
Chapter V concerns the policies and practices which are the subject of
complaint, and the continuance of which is asserted to be in violation of
Respondent's obligations in terms of the relevant articles of the Covenant
and of the Mandate.
Respondent's distortion of the intent and meaning of such submissions
rests upon the device or procedure of selecting certain words and phrases
in the chapter of the Memorials in question. It is, accordingly, pertinent 18 SOUTH WEST AFRICA
now to call to the Court's attention the nature, purpose and cft:ect of the
Memorials in this respect so as to establish a true perspective thereof.
Mr. President, at the dose of the early part of the session this morning
I was referring to the Respondcnt's distortion of the Applicants' sub
missions, through the device or procedure of selecting certain words and
phrases, usually out of context, from Chapter V of the Memorials, and
that it is, accordingly, pertinent now to call to the Court's attention the
nature, purpose, and effect of the Memorials in this respect, so as to
establish a true perspective thereof.
Chapter V of the :Memorials (1) commences at page 104 thereof, and
the chapter opens, as the Court will note, with a statement of Jaw on
pages 104-108. The true significance of the legal propositions set forth
therein, as distinguished from Respondent's characterization of them,
has been noted in the Applicants' written pleadings and in their oral
arguments, and this matter will be subject to further considcration in
the context of the Applicants' response upon resumption of the argument
on legal issues. It is sufficient to note here, we believe, that the Applicants
contended in the Memorials, as they continue to contend, without any
change of position, addition of any so-called new cause of action, or
otherwise, that in the words of the Memorials, "clear and meaningful
norms marking the duties of the mandatory exist", and these are ''legal
norms", again 1 quote from the Memorials, and that Responclent's
policies and practices should be adjudged on the basis of such existent,
clear and relevant Jegal norms.
Chapter V of the Memorials thereupon sets out, in considerable detail,
relevant facts establishing how Respondent's policies are applied in
practice. This section of Chapter Vis headed: "B. Statement of Facts:
Policies and actions relating to the second paragraph of Article 2 of the
Mandate." (I, p. ro8.) It will be noted that no reference is made in the
caption to Respondent's purposes, motives, or state of mind. The omis
sion of any such reference is not inadvertent; the Applicants, in for
mulating the Memorials did not, never have, and do not now consider
that Respondent's policies and actions are to be weighed and measured
against the state of mind of Respondent, as a Government, to the extent
that a Government has a state of mind, or to the intentions, motives,
purposes, or sincerity of Respondent's governmental officiais who may
be in office from time to time. The true purport and significance of
Chapter V in this respect clearly appears from the Memorials themselves,
and is not left to conjecture.
Evidence of the accuracy of the statement just made to the Court is
found in the opening sentence of Chapter VI of the Memorials them
selves, which may be quoted here for the Court's convenience:
"Chapter V of this Memorial sets out facts establishing the Union's
violation of its duty to 'promote to the utmost the material and
moral well-being and the social progress' of the inhabitants of the
Territory. These facts have been derived principally from official
sources, including laws, proclamations, and administrative decrees
in force in the Territory. As stated in Chapter V, the interlocking
and all pervasive nature of the above laws, proclamations and
decrees establish their regular and systematic implementation in
the Territory." (1,p. 167.)
That quotation from the Memorials stands as a clear, unequivocal inter- ARGUMENT OF MR. GROSS
19
pretation of the meaning and purpose of Chapter V, in the respect
relevant to this discussion.
The attention of the Court is respectful!y drawn to the last sentence
of the paragraph which I have just quoted from page 167 of the Memo
rials.The Applicants therein set forth their conclusion that the laws and
practices complained of "establish their regular and systematic imple
mentation". Much of Respondent's effort to fashion the submissions in
its own image, rather than to accept them in their true and intended
form, rests upon the Applicants' use in certain contexts in Chapter V
of words and phrases such as "systematic", "deliberate", or other
characterizations to the same effect, or having the same purport. One
instance thereof, cited repeatedly by Respondent in the course of its
effort to portray the Applicants' theory of the case in a sense different
from that in which the Applicants themselves visualize the matter,
occurs in the concluding paragraph of Chapter V, in the following
context:
"The meaning of the Mandatory's conduct revealed in the fore
going factual record is clear, as is the meaning of Article 2 of the
Mandate in this case. When the latter [that is, Article 2] is applied
to the former [that is, the factual record], the legal consequence is
clear and unmistakable. It is an understatemcnt to say that the
Mandatory has violated its obligations. In its administration of the
)fandate over the territory of South West Africa, the Union, as
1Iandatory, has knowingly and dcliberately violated the letter and
spirit of the second paragraph of Article 2 of the Mandate and of
Article 22 of the Covenant upon which Article 2 of the Mandate
was based. In respect of its obligations thereunder, there is a polar
disparity between the dutics of the Union undcr the foregoing
provision of the Mandate and its conduct in the administration
thercof." (I, p.166.)
Itwill be noted that, in the contcxt, the Applicants have set out their
own characterization, conclusion, inference or judgment, that the undis
puted facts of record set forth in the Memorials, in considerable detail,
so clearly demonstrate the pervasivc, consistent and systematic appli
cation and implementation of the admitted policy of apartheid in the
Territory, that it would be, again in the Applicants' view, "an under
statement to say that the Mandatory has violated its obligations", upon
the basis of the Applicants' vicw of the applicable, legal criteria which
we have submitted to the Court for its judgment and adjudication. Even
a brief survey of the factual material, Mr. President, set out in the
relevant section of the Memorials, makes it unmistakably clear how
systematic and pervasive is, indeecl, the application of the admitted
policy of apartheid in the Territory, and with what rigid and thorough
goîng consistency it is effectuated throughout the entire life of the
Territory. The intention, the motive, the state of mind of Respondent's
officiais from time to time have nothing to do with the case. The factual
analysis commences by reference to the terms in which Respondent
classifies theinhabitants of the Territory rigidly and systematically into
four groups. It is on the basis of this classification that the status, rights,
duties, opportunities and burdens of the population are undisputedly
determined and allotted in factual respects set out in the Memorials.
The so-called groups are classified and categorized by Respondent as
follows, in terms of its census:20 SOUTH WEST AFRICA
"(a) Whites.-Persons who in appearance obviously are, or who
are generally accepted as white persons, but excluding persons who,
although in appearance are obviously white, are generally accepted
as Coloured persons.
"(b) Natives.-Persons who in fact are, or who are generally accep
ted as members of any aboriginal race or tribe of Africa.
"(c)Asiatics.-Natives of Asia and their descendants.
"(d) Coloureds.-All persons not included in any of the three
groups mentioned above." (I, p. 109.)
For purposes of these cases, the category "Asiatics", although, no
doubt, of interest to the persans directly concerned, is relatively unim
portant in view of the fact that, as of the 1960 census, only two persons
in the Territory appear to have fallen within this description. That
appcars from the Counter-Memorial, Il, page 401.
The rigid and thorough-going systematic qualities inherent in the
policy and practice of apartheid, which is the admitted policy, emerge,
inter alia, from the de-personalized formulas which exclude from the
so-called "White" group individuals "who, although in appearance are
obviously white, are generally accepted as Coloured persons", as well
as what may be called the basket clause, which classifies as "Colourecls",
"all persons not included in any of the ... groups mentioned above".
The word "obviously", in this context, in terms of appearance, indicates
and reveals the basic factor, and assumption, and premise, which could
not be varied by an inspection in loco, that it is appearance that enters
into the determination along with the acceptance, whatever that may
mean.
The legal, moral and political significance of such methods of categori
zation arises from the imdisputed fact that life-long and important per
sona! consequences attend them. lndividual rights, privileges, burdens
and duties flow from them, from birth to burial. Choicc of schools and
methods of education depend upon them. Degree of participation in the
political life of the community is dctermined if not conditioned, by them,
and economic opportunities are substantially affected by them, and there
is a procedure by which a person in one category can, with permission
of a certain bureau or agency, be changed to another category, there
upon obtaining a different allocation of rights, burdens, etc.
Now, Mr. President, the fact that ail, or any, of such consequenccs
could, as a result of official policynd practice, be visited upon a person
by reason of the circumstance that, although "obviously white", he is
"generally accepted as a Coloured pcrson", to quote again, illuminares
the admitted premises of apartheid with Iightning clarity. The matter
does not rest there; as is shown by the undisputed facts of record herein,
individual status, rights, duties, opportunities and burdens, are determ
ined and conditioned even more drasticallv in the case of "Natives",
that is. those "who in fact are, or who are generally accepted as mem
bers of any aboriginal race or tribe of Africa".
Chapter V of the Memorials deals with the facts, none of which in auy
material respect is disputed, which relate to Respondent's policies and
actions in the implementation systematically, as described, of the admit
ted policy of apartheid. The Applicants have made clear that their pur
pose of setting forth in considerable detail the facts concerning the mea
sures of implementation, the laws, regulations, administrative practices
none of which is in dispute, and if any is in dispute, the Applicants do ARGUMENT OF MR. GROSS 21
not rely upon them-that these tacts, systematically applied, in the
Applicants' submission, do establish a violation of the international legal
norm, for which the Applicants contend, and if the Applicants' views
inthat respect are not correct, if the Applicants' case upon its own theory
is not made, the result must be obvious.
Ail facts set forth in this record, which upon the Applicants' theory
ofthe case are relevant toits contentions of law, are undisputed. There
have been certain immaterial, in our submission, allegations of facts, data
or other materials which have been contravcrted by the Respondent and
such contraversion has been accepted by the Applicants and those facts
are not relied upon. The Applicants have gone further in order to obviate
any plausible or reasonable basis for an objection that the Applicants have
not painted the whole picture in their own written pleadings. The Appli
cants have advised Respondent as well as this honourable Court that ail
and any averments of fact in Respondent's written pleadings will be and
are accepted as true, unless specifically denied. And the Applicants have
not found it necessary and do not find it necessary to controvert any
such averments of fact. Hcnce, for the purposes of these proceedings,
such averments of fact, although made by Rcspondent in a copious and
unusually voluminous record, may be treated as if incorporated by refer
ence into the Applicants' pleadings.
Nor does the matter rest there. The Applicants have cited public state
ments by Respondent's highest officiais, for the purpose of demonstrat
ing how Respondent, not Applicants, in its own terins formulates the
premises, purposes and objectives of the policy of apartheid. There is
no question of fact concerning the premises underlying the policy upon
which the Applicants rely, those premises are stated in the statcments
set forth in statements by Respondent's highest officiais-no dispute
about the fact that they were made and even further, where the Respon
dent has contended that Applicants have taken excerpts out of context,
or otherwise distorted, unwittingly or otherwise-and it is not othenvise,
the Court need not be assured-in any such cases, the Applicants accept
Respondent's own context. In some instances indeed the context, the
full context, impresses the Applicants as even more strongly persuasive
of the validity of its conclusions and characterizations of the facts than
were the original shorter excerpts as included in the Applicants' written
pleadings.
On the basis of the averments of the facts in Chapter V of the Memorials,
added to in the Reply, together with the averments of facts in Respon
dent's written pleadings, including the official statements as aforesaid
in the context in which Respondent sets them forth in its own words and
with its own imprimatur, the Applicants repeat and reaflirm the following
legal conclusions set forth in the Memorials, 1, page 161:
"187. The factual rec~rd of the Mandatory's conduct, as hereinabove
more particularly set forth, has a desolate but remarkable consis
tency. \Vhatever segment or sector of the life of the Territory may
be examined the import of the facts is identical. Each part of the
record supports and confirms every other part. The record as a
whole supports and confirms the record in detail. Indeed, the record
taken as a whole has an impact greater than that of a mere arith
metical sum of the several parts. The record as a whole reveals the
delibera te design thatpervades the several parts."
I pause there for a moment-the last sentence if I may repeat "the22 SOUTH WEST AFRICA
record as a whole reveals the deliberate design that pervades the several
parts". The word "deliberate'' is selected out of this context and is made
to appear as the essence of the Applicants' charge or complaint. lt is
clearly-and those who wrote the section in question presumably know
what was intended by it-it is clearly a conclusion, characterization
or judgment in the context of, and under a heading of, legal conclusions.
Paragraph 188 of the Memorials then goes on:
"It might be possible for the Mandatory to explain or extenuate
this or that detail of the factual record, if it were merelv an isolated
event or phenomenon. As a matter of specuiation, such"a possibiJity
may be acknowledged. But the details are not isolated events or
phenomena. They are significant not only in themselves but in their
mutual and multiple relationships and their cumulative effect. Taken
as a whole, the weight of the factual record cannot be materially
diminished by attempts at extenuation. Particular laws and particu
lar practices,particular orders and particular acts are al! parts of a
cohesive and systematic pattern of behaviour by the 1fandatory
whlch inhibits the well-being, the social progress and the develop
ment of the overwhelming majority of the people of South West
Africa, in aU significant phases of the life of the Territory."
And Mr. President, I pause there for a moment and refer to the refer
ence in the sentence "cohesive and systematic pattern". Out of this con
text Respondent selects the word "systematic", holds it up triumphantly
as evidence of its strenuous contention that the Applicants' case is based
essentially on the use of words in such a context, the use of words such
as "deliberate" or "systematic". Paragraph 189 reads as follows:
"As the Applicants have previously pointed out, the policy and
practice of apartheid has shaped the Mandatory's behaviour and
permeates the factual record. The meaning of apartheid in the Terri
tory has already been expJained hereinabove. The explanation war
rants repeating. Under apartheid, the status, rights, duties, oppor
tunities and burdens of the population are fixed and allocated ar
bitrarily on the basis of race, colour and tribe, without any regard
for the actual needs and capacities of the groups and individuals
affected. Under apartheid, the rights and interests of the great ma
jority of the people of the Territory are subordinated to the desires
and conveniences of a minority. We here speak of apartheid, as we
have throughout this l\lemorial, 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 by which the Mandatory excludes the 'Natives' of the
Territory from any significant participation in the life of the Terri
tory except insofar as the Mandatory fi.nds it necessary to use the
'Natives' as an indispensable source of common labour or menial
service."
Now, Mr. President, and Members of this honourable Court, if from
this context and if on the basis of the fair construction, the intended con
struction of the excerpts in question and other related excerpts with
which I have burdened the Court's patience do not establish that the
Applicants rely upon and rest their case upon the record of fact herein,
and if these statements which I have quoted and similar ones appearing
in the Applicants' pleadings do not make c1ear that the Applicants submit ARGUMENT OF MR. GROSS 23
and indeedcontend that the application of these facts soset forth to the legal
norms for which the Applicants contend, pursuant to Article 22 of the
Covenant and Article 2of the Mandate, if these propositions do not clearly
emerge from the words and phrases used in the Memorials, the Applicants
again reaffirm that intention, as they have sought to do in the Reply,
although not to Respondent's satisfaction.
The Applicants likewise repeat and reaffirm that neither their Sub
missions 3 or 4, nor the legal conclusions, which I have just quoted from
the Memorials, nor any.other statements or arguments made by Appli
cants, that neither Submissions 3 or 4, nor the legal conclusions which
flow from the undisputed facts cirecord, directly or indirectly, explicitly
or implicitly, place in issue Respondent's motive, purpose, objectives
or state of mind or that of any of Respondent's officials from time to
time in office.
As stated earlier, Mr. President, the Applicants have deemed it neces
sary ta call these matters to the attention of the Court in order ta reduce
or eliminate confusion engendered by the terms in which Respondent has
presented its inspection proposai, since the Applicants have endeavoured
not ta lose sight of the fact that this is the matter under discussion at
the moment with due regard to the difficulty of selection posed by antici
pation of similar or even îndeed identical material which is relevant to
the uncompleted discussion upon the legal issues.
The Applicants refer. more specifically, in the context of the terms
in which Respondent has presented its inspection proposai, to Respon
dent's comments, arguments or statements made to the Court during
the course of the presentation of the proposai under discussion on 30
11farchas follows:
1. Respondent's erroneous statement that-
"... the only possible basis upon which there could be an allegation
of an abuse of power would be of the nature which appears to be
suggested in the Applicants' pleadings, namely that of bad faith
on the Respondent's part". (VIII, p. 275.)
2. Responden t'serroneous characterization of the Applican ts' "charge",
as they call it-by which it is assumed Respondent intended to refer
ta the submissions-as involving an issue of bad or good faith on Respon
dent's part. (Ibid.)
3. Respondent's erroneous construction of the same submissions, re
peated at ibid., page 276.·
4. In general, the Applicants would take the same position, and do,
with respect to any other comment, statement, argument or implication
which may be found in Respondent's presentation of its proposai, or else
where, involving a similar misconstruction of the Applicants' submissions.
Respondent's repeated and unwarranted characterizations of the Ap
plicants' submissions and pleadings in the foregoing respect have been,
apparently, relied upon heavily by Respondent as a reason for and justi
fication of the inspection proposai now under discussion.
The Applicants, on the other hand, have sought to make it clear, at
all stages of these proceedings, commencing with the fi.lingof the Appli
cations embodying the relevant submissions in the identical form in
which they stand today, that the validity of their submissions rests upon
two central contentions, which were stated at the opening of the Appli
cants' presentation to this honourable Court on 18 March 1965 as follows:24 SOUTH WEST AFRICA
"r. The policy of apartheid, as practised in South West Africa,
is repugnant to the Mandate.
2. The incompatibility of apartheid with the Mandate, in terms
of Article 2 thercof, is judicially detenninable on the basis of ob
jective legalcriteria." (VIII, p. n3.)
As the Applicants likewise have consistently sought to make clear, in
the words of the 1\-Iemorials:
"Since this section of the l\Iemorial [that is, the section of Chapter
V headed 'Statement of Facts', to which I ha"vereferred] is concerned
with the record of fact, it deals with apartheid as a fact and not as a
word. lt deals wîth apartheid in practice, as it actually is and as it
actually has been in the life of the people of the Territory, and not
as a theoretical abstraction." (I, p. ro8.)
And I might add at this point, .Mr. President, "and not as perhaps Re
sp.on~,ent'sofficials from time to time may view it in their own state of
mmd.
On the Applicants' view of the cases, and upon the basis of the legal
propositions which they assert support their submissions, therefore, no
purpose would or could be served, of which they are aware or which they
can perceive, in aid of the Court's adjudication upon these submissions,
by reason of the exercising of its fonctions elsewhere than at the seat of
the Court. Moreover, and for the same reasons, no purpose would be
served, in the Applicants' view, by the production of witnesses at the
seat of the Court, or the taking of testimony, expert or othcrwise, cither
at the seat of the Court or elsewhere.
If Respondent deems it necessary for any reason which is sufficient
to itself to introduce additional factual material,or evidentiary material,
into the record of these already voluminous proceedings by reason of
some factor not yet apparent to the Applicants, in the form of witnesses,
then, subject to the permission and consent of the honourable President
and the Court, the Applicants would be prepared to stipulate, with the
Respondent, that any material, statements, matters which could be
testified to by persons if physically present in the courtroom, could be
taken in the form of depositions and submitted to this honourable Court,
in extension and amplification of the already bulky record thereof. But
if the Court should deem it necessary, or desirable, to observe the demea
nor of such witnesses, or to ask questions of"them on the basis of any
material which might be included in depositions, taken at the time upon
the time of Respondent rather than upon the Court's time, then of course
it would be understood, naturallv, that the Court could call such wit
nesses, ask for their appearance, or take whatever other action or mea
sures the Court deems necessary.
So far as the Applicants are concerned, and so far as they are aware,
on the basis of any information yet supplied to them with respect to the
nature of the witnesses apparently proposed to be brought before the
Court, or the nature of the points apparently proposed to be covered,
there would be no basis and no reason for cross-examination on the part
of the Applicants with respect to such matters.
The Applk:ants would waive any right they otherwise might have,
pursuant to the rules, practice, or pleasure of the Court, not to be present
at the taking of such depositions, not to request the right of exarnination
in the form of interrogatories or otherwisc. ARGUMENT OF MR. GROSS
But, having said all this, Mr. President, I should like to revert to the
essential point at issue, of which this is another illustration to support
and confinn, that the Applicants rest their submissions, hence their case,
upon the legal theory for which they contend and which underlies their
submissions, upon the record of fact as made and presented to this hon
ourable Court in the pleadings and documentation now before it, sub
ject to such addition as might be made, for example, by depositions,
subject to the Court's approval, on the basis I have suggested. There
would of course, needless to say, be no need or justification for the
Applicants to stipulate other than with respect to the proposition and
the fact that had the witness or witnesses in question appeared before
the Court personally, they would have stated what is set forth in their
depositions, prepared, as I say elsewhere, outside the time of the Court.
However, to revert now to the proposai specifically under discussion,
which is, of course, the proposition to make an inspection in loco,it seems
to the Applicants that the same conclusion, with respect to the non
suitability, the inappropriateness, the unfeasibility of the proposai made,
would apply equally, if not more so, if one proceeds from Respondent's
misconstruction of the Applicants' submissions and the factual and legal
considerations on which they rest, or from Respondent's own contention
that its obligations under Article 22 of the Covenant and under Article
2 of the Mandate are adjudicable, if indeed justiciable at all, which Re
spondent denies, upon the basis set forth in its explanation of the second
alternative contention.
It will be recallcd that the second alternative contention, to which
reference is made, which has been summarized and described in the
written pleadings and in the Oral Proceedings, is based upon the proposi
tion that if the obligations under Article 2, paragraph 2,and Article 22
of the Covenant are justiciable, they are justiciable, they are adjudicable,
only on the basis, as understood by the Applicants, that the conduct of
the Respondent must be viewed and reviewed in terms of the purpose
with which it approaches, or pursues, the task of achieving the objectives
stated in Article 2, paragraph 2. I shall refer in a few moments to Re
spondent's own explicit, agreeable characterizations of its proposition
in that respect, and if I have distorted its mcaning-it is not clear from
the Oral Proceedings, it is not clear to the Applicants in any event, for
reasons which I will explain, why it is not easy to be certain whether one
is misconstruing the intentions or not-then, of course, the words wil!
have to be re-examined-the words which thev used.
Mr. President, it appears to be relevant, and indeed inescapably rele
vant, to a consideration of Respondent's proposai under discussion for
the inspection in loco, to consider the judicial task which inevitably
would confront the Court, or Members thereof ifthe alternative proposai
were accepted, if the Court or Members thereof were to embark upon
an inspection trip for the purposes apparently envisaged by Respondent's
legal theory of its obligations under Article 22 of the Convenant and
Article 2 of the Mandate.
The Applicants will endeavour to appraise that judicial task without
reference, in this context, directly to the in any event elusive relationship
apparently perccived by Respondent to exist bctween a judicial deter
mination of its purpose, on the one hand, with the alleged political mo
tivation of the Applicants on the other, and an appreciation of African
reality as still a third element. SOUTH WEST AFRICA
Looking at the matter from the stand point of the task which the Court
would confront in respect of the legal theory upon which Respondent
apparently rests its case, what would be the task of the Court? Several
problems leap to mind which appear to have generated some perplexities
for Respondent as well.
It may be convenient to the Court to refer, as a preliminary matter,
to Respondent's own formulation of the proposed task in this respect.
After adverting to the Applicants' alleged untoward motivation, to
understate the matter, and the need for persona! appreciation of African
reality, Respondent contends:
"\Ve submit that in the practical considerations which apply to
this case, the only possible basis upon which there could be an
allegation of an abuse of power would be of the nature which appears
to be suggested in the Applicants' pleadings, namely that of bad
faith on Respondent's part~bad faith in the sense that the Respon
dent has been granted powers with a trust purpose, with a purpose
of promoting well-being and progress of the inhabitants, and that
that power is now being abused and applied with a different purpose,
namely the purpose of oppressing certain of the inhabitants of the
Territory for the benefit of other inhabitants." (VIII, p. 275.)
Needless to say, this is a wholly incorrect reading and distortion of the
Applicants' case.
Then, omitting a passage irrelevant in this context, Respondent
continues:
"The question whether, in the sense I have described, a govern
mental power is imbued with good faith directed at the authorized
objective of the powers given toit, or whether it is imbued with bad
faith directed at an unauthorized objective, that surely, Mr. Pres
ident, must under ail circumstances be a question of fact." (Ibid.}
This then is a question of fact which would confront the Court in
exercising its judicial task outside, and away from, the seat of the Court.
After further elaboration of the point, that motive or purpose is a fact,
a self-evident proposition to which any psychiatrist would attest, Respon
dent falls into somewhat deeper waters. Respondent takes up for con
sideration the basis upon which a Court conducts an enquiry into good
or bad faith, which is the task obviously envisaged by Respondent which
would confront the Court in the implementation of the proposai for an
inspection in loco.
"It [that is, the task] calls for the determination of disputed
issues of fact, where necessarv. It calls also, and under all circum
stances, for a proper underst;nding, for a proper evalttation, for a
proper assessment, of ail the facts involved in a given situation.
Now, that is particularly the case where the allegation of the party
alleging bad faith takes a particular form, which it very often does
in proceedings of such a nature." (VIII, p. 276.)
I pause here to remind the President, and the J\Iembers of the Court,
there is no allegation of bad faith on the part of the Applicants. This is
merely an inverted forrn of statement, that this is the form in which the
issue is actually posed by the Respondent itselfand the theory upon
which it rests its case.
"The form of the allegation is very often this, that the action, ARGUMENT OF MR. GROSS 27
or decision, of the person or body concerned, is so manifestly wrong,
so obviously unfair, so clearly inhumane, or something similar, that
that authority could not honestly and genuinely have corne to its
conclusion; that as a matter of inference there must have been
something of the nature of bad faith, or an ulterior motive on the
part of such an authority or person. That is the form that an allega
tion of thistype very often takes." (Ibid.)
There follows in Respondent's statement, which may or may not be
related to what I have just quoted-I will admit that the statement
itself is highly confusing-passim references to the necessity for "evalua
tion of the facts", "knowing ail aspects of the facts involved in a partic
ular situation" (ibid., p. 277) understanding "ail facets of the factual
situation" (ibid.) and comments of a similar nature, ail appearing in the
context of Respondent's presentation of its proposai under discussion,
and presumably related thereto in some manncr.
Mr. President, several propositions of a legal nature are tangled up in
the foregoing comment, which require unravelling.
Before turning to these, however, it may be well briefly to clear up one
point of confusion injected by Respondent's apparent misconception
that any of the Appiicants' reasons, or arguments, reflect their assump
tion that state of mind, motive or purpose is something other than a fact.
This seems to have been dragged across the trail of the proceedings.
Manv situations of course are known to the law in which motive, or
intent:is not merely a relevant fact but, indeed, may be a decisive one.
This was precisely the point of the Applicants' references earlier in these
proceedings to the well-known doctrine of mens rea and the part which
it plays in criminal law. Further discussion of so elementary a matter as
to whether motive, or state of mind, is a fact, and provable as such,
would be a waste of the Court's time. In any evcnt, it is completcly wide
ofthe màrk.
The point at issue here is a wholly different one. Assuming for the sake
of argument the validity of Respondent's submission, or proposition.
which, in the Applicants' respectful view, is wholly untenable, that the
only issue of fact which could arise for adjudication in respect of asserted
violations of Article2 of the Mandate, and Article 22 of the Covenant,
must be based upon an examination and an evaluation of Respondent's
purpose, in terms of state of mind in connection with the pursuit or
accomplishment of its objective: on what basis could the Court arrive at
a judicial decision concerning the legal significance and character of
Respondent's state of mind with respect to the facts, undisputed facts,
of record in these proceedings.
The facts, in the Applicants' submission, speak for themselves and are
beyond dispute. The inferences which have to be drawn from them have
nothing in common with whether or not the Respondent's govcrnmental
or public officiais intend to accomplish certain results or know, indeed,
what the results are that they are actually said to intend. The objective
criteria must be applied to the purposes of the Mandate itself. The answer
to this question appears to the Applicants to be not merely relevant to,
but dispositive of, the Respondent's proposai that the Court exercise its
functions elsewhere than at the scat of the Court.
Respondent's analysis of this matter casts more shadow than light
upon it.
In the first place, Respondent's statements, which I have quoted, in28 SOUTH WEST AFRICA
presenting its proposa! that such adjudication would involve evaluation
or assessment of "all the facts involved in a given situation" begs a
major question: what facts are involved in, or relevant to, "a given
situation"? Clearly they are not all the facts which any party, fancifolly
or otherwise, asserts are relevant and therefore must be enquired into.
Judicial administration, the normal operations of judicial process, do
not turn matters of that sort over to the parties,
The Applicants con tend that ail facts relevant or necessary to adjudica
tion upon its submission are not only in the record of the proceedings but
are, indeed, undisputed. That I have sought to make clear.
Respondent accordingly draws a false issue, or at least evades the
real one, by the very form of its statemcnt "the Court must asscss or
evaluate all the facts involved in a given situation". Is the weather
relevant? Clearlv this Court, or anv court, cannot reasonablv be ex
pected to exercise its fonctions, either at the seat of the Court or else
where, merely on the basis of assertions, by one or more parties, that the
Court should take certain testimony, adopt certain evidentiary proce
dures, or exercise its fonctions in a certain way, all on the basis that it
must assess ail the facts involved in a given situation. The Applicants
fail to see the feasibility, or cvcn the common sense, of such a proposai.
\Vho is to determine what ail the facts are, except on the basis of what
facts are relevant. The question what facts are relevant obviously and
necessarily involves the determination of ,the nature of the submissions
and the legal issues upon which they are grounded. There is no other way
to tell what ail the facts are or, as Respondent says in another context,
all facets of the situation.
The Court must clearly adopt the normal posture that any court
would, and it is inevitable, it is inherent in the nature of the judicial
process, to consider what the Applicants' submissions stand for, what
legal propositions they are grounded upon, what facts are contended by
the Applicants to be relevant, in order to sustain their submissions, and,
acting upon that basis, to decide whether the submissions are, or are not,
well founded.
The selection of procedures, the designation of what facts are within
the preview of the litigation, is essentially, as I say, a matter for the
excrcise of judicial discretion, in the light of the factors I have mentioned
and weighing in the scales of justice the requirements of expedition,
expense, to the Court as well as to the parties, and the burden of cum
bersome procedures which are contended for here and which would repre
sent such a radical departure from the practice of this Court and its
predecessor.
A survey of the history of the Court in this respect bas revealed only
one situation of which the Applicants have been able to find record in
which the Court exercised its fonction elsewhere than at the seat of the
Court, and that was in the case of Diversion of Water /rom the Meuse
(P.C.I.J.,Series A/B,28 June I937), in which the Court with the consent
or aquiescence of both parties visited the river and took a trip on the
river to examine the workings of the locks.
In the terms of the proposai, which is truly unprecedented, and
revolutionary, if I may use that word, one must consider what "all the
facts" implies in the task of judicial selection, either here at the seat of
the Court or elsewhere, in loco, to use Respondent's phrase.
It is a little tao easy to say, with a sweep of the hand, that the Court ARGUMENT OF MR. GROSS
should enquire into all the facts and all facets of the factual situation.
But such questions arise, as where the Court should go in pursuit of so
elusi\·e a mission as that defined in the task of examining "ail the facets
of the factual situation". There are many facets of the factual situation,
although that is hardly a legal term of art, which emerge from the
pleadings, and particularly Respondent's form of pleadings, which involve
areas other than any mentioned or suggcsted in the Respondent's
proposai.
The question arises not only where the Court should go, but what is
the Court, or Members thereof, to look at; what is the Court, or Members
thereof, to look for? Let us assume, for example, just as an illustration,
that the Court, or Members thercof, should decide to visit Windhoek,
the capital cityof the Territory of South \:VestAfrica, in order to enquire
into''allfacets of the factual situation'' there, in the words of Respondent.
Let us assume further, by way of example, that the particular facet
under enquiry involves the legal inferences to be drawn from the undis
puted, and unquestionably relevant, fact or facet that a "Native",
however capable he might otherwise be, is not permitted to receive
training, or to qualify as an engineer in the Territory; and that, in any
event, if he should succeed in reaching that status, perhaps by being
able to leave the Territory for that purpose to complete his education,
government policy would prohibit him from having a so-called "White"
assistant; and that, if he qualifies as assistant cngineer therefore, this
sets his lifetime ceiling of opportunity in the profession, whatever his
merit or capacity-this is from the Memorials (1) at pages 157-158; that
is based upon undisputed facts of record, facts appearing from an
uncontroverted and uncontrovertible statement by Respondent's Min
ister of Bantu Education made in 1960.
Now let us assume further that the Court, in Windhoek or elsewhere
in the Territory, desires to evaluate this facet of the facts of apartheid
as applied in the Territory in the light of Respondent's own explanation
thereof-that is set out in the Counter-l\Iemorial, III, at page 528 as
follows, and the whole context is respectfully drawn to the attention of
the Court-it will be found at III, pages 527-531 of the Counter-Memorial,
and the Court, with respect, deserves to read it in full in order to assure
itselfthat, as the Applicants believc, what I shall rcad is not quoted out
of context. This is the explanation advanced by Respondent in respect
of the paragraph of the Memorial which sets out the undisputed fact to
which I have referred, that a "Native" may not qualify as an engineer,
and that if he should succeed in doing so, by circumvention of the policy
and practice in the Territory, he would not be permitted if he returned
to the Territory to have the services of a "White" assistant engineer.
Now let us look at the explanation advanced by Respondent to attempt
to see what the Court's function would be, what the Court's judicial task
would be, if it sought to evaluate this facet of the factual situation, and
I read from page 528~(c):
"A fact of which Respondent must, and does, take cognizance, is
that there has, throughout South Africa's history, been social sepa
ration between the White and Bantu groups; that the members of
each group prefer to associate with mernbers of their own group;
and that certain kinds of close contact betwcen members of the two
groups, particularly in the more intimate spheres, tend to create
friction.''30 SOUTH WEST AFRICA
Paragraph (d):
"The aforementioned factors, accentuated in ail probability in
the case of the European group by the fact that they have for a long
time occupied a position of guardianship and leadership over the
Bantu groups, also in the economic field, have limited relationships
between Europeans and Bantu largely to those of tutors and em
ployers, on the one hand, and pupils and employees, on the other,
and have, furthermore, as at the present stages of development of
the respective groups, resulted in the factual situation that many
Europeans, in all probability the vast majority, are not prepared to
serve in positions where Bantu are placed in a position of authoritv
over them.'' a
And (e):
"A further important facet of the aforemcntioned factors is that
a Bantu who qualifies himself for a profession in which he will,
because of the stage of advancement of his own group, have to
depend for his livelihood on the services of European employees, or
on European patronage, runs a grave risk of total frustration."
This latter part of the explanation the Applicants have, for conveniencc,
referred to as the doctrine of inevitable frustration.
The attention of the Court respcctfully is drawn, as I have said, to the
full context at III, pages 527-531 of the Counter-Memorial from which
these excerpts are derived. The facts in this case, and the purported
explanation thereof, accordingly-both are set out in the record of these
proceedings upon the basis of direct and indisputable sources. Reverting
now to the questions relevant to a considcration of the Rcspondent's
proposa!, what would the Court look at, what would the Court look for,
in aid of an evaluation of this facet, assuming that the Court should
embark upon the task which is suggested by the Respondent? Upon
completion of the tour of the city of Windhoek and its environs. the
receptions of officiais, inspection of selected or representative public
facilities or other installations and enterprises, parks and so forth, the
question still remains: how does the Court meet the judicial task posed
in respect of the most important facet of all, if I may call it a facct-to
wit, the effect of Respondent's policy and practice of apartheid, on the
undisputed facts, upon the well-being and progress of the individual
person who is affected by the admitted policy, and who is told, presum
ably: "lt is a temporary disadvantage; it may be lite-long, but it is
tem porary, transient; some day something else will be done in the
Terri tory"?
The Applicants find genuine difficulty, Mr. President, in perceivirig in
what respects-and ask for clarification, invite clarification, upon this
the so-called "inspection'' of the city of Windhoek and environs, for
example, or other areas of the Police Zone of the Territory as a whole,
could aid in a judicial evaluation of the degree or quality of frustration
which is either avoided or inflicted, depending upon the point of view, by
a policy which for any reason based upon race, or tribal accident, inhibits
or forbids the realization of individual capacity, merit and potential.
In the Applicants' submission there is no intention, there is no purpose,
there is no state of mind, there is no circumstance which could justify
such a policy anywhere in the world, South West Africa or otherwise.
Respondent's contention that such evaluation inherently is nota proper ARGUMENT OF MR. GROSS
judicial function at al!, or that, if it is, the only applicable test is the
measure of the intent, or purpose, or state of mind with which Respon
dent's officiais from time to time seek to achieve a broadly defined
objective-that is at least, although wholly erroneous, a proposition of
law at least intelligible. The reasons underlying the Applicants' sub
mission that the Court should reject Respondent's contention in this
respect have been, and will be, more fully discussed in another context
upon the resumption of the legal issues. The Applicants are, of course,
aware that Respondent's proposai under discussion is based upon a
so-called alternative contention, which would arise for consideration
only if its first alternative contention should be rejected, that is, that
asserted breaches and abuse of the relevant provisions of the Covenant
and :1\fandate are not justiciable. The point relevant in the present
context, ;\fr. President, however, is that consideration of Respondent's
proposai under discussion could be materially affected by the Court's
reason for rejection of Respondent's first alternative contention, as well
as the possible decision on the part of the Court that it be rejected.
Apart from that conclusion, the reasoning upon which the Court should
base such a conclusion, if that indeecl should be the Court's conclusion
with respect to Respondent's first alternative contention,. would be,
and might be, highly relevant to a consideration of the suitabîlity or
feasibility or relevance of Respondent's proposai for an inspection. It is
not quite as easy as Respondent would like to make it appear to be
merely to say that its proposai woutd fall to be considered only in the
event the Court should reject its first alternative contention; although
the statement is undoubtedly a correct one, it does not fully meet the
problem. The principal basis advanced by Respondent in support of its
first alternative contention, that is to say "non-justiciability of its
obligations under Article 2 of the l\fandate and Article 22 of the Cove
nant", has already been analysed by the Applicants at an earlier stage
of these proceedings, and the basis advanced by and the theory upon
which the Respondent supports its first alternative contention will be
dealt with again upon resumption of argument upon legal issues.
[Public hearing of 28 April I965]
Mr. President and Members of the honourable Court, at the conclusion
of the session yesterday I had referred to the fact that it was not quite
as easy as Respondent would like to make it appear to be merely to say
that the proposai for the inspection would fall to be considered only
in the event that the Court should reject its first alternative contention.
Although the statement is undoubtedly a correct one, as I remarked
yesterday, it does not fully meet the problem, because there is also to
be considered as an aspect of the problem the matter of the rcasons
which might underlie the Court's rejection of the first alternative con
tention. Tt was for that reason that it was necessary to refer to the
principal basis advanced by the Respondent in support of its contention
of non-justiciability, that is to say, its first alternative contention. An
analysis of the basis advanced by Respondent has been made at an earlier
stage of these proceedings and will be dealt with again upon resumption
of argument upon the legal issues.
In the light of the relevance in this context of Respondent's reasoning,
however, in support of its first alternative contention, that is of non-32 SOUTH WEST AFRlCA
justiciability of obligations under Article 2 of the Mandate and of Article
22 of the Covenant, it mav be convenient to refer, in the context of the
proposai under discussion°at this point to Respondent's argument, or a
portion thereof, in support of its first alternative contention of non
justiciability in terms of the Respondent's own formulation, and for that
purpose I quote from the Counter-Memorial, Il, pages 384-385. Respon
dent there says:
"... it is foreign to the essential nature and purpose of a Court
of Law to entertain matters of a purely political or technical nature,
such as might well arise if the Court wcre requircd to adjudicate
on disputes arising from an alleged breach of the obligation to
'... promote to the utmost the material and moral well-being and
the social progress of the inhabitants of the territory .. .'."
That argument, or point, is repeated in the Rejoinder, V, at page 144.
The Applicants have already referred to the question-begging nature
of the assertion and use of the term "purely" in the context of the quoted
passage. What is a purely political question is, of course, a major element
of the answer to the question itself.
Apart from thîs, however, the point of major relevance in this context
is the legal and logical consequence which would necessarily flow from
the Court's possible conclusion that, contrary to Respondent's reasoning,
disputes arising from alleged breaches of Article 2 of the Mandate in
volve matters essentially of a legal nature as well as those of a political
or technical nature. In other words, the matters involved here are not
purely of a political nature.
Such a conclusion, it is submitted, involves the consideration of, and
decision upon, the very nature of Respondent's obligations pursuant to
Article 22 of the Covenant and Article 2 of the Mandate. This in turn
bears directly upon the principal matter at issue in the context of the
present discussion, to wit, would procedures suggested by Res pondent in
aid of the Court's adjudication upon the legal dispute, involving the
interpretation and application of such obligations, would such a course of
inspection aid, or would it not aid, adjudication of such issues. That is
the question before us at the moment.
As has been said, and must be assumed as an axiomatic premise, the
Parties to the present proceedings share in common a desire to assist the
Court in respect of any measures or procedures the Court may conclude
to be helpful to such an adjudication. It is on the basis of such an assump
tion that the Applicants have confessed difficulty in understanding Re
spondent's earlier reference to the difficulty alleged to be perceived by
Respondent with respect to our position on the matter.
A major source of doubt and confusion implicit in Respondent's for
mulation of its first alternative contention does arise, as I have said, from
the ambiguity of the phrase "purely political". Thus Respondent con
tends that:
"... it could never have been the intention of the authors of the
Mandate to vest the Court with jurisdiction relative to matters of
a purely political nature ... under Article 2, paragraph 2, of the
Mandate ... " (V, p. 147).
It would seem clear that it could not very well have been the reasonable
intention of anybody to vest the Court with jurisdiction over matters of
a purely political character. ARGUMENT OF MR. GROSS 33
This honourable Court, however, has held that the questions at bar
and the interest of the Applicants in the obligations of the Mandate in
volve questions of a legal character and are, therefore, adjudicable.
And now, reverting for a moment to the illustration to which I have
referred of the problems arising of frustration or otherwise in connection
with the educational policies and economic policies of apartheid under
lying limitations placed upon levels of accomplishment, regardless of
individual merit or capacity, I referred to the fact that inhabitants of the
Territory classifi.edas Natives do not qualify to become engineers because
of the inevitable frustration which such a qualification would import into
their lives: reverting to such an illustration, which we believe is charac
teristic ofthe policy, the premises underlying it and its method of im
plementation, would consideration by the Court of the facts and ex
planations in terms of visual observation of phenomena and facts in the
Territory itself assist the Court in evaluating the legal consequences to
be drawn from this particular aspect, or tacet, of the matter, in Respon
dent's terminology? Is it a purely political question, is it a purely politi:
cal matter in terms of Respondent's formulation? Is it open to inspection?
Is it within the Court's jurisdiction to consider? If not, the question
would be on what basis could the Court adjudicatc the issues at bar.
There would be, it seems to the Applicants under hypothesis, no issues,
indeed this is the way the formulation reads, no matters, except those
of a purely political character, which would underlie the decision with
regard to this question and, therefore, it is on that basis that the Re
spondent argues thcre is no possibility that the authors of the Mandate
could have intended thcse obligations to be justiciable at all.
The question of sorting out political matters from legal matters with
respect to the proper ambit of the Court's enquiry should it acccpt
Respondent's proposai, docs not, unfortunately, receive much clarifica
tion by reference to the Respondent's written pleadings. In fact, the
comments made by Rcspondcnt in its written pleadings regarding its con
cept of the distinction bctween politics and law, in this context, rather
add to the perplexities and do not carry the question any distance along
the road to solution.
Other possible logical methods of sorting out the distinction which
Respondent may perceive in this respect, for such bearing as it may have
on the analysis of the task, the judicial task, which the Court would con
front in carrying out an inspection of the sort proposcd, would be to con
sider the respective tasks which, for example, would confront the Court
in an enquiry of this nature and what sort of tasks would confront an
international administrative supervisory agency embarked upon the same
mission.
Such a method of analysing the signifi.cancesought to be drawn by Re
spondent between political and legal considerations, however, is not il
luminated by Respondent in its written pleadings. To the contrary the
pleadings mcrely compound the confusion.
In Respondent's discussion of the references made by Applicants to
reports and resolutions of the United Nations organs, in the course of
which discussion parenthetically Rcspondent incorrectly characterized
the purpose for which the resolutions had been cited by the Applicants,
Respondent stated:
"... it rather appears as if Applicants now wish to use these reports
and resolutions as authority on the crucial question at issue, namely,34 SOUTH WEST AFRICA
whether Respondent's policies are indeed deliberately directed at
the purpose alleged by Applicants. This is a question involving con
tested facts and disputed inferences therefrom, on which resolutions
of a political body, which has in the nature of things never attemp
ted a judicial enquiry into the matter, cannot be of any assistance
to the Court." (V, p. rr3.)
The Applicants' citation of the United Nations resolutions in question,
of course, was not directed at ail to the purpose described by Responclent.
However, Respondent's mis-statement in this respect is irrelevant in the
present context.
The point here lies in Respondent's contentions, or apparent conten
tions. that judgments of a political body, with respect to what Respon
dent has described as the crucial question at issue, cannot be of any as
sistance to the Court on the ground that such a political body has had
"in the nature of things never attempted a judicial enquiry into the mat
ter". It is of course, by definition, truc that a pofüical body does not in
the nature of things conduct judicial enquiry. But it would be new doc
trine indeed to say that political bodies do not, or cannot, take into ac
count and reach judgments upon the basis of questions involving matters
of a legal nature.
On the other hand, courts frequently do and must rcach judgmcnts
upon issues which include matters of a political nature.
The attempt to distinguish, without definition, betwcen matters of
a political and legal nature, which underlies Respondent's first alternative
contention. imports a confusion, or at least perplexity, into an analysis
of the task which would confront the Court in an inspection on the basis
of the reasoning advanced by Respondent in support of its first alterna
tive contention. The Court's view with respect to such rcasoning would
be, therefore, relevant to the nature of the task which the Court might
envisage it would confront in carrying out an inspection in loco.
Another illustration may be cited in respect of the same question from
a broader standpoint. The Applicants have set out in their Memorials at
1, page 150 a series of laws, regulations and practices bearing upon the
factor of freedom of movemcnt of persons classified as ''non-White" in
the Police Zone, the economically developed 50 per cent. or more of the
Territory. The catalogue of such restrictions is introduced by the Appli
cants for the purpose set forth cx:plicitly in the Memorials, as follows:
"In their cumulative effect, the multiple restraints upon the movc
ment of 'Natives' and the vulnerability of the 'Natives' to arbitrary
arrest press upon the individual 'Native' ,vith an almost suffocating
weight. To appreciate the burden, it may be helpful to try to en
visage the situation from the angle of vision of any individual
'Native'." (1, p. 150.)
It may be relevant to mention at this point, l\Ir.President, that it is
indeed difficult to understand the true nature of the premises and effects
of the policy of apartheid in the daily lives of the inhabitants, except on
the basis of envisaging the situation from the angle of the individual.
There follows on the same page of the ?'ilemorialsan enumeration of
the restraints in question to which the Court's attention is respectfully
directed.
In terms of Respqndent's first alternative contention, or the reasoning ARGUMENT OF MR. GROSS 35
.
underlying the formulation, including the allegation that these are mat
ters of a purely political nature and not therefore legal, would the Court's
evaluation on the basis of an inspection trip, on the spot or elsewhere,
involve matters of a purely political nature, or of a legal nature, or of a
combination of the two, in respect of the observation and inferences of
law to be dr'awn from the series of restrictions which are undisputed and
set forth in the record as facts?
It may be pertinent at this point to advert to a feature of the present
discussion which has implications both serious and ironie. For many
years Respondent has engaged in a dispute with the Applicants and
numerous other States throughout the world, similarly situated, cen
tering on the question of the relevance of, and necessity for, international
supervision over the mandated terri tory. Respondent's failure and refusai
to admit, or to submit to, obligations o.finternational accountability, is
a major reason for recourse on the part of the Applicants to judicial
protection in terms of Article 7 of the Mandate. Although disclaiming a
legal obligation to submit to international supervision, Respondent none
theless concedes that such international supervision over its administra
tion of the sacred trust was intcnded by the authors of the mandates
system to be an essential and integral element of the system itself.
Itcites this in support of its second alternative contention in another
context, to wit, that if international supervision has lapsed, as Respon
dent insists, the Mandate as a whole must be deemed to have lapsed for
that very reason.
The importance of continuing supervision, including the consultations
between a supervisory agency and the Mandatory on a continuing basis,
is conceded in principle by Respondent in contexts which will be referred
to in the course of rebuttal, when that is resumed on the legal issues
such importance, the importance of such inspection, or relationship, or
consultation, or supervision, is conceded by Respondent. In addition,
Respondent asserts that, in the light of the nature and importance of
such continuing international supervision to the scheme of the mandates,
the authors of the system could not have intended to engage the judicial
process in respect of the mandatory's obligations under the sacred trust.
They are non-justiciable-Respondent's first alternative contention. A
fuller examination of these theories and bases upon which Respondent
rests its conclusions will be examined in the course of resumed discussion
of legal issues.
ln the light of the history of the dispute regarding the nccessity and
obligation of international supervision over the Mandate, it seems need
less to say that questions raised by the Applicants conceming the suit
ability, feasibilityand relevance of Respondent's proposal under dis
cussion, for an inspection, obviously are not in any way intended to re
flect a modification or weakening of the Applicants' historie position,
still maintained, on the matter of the vital importance of international
supervision over the l\fandate. On the contrary, the Applicants perceive
that Respondent's proposai for inspection by its very nature confirms the
Applicants' long-standing conviction that unilateral and unsupervised
administration of the Territory is not compatible with the objectives of
the Mandate itself, or that questions involved in disputes concerning
the administration of the Mandate cannot be resolved on the basis of
unilateral and unsupervised analysis of the consequences thereof.
The Respondent's proposai, as well as the terms in which Respondent SOUTH WEST AFRICA
has presented it, not only supports the validity of the Applicants' sub
missions with regard to the essentiality of international administrative
supervision on a continuing basis; it also underlines the full weight and
significance properly to be attached to the holding of this honourable
Court in its 1962 Judgment, in which the Court referred to the 1950 Ad-
visory Opinion and concluded in the following words: ·
"The findings of the Court on the obligation of the Union Govern
ment to submit to international supervision are thus crystal clear.
Indeed, to exclude the obligations connected with the Mandate
would be to exclude the very essence of the Mandate." (I.C.J. Re
ports I962, p. 334.)
As the Applicants have pointed out at an earlier stage of these pro
ceedings, acceptance of Respondent's contention that the provisions of
the Mandate relating to international administrative supervision lapsed
upon dissolution of the League, such a contention, if accepted by the
Court, would confront the Court with the necessity-unforeseen and un
intended by the authors of the mandates system-to serve as the first and
only means of international supervision or protection over the Mandate,
rather than as the final bulwark to safeguard against breaches and abuse
of the Mandate.
If disputes should arise in the future concerning the administration or
interpretation of the Mandate, in the light of constantly changing cir
cumstances, in the light of constantly shifting officiais concerned with
the pursuit of the objectives of the sacred trust-and it seems inevitable
that such disputes could only be expected if the processes of international
administrative supervision were not in force and faithfully complied with,
in terms of their intended purposes-the Court frequently might be con
fronted then with the recurrent task of judicial protection of the Mandate.
If resolution of such disputes, which it is to be hoped will not arise, were
not adjudicable on the basis of factual issues and legal contentions set
forth in the written pleadings and oral arguments, but necessitated the
exercise of the Court's function elsewhere than at the seat of the Court,
it would follow that the Court's judicial fonction would be converted into
that virtually of a continuing administrative supervision over the Man
date, a function indistinguishable in decisive aspects from that envisaged
in the mandates system to be performed by the administrative organ,
as what this Court has called the "normal security".
And the Court furthermore, as I have said, would under such circum
stances confront a continuing necessity to maintain on-the-spot contact
with Respondent's officiais who, in the natural course of events, would
be replaced from time to time, and yet whose motives and states of rpind,
in Respondent's theory, would be relevant to a judgment upon the ob
ligations and disputes concerning them.
Full analysisof the reasoning which underlies Respondent's contention
concerning the nature and scope of its obligations under Article 2 of the
Mandate wilI have to await resumption of argument upon legal issues.
But certain aspects which do fall to be considered in the present context
of the proposai under discussion will and must be referred to.
During the course of Respondent's presentation of its proposai on 30
March, after referring toits first contention regarding the non-adjudica
bility of the alleged violations of Article 2 of the Mandate, Respondent
stated as follows: ARGUMENT OF MR. GROSS 37
"But, l\'Ir.President, our alternative is that if the Court finds there
is a basis upon which it can adjudicate, that basis is, in our submis
sion, confined to testing whether there has been a legal use, a proper
use, of the discretionary powers conferred upon the South African
Government in that regard, or whether there has been an abuse of
power. We submit that in the practical considerations which apply
to this case, the only possible basis upon which there could be an
allegation of an abuse of power would be of the nature which appears
to be suggested in the Applicants' pleadings, namely that of bad
faith on the Respondent's part-bad faith in the sense that the
Respondent has been granted powers with a trust purpose, with a
purpose of promoting well-being and progress of the inhabitants, and
that that power is now being abused and applied with a different
purpose, namely the purpose of oppressing certain of the inhabitants
of the Territory for the benefit of other inhabitants.
That is the nature of the charge as we understand it, as it was
brought against us in the Memorials of the Applicants; that is the
way in which we have analysed it ... " (VIII, p. 275.)
And I would call the Court's attention to these words because, if I may
insert parenthetically, up to this point this has been couched in the
customary manner applied by the Respondent, of attributing positions
to the Applicants becoming toits formulation of its position, and ignoring
for the moment its attribution of its position to the Applicants. Respon
dent continues:
"... that is what we suggest as a matter of law to be the only pos
sible. basis upon which there could be adjudication on the question
whether the discretionary power, the discretionary fonction, the
discretionary obligation of the mandatory power has in this respect
been violated" (ibid).
Ignoring, as I have said, the misrepresentation of views to the Appli
cants, and the misstatement of the Applicants' legal theories, Respon
dent's formulation of what would, as a matter of law, be the only pos
sible basis upon whicb, there could be adjudication of the question, would,
necessarily, constitute the jural framework within which the proposed
inspection in loco would have to be conducted. The true significance,
therefore, of the phrases used by Respondent, and in particular the
phrase "bad faith", must be looked at carefully. This measures the judical
ambit of the Court's fonction with respect to this case, and, by necessary
inference, measures the nature, extent and all other factors relevant to
the inspection and procedures which would be followed in connection
therewith.
Respondent employs the term "good or bad faith" in different senses
and contexts throughout the written pleadings and oral arguments, and
this has, as I will show in a moment, produced confusion throughout the
course of this litigation, which confusion is reflected, unfortunately, in
the written pleadings of both Parties, and it is difficult to tell in which
set of pleadings the confusion is more compounded by the variant forms
of expression and meaning whlch are used by Respondent in respect of
the good or bad faith concept. That is a statement which obviously calls
for and demands explanation and justification, and I should like now to
proceed to demonstrate the basis upon which these statements have just
been made by the Applicants.38 SOUTH WEST AFRICA
Certain formulations of the concept of good or bad faith, in Respon
dent's terminology and usage, appear to have no intelligible meaning at
ail. At least three variations of formulation in this respect are to be found
in Respondent's written pleadings and the oral arguments. Thus, in
several instances, the formulation appears in the following form-in each
case, Respondent's own language-"The question before the Court can
therefore in essence only be one of intentions, or purpose, or good faith".
This is from the Counter-Memorial, II, page 391.
The same formulation is repeated in the same volume at pages 392 and
477, inter alia.
This formulation appears to equate or attribute synonymous signif
icance to the conceptions of intention, purpose and good faith. However,
this cannot be the intended signification in reason, one must assume,
inasmuch as intention or purpose, on the one hand, is cleariy astate of
mind, a fact, whereas good faith, on the other hand, is a Jegal character
or quality, attributable to astate of mind or intention in a given context.
That seems clear. In the form of the expression used which I have just
quoted there is, as I say, an apparent equation of the words, "intention",
"purpose" and "good faith".
Since it is not the purpose of the Applicants to engage in a speculative
word game, this aspect of the analysis, indeed, should not be thought to
be a substitute for analysis rather than a genuine attcmpt to clarify the
meaning intended by Respondent in presenting the major thesis upon
which its legal case rests.
Another formulation, a variant presumably of the one I have just
quoted, may be found in several contexts in the written pleadings as
follows "good or bad faith, in the sense of an authorized or unauthorized
purpose" -Counter-Memorial, II, page 392.
Such a formulation likewise is difficult to comprehend and on its face
seems meaningless. The concept of bad faith on the one hand and of
authorized purpose on the other relate to two entirel:/different things
bad faith is a quality of mind, an attribute of conduct-authorized
purpose relates, if these words mean anything in this context, to the
objective of the Mandate itself to the purpose sought to be achieved by
conduct. Therefore, this formulation would seem to be unintelligible as
well as the first. Yet another formulation, a third variant, is to be found
in various portions of the written pleadings to the following effect:
" 'bad faith' in the sense of pursuing an unauthorized purpose"; this may
be found, for example, in the Rejoinder, V, page ro6.
In one formulation, bad faith seems ta be equated to intention or
purpose. In another formulation, bad faith is used in a sense of an
authorized or unauthorized purpose and in a third formulation it is used
in a sense of pursuing an unauthorized purpose.
Now assessment of the judicial task which would confront the Court
in conducting an inspection in loco or indecd, of course, in passing upon
the validity of the Respondent's legal contention, necessitates a clear
unambiguous understanding, both of the judicial objective ta which
such an inspection would be directed and the judicial, the juridical
elements which would measure and determine its scope. Appraisal of
Respondent's formulation of good or bad faith in the exercise of duties,
the apparent judicial target aimed at by Respondent's proposai, at once
raisesthe question of the meaning properly attributable in this third ARGUMENT OF MR. GROSS
39
formulation, which seems at least on its face to be intelligible, to the
words "pursuing" and the phrase "unauthorized purpose".
In this formulation, as the Court will recall, Respondent speaks of
bad faith in the sense of pursuing an unauthorized purpose. Pursuit of
an objective or purpose could only mean, in the normal usage of the
word, the methods, the processes, the measures or the forms of conduct
by which a stated definable, recognizable purpose is pursued. Such
methods, measures and so forth only could be evaluated and appraised
in the light of the defined purpose at which they are directed, the objec.
tive which they apparently serve. The legal significance attributable to
conduct directed towards a stated objective must depend essentially
upon a Jegal evaluation of the objective itself. The evaluation of the
objective in turn presupposes the attribution of a meaning, nature and
content to the objective, which makes possible judicial appreciation,
appraisal and application of Iegal principles to the conduct in question.
The objective cannot be evaluated in tenns of motive, or state of mind,
or purpose of the officials in charge of carrying out the tasks which point
to the objective or lead to its accomplishment.
On the assumption that the state of mind, subjective motivation or
purpose of the individuals composing Respondent's Government is a
relevant fact at all, an assumption of a validity which the Applicants
deny, it would be impossible for the Court to arrive at any conclusion
concerning the lcgal quality or character of such a state of mind or of
motive in any respect in connection therewith, except upon an objective
evaluation on the basis of definitely established and cxisting criteria of
the nature and scope of the objective, which Respondent's officiais in its
formulation had in mind or assert they had in mind, or think they have
in mind in the pursuit of the objectives, whether those officiais be legis.
lative, administrative or judicial or any other.
When we turn to Respondent's contention with respect to the Court's
proper fonction of evaluation of the authorized purpose or the authorized
objective in terms of the formulation in question, we find the following
theory expounded by Respondent-1 am referring now toits conception
of the Court 'srelationship to the authorized purpose or authorized objec
tive which is the object of pursuit by the conduct in question. The
Respondent commcnts as follows:
"The 'full power of administration and legislation' granted in
terms of the Article [that is to say Articl2 of the Mandate] covers
the whole field of government, the only limitation (apart from
Articles 3to 5) being the element of purpose. And both the power
and the purpose are defined in such a manner as to preclude any
possibility of misunderstanding ... The question before the Court
can therefore in essence only be one of intentions, or purpose, or
good faith."
This is from the Counter-Mcmorial, Il, at page 391. It will be noted
that in the passage just quoted, clearly intended by Respondcnt as a key
one and presumably carefully formulated for that reason, the word
"purpose" appcars to be used in three entirely different senses, the third
of which seems to be nonsense.
The first use, that is to say, the element of purpose in the quoted
passage, appears clearly to refer to the purpose of the Mandatory. The
second use of the word "purposc", in the context of "the power and the SOUTH WEST AFRICA
40
purpose", appears clearly to refer to the l\Iandate's purpose. The third
use, which mistakenly equates purpose with good faith, has been rcferred
to but is repeated again in this conncction only to show that it makes
clear that the word "purpose", as used here the first time in this passage,
does indeed refer to the purpcise of the Mandatory, the state of mind of
the l\fandatory or its officials in pursuing the authorized objective.
Respondent's formulations, and its theory underlying them therefore
seem to oscillate between Respondent's purpose and the Mandate's
purpose, in the manner of a metronome. When one looks at the purpose
authorized by Article 2 of the Mandate, one is told to look instead at
the purpose of the Rcspondent. Evaluation of the objective of the sacred
trust, according to the apparent meaning of Respondent's formulations
on the matter, does not properly involve a judicial appreciation or
judgment upon undisputed methods and procedures by which Respon
dent pursues its objective, but has some reference to the state of mind,
the intent or the purpose which animates Respondent's officiais, or at
least conclusions with respect to the matter have some connection with
Respondent's state of mind or purpose, otherwise why all the references
to that-where is it relevant?
This brings us full cycle to the third of Respondent's "simple proposi
tions" as it called them, on which the second alternative contention is
founded. This is paragraph (c) in the list of paragraphs which has been
the subject of previous discussion and which is found at the Rejoinder, V,
page 157, and which reads as follows:
"(c) The only limitation placed by Article 2, paragraph 2, on the
discretionary power vested in Respondent was that such power
should be exercised for the purpose of promoting to the utmost the
well-being and progress of the inhabitants of the Territory."
It is of particular importance to understand what significance is
attributed by Respondent to the use of the word "purpose" in this
context, equally a key passage in its analysis.
The Applicants have, it is truc, referred to the phrase "for the purpose
of" in the paragraph I have just quoted in "simple proposition" (c), as
a gratuitous gloss by Respondent upon Article 2, which contains no such
provision or qualification. The Applicants go further and characterize
the insertion of such a qualification as a unilateral amendment of the
article, a modification of one of its most important terms. The Appli
cants contend that the definition and determination of the nature, scope
and content of the "authorized purpose", the authorized objective
envisaged by Article 22 of the Covenant and Article 2 of the Mandate,
depend upon the application of objective legal criteria. Acceptance of
Respondent's theory would confront the Court with the necessity, in a
proposed inspection or otherwise, of exercising a judicial task of evaluat
ing evidence the relevance of which itself would presumably have to be
determined on the basis of some relevance still dimly perceived by the
Applicants of Respondent's purpose, Respondent's intention, Respon
dent's state of mind. The Applicants do not perceive how the Court
could exercise its fonctions elsewhere than at the scat of the Court, or at
the seat of the Court, on the basis of Respondent's legal theory of the case
firststated in the formulations which have been read to the Court in
Respondent's own language.
The Applicants contend that the "authorized purpose" in terms of ARGUMENT OF MR. GROSS
these articles and their proper interpretation and application is to be
measured by the Iegal norm, which the Applicants contend exists and
which the Applicants submit govems Respondent's conduct or the
methods by which it pursues the authorized objective.
Respondent, in another context, appears to suggest that the enquiry
would be designed to establish whether or not Respondcnt's administra
tion of the Territory so far exceeded any reasonable concept of "full
power of administration and legislatfon" that it would be necessary to
conclude that Respondent's officiais, from time to time, were motivatcd
by persona! considerations or others of a character so outrageous or
otherwise that no reasonable persan could differ as to their mata fides,
and which indeed, would be of such a character as to disqualify them
from office in the first place and, no doubt, call for their impeachment
! have not quoted Respondent's language, I have tried to distil what the
Applicants perceive to be its meaning.
If this is a correct analysis of Respondent's position, the Court's task
would be continuing and perpetual, as new officiais succeeded to office
or became subject to improper influences or succumbed to improper
motives, but more particularly in the light of changing circumstances in
which their motivation, or to which their intent or state of mind, would
be applied.
The legal scope and content of Respondent's obligations under the
sacred trust of both the Covenant and the Mandate, under Respondent's
theory, would be measurable cssentially by its own purposes, rather
than by objectively determinable purposes of a measurable nature, as
contended by the Applicants. The objectives of the Mandate would
become, in effect, whatever Respondent, in the exercise of its full power
of discretion, defines them to be, provided only that they are defined
and applied in a manner which does not arouse this sense of outrage of
the world. At least, this seems to account for the apparent inconsistency
between the statement by Respondent's Prime Minister, for example,
which has been quoted on a previous occasion in these procecdings, and
the position taken by Respondent as Iitigant before the Court. ln the
words of Respondent's Prime .Minister, which I have quoted, the only
test of Respondent's policy and action is whether, upon asking itself the
appropriate question, the answer cornes back that it is ·"honestly and
sincerely doing what a Christian guardian can be expected to do for the
peoples entrusted to his care".
If honesty of purpose is found to be present in such a self-examination,
the matter ends there, according to this viewpoint. The conduct is to be
evaluated in the light of the motive, not the other way round. The grant
of power is to do what the guardian thinks right, and the exercise of
power is to be adjudged on the basis of the guardian's perceptions and
attitudes. The trustee, on the basis of the statement publicly proclaimed
by Respondent's Prime Minister, audits his own books. examines his
own conduct, and evaluates his own accomplishments.
The position taken by Respondent as litigant before the Court does
not appear to be entirely consistent, to say the least, with the position
Respondent announces publicly through its highest official. 1t is difficult
to conclude from an examination of Respondent's formulation of the
matter in its written pleadings, however, where the distinction begins
and ends in respect of a pronouncement, such as I have quoted, and the
legal theory and its reasoning, as advanced by Respondent in its written42 SOUTH WEST AFRICA
pleadings. The oscillation between the use of purpose in different
senses-one pertaining to the Mandatory, the other pertaining to the
:Mandate-is merelv indicative of the confusion. The criteria of inter
national standards ;vhich Respondent now appears to concede or contend
to govern its conduct presumably would have to be stated in terms such
as, what would a reasonably honest or genuinely sincere mandatory do
in ail the circumstances? Weighed against such standards, the Court
would then conclude whcther Respondcnt's officials or their successors
from time to time in office cou1d have "honestly and genuinely" corne to
the conclusions to which they die! corne (1 quote those words from
Respondcnt's pleadings) or, whether to the contrary, they are, again in
Respondent's words, "manifestly wrong" or "obviously unfair". For
example, in the verbatim record, VIII,page 271,these phrases are used in
connection with the judicial task which would confront the Court in
respect of the inspection proposa!. The judicial task-without becoming
too facetious-of evaluation would become even more complex if the
successors to those now in office should ask themselves different ques
tions, or give themselves ambiguous replies.
Further consideration of thcse matters willawait resumption of argu
ment dealing with legal issues and fact questions germane thereto,
because we are here at the heart of an evaluation of Respondent's legal
theory in support of its principal contention. which we assume the
second alternative contention to be, without attempting to assign pri
orities.
With the Court's permission, 1'1r.President, I turn now to the legal
basis of aHeged violations of the Mandate, in terms of the Applicants'
submissions, and with emphasis thereon. As has been stated, the Appli
cants' submissions, and the legal contentions upon which they are based,
are full and fairly adjudicable, in the Applicants' view, upon the basis
of the written pleadings and Oral Proccedings, in accordance with the
normal, traditional, practice of this honourable Court. The record is
more than a usually full one. The Parties have been accorded adequate
opportunity, during the course of more than four years since the Applica
tions were filed in these proceedings, to submit and prepare their respec
tive cases. In the absence of a clear showing that the procedures sug
gested by Respondent could reasonably be expected to aid the Court in
deciding whether the Applicants' submissions arc well founded, the
Applicants respectfully urge that the Court follow its traditional practice
of exercising its fonctions at the seat of the Court with a view to expe
ditious consideration and determination of the litigation.
Consideration of the central theory upon which the Applicants rest
their submissions may be cited in support of their view that the Court
would exercise a sound discretion, consistent with the requirements of
justice and proper judicial administration of these proceedings, if it were
to reject Respondent's proposai or, in any event at least, defer decision
and action thereon pending completion of, and in the light of, the
further proceedings in these cases, although such deferment would not,
in the respectful view of the Applicants, be preferable to a decision
thereon earlier than the completion of the procecdings. The Applicants'
submissions relevant to the proposa! under discussion rest upon the
theory, as the Applicants have sought to make clear, that an interna
tional legal norm exists which is objectively determinable and generally
applicable as a minimum legal norm, and that it is accepted by and ARGUMENT OF MR. GROSS
43
regulates the official policies and actions of governments throughout the
world. Such a norm, referred to in the Memorials, and there summarized
at 1, pages 104 and following, is elaborated in detail in the Reply, at
IV, pages 491 and following. Such an elaboration in the Reply introduces
no new element not previously present in the Applicants' original
"cause of action", in Respondent's phrase, nor has the Applicants' sub
mission with respect to the nature or content of such a norm been
modified or amended in any respect, notwithstanding strenuous labour
on the part of the Respondent to convey a contrary impression to the
Court.
Respondent, on the other band, contends that disputes concerning the
interpretation and application of the articles in question are not jus
ticiable~alternative contention number one. If that contention should
be sustained by the Court, Respondent concedes and contends, no
further question conceming the interpretation or application of the
relevant articles would arise, and Respondent's proposai, which is in any
event premature, would be moot.
On the basis of Respondent's second alternative contention, the
Court's functions with respect to the matter under discussion would be
limited to or confined within the ambits of an enquiry in which sub
jective considerations~intent, purpose, motives or state of mind
would play some role.
The Applicants further submit that the international legal norm, as
formulated and described in their pleadings, is applicable to the Terri
tory of South West Africa. By its acceptance of Article 22 of the Cove
nant, and in particular Article 2of the Mandate, Respondcnt undertook
to administer the Territory and undertook to interpret and apply its
provisions on a basis consistent with international legal norms as they
cvolved and became applicable to changing conditions and circum
stances in the Territory. The Applicants will have more to say on this
subject in the course of examination of the legal issues, when that phase
of the proceedings is resumed, in the light of Respondcnt's commcnts
during its Oral Proceedings.
The Applicants further contend that the policy and practice of apart
heid, as described in their pleadings, in which now al! averments of fact
in Respondent's pleadings are incorporated by reference, violate the
relevant and applicable international legal norm, and accordingly that
such policy and practices are repugnant to the Covenant and the Mandate
and should be enjoined by this honourable Court. There is no relevant
factual issue in dispute between the Parties concerning the measures and
the practices by which the Respondent gives effect to the admitted
polîcy of apartheid. Moreover, the rationaleor premises upon which such
policy and practices are based are set out in the record in the form of
undisputed official statements, laws and regulations of the Respondent,
and the official statements of Respondent's highest officiais which are
accepted by the Applicants in terms and in contexts set forth in Respon
dent's pleadings themselves. There is no dispute of which the Applicants
are aware with respect to the statements made by Respondent's highest
officials; the question is: what legal conclusions are to be drawn from
them in the light of the whole context set forth in the written pleadings
on issues of fact?
The Applicants in their pleadings have set out measures and practices
which may fairly be described as illustrative in order that the Court may44 SOUTH WEST AFRICA
have the benefit of adjudging the policy of apartheid as a whole rather
than merely judging it in parts. Moreover, the Applicants accept as
correct, and incorporate by reference into their own pleadings, as l have
said, such additional factual averments as Rcspondent considers relevant
to a fuller understanding of the policy and practice of apartheid as set
out in their written pleadings and documents thereto attached.
The Applicants have stated, and reaffirm, that the validity or other
wise of their submissions may and should be adjudged upon the basis of
the facts as aforesaid. Upon the Applicants' theory of the case no further
testimony, evidence or opinion, expert or otherwise, is required for an
adjudication of their submissions, nor would it be appropriate or neces
sary for the Court to exercise its functions elsewhere than at the seat of
the Court for the purpose of adjudging whether the Applicants' sub
missions are or are not well founded. ln maintaining and affirming that
the facts of record and the discussion of legal issues relevant thereto may
fully and adequately present the case upon which judgment may and
should be rendered, the Applicants do not intend in any manner to
imply that Respondent's proposai for an inspection would be necessary
or desirable on Respondent's theory of the case, as now understood by
the Applicants. Such a theory, as we now understand it,particularly
in the Jight of Respondent's statements made during Oral Procecdings,
is based upon the proposition that, although no international lcgal norm
exists relevant to the interpretation and application of Article 2 of the
Mandate, there nevertheless do exist international standards applicable,
and that Respondent's obligations under the sacred trust may be judged
in accordance with them. The Applicants respcctfully submit that, in
such event and on that basis, the undisputed facts of record likewise
would establish a violation of such international standards, as described
by Respondent, and that the Court should adjudge the Applicants'
submissions in accordance therewith in the event that the Court should
decide against the Applicants' contentions that an international legal
norm does exist, and is applicable, in the terms and in the manner
contended for by the Applicants.
Mr. President and Members of the honourable Court, before turning
to a discussion of the remaining factors which I was about to discuss
in connection with the Respondent's proposai. I should like, with the
President's permission, to endeavour an answer to the question of the
learned judge, Sir Gerald Fitzmaurice, which, if in the event it proves
to be not responsive in the terms in which it is intended, it would be, I
hope, attributable to the fact that for reasons of expedition and con
venience of consideration the Applicants venture to undertake a re
sponse on the basis of the consideration which they have given to the
matter during the interval since the question was asked and addressed
to the Applicants because, Mr. President, it appears to the Applicants
in the light of their theory and understanding of the case upon which
they rest, and the implications which thcy infer from the question of
the learned judge, that the answer the Applicants perceive could be
rather simply formulated in terms of several propositions.
ln the respectful submission of the Applicants in response to the first
question, a policy which differentiates among individuals as such, or as
members of identifiable groups, would be pcrmissible and indeed desirable
in appropriate circumstances. We have in that connection cited the
minorities treaties, among other examples, in which ît is just, prudent, ARGUMENT OF MR. GROSS 45
and wholly desirable for governments to take account of differences
between individuals and between individuals as members of groups,
thereby leading to the conclusion that differences are permissible with
respect to the treatment of groups as such. There are instances known
to all of us in all of our countries of such examples of differentiation of
groups, the protection of minors, the protection of other segments of the
population, arranged in accordance with their choice, normally-some
times bv reason of other considerations, in which their choice, where
possible; plays a very important and, indeed decisive role-their choice
as individuals.
The problem therefore, in the Applicants' respectful submissîon, is not
summarized in terms of, or is it answcrable in terms of, the expression
"group differentiation'' except in a sense which is mutually undcrstood
between the questioner and the responder. There is, in this case, no sub
mission on the part of the Applicants which condemns or attacks, or
criticizes, differentiation between individuals as such, or as members of
groups, in, for example, the aspects which I have mentioned as illustra
tions.
Respondent has paraphrased, ostensibly for the convenience of itse!f
or for the convcnience of the Court, the characterization of the legal
norm for which the Applicants contend as a norm of non-differentiation,
in Respondent's phrase.
The Applicants' formulation does not rest upon the use of that word
at all. The Applicants' formulation relates to the policy of discrimination
and separation and the distinction is more than a verbal one between
those words and the general concept of differentiation. Members of
churches, organizations of various kinds-I have mentioned minors,
those of non-age and so forth, as groups, are differentiated among and
within themselves frequently, in terms of the protection which they are
offered as a matter of good government and decent society. This is just
part of the human condition and human experience.
A policy of differentiation, however, which allots rights, burdens,
status, privileges, and duties on the basis of membership in a group by
reason of race, colour or other circumstance of a similar nature, whether
called ethnie, tribal or otherwise, on such a basis which does not pay
regard to the individual quality, capacity, merit or potential is, in the
Applicants' view, an impermissible premise and an impermissible poiicy
at ail times, under ail circumstances, and in ail places.
The policy is defined in the written pleadings, and the practices
thereunder are undispnted in the written pleadings and constitute the
factual basis upon which the Applicants contend the relevant legal norm
should be applied and upon which they ground their submission.
There is therefore, in the Applicants' view, a difficulty presented in
putting into juxtaposition a policy which reflects differentiation as such
and the question of promotion of welfare. It is the Applicants' case,
rightly or wrongly, that the policy and practices complained of, as a
matter of the international legal norm and the universally accepted
standards upon which that legal norm is based and which it reflects,
that such a policy cannot inherently promote the welfare of individual
inhabitants of the Terri tory. Any contention to the contrary is an attack
upon the norm itself. Of course it is permissible for the Respondent to
question the validity, existence and content of the legal norm; that is a
principle issue joined in these proceedings. But any conception that SOUTH WEST AFRICA
would lead to a doubt or an inference or an assumption that promotion
of the welfare and progress of an individual is compatible with the allot
ment of the rîghts, burdens, duties and privileges, upon the basis of his
membership in a group rather than upon his quality, merits and potential
as an individual person is impermissible, inconsistent and such a policy
is repugnant to the legal norm which we assert covers the situat10n.
The condition of the individuals health, his happiness, ostensible
happiness, or othcr factors which are frequently referred to, do not, in
these circumstances. have a relevance to the validity and content of the
norm if it exists, as the Applicants respectfully submit that it does.
In view of the fact that the practice and policy complained of is
inherently incapable of promoting the wclfare and progrcss of the inhab
itants, that it inherently and per se is repugnant to and violates the
international legal norm; this makes it neccssary to conclude that the
phraseology "irrespective of any other steps taken by the l\fandatory
for promoting the welfare of the inhabitants of the Territory" does not,
in our respectful analysis, have any bearing.
It would seem to rest upon the assumption that considerations of the
promotion of the welfare of the inhabitants of the Territory must be and
can be evaluated in some manner other than against the admitted con
duct as applied to the norm contended for.
The consequences of Respondent's admitted policy and practice con
stitute and impose irrevocable status, rights, privilegcs and so on, upon
an individual by reason of his allocation to a certain category rigidly
set forth. 1 have referrcd to the census categories in this connection. They
are based upon a combination of appearance and of assumed ethnie
origin in terms of "general acceptance". This is merely illustrative of the
rigid categorization and the inevitable and irrevocable consequences
which attend classification of individuals in this system.
On this basis, therefore, in view of the inherent incompatibility of the
practice and policy of apartheid, as defined in the written pleadings, as
they appear from undisputed tacts of record, there would be no basis,
in response to the second question, addressed by the learned judge, for
an investigation of the factual situation whcther by hearing evidence or
by local inspection. That would be, again, inhcrcntly, a superfluous form
of inquiry in either form.lt would be superfluous because of the inherent,
asserteclly inhercnt, rcpugnance and incompatibility of the admitted and
undisputed facts of record regarding the policy and practice of apartheid
with the legal norm, for which the Applicants contend, and upon which
their submissions rest.
The point at issue in the discussion which the Applicants have endeav
oured to analyzc for the Court, the legal theory (including the rather
discursive comments I fear I made this morning in respect of the con
fusion engendercd by the \'arions uses of the phrases "purpose" or "bad
faith", and so forth)-the objective of the consideration of the legal
theories in the case and the respective contentions of the Parties
whether they are stated in confused or clear terms is in this context
beside the point-was to attempt to demonstrate, as I shall attempt to
continue to do in the resumption of the discussion in respect of the
proposai for inspection, that the factual situation which is to be inves
tigated in the sensc of the second question by the learncd judge is that
contained in the body and within the four corners of the written plead
ings-that is the factual situation, that is the statcmcnt of facts which ARGUMENT OF MR. GROSS
47
describes the policîes and the practices; and that those policies and
practiccs as thus described. when applied to the legal norm which is
asserted to exist, compel the conclusion that such policies and practiccs
thus described are incompatible with the legal norm applicable to the
1\landate, and hence repugnant to the 1\fandate itself.
I should like if l may to reserve, as I attempted to at the outset, the
right to regard the completion of my argument, to which I will now
address myself with the Court's permission, as relevant to the response,
and as a part of the response, to the Jearned judge's question, because it
seems tome that ail aspects of the considerations which the Applicants
respectfully place before the Court are indeed relevant to a complete
response to the Jearned judge's most important question.
1\lr. President, turning to the areas proposed to be examined and the
conditions of inspection implied or suggested by the Respondent, 1
should like firstto say that in addition to the appreciation of African
reality, condition and circumstancc, through personal observation, which
Respondent avers to be necessary to adjudication of the issues herein,
Respondent's proposai lays special emphasis upon the necessity to
"compare comparable standards", in its own words (VIII, p. 625).
The Applicants have rcferred to certain implications of Respondent's
references to African reality which, it asserts, is unique and must be seen
to be appreciated, rather than merely heard about or read about. The
factor of "comparable standards", in the phrase of the Respondent,
introduces into the proposai an element which may be linked to the
consideration of African reality, although the nexus, if any, does not
clcarly appear from Respondent's statcment in support of its proposai.
Questions raised in this context can be disposed of quite briefly, in the
Applicants' respectful submission.
Respondent, in its written pleadings, refers to what it describes as
"standards of achievement in comparable territories and States in
Africa"~that is quoted from the Rejoinder, V, at page n6. The state
mcnt is relevant to the point under discussion, which concerns the areas
proposcd to be examined, in Respondent's terms, and the conditions of
inspection implied or suggested by Respondent.
The standards of achievement in comparable territories and States in
Africa, to repeat Respondent's words, would seem, in the Applicants'
submission, to be irrelevant to any issue presented to the Court by the
Applicants' subrnissions, or the Iegal propositions on which they are
grounded. As the Applicants have sought to make clear in their written
pleadings and oral arguments, and now re-affirm, their case rests upon
the contention, to which 1 haYe just referred, that the policy of apartheid
in itself, as describe<l in the written pleadin~s, -is repugnant to Articl2
of the Mandate on the basis of the minimum international legal normand
standards which exist, and which govern the interpretation and appli
cation of Article 22 of the Covenant and Article 2 of the Mandate. The
policy of apartheid is defmed in the submissions and written pleadings,
and its character emcrges with clarity on the basis of the undisputed
facts of record.
No standard of achievement anywhere in the world would be high
enough or low enough, as the case may be, to justify and extenuate
the policy of apartheid. in the Applicants' submission. The international
legal norm and standards which cxist are not subject to, or conditioned
by, or affected in.any manncr by, any question concerning standards of SOUTH WEST AFRICA
achievement. A contention to the contrary does not and cannot be
asserted in extenuation or explanation of the policy and practice of
apartheid. Rights, duties, burdens, obligations, cannot be allotted on the
basis of race, tribe or membership in a group, without regard to indi
vidual merit, capacity or quality.
\Vith respect to the Territory and South Africa itself, we now turn to
a consideration of other aspects of Respondent's proposai, with a bearing
upon the choice of territory, and South Africa explicitly, in Respondent's
proposai.
With respect to the Territory and South Africa itself the Applicants
submit that, for reasons already set forth, an inspection there is not
necessary or justified, in either place, inasmuch as ail the relevant facts
upon which the Applicants rest their case are undisputed. The same
reasoning applies on the same basis to the Respondcnt's proposai that
the Court inspect areas other than the mandated Tcrritory, or South
Africa itself.
ln so far as conditions concerning African reality may be related to
the matter of comparable standards, an observation may be pertinent to
any such possible relationship in the context of the proposai under
discussion-that is, relationship between comparability of standards,
so-called, on the one hand, and appreciation of African reality, so-called,
on the other. The observation which I shaU venture to put before the
Court illuminates the judicial task which would confront the Court if
the proposai were carried to limits suggested by strictly logical con
sidcrations, and is in no way intended to suggest or imply a reductio ad
absurdum of the proposai itself.
Respondent's averment that appreciation of the African reality is an
important aspect and element of its proposai, underlying its proposai,
and that such appreciation presupposes persona! observation, raises the
following question. How is it possible, and on what basis is it feasible,
fully to appreciate African reality, African circumstances, as a unique
phenomenon, so unique, indeed, that it defies hearing about or reading
about but must be seen to be appreciated? How is one to appreciate
such a quality sui generis, as it is claimed to be, without persona! com
parison of African reality with the reality,of other areas and continents
as well?
The question is far from captious, l\fr.President, and is not intcnded
to be qucrulous.
In its written pleadings, Respondent has referred repeatedly to
numerous States or areas outside Africa, in the contcxt of legislation,
practiccs, situations and conditions there prevailing, which it asserts
have relevance to issues joined in these proceedings. The Applicants
con test the relevance of these facts as averred by Respondent, although
for the purpose of these proceedings the Applicants are prepared to
accept these facts as undisputed as set forth in the form of averments in
the Respondent's \vritten pleadings.
According to the Applicants' calculation, at least 22 such non-African
States and territories have been cited by Respondent, with an apparent
bearing upon the issues in the case, with apparent relevance, in Respon
dent's view, to such issues. Representative examples may be found in
the Counter-Memorial and the Rejoinder copiously; for example, the
Counter-Memorial, III, at pages 2or-2II, among others, pages 2r9, 263-265
and 266; the Rejoinder, VI, pages 192-199, passim, etc. ARGUMENT OF MR. GROSS 49
Upon Respondent's theory, accordingly, certain situations in such
non-African States or territories are relevant elements or facets within
the ambit of what Respondent presumably regards as, in its own term,
"ail the facts". Respondent nonetheless omits such States and terri tories
from its proposai without explanation for the omission.
Another aspect of Respondent's proposai, relevant in the context of
a discussion concerning the judicial tasks which would confront the
Court in an attempt to inspect areas of any sort, anywherc, would be
illustrated by certain questions which arise hypothetically in connection
with the investigation or inspection of South West Africa, the mandated
Territory. Respondent's proposai calls for an inspection. This word, it is
to be assumed, envisages the taking of testimony and hearing of wit
nesses in arcas proposed to be visited. This would follow naturally and
inevitably from Respondent's premise of the necessity of examining all
facets of the situation, as the Respondent puts it, in loco. Undoubtedly
the views of persons affected directly would be relevant, if not decisively
important, factors, facets, or elements of the factual situation which
would be in question.
Respondent's employment of the word "inspection", therefore, in
terms of its proposai, must be assumed to bear something other than its
literal signüicance. Except in a medical sense, or the like, "inspection"
is normally applicable to places and objects and things; people are con
sulted or heard. Unlcss the views of people arc not factors or facets of
the situation, then, of course, the Applicants misconccive completely the
intent or purport of the proposai.
Considering the proposai for inspection of the Territory of South West
Africain the light of this premise, the following questions, among others,
become pertinent in appraising the judicial task implicit in a fair rcading
of the proposai: How many members of the population would be heard?
How would they be selected for this purpose? What procedure would be
appropriate for ascertainment of their views? Would they be consulted
in the form of a plebiscite, or by any other means, to assure a fair apprc
ciation and evaluation of an important fact, to wit, their own assessment
of Respondent's policies and practices of apartheid?
Numerous petitions from time to time have been submitted to the
United Nations' agencies by inhabitants of the Tf!rritory. They illustrate
the manner in which the daily lives of the inhabitants are affected by
the systematic implementation of the apartheid policy. Examples are
set out in the Memorials, I, page r67 and following. The Applicants have
not relied upon the accuracy of statements in such petitions; the Appli
cants have cited such petitions for the bearing they may have as con
firmatory of the reasonably predictable consequences of the practices
and policies which are undisputed. And such petitions have been received
unfortunately in a context in which Respondent's co-operation has not
been forthcoming in their transmission. Nor has it been possible to have
continuous, effective supervision over the .Mandate of the sort envisaged
in the mandate system. Mr. President, some petitioners have been among
the numerous inhabitants who have managed to leave the Territory for
the purpose of pursuing educational advantages not permitted to them
in the Territory under the admitted policies and practices of apartheid.
\Vould the views of such petitioners, or other persons similarly situated,
be sought as relevant facets of the factual situation? Sorne of them
presumably are not permitted to return, or to return only undcr certain50 SOUTH WEST AFRICA
conditions unacceptable to them. Would their views be excluded as
being irrelevant facets of the situation, as not being part of the facts
with which the Court should be concemed?
In raising such questions, the Applicants, of course, do not intend
thereby to make any suggestions or proposals of their own. These
matters are cited merely to demonstrate or to confirm the validity of the
Applicants' submission, that it is not enough, and not of genuine assis
tance to the Court, merely for Respondent to make a sweeping assertion
that "all facets" must be examined, all facts. Any judicial enquiry or
inspection couched in such terms, ex hypothesi, would be interminable
and unlimited and of course it cannot seriously be contended; that
is obvions. It might be saicl and presumably would be said that a rule
of reason could be applied and that time, place, substance could and
should be fixed by the exercise of a sound judicial discretion. That no
doubt is what Respondent might say or what the Applicants certainly
would say if confronted with a statement of the sort I have just made
to the Court. However, this begs the question in terms of the submission
by Respondent of its proposai. The exercise of a sound judicial discretion
in this respect is precisely what the Applicants are urging upon the Court
as the prime necessity. The selection of criteria by which such discretion
would be required to be exercised is the very point at issue, and the
answer to the selection of relevant facts rests upon the criteria which
must be applied and are applicable in terms of the lega] theory advanced
by the Applicants, and such theory read in the light of their submissions
and contention often referred to in the course of these proceedings, and
in the \vritten pleadings, that the relevant facts upon which they rest
their case are the undisputed facts of record in these proceedings.
The foregoing questions, therefore, are adduced, and the questions
raised, forthe purpose of demonstrating that the term "all the facts, ail
facets of the situation" begs the question and is not helpful.
It has been the Applicants' respectful endeavour to place before the
Court considerations of law, some selected, we hope not too arbitrarily
or digressively, in anticipation of legal argument which will be resumed
in due course. The considerations which the Applicants have respect
full:yplaced before the Court demonstrate, in the Applicants' \'iew, that
the proposai is inherently undefinable and indeed, unintelligible in the
terms in which it is presented.
Before concluding, Mr. President, it will be necessary to refer to the
next category of question for brief consideration, and that is the con
ditions expressed or employed in the Respondent's proposai. This bears,
particularly, upon the proposai with regard to an inspection in the
Republic of South Africa itself. ln its presentation of the proposai under
discussion, Respondent statecl as follows: ·
"In addition to such an inspection of South West Africa, this
part of our proposa\ encompasses, as a distinct sub-part thereof.
a limited visit to the Republic of South Africa itself-limited, that
is, in the sense of being confined to matters that are rele\'ant in
respect of South West Africa. As the Court will readilv appreciate,
there are reasons of principle and relevancy why this part of the
proposai cannot be so completely unlimited and unqualified as in
respect of South West Africa itself." (VTII,pp. 278-279.)
In this context we have rcference to unspecified limits, principles of ARGUME);T OF !IIR. GROSS sr
relcvancy, qualification, etc., which this part of the proposa! envisages,
for which are not included in other parts of the proposa!, with respect to
other areas, certainly not in these tenns. In the same place, Respondent
states that-
"... as the pleadings show, there are matters within the Republic
which, within a limited sphere, are relevant to the adjudication in
respect of South West Africa" (ibid., p. 279).
\Vhat do the pleadings show Mr. President, in this respect?
ln the Counter-Memorial, II, at page 457, Respondent states that in
forming its "considered views", as it describcs them, in regard to-
"... finding such methods of achieving the ideals of the Mandate
as might best be suited to circumstances and conditions in the
Territory ... Respondent was frequently influenced by experience
gained in South Africa itself in regard to comparable problems and
policies aimed at their solution, and also by instructive indications
afforded by events, tendencies and policies in other parts of Africa
and the world at large."
Further in the same volume, Respondent states that it-
''... has been cautious about applying to the Territory any policies
operative in South Africa, even ,vith adaptations to local conditions,
without first having established their soundness in practice in
South Africa itself" (II, p. 476).
;\lore specifically, the following examples may be cited or derived
from Respondent's written pleadings which relate to facets or factors in
tcrms of expcrience, events or conditions in South Africa itself, which
Rcspondent asserts have influenced it in the formulation of its policy for
tqe Territory and have some relation to it therefore in respect of the
measures of implementation adoptcd in the Territory for the policy of
apartheid. Specific examples among many are as follows-in Respon
dent's own words, at II, page 476, of the Counter-Memorial, Respondent
refers to-
"The application to South \Vest Africa of the new mcthods and
policies introduced in Bantu education in South Africa affords an
example in point ... "
"In point", that is, as a matter relevant to the Territory whose sound
ness has been established by Respondent in South Africa.
Secondly, with respect to diamond mining legislation in South West
Africa, which is, of course, asthe record shows, an important element in
the cconomy of the Territory. Respondent refers to the knowledge and
experience gained in South Africa, with respect to-
"regulation and control of the mining and marketing of diamonds
[which] present extremely complex problems" (III, p. 54).
N'ext. in the same volume at pages 64-66, Respondent describes its
policy of so-called "job reservation" in the Railways and Harbours
Administration in the Territory, whereby the welfare and progress of
inhabitants are promoted by denying to thcm certain types of jobs
which they are otherwise qualified for, on the basis of their race. And in
this refercnce to the policy in question, Rcspondent has this to say~
"Inasmuch as the social and economic relationship between the
different population groups in South West Africa is basically the52 SOUTH WEST AFRICA
same as that which pertains in South Africa, the application of a
similar policy of a Territory, with adaptation where necessary, is
only natural." (Ibid., p. 66.)
Mr. President, the Applicants, in making these references, are not of
course engaging at this moment in any aspect of these citations which
involve the merits or inferences to be drawn therefrom. The only purpose
of this citation is to match these pleadings in the Respondent's for
mulations against its proposal for a limited qualified inspection of the
Republic of South Africa in connection with the inspection of ail facts
and ail facets of the situation in the cases at Bar.
Continuing very briefly with two or three more illustrative examples to
show how pervasi vely relevant Responden t has made its policies, practices,
experience and so forth in South Africa in connection with the case
on its own initiative-we may cite the Counter-Memorial, III, in which
Respondent con tends in the following terms:
"Throughout South Africa's history there has been social separa
tion between the members of the White group and the members of
the non-White groups; the members of each group preferring to
associate with members of their own group, and avoiding contact
in spheres where friction could be created.
By reason of the difference in their stages of general development,
the relationship in the economic field between members of the
White group and the members of the non-White group has in the
past generally been that of employers and employees. [We are
talking here, Mr. President, about South Africa] In this factual
situation many Europeans, in all probability the vast majority, are
not prepared to accepta relationship in which non-Whites could be
in positions of authority over them." (III, p. 65.)
In the quoted passage there is a remarkable similarity, indeed, a
virtual identity, of formulation with the language quoted, specifically
with reference to the Territorv of South West Africa, in the Counter
Memorial, III, at-page 528. I have quoted from that passage, in context,
in the address to the Court yesterday.
One more example may suffice. At page 131 of the Counter-Memorial.
III, Respondent has referred to the success of Bantu authorities in
South Africa, by way of suggesting that a similar system may fruitfully
be applied in the Territory itself. At page 173 of the same volume,
Respondent avers that it has adopted in the Territory the policy applicd
in South Africa with respect to the centralized control of so-called
"Native" policy. At pages 174-176, of that volume, Respondent has
recounted the background of "Native" urban areas legislation in South
Africa, and has described the application of such legislation, with some
adaptations, to the Territory.
At page 185, Respondent has averred that it "envisages the early
establishment in the Territory also of a system similar to that [in South
Africa] ... relative to the local government of Natives in urban areas".
Similar examples may be multiplied, but it is not necessary to burden
the record, at this point, with references of different character than those
quoted-they al! corne to the same point. That point, in the context of
the discussion of Respondent's proposai for an inspection, is that the
proposed, or purported, limitations. qualifications, or conditions, which
are envisaged as a malter of law in the Respondent's proposai, which I ARGUMENT OF MR. GROSS
53
have quoted from VIII, pages 278-279, that those qualifications, limi
tations, implied or expressed conditions, undefined as they are, are not
intelligible, do not permit or enable the Court to excrcise a sound judicial
discretion concerning what Respondent may, or may not, regard as
clements relevant to "all facets", or "all the facfs". Frorn the examples
I have cited from the pleadings, the Applicants do not perceive where a
line could reasonably, or feasibly, be drawn, it would appear that an
unconditional, unqualified examination of the Republic would be rele
vant, or none at all. The Applicants submit ami perceive that none is
necessary. 1t would, therefore, appear to the Applicants that it remains
to conclude only with a repetition of the assurance, stated at the outset
of the Applicants' presentation of views on tltis proposai, that it is
assumed as axiomatic that the Parties would wish to co-operate in every
manner to facilita te and expedite any measures or steps which the Court
should conclude to be relevant or useful in reaching a decision upon
whether or not the Applicants' submissions are well founded.
The quality of the proposai-and I do not join with Respondent in
its apparent attempt to place into issue in these proceedings a contest
between the Applicants' motives, on the one hand, and its motives, on
the other in this litigation, Mr. President-involves no competition of
motive. It does seem, however, that in evaluating the proposai in its
essence. some significance may be drawn from the fact that when the
proposai was originally submitted, so far as the Applicants were aware
at least the first notice they had of the proposai, or the intention to
submit it,in the form of a letter dated 12 March 1965-no reference to an
inspection of South Africa was included. What has now become, or is
asserted as, a relevant and important aspect of the proposai, was not
included in its first form.lt seems that further comment is unnecessary
in reaching a fair evaluation of the proposai and the manner of its
presentation, particularly in the light of the factors previously mentioned
with regard to the timing-precipitate timing-of a proposai which
Respondent now asserts should be acted upon quickly, say in a few
weeks, and is of essential materiality and relevance to the adjudication
of these proceedings.
The Applicants, Mr. President and Members of the honourable Court,
therefore respectfully submit that the proposai for the inspection in loco
is unnecessary, expensive, dilatory, cumbersome and unwarranted, that
the weighing of the proposai and its asserted reasons in the scale of
justice, alongside the length of tirne which this litigation has consumed,
m respect of the antecedents of this legislation, in respect of the volu
minous pleadings which, for more than four years, have been prepared,
collated, and are now submitted in unusually bulky form-that in the
light of all these considerations the Court should reject the proposai and,
on the basis of that submission, Mr. President, there remains only for
me to thank the Court and the honourable President for the gracious
audience which it has given to the remarks which the Applicants have
submitted. Thank you. -54
m. ARGUi\IENT OF MR. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA
AT THE PUBLIC HEARING OF 28 APRIL 1965
Mr. President, I shall be very bricf. The sole reason for raising any
thing at this stage is that we also have genuine difficulty about one
aspect of what we have to rcply to. I will deal with the details at a later
stage-but my leamed friend, as I understood him, founded his basic
contention for rejecting the suggestion of an inspection in totoon con·
siderations of relevancy. He refcrred the Court in that regard to the
Applicants' case and represented to the Court that that case was of so
narrow a nature (the Applicants' case in regard to Respondent's policies)
as to require no further enquiry into the facts by way of cither oral
evidcncc or an inspection. That is the difficulty I have in this regard.
He repeated several times that, for that purpose-the purpose of the
Applicants' case in that regard-there are no relevant facts in dispute.
Mr. President, what I want to put very briefly is this:
If the Applicants can make it perfectly clear to us and to the Court
that their case in regard to the Respondent's policies in South West
Africa does not call for any value judgment by this Court upon those
policies, then, and in that event, we can readily agree that the basis
upon which we have envisaged the calling of evidence, and upon which
we have proposed an inspection will fall away altogether.
What I mean by a value judgment in that regard is a judgment which
would relate to the question whether those policies are good or bad, in
relation to promotion of well-being and progress-good or bad in respect
of their objective, or in respect of their effect int regard, or in respect
of bath. We have contended that the only legal basis upon which the
Court could adjudicate in that regard would be one of objective, but,
neverthcless, as long as there are allegations on record, even in regard to
the effect of the policy-factual allegations inviting the Court to make
a value judgment in that regard-and bcfore the Court has decided that
such a malter is, as a matter of Jaw, irrelevant for its consideration-we
must, with respect, insist upon an inspection and the hearing of this
evidence.
l\lr. President, it is relevant to note in that regard that the Applicants
still have on record a number of allegations, for instance, that the
distinctions drawn by the Respondent's policies are arbitrary, that they
ignore the needs and capacities of the persons concemed, and that they
subordinate the interests of the majority to the preferences of a minority.
Now, in answer to a question put by an honourable Member of the Court,
we heard the Applicants' learned Agent adding that the policies, accord·
ing to their theory, are inherently incapable of promoting well-being and
progress. That again, Mr. President, is, in our submission, a submission
of fact-a submission inviting this Court to pass a value judgment on
the policies.
Now, if the Applicants can make it clear that we misunderstand them
in some way or other in that regard, then, of course, as I have said, the
basis of our proposa!, as it stands thus far, will fall away. If they can ARGUMEXT OF MR. DE VILLIERS
55
demonstrate that they rely solely on a norm, or on norms, or on norms
and standards of a technical nature-technical in the sense that it or
they prohibit differentiation according to some definition which applies
irrespective of whether the differentiation, in fact, has a good or a bad
objective, or a good or a bad effect in regard to wcll-being and progress;
if they can do that, Mr. President, if they can make it clear that they
withdraw ail their allegations about arbitrary differentiation-all their
allegations to the effect that the policies ignore the needs and capacities
of the inclividuals involved-all their allcgations to the effect that the
policies subordinate the interests of some inhabitants of the Territory
to the interests or the wishes or the preferences of others~then we shall
have clarity. As long as they do not do that, as long as these invitations
totheCourt to makea value judgment in anyof the senses I have indicated
stand on record we must insist upon the relevance of the evidence which
we wish to tender, and on the relevance of the inspection. I wonder
whether it might not be possible for my learned friend, who can have his
wishes in that regard, to make that clear tous because that might affect
the manner of the rest of our presentation in this regard; it might even
affect the total length of these proceedings.56
n. ARGUMENT OF MR. GROSS
AGENT FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA
AT THE PUBLIC HEARING OF 28 APRIL 1965
l\Ir. President, although I listened as carefully as I was capable of
doing, and with as much interest as I could muster, I am not sure that
I have ail the elements or implications in mind of the questions addressed
by the Respondent. For such assistance as it may be, the question asked
in terms of "value judgment" involves, it seems to the Applicants, the
classical problems with which a court of law is always confronted. I do
not know what the Agent for the Respondent has in mind precisely in
the concept of "value judgment". If I may paraphrase, to see whether
I understand the meaning correctly, the Court would obviously apply a
judgment of values, and that the judgment would be based upon the
facts, the inferences which the Court drew from the facts, and the
application of those facts and inferences to the ascertainable, existent
and legal norm which governs the conduct of the Mandatory. It would
seem difficult, however, to respond to the question in the terms in
which the Respondent's Agent has submitted it, without reminding the
Court once more, and through the Court the Respondent, that the
essence of the case of the Applicants is that the aclmitted practices and
policies-admitted and undisputed as facts of record-call for, demand,
compel the value judgment, the inference, the legal judgment, whatever
phrase is acceptable to the Respondent, that these policies and practices
there set forth are incompatible with and repugnant to the Mandate as
the Applicants respectfully view its obligations.
Now if value judgments, in the sense perhaps intended by Respondent,
includes value judgments conceming the existence, or character, or
content of the international legal nonn, then of course that is an entirely
different question. The Applicants are either correct or incorrect, they
are either right or wrong, in their submissions with regard to what the
international legal norm applicable to this case stands for, what its
content is; and we are prepared to stand upon the proposition that ail
averments of fact in the record call for an adjudication on the basis of a
value judgrnent, on the basis of a legal conclusion, on any other psycho
logical basisby which courts or judges conduct their business. But these
undisputed facts cal! for a judgment, which I would call a value judg
ment, that these facts are repugnant to the Mandate in the terms in
which we construe the Mandate as explained in our written pleadings,
and upon which construction the Applicants' case stands or falls. It is
difficultto understand how the Applicants can do more. \Vhether or not
the policy of permitting or prohibiting-I do not intend to reopen the
question of merits-but whether a particular policy or practice of pcr
mitting or prohibiting, as the case may be, an individual from exercising
his capacities, his merit, his potential, bis God-given qualities in order
to accomplish and realize his life-if that can be open to the question
whether or not it promotes his welfare, then of course the Applicants
lose their case-there is no question about that, if the concept of promo
tion of welfare of the inhabitants permits that as an element. By reason ARGUMENT OF MR. GROSS 57
of the international legal norm for which the Applicants contend, there
is no question that can arise with respect to value judgment as to whether
such a policy, such a practice (which is mercly one of many, it is only one
part of many, ail undisputed in the record as facts) does or does not
promote his wclfare-that is not a question, a value judgment in any
sense other than it is a compelled, legal judgment on the basis of the
Applicants' submission.
Now if this answer, read in the light of the pleadings and what the
Applicants have respectfully placed before the Court, does not help our
worthy opponents, the Respondent, to prepare a requisite answer, it
will not 1 regret to say be the first time in the history of this litigation
in which the Parties have been unable to fmd a common orbit for the
presentation of their views and the Iegal hypotheses upon which those
views rest. There is, of course,an open question as to who is, or what is,
the prime source of confusion; perhaps the Applicants are the guilty
party in that respect-that is a question with which I do not deal. But
as stated in the outset of the Applicants' presentation, it was made
explicitly clear by the Applicants that one of the prime difficultics in
this proceeding, which has marked it from the beginning, is that the
Respondent's conception of the Mandate, and in particular the sacred
trust, is wholly different from that contended for by the Applicants;
that their views with respect to this, as I said at the outset, circle in
different orbits. There can be no question of promotion of welfare that
could be relevant to the practices and policies which are complained of
and which are the subject of the undisputed factual content of this
record. How many times is it necessary to repeat that is the heart and
soul of the Applicants' case, and if the Applicants are wrong, they will
be told so, of course, by this honourablc Court in due course? The
Applicants have confidence in the legal propositions upon which they
rest their submissions and will, it goes without saying, Mr. President,
endcavour to clarify those submissions to the fullest extent of their
capability to do so. But on the basis of the submissions, as the Applicants
intend and respectfully present them-on the basis of the undisputed
facts of this record, the Applicants respectfully submit, and accordingly
through the Court advise the Respondent, that the Applicants rest their
case upon the propositions asserted, and that the acceptance of those
propositions would make irrelevant, unnecessary, for ail the reasons the
Applicants have endeavoured to explain, the introduction of further
evidence, either at the scat of the Court or elsewhere; and if I may take
just a very brief moment to refer in conclusion to a point which might be
implied in the request addressed by the Rcspondent's Agent for clarifi
cation wifü respect to the Applicants' position, I should, if I may be
permitted to, Mr. President, like to addrcss myself to the proposed
procedures with regard to a certain aspect of Respondent's proposai
which, in its presentation, it linked with its proposai, in terms of the
presentation of 30 March, and that is the calling of witnesses-a point,
a procedure, to which the Respondent's counsel has again referred this
morning in the same context.
In tei:ms-and this can be verv brieflv stated, Mr. President-of
Respondcnt's presentation on 30 Îlarch, "Respondent referred to the
important purpose to be served by its proposais as stated, as set out,
at VIII, page 15, and said that-
"... it is mainly for this very important purpose ... that we58 SOUTH WEST AFRICA
[Respondent] intend to call witnesses and experts and for which
we are proposing this inspection in loco'';
and I refer in this context, Mr. President, to the proposai that, for the
Court's convenience, for the sparing of an unnecessary burdcn upon the
Court's time and patience, to say nothing of expense to both Parties and
to the Court itself, the Applicants for that reason were prepared to make
any necessary stipulations with Respondent so that its further material
might be presented in documentary form prepared, collated and gathered
on its own time, and not on the Court's time; and that ifany questions
of demeanour of witnesses should possibly be involved, then the Court
would of course be free to call or request the attendance of such wit
nesses in person; they will not be subject to cross-examination, nor will
the Applicants consider it necessary to participate in the taking of
depositions leading to their statements for submission to the Court.
This I repeat as a possible assistance to the Respondent in rcply to his
questions addressed to the Applicants, if that was indeed intended by
him to be an element for further clarification.
[Pi,blic hearing of30 April I965]
Mr. President and Members of the honourable Court, during the course
of the proceedings of 28 April 1965 the honourable President addressed
to the Applicants a question to which the Applicants now respectfully
endeavour to respond. The question addressed to the Applicants by the
honourable President appears in VIII, Minutes, page 22. ln their re
sponse, the Applicants will have in mind remarks made in relation to the
question put by the honourable President during the same session of the
Court. These remarks appear at VIII, pages 22 and 24.
The question posed by the honourable President requests explanation
of any distinction which may exist between Submissions 3 and 4, which
are set out in the Memorials at I, page 197. The response of the
Applicants to the question addressed to them by the honourable
President may be formulated concisely: there is no distinction intended
by the Applicants to be made, or sought to be drawn, explicitly or im
plicitly, which has any bearing upon their theory of the case. Although
expressed in different form, for reasons which will be explained, the sub
missions rest upon exactly the same legal basis. The legal basis of tl1e
Applicants' case, upon which Submissions 3 and 4 both are founded, is
that the laws, administrative measures, and the official methods and
measures by which they are carried out, which comprise the policy of
apartheid, constitute a per se violation of Article 2 of the Jlandate and
of Article 22 of the Covenant of the League of Nations.
The foregoing response to the question addressed by the honourable
President to the Applicants is based upon and reflects the following con
siderations explanatory thereof. As a preliminary matter, for the con
venience of the honourable President and the Court in following the re
marks about to be made, the attention of the Courtis respectfully drawn
to the terms in which Submissions 3 and 4 are couched. The Court will
note that Submission No. 3, unlike Submission No. 4, incorporates the
word "apartheid". Submission No. 3 describes the sense in which the
word apartheid is used in that context, by means of an explanatory
phrase which I take the libertv of quoting; this is at I, page 197 of the
Memorials: · ARGUMENT OF ~rn.GROSS 59
"... apartheid, i.e., has distinguished as to race, color, national or
tribal orgin in establishing the rights and duties of the inhabitants of
the Terri tory . . .".
Submission No. 3 requests the Court to adjudge and dcclare that such
practice-the practice of apartheid-violates Rcspondent's obligations,
as stated in the relevant articles of the Mandate and of the Covenant.
This, of course, is intended to express a legal conclusion. Submission No.
3 concludes with a prayer for relief, narnely that the Court should ad
judge and declare that Respondent has the duty forthwith to cease the
practice of apartheid in the Territory.
Submission No. 4, on the other hand, does not incorporate the term
"apartheid". Submission No. 4 does, however, refer to the economic,
political, socialand educational policies applied within the Territory
without a descriptive label. The economic, political social and educational
policies refer to the same legislative and administrative measures, and
the same official methods and measures by which they are put into effect,
as are described in Submission No. 3 by use of the term "apartheid".
Both Submissions 3 and 4 refer to the fact that the relevant practices
and policies are described in Chapter V of the Memorials, and both Sub
missions 3 and 4 refer to summarizations thcrcof in paragraph rgo of
that Chapter.
Itis to be noted that Submission No. 4 makes no reference to para
graph 189, which is set out in the Memorials at I, page 161. The·reason
for omission from Submission No. 4 of reference to parapgraph 189 is,
we think, self-evident. inasmuch as paragraph 189 solely is concerned
with a discussion of the term apartheid, which does not appear in Sub
4.
mission No.
Mr. President, the reason why the two submissions were included in
the Memorials, although formulated in different terms, but with precisely
the same intendment, is simply stated. Respondent has for many years
described the policy in question which it has applied in the Tcrritory by
the designation "apartheid". More recently, Respondent apparently has
corne to prefer the phrase "separate development" to describe the same
policy. The fact that the expressions "apartheid" and "separate develop~
ment" are used interchangeably by Respondent, and not as words of art
with a technical meaning, appears clearly from the record. As pointed
out in the Reply at IV, page 263, inler alia, the phrases are synonymously
employed. For many years, however, public international organizations
concerned with the premises, application and consequences of the policy
of apartheid increasingly have employed the term "apartheid" to de
scribe the series of legal and administrative measures, and officialmethods
and measures by which they are put into practice, the totality of which
is characterized and tcrmcd "apartheid". This appcars in many resolu
tions of the United Nations, for example, as well as other documents,
recommendations, decisions, and resolutions of a public nature.
It seemcd to the Applicants appropriate, accordingly, to incorporate
in the submissions a request to the Court to adjudge and declare that the
policies and practiccs generally described by, and commonly known as,
apartheid, are violative of the relevant articles of the Covenant and the
i\fandate, and that Respondent has the duty forthwith to cease the prac
tice of apartheid in the Territory. In the light of common usage of that
term, as I have said, the Applicants conceived that if it should please
the honourable Court to adjudge and declare in favour of Applicants'60 SOUTH WEST AFRICA
Submission No. 3, the term "apartheid", as employed and described in
the pleadings and in public usage, might well be referred to explicitly.
In order to make clear, however, that the only significance attached
to the use of the word apartheid arises out of its popular usage as a
description of the practices and policies which it describes, the following
sentence was included in paragraph 189 of Chapter V of the !lfomorials,
at 1,page 161:
''Wehere speak of apartheid,as we have throughout this Memorial,
as a fact and notas a word, as a practice and notas an abstraction."
Paragraph 189 of Chapter V is designed to serve as a summary of the
conclusions, characterizations and inferences which, in the Applicants'
view, are properly to be drawn from the laws, regulations and official
methods and measures applied by Respondent in the Territory; this is
made explicitly clear in the opening sentence of paragraph 187, on the
same page of the i\Iemorials-that is, page 161-under the _sameheading:
"The factual record of the Mandatory's conduct [and I stress the
term 'factual record of the Mandatory's conduct'], as hereinabove
more particularly set forth, has a desolate but remarkable consis
tency."
It is on the "factual record of the Mandatory's conduct", comprising
the laws and regulations, and the official methods and measures by which
they are put into practice, the existence of which is undisputed, weighed
against the relevant and applicable international Jegal norm and inter
national standards, described by the Applicants in their written pleadings
and in these Oral Proceedings, that the Applicants rest their case.
Both Submissions 3 and 4, although formulated differently in terms,
for reasons which I have endeavoured to explain, have the same intend
ment. There is no distinction between them in any respect relevant to
the Applicants' basic and consistently held theory that the factual record
of the Mandatory's conduct constitutes a per se violation of Article 2
of the Mandate and Article 22 of the Covenant, read in the Iight of the
international legal norm and international standards which the Appli
cants contend exist and which govem the interpretation of the articles
in question.
ln respect of the formulation of the Applicants' Submission 4, it was
considered both expedient and appropriate to refer to precisely the same
body of laws, regulations and official methods and measures by which
they are put into practice without, however, explicit use of the term
"apartheid". As has bcen said, although such laws, measures and practice
arc commonly and popularly described by that name, that term in and
of itself has no precise significance, apart from the Jaws, the regulations
and methods and official practices which put it into effect, and pursuant
to which the rights and duties of the inhabitants of the Territory are
allotted on the basis of membership in a group, class or race, rather than
on the basis of individual merit, capacity or potential.
The Court's attention is respectfully directed to the Reply, IV, page
493, in which the Applicants have attempted to formulate their de
scription of the relevant international legal norm.
Bath Submissions 3 and 4 are intended to refer to the same practices
and policies, accordingly, ail of which are described in Chapter V of the
Memorials and summarized at paragraph 190 in terms in the form of
averments of fact. ARGUMENT OF MR. GROSS 61
There is, of course, Mr. President, also included in Chapter V of the
Memorials a considerable body of explanatory, inferential, and argumen
tative material. lt was for this very reason that the Applicants regarded
it as a possible convenience and clarification to include-strictly speaking
what was unnecessary-a paragraph in Chapter V, to wit, paragraph 190,
which is designed, inter alia,to collate and categorize the averments of
fact which are set out in more discursive form in the remainder, the
body, of Chapter V itself.
Itis to be noted, Mr. President, that paragraphs 189 and 190 of Chapter
V are set out under the caption "C. Legal Conclusions".
Paragraph 190 itself commences with a paragraph of argument and
characterization. There follows a series of three legal propositions, each
of these introduccs a brief summary of factual averments. The latter are
set out in the Memorials at I, pages 162-166.
It is relevant to note in this connection that Chapter VIII of the Reply,
relating to Submissions, states, in part, as follows:
"Upon the basis of the allegations of fact in the Memorials, sup
plemented by those set forth herein or which may subsequently be
adduced before this honourable Court, and the statements of law
pertaining thereto, as set forth in the Memorials and in this Reply,
or by such other statements as hereafter may be made, Applicants
respectfully reiterate their prayer that the Court adjudge and declare
in accordance with, and on the basis of, the Submissions set forth
in the Memorials, which Submissions are hereby reaffirmed and
incorporated by reference herein." (IV, p. 588.)
In order to avoid any possible misunderstanding whicJ:tmight arise from
the fact that Submission 3 refers to "practice", whereas Submission 4
uses the term "policies", the Applicants think it appropriate to state,
without qualification, that both words are used in a synonymous and
interchangeable sense.
The word "policies" as used in Submission 4, is to be taken as having
the same meaning as if it read "practices". As the written pleadings bath
of the Applicants and of Respondent make clear, the two tenus are used
interchangeably in many contexts in the written pleadings of both
Parties. Where they are used conjunctively, the word "policy" refers to
a continued or repeated course of conduct.
The Applicants rest their case, therefore, upon laws and regulations,
as well as official measures and methods by which they are effectuated,
the existence of which is conceded by Respondent. Such laws and regu
lations and official measures and methods are set out in the written
pleadings of the Parties.
In the event Respondent should assert doubts as to the laws, regula
tions, and official measures and methods which comprise the policy of
·apartheid, the Applicants, at an appropriate stage of these proceedings,
or at any time, will be pleased to furnish citations of illustrative examples.
Respondent itself uses the term "apartheid".
Reverting to the terms in which Submission 4 is formulated, the sub
mission avers that Respondent, by virtue of the enumerated policies ap
plied within the Territory, has failed to promote to the utmost the mate
rial and moral well-being and social progress of the inhabitants of the
Territory. Mr. President, this formulation is not intended, in any manner,
to suggest an alternative basis upon which the Applicants seek to make62 SOUTH WEST AFRICA
their case, other than the basis upon which Submission 3 itself rests.
Submission 4, accordingly, is intended to mean, and should be read as if
it stated in terms, that Respondent's policy and practices in the Terri tory,
read in the light of the applicable international legal norm and interna
tional standards, fail to promote the well-being and progress of the in
habitants of the Territory within the meaning of Article 2 of the Mandate
and Article 22 of the Covenant.
To put the same point in a different way, Submission 4 is intcnded to
be read and understood precisely in the same sense as if it were formula
ted in the following manner:
"4. The Union, by virtue of the economic, political, social and
educational measures and practices applied within the Territory,
which are described in detail in Chapter V of this Memorial and
summarized at paragraph 190 thereof, has, in the light of the appli
cable international Jegal normand international standards, failed to
promote to the utmost the material and moral well-being and social
progress of the inhabitants of the Territory ... "
The Applicants respectfully maintain and reaffirm that Submission 4
at no time was, and is not now, intended to be read in a sense different
from that made explicitly clear in the re-formulation just quoted.
ln the Rejoinder, V, Respondent states the following, with regard to
Submissions 3 and 4 and the norm of non-discrimination, or non-sepa
ration:
"If it [that is the norm of non-discrimination or non-scparation]
possesses the content ascribed to it by Applicants, and if it can be
regardcd as embodied in the Mandate, Respondent's admitted poli
cies of diffeientiation would be in contravention thereof, Jeaving
no further dispute between the parties as regards Applicants' Sub
missions Nos. 3 and 4." (V, p. 175.)
ln respect of the question addressed to the Applicants by the honour
able President, it follows that no issue is presented thereunder which
would call for, or make relevant, an inspection to appraise, evaluate or
make judgments concerning whether, or to what extent, Respondent's
policies of administration in fact applied by the Respondcnt in the eco
nomic, political,social and educational life of the Terri tory are compatible
with, or repugnant to, Respondent's legal obligations as Mandatory
under the sacred trust.
The Applicants' case stands or falls on its theory and submission that
the laws and regulations and official methods and measures, the existence
of which is undisputed in the record, are inherently and perse, as a matter
of law, in violation of the obligations of Article 22 of the Covenant and
Article 2 of the i\1andate, read in the light of, and interpreted in accor
dance with, the applicable international legal norm and international
standards which are defined and described by the Applicants in their .
written pleadings and oral arguments, the latter not yet, of course,
having becn completed.
In respect of Respondent's proposai for inspection which, of course,
isthe context of the honourable President's question, and in the response
thereto, the Applicants have sought to demonstrate, inter alia, that
nothing the Court, or a committee thereof, could do, see or hear in the
Territory, or clsewhere, cou1d or would aid the Court to adjudicate upon
the validity of the Applicants' submissions. ARGUMENT OF MR. GROSS
Such inspection only could serve, perhaps, the purpose of judicial en
quiry into the value of the international legal norm and international
standards.
In the course of his remarks in relation to the question addressed to
the Applicants, as set out at VIII,pages 22 and 24 the honourable Presi
dent adverted to the possibility that if the Applicants could clarify the
matter under discussion, it may well be that a great deal of the evidence
which has been foreshadowed by Respondent could become unnecessary.
Mr. President, in the light of the voluminous pleadings and documenta
tion which have been filed, together with the oral arguments which have
been made, and remain to be made, addressed to the issues joined in
these proceedings, the Applicants have profferrcd co-operation with
Respondent and with the Court in the event that Respondent perseveres
in its indicated intention to adduce further evidence in the form of oral
testimonv.
The Applicants respectfully reaffirm their desire to co-operate in this
respect by any feasible method which might result in saving the Court's
time, as well as undue cxpensc in this already very protracted litigation.
In the Applicants' respectful view, there appears to be even less
justification for presentation of oral testimony than for inspection. The
Applicants have suggested a procedure pursuant to which they would
stipulate that any depositions, properly authenticated, of any witnesses
or experts whose testimony Respondent, subject to the Court's permis
sion, would wish to add to the documentation of these proceedings, will
be accepted by the Applicants as full and correct statements of what
such witnesses or experts would have testified had they been present
personally in Court. The Applicants would waive all right to be present
during the taking of such depositions, for any purpose, including the
purpose of cross-cxamination.
Such stipulation, of course, would be subject to the Court's possible
wish to observe the demeanour of any such witnesses or experts in the
course of giving testimony or to address questions personally to them
in Court, if that should be the Court's wish.
The Applicants, moreover, would waive all right to examine such
witnesses or experts appearing personally inCourt.
The Applicants, in terms of Rule 50 of the Rules of Court, would re
serve the right to comment upon any depositions or other documents filed,
or upon any evidence given.
Mr. President, this concludes the Applicants' presentation of their
response tothe question addressed to them by the honourable President,
as well as of certain observations which the Applicants hope may be rele
vant and helpful in connection with the honourable President's remarks
relating to the question. If, and to the extent consistent with the Statute
and Rules of Court, it is desired by the honourable President to request
further clarification, it would be an honour and an opportunity, on the
part of the Applicants, to attempt immediate response thereto.
Mr. President, it remains for the Applicants to comply with their duty
on this occasion, which they gladly do, to address themselves to certain
queries raised by Respondent during the course of the session on 28 April
1965. Respondent's queries and comments are set out in the verbatim
record at pages 54-55, supra.
In the course of the presentation of its queries, Respondent assured the
Court that the basis upon which it has envisaged the calling of evidence SOUTH WEST AFRICA
and upon which it has proposed an inspection would fall away altogether
ifthe Applicants could make it clear to Rcspondent and to the Court that
their case (Applicants' case) in regard to Respondent's policies in South
West Africa does not call for any value judgment by this Court upon
those policies-that was the phrase used "value judgment".
Respondent went on to say:
"\Vhat I mean by a value judgment in that regard is a judgment
which would relate to the question of whether those policies are
good or bad, in relation to promotion of well-being and progress
good or bad either in respect of their objective, or in respect of their
effect in that regard, or in respect of both." (P. 54, supra.)
Mr. President, perhaps it will be clear from what the Applicants have
had to say in their rcsponse to the questions addressed by Judge Sir
Gerald Fitzmaurice. as well as by the honourable President that, in the
Applicants' view, the value judgment whether apartheid is "good or bad",
in Respondent's phrase, already has been made. It has been made as a
normative judgment by the organized international community, acting
and speaking over the years through the competent organs, including the
United Nations, the International Labour Organisation, and other Specia
lized Agencies, as well as other general and regional institutions and au
thorities and in international agreements pertaining to this subject. Many
examples are set out in the Applicants' written pleadings. They will be
referred to upon resumption of argument upon the legal issues, which
has been suspended momentarily for the discussion of the proposai of
inspection.
l\Ir. President, in concluding this brie{, but I venture to hope adcquatc,
comment concerning Respondent's queries, it remains only to be added
that Respondent itself has given the clearest possible answer to its own
question in its own writtcn pleaclings. This it has donc not only once,
but repeatedly.
In the Rejoinder, V, and I refer to page u9, Respondent concedcs, or
contends:
"If this alleged norm [that is, the norm asserted by the Applicants]
exists as part of the Mandate, it would have the consequence that
Respondent's admitted policies of diffcrentiation would constitute a
contravention of the Mandate even if the Court were to hold that
such policies were intended to enure, and did in fact enure, to the
benefit of the population as a whole. Consequently the sole issue
between the Parties on this aspect of the case is a legal one, viz.,
whether or not the ;\landate contains such a norm."
With this comment, of course, the Applicants agree fully. The word
''contain", we would construe as an interpretation of the obligation.
For the purpose of interpretation and application, the following pas
sage in the same volume of the Rejoinder removes any vestige of doubt
that Respondent clearly understands the basis of the Applicants' case:
"It is true that by reference to their alleged 'norm of non-dis
crimination or non-separation' Applicants can plausibly contend
that evidence tending to show an absence of any intention on Re
spondent's part other than one to promote the interests of the in
habitants, would be immaterial. If indeed Article 2 of the Mandate
must be read as containing an absolu te prohibition on 'the allotment, ARGUMENT OF MR. GROSS
by governmental policy and action, of rights and burdens on the
basis of membership in a "group", Applicants would sufficiently
establish a violation of the Article by proving such an allotment,
irrcspective of whether it was intended to operate, or does in fact
operatc, for the benefit of the inhabitants of the Territory. The Iegal
position would then be similar to that pertaining, for instance, to
the prohibition in Article 3 of the Mandate on the supply of in
toxicating spirits and beveragcs to the Natives. And since Re
spondent's policy is avowedly based to a considerable extent on an
allotment of rights and obligations on the basis of membership of
the different population groups in the Territory, there would exist
no dispute of fact between the Parties. The position would then in
deed be, as stated by Applicants, that 'the decisively relevant facts
concerning Applicants' Submissions 3 and 4 are undisputed'.
But ail this would be so only with reference to the case now sought
to be built by Applicants on the alleged 'norm of non-discrimination
or non-separation'. None of it would be or is truc of Applicants' case
as advanced in the Memorials." (V, pp. 105-106.)
For the purpose of this presentation the last comment is, of course,
irrelevant. If it is relevant, or conceived so to be by Respondent in re
spects not clear to the Applicants, it is clear and must be from what has
been said often during the course of these proceedings, and in the written
pleadings, that this is not a fair and accurate statement of the case as
advanced in the Memorials. But, leaving that aside completely, as that
is not a point at issue in this context, the submission of the Applicants
is that these very quotations from the Rcjoinder, which I venture to
place before the Court, show very clearly Respondent's understanding
that the Iegal theory advanced by the Applicants does rest upon the
application of the relevant international legal norm, and international
standards, dcfined by the Applicants in their pleadings and in their oral
arguments, to the legal administrative regulations, to the measures and
methods by which, through official action, Respondent applies such laws
and regulations in the Territory, the existence of which is not disputed,
and that the Court should, in our respectful submission, conclude that
Article 2, paragraph 2, of the ~fandate, and Article 22 of the Covenant
have been, and are being violated by Respondent's practice and policy
of apartheid.
I thank the Court for patience in attending to these remarks and I
would re-affirm a willingness and desire to respond, by way of clarifica
tion, to any further question. Thank you, Mr. President. 66
12. ARGUMENT OF MR. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA AT
THE PUBLIC HEARING OF 30 APRIL 1965
Mr. President, I should like to concentrate first on the basic reason
given by my learned friends for opposing the proposai in regard to an
inspection in toto.I leave aside for the moment minor questions such as
the timing of the proposal~that it came both too late and too early,
apparently, according to my learned friends-and points of that nature.
The basic question is the submission by my learned friends to the effect
that their case rests on so narrow a basis that the factual enquiry which
we envisaged, both in regard to the prospective calling of witnesses and
in regard to this inspection, would be legally irrelevant to a consideration
of their case, and their only case, in regard to Article2, paragraph 2, of
the Mandate. For the purposes of ascertaining whether that submission
issound, it is of course necessary to have absolute clarity as to what the
Applicants' case exactly is. Does it rest on the one basis only or does it
rest on more than one basis, legally speaking? Does it rest on a norm
only to the exclusion of norms and standards in the plural or does it
rest in the alternative on a norm or on standards? Does it rest only on
a legal norm which automatically and technically renders certain de
scribed forms of conduct illegal, or does it rest in the alternative upon
factual allegations in respect of which they ask tlus Court to pass an
adverse value judgment either as to the purpose or as to the effect or as
to both the purpose and the effect of the Respondent's policies in South
West Africa?
Now, Mr. President, when we have clarified that situation as to
whether there are alternatives or not, then whatever remains-must be
further examined in order to see what the content of that legal norm
exactly is or whatevcr that legal basis may be for the Applicants' case,
because it is only when we have ascertained clearly the content of this
legal proposition for which the Applicants contend, that we can see
what appropriate further factual enquiry, if any should be nccessary.
Now it seems that we have made progress Mr. President, in certain
respects, particularly this morning. We know now that as between
Submissions 3 and 4 there is no distinction: that they are not suggested
as alternatives, the one to the other, or as two different allegations, the
one added to the other. They rest, as I understood my learned friend
this morning, on a legal proposition or propositions which are common
to both. \Ve understand, l\fr. President, that independently of that legal
•basis which is said to be a norm or, alternativelv, standards, the Court
is not asked in respect of Submission 4 to make an enquiry into the fact
with a view to pronouncing a value judgment, of any of the kinds which
I have mentioned, on the policies as such and purely on a factual basis.
I understood my learned friend to say that that value judgment has
already been made by the organized international community and
varions persans and organizations to which he referred, in other words,
that question is not submitted to this Court for adjudication, however
ready and however ,villing-and however anxious-the Respondent ARGUMEXT OF MR. DE VILLIERS
might be to have that case fully examined and pronounced upon by
this Court in an independent, fair and impartial cnquiry of its own. But
my learned friends apparently make clear that they do not ask this
Court to do that; they rest their case on what the organized international
community has said; that is the last word; that constitutes a norm, and
they say that the Court has merely to apply that norm to facts which,
for the purposes of that norm, are undisputed.
Mr. President, we understood my learned friends to make it clear that
that proposition applies even if.the facts should be that Respondent's
policies, viewed as a whole, are intended to enure, and in fact do
enure, to the benefit of the population as a whole.
The Court will recall the fact that my learned friend referred to two
passages in our Rejoinder, viz., V, at page II9 and again in the same
Volume at page 105, in both of which the Respondent addressed itself
to the proposition of the norm as then defined in the Reply. The Court
will recallthat the definition is given in the Reply, IV, at page 493; and
I shall rcfer to that definition at a later stage. On the basis of the dcfini
tion therc,we understood it to refer to absolute prohibition against any
form of differentiation on the basis of membership in a group, class, race,
etc. On that basis of understanding of the norm, that it was absolute,
in that respect, we made certain remarks. We then said that factual
enquiries by the Court in order to weigh the advantages against the
disadvantages of the policy and so forth, would be wholly ruled out, the
sole question would be whether such a norm existed so as to be binding
in law upon the Respondent as part of the Mandate, and we added
explicit words to the effect that even if the Court should find that the
norm was intended to enure and did in fact enurc to the benefit of the
population as a whole. That, my learned friend says, he is in emphatic
agreement with. Let me refer to the formulation at V, page rrg of our
Rejoinder. We referred to the formulation at page 493 of the Reply and
we then said this:
"If this alleged norm exists as part of the Mandate, it would
have the consequence that Respondent's admitted policies of dif
ferentiation would constitute a contravention of the Mandate even
if the Court were to hold that such policies were intended to enure
and did in fact enure, to the benefit of the population as a whole.
Consequently the sole issue between the Parties on this aspect of
the case is a legal one, viz., whether or not the Mandate contains
such a norm."
My learned friend also read the passage at page 105 of the same
Volume which, although in very slightly different wording, has exactly
the same purport and effect, and he expressed his emphatic agreement
also with that proposition.
So, Mr. President, we have at least made that progress. The difficulty
is that that clear statement of his position this moming still appears to
be in conflict with other features which stand on the record and to
which my learned friend did not specifically address himself this morning
so as to indicate the Applicants' attitude in that regard.
The first important question, or problem, which arises in this regard,
is this: do the factual allegations made by the Applicants in the l\Iemo
rials and reaffirmed by them in the Reply which imply a condemnation
on the facts, of the Respondent's policies, still stand or do they not?68 SOUTH WEST AFRICA
l\Ir. President, I should like to begin by referring the Court to those
very paragraphs of the Memorials, which are still incorporated, by
reference, in the Applicants' Submissions 3 and 4. They are the para
graphs in respect ofwhich my learned friend emphasized that they stand,
under the heading of "Legal Conclusions", at I, pages r6r-r6z of the
Memorials. I leave out of consideration for the moment, Mr. President,
the question whether these paragraphs concentrated on the element of
purpose, or good or bad faith, or not-that has been made a strenuous
issue by my learned friend. I still submit that there can be no question
about it that our interpretation of what \•,;assaid in that regard in the
Memorials, is perfectly correct, but I leave that dispute for the moment.
Let us simply see whether they asked for any value judgment of the
kind I have described, in regard to purpose or in regard to effect or in
regard to both, whether they asked for a pronouncemcnt on the facts
by this Court. \Ve find, in paragraph 187 (Memorials, I, p. r6r), the first
one of the "Legal Conclusions", ends off by saying-"The record as a
whole reveals the deliberate design that pervades the several parts."
Then paragraph 188 (of the Memorials) refers to the possibility that the
Mandatory might "explain or extenuate this or that detail of the factual
record, ifit were merely an isolated event or phenomenon". But they go
on to stress the cumulative effect of the record and state this conclusion
in the final sentence:
"Particular laws and particular practices, particular orders and
particular acts are ail parts of a cohesive and systematic pattern
of behavior by the Mandatory which inhibits the well-being, the
social progress and the development of the ovcrwhelming majority
of the people of South West Africa, in all significant phases of the
life of the Territory." (1, p. r6r.)
Mr. President, it will be noted that the reference is not to an inhibition,
a hampering, or à disqualification pertaining to particular isolated
individuals in particular isolated circumstances which form a relatively
minor part of a big whole, but that Applicants refer explicitly and, in
so many words, to inhibiting "the well-being, the social progress and
the development of the overwhelming majority of the people of South
West Africa, in ail significant phases of the life of the Terri tory".
Paragraph 189 of the Memorial continues (that is one of the paragraphs
expressly incorporated by reference):
"As the Applicants have previousiy pointed out, the policy and
practice of apartheid has shaped the Mandatory's behavior and
permeates the factual record. The meaning of apartheid in the
Territory has already been explained hereinabove. The explanation
warrants repeating. Under apartheid, the status, rights, duties,
opportunities and burdens of the population are fixed and allocated
arbitrarily on the basis of race, color and tribe, without any regard
for the actual needs and capacities of the groups and individuals
affected." (Ibid.)
I pause for a moment, and point to the factual nature of the allegation
that the fixing of the status, and so forth, is arbitrary-arbitrary in the
sense that it is without regard to the actual needs and capacities of the
groups or individuals affected. The quotation proceeds:
"Under apartheid, the rights and interests of the great majority ARGUME:-JT OF MR. DE VILLIERS 69
of the people of the Territory are subordinated to the desires and
conveniences of a minority."
This is, to use my learned friend's expression, Mr. President, a fiat
allegation of fact. I continue with the quotation:
"We here speak of apartheid, as we have throughout this Memo
rial, as a factand notas a word, as a practice and notas an abstrac
tion. Apartheid, as it actually is and as it actually has been in the
life of the people of the Territory is a process by which the Manda
tory excludes the 'Natives' of the Territory from any significant
participation in the life of the Territory except insofar as the Manda
tory finds it necessary to use the 'Natives' as an indispensable
source of common labor or menial service." (Ibid.)
These are, again, pure allegations of tact, Mr. President.
Now, we corne to paragraph 190, incorporated by reference in both
Submissions 3 and 4, but the only one relied upon in Submission 4, as
originally formulated. It reads:
"Deliberately, systematically and consistently, the Mandatory
has discriminated against the 'Native' population of South West
Africa, which constitutes overwhelmingly the larger part of the
population of the Territory. In so doing ... " (Ibid., p. 162.)
and I pause here for a moment, Mr. President. "In so doing"~in doing
what,Mr. President? In discriminating, in discriminating "deliberately,
systematically and consistently", against the Native population. I pro
ceed:
"In so doing, the Mandatory has not only failed to promote 'to the
utmost' the material and moral well-being, the social progress and
the development of the people of South West Africa, but it has
failed to promote such well-being and social progress in any signif
icant degree whatever. To the contrary, the Mandatory has thwarted
the well-being, the social progress a.nd the development of the
people of South West Africa throughout varied aspects of their
lives; in agriculture; in industry, industrial employment and labor
relations; in govcmment, whether territorial, local or tribal, and
whether at the political or administrative levels; in respect of
security of the person, rights of residence and freedom of movement;
and in education. The grim past and present reality in the condition
of the 'Natives' is unrelieved by promise of future amelioration.
The 11fandatory offers no horizon of hope to the 'Native' population."
(Ibid.)
I end the quotation there, for the moment.
Mr. President, if that is not asking for a value judgment in respect of
the whole of the policy referred to, of the policies and practices referred
to, then I do not know what would amount to asking for such a value
judgment.
The question is, do those allegations stand, or do they not stand, as
part of my leamcd friend's case, as part of what he asks this Court to
pronounce upon?
The same paragraph, paragraph 190, proceeds, and it says in italics:
"The Mandatory has violated, and continues toviolate its obligations
as stated in the second paragraph of Article 2 of the Mandate and
Article 22 of the Covenant in the following respects: ... " (Ibid.)70 SOUTH WEST AFRICA
And then follow·s,Mr. President, a summary of allegations previously
made in Chapter V in respect of various aspects of Iife--economic,
political, educational, rightsof residence, freedom of movement, security
of the persan, and so forth. I do not have to run through, them; it would
be a tedious business, Mr. President. On analysis it appears that each
and every one of them is a factual allegation of discrimination against
the Natives.
We find that, in the Reply, these and similar allegations were re
affirmed, and I should like to refer the Court to a few of those formula
tions.
We find at IV, page 257 a general formulation in regard to Submis
sions 3 and 4, given in the course of explaining that the Applicants' case
was intended to be based, not upon an allegation of bad faith, but upon
an objective evaluation of the Respondent's conduct, and it is said
that-
"Applicants' Submissions 3 and 4 accordingly are hereby reaf
firmed in the sense stated and intended therein, viz.,that Respon
dent's policies and practices, as set forth in Chapter V of the Memo
rials and in ... Chapter IV of the Reply, characterized and de
scribed by the terms 'apartheid' or 'separate development', have
violated, and do violate, Respondent's obligations towards the
inhabitants of the Territory in terms of Article 2, paragraph 2, of
the Mandate." (IV, p. 257.)
I wish to emphasize the words "Respondent's policies and practices,
as set forth in Chapter V of the Memorials and in ... Chapter IV of the
Reply". In Chapter IV of the Reply, at IV, page 256 and running on to
page 257, it is stated:
"Applicants' Submissions 3 and 4 are, on the contrary, based
upon the conclusion, amply supported in the Memorials that:
'... By Iaw and by practice, the Union has followed a systematic
course of positive action .. .'."
I have previously read this to the Court. Ail the allegations are repeated
about systematic conduct inhibiting well-being, arbitrary allotment,
ignoring the needs and capacities of the individuals, subordinating
interests and rights of the majority to that of the minority, and so forth.
And it ends by saying:
"It deals with apartheid in practice, as it actually is and as it
actually has been in the life of the people of the Territory, and notas a
theoretical abstraction . .. " (IV, pp. 256-257.)
We find at page 258 of the Reply a general formulation to the fol-
lowing effect:
"As is demonstrated in the Memorials, and reaflinned in tliis Reply,
the policy of apartheid is injurious to the genuine interests and
welfare of the entire population, including those whose benefit and
privilege are purported to be served thereby."
Now, those are general formulations; there are others, but I give
examples only.
I wish ta refer the Court to some specific formulations on particular
aspects of the factual case. In regard to education, we find the following
at IV, page 364, in the second paragraph: ARGUME:ST OF MR, DE VILLIERS 71
"ln Applicants' submission, Respondent's policy of educational
apartheid with respect to the children of 'Native' persons within
the Territory inevitably distorts the social perspective and political
moral outlook of the children of 'Coloured' or 'European' inhabi
tants. As such, the Native education policy is, in itself, a violation
of Respondent's obligation to promote to the utmost the material
and moral well-being and the social progress of ail of the inhabitants
of the Territory."
It contains a factual allegation, Mr. President, that the policy "inevi
tably distorts the social perspective and political and moral outlook",
and again "all of the inhabitants of the Territory" are referred to.
At the bottom of page 370, we find the following, still about education:
"The education policy in the Territory segregates ail of the inhabi
tants by race, separates the 'Native' inhabitants by tribe, and
prepares the 'non-European' inhabitants for a subordinate role in
the social, economic, and cultural life of South West Africa. This
last description is true both of the limitation on opportunity within
the areas considered by Respondent to be 'European' and of the
development of any reasonable opportunities within prospective
'hornelands' in the Territory."
Again, Mr. President, I emphasize the factual nature of these allegations,
which, as the Court with be aware frorn a reading of our pleadings in
this regard-our Countcr-Mcmorial and our Rejoinder-are so directly
and strenuously contested by us as questions of fact.
At IV, page 380 of the Reply, still about education, which is now ele
vated in the Reply to the basic complaint from whlch the others emanate,
we find the following:
"Applicants contend that such policies have as their purpose and
inevitable consequence, restriction of the 'Native' inhabitants of the
Territory to their isolated, pre-industrial, tribal groups and that
such policies will exclude the 'Natives' from meaningful participa
tion or consultation in the life-social, political, and economic--of
the Territory as a wholc."
Comment is unnecessary, Mr. President.
I can refer the Court to passages of a similar nature in regard to the
economic aspect at IV, pages 424 and 425. The conclusion stated at the
end of the. section on the economic aspect (at p. 424) reads:
"Applicants have demonstrated that Respondent's policy of eco
nomic apartheid is inconsistent with the Mandate in that it degrades
and frustrates what Respondent is obliged to promote."
At the very end of this conclusion, at page 425, we find the sentence:
"I t [that is, apartheid] reflects and assures domination of the man y
by the few, of the underprivileged by the privileged, of the ward by
the guardian."
Mr. President, that is the matter which was made the fundamental issue
of fact between the Parties-the question whether the policy of separate
development envisages continued domination of one group by another,
or a development which will get away from any fonn of group domination,
the one by the other, the latter being the Respondent's case, as a matter
of fact, and the former the Âpplicants' case, as a matter of fact. SOUTH WEST AFRICA
72
In regard to government and citizenship, we find the following con
clusion stated at IV, page 450:
"It is submitted that, by virtue of the policy of apartheid, as
applied in the Territory with regard to government and citizenship,
Respondent has failed in any degree to promotc the well-being and
social progress of the inhabitants of the Territory ... "
That, I think, is sufficient.
In regard to freedom of movement, rights of residence and security of
the person, I refer to only two very brief statements, in order to demon
strate the nature of Applicants' case. At IV, page 469, towards the bottom
of the page, we read:
"The inescapable fact is that the entire complex of Iegislative and
administrative restrictions implementing aparlhei"d by restricting
freedom of movement, residence, and security of the person is de
signed for the convenience of the 'European' inhabitants of the
Territory. Almost without exception, the provisions complained of
by Applicants in part 5 of Chapter V of the Memorials keep 'non
Whites',,and 'Whites' apart, except for labour demanded of the
former.
Again, Mr. President, this is the subject of a most strenuous issue on
the pleadings.
And then, finally, at page 475 there is a statement in regard to the Legal
Conclusions. It commences by stating that "Applicants reaffirm the Legal
Conclusions, set forth in the Memorials", and so forth. It refers there
after to the norm, but it begins with a formai reaffirmation of "the
Legal Conclusions, set forth in the M emorials"; and those, when one
refers back to them, Mr. President, in the footnotes given, at IV, pages
354-355, will be seen to include these factual allegations which I have
just read, and particularly the one that these laws and practices were
designed exclusively for the convenience of the mandatory Government,
or the "European" population, or both, and subordinated the interests
of the "Natives" to those interests and that convenience.
So, Mr. President, the first question which arises and which, in our
submission, or, at any rate, as far as we can sec, has not been properly
clarified, is: do these factual allegations still stand-these and similar
ones-or do they not? Do they still stand on the record so as to leave to
the Applicants the best of two worlds-so that if the Applicants' case on a
norm might fail, these allegations might still stand there as an invitation
to the Court, or some of its Members, to passa judgment on Respondent's
policies interms of these allegations? That would, of course, be a contra
dictory attitude to the one which was indicated before, namely that Ap
plicants' caseis that they must succeed on the basis of their norm even if
Respondent's policiesas awhole were intended to enure, and in fact enured,
to the benefit of the population as a whole. But, l\Ir. President, as long
as we do not know what the position about these factual allegations is
i.e., dothey stand, are they persisted in, or are they not persisted in?-we
have no clear answer to that contradiction. If clarity could be obtained
in that regard, then my difficulty might fall away. But I should Iike to
point out that what the Applicants now have, in effect, is the best of two
worlds, in the way in which they formulate their case in regard to this
norm. They ask the Court to determine on the basis of the suggested
existence of a norm. The norm is so formulated that it refers only to what ARGUMENT OF MR. DE VILLIERS 73
has now turned out to be a handful of relatively rninor adverse aspects
of a policy-relatively rninor, l say, when they are considered in their
context, when they are considered in regard to their possible scope-in
regard to the possible number of persons whose lives may be affected by
them, and in the light of the total context of the policies as a whole.
1 shall illustrateo the Court with regard to one of the examples used
by my leamed friend how relatively minor such aspects are. My learned
friend referred the Court to the case of the engineer, and in his address to
the Court on the question of an inspection he made repeated reference
to this question of the disabilities placed upon Natives who wanted to
become engineers-how it would affect them pennanently throughout
their lives, although the system might be subject to modification at some
stage in the future. And, he asked, what is the Court going to see in that
regard in South West Africa? Mr. President, let us see that matter in
perspective. The restriction is one not of the nature of a prohibition
making it impossible for a Native under any circumstances to become an
-engineer, or to practise as an engineer if he should obtain the necessary
qualifications through correspondence, or through going to a university
outside of South Africa, as the case might be; there is no prohibition
against his practising asan engineer, if he wishes to do so-no prohibition,
even, against a European being an assistant to him as an engineer; there
is nothing of that kind. In essence the whole incident, which has been so
blown up, relates only to the question whether particular students were,
in particular circumstances which obtained in 1959 in South Africa, to
be encouraged to take an engineering course at a university in preference
to other courses, and the considerations which played a part in that re
gard were: what are the prospects for you if you should qualify in your
course? There are many respects in which opportunities are specially
created for higher economic and professional endeavour on the part of
the Native-the non-White-and indeed of all parts of the population in
South Africa and in South West Africa. In many of the spheres of the posi
ti\·eapplication of the policy of separate development to the non-White
groups in South Africa and in South \Vest Africa the need is for leader
ship-leadership not only in a political sense, but also in a technical sense
on the part ofpeople who can serve the community in professionaland semi
professional capacities. Thercforc, a government excrcising what it con
siders to be a necessary, although an unpopular, control system in these
respects finds it necessary at a particular stage to say "I have to point
out to students that if they become engineers, the opportunities for them
are, at the moment, very Iimited" by reason, not of government policy,
but of social circumstances existing in the community, by reason of the
fact that a Native engineer who qualifies would experience difficulty. I
must make it clear, perhaps, to avoid confusion, that an "engineer" in
thiscontext means one who is fully qualified as a professional engineer
through taking the necessary courses at a university for five years or
longer. There may be confusion because the word "engineer'' is sometimes
used as designating various kinds of technicians; that is not the sense
in which it was used here. The difficulty that would apply in the commu
nity, as was pointed out by the Minister, would be this: that if that
engineer should practise on his own he might find it difficult to do so,
because he would need assistants, and he would, as a fact, find that there
are no engineering assistants in the Native population, and that Euro
peans would in ail probability not be willing to serve under him. He74 SOUTH WEST AFRICA
would have the difficulty that firrns who would have to employ him if
he wanted to go into employment as an engineer, in the privatc sector,
and independently of government poliey, would have that same difficulty
-that they would have to consider the difficulty: if we employ this man
as an engineer, who are we going to employas assistant to him; are we
not going to have difficulties in tha t regard?
Mr. President, that indicates the nature of this particular matter;
it indicates the real purpose at which it was aimed. It was a matter
raised at a particular stage, and was an indication to the student that
there were other spheres in which he would have much wider scope-in
which he would have a protected scope-for the application of whatever
qualifications he might get. .
A further indication, Mr. President, of the nature and the scope of
this factor relates to the number of individuals that could possibly be
affected, and to the time for which they could possibly be affected. \Ve
made enquiries in South Africa to the best of our ability, and if necessary
we could produce evidence about it. We found that up to the time of
this speech, which was 1959, if I remember correctly, there was no diffi
culty or impediment in regard to Natives becoming engineers if they so
wished. Despite the fact that there are in South Africa over3,000 NatiYes,
who graduated at universities in one branch or other of learning-it may
be stated in passing that most of them are in constructive employment
or occupation; and that their number compares most favourably, l\fr.
President, with the rest of Africa-it has been established that that num
ber exceeds the total number of graduated Natives of Africain the whole
of the rest of what was formerly British Africa-in ail those territories
which were comprised in that concept-yet, as far as we could ascertain,
of ail those 3,000 there was only one who had qualified as an engineer.
Ican mention this fact also, on which there can be evidence, if neces
sary-perhaps the Members of the Court have more knowledge aboutit
than 1-1 spoke to an engineer in South Africa who does work ail over
Africa-all types of engineering work-and cornes into contact with the
engineering profession wherever it exists in all territories of Africa. He
has taken a special interest in this matter and he assures me that he has
never seen or heard of any Native engineer in any territory of Africa.
There may be one, or a few, somewherc but he does not know of any
that is engineers in the sense we are speaking of.
In South West Africa the first Natives to matriculate through the
ordinary channels of schools did so in 1960, if I remember correctly-a
year after this particular speech. A handful had qualified before tha t
through correspondence courses and so forth.
So, Mr. President, that gives an indication of the possible scope and
effect of a measure of this kind. Nobody has said that if circumstances
develop in such a way that thère will be proper scope for the services
of Native engineers in the circumstances of South Africa or South West
Africa, that the need will not be properlv met. In fact, the whole implica
tion, the whole purport, of ail the statéments about the relative policy,
the whole rationale of it, all point in the direction that that is to be en
couraged, provided there is the necessary scope.
\Vhen we speak of schemes for engineering development~the building
of roads and dams and so forth-in Native homelands, such as the Tran
skei when we think of water schemes-hydro-electric schemes, irrigation
schemes, through pumping systems and what not-in South West Africa, ARGUMENT OF MR, DE VILLIERS
75
in Native territories, when we tllink of the erection of new townships on
modem Iines, in which the necessity for a proper Iayout, for reticulation
systems, water and sewerage and so forth would exist-when we bear ail
these things in mind, it becomes apparent immediately that the scope is
tremendous; a protected scope in terms of this policy for Native engineers
of the future, when the present phase of difficulties has been overcome
this particular stage of development has been superseded.
Yet, Mr. President, my learned friend's norm is of this nature that
he looks at an element of that kind in the policy and he takes a few others
and hesays: weU,here they are; youlook at these only; you do not look at
anything else in the policy; you do not look at compensatory factors;
you do not look at any factors in the policy which create opportunities for
these people in exchange for this particular one; you do not look at the
question whether politically and socially any alternative policy could
work in the Territory at ail; you do not have regard to the contention,
which is raised so strcnuously by Respondent, that if any other course
were to be adopted in South West Africa, the only possible, practicable
course would be one tending in the direction of integration between
all the peoples of the Territory (that is indeed the very course being ad
vocated by the Applicants in their pleadings and by these international
bodies to which they have referred) and to the fact that the South African
Govemment says, and says on very good evidential grounds, that that
course is likely to lead to complete chaos and misery for all the peoples
concerned. In order to avoid that-in order to have thls policy which
involves the very difficult task of balancing conflicting interests, in
trying to draw dividing lines where necessary, in order to create a basis
for harmony and co-operation between ail these peoples the said Govern
ment has in some ways to do things which are unpopular. It has, in some
ways, to draw a boundary line which affects particular individuals.
Its decisions in that regard may be such, in particular instances, that
everybody would not agree with them. And very often people do not,
in fact, agree:they protest and they think that the particular decision is
wrong, very often not knowing all the facts.
Sometimes it may be wrong, sometimes it may be unnecessary for
the particular situation. It is a difficult problem which is similar to
problems encountered in any situation in which an authority has to
exercise, or operate, a control system.
If in times of scarcity there is a rationing system in a country, or a
system of import control, or both combined, everybody might be agreed
on the necessity for having that control system; but who has ever heard
of everybody being satisfied with every decision taken by such a control
ling authority? The contro!ling authority has to take its decisions. Very
often they are unpopular and somebody else thinks: I would have
decided this or that point differently.
But, Mr. President, that is the rationale of the policy with respect
to these isolated, negative aspects. They are considered necessa'ry as
part and parcel of this whole policy which is intended for the benefit of
the whole of the population. Incidentally it is showing spectacular results
in that respect.
But my learned friend says no. His norm is such that that view of the
situation is impossible. He says: we must look only at the negative. as
pects, even if they be only a handful, and the rest becomes irrelevant;
the organized international community has passed its value judgment SOUTH WEST AFRICA
and the Court is to act as a rubber stamp; these other things are not to
be considered, they just blur the picture.
In that regard my learned friend still relies upon what he calls the
"revulsion" expressed by other peoples, by other governments, by organi
zations, at this poliey of apartheid. He wants to introduce this, Mr. Presi
dent, into a discussion of a pure legal norm. He wants to have the full
psychological benefit ofthat description of the situation, and then retreat
into his shell and say: but the Court must please not institute• a full
enquiry into these facts to see whether that value judgment is justifiable
or not; the Court must accept the judgment of the organized international
community, it must decide on the basis of a norm that excludes considera
tion of the positive aspects of a policy and concentrates only on a handful
of negative aspects.
That is why it is so important, Mr. President, to have absolute clarity
in this respect. Do the Applicants still rely on these allegations which I
have read from the record; do they still stand as part of their case; do
they still stand there as a basis on which the Court may be asked to pass
a value judgment on our policy, jfhis norm should not succeed? Do they
therefore, in effect-with regard to the attitude which Applicants take
about evidence and about an inspection-do they stand there as an in
vitation that the Court is to make some finding on some basis or another
on what it has before it in that regard, without availing itself of the op
portunities offered by the Respondent for making a proper and a full
factual enquiry?
That, :111P.rr.esident, is a matter which I suggest still requires clarifica
tion.
Then there is another factor. The norm is not stated as bcing the only
basis upon which the Applicants rely. They indicated in the verbatim
record at page 44, supra, that they have an alternative; and my learned
friend in his formulations this morning, by implication, clearly referred
to that alternative, namely standards, as an alternative to a norm.
Now I am afraid that we have no clarity yet as to what those standards,
on the basis now put to the Court, entail.
The Applicants refer at page 44, supra, to "Respondent's theory of
the case, as now understood by the Applican ts". They proceed to sa y:
"Such a theory, as we now understand it, particularly in the light
of Respondent's statements made during Oral Proceedings. îs based
upon the proposition that, although no international legal norm ex
ists relevant to the interpretation and application of Article 2 of the
Mandate, there nevertheless do exist international standards appli
cable,and that Respondent's obligations undcr the sacred trust may
be judged in accordance with them. The Applicants respectfully
submit that, in such event and on that basis, the undisputed facts
of record likewise would establish a violation of such international
standards, as described by Respondent, and that the Court should
adjudge the Applicants' submissions in accordance therewith in the
event that the Court should decide against the Applicants' conten
tions that an international legal norm does exist, and is applicable,
in the terms and in the manner contended for by the Applicants."
So, we have the alternative that if the Court should decide against the
contention of the Applicants about the international norm, then the
Court is still asked to find on the basis of applicable international stan- ARGUMENT OF MR. DE VILLIERS 77
dards. It has, I am afraid, not been made clear on what basis it is sug
gested that those international standards would be applicable.
The Applicants refer to such international standards "as described by
Responden t''.
Now, 1\1r.President, it will be recalled (I need not state the argument
again, I am stating the effect of the argument, that we delivered to the
Court in that respect), that we say that when one speaks of standards
one speaks of matters, or precepts, which are not perse binding in law
that is the distinction which we draw between standards, on the one
hand, and norms, on the other.
\Ve admitted that standards of governmental practice and policy of
faimess and equity in that regard, do exist in modern circumstances
standards practised by governments, standards spoken of by govern
ments, standards mentioned by moralists, by various scientists in the
social, the political and the natural sciences, and by various other com
mentators. We pointed out that they, in themselves, are not binding in
law but that they could have an effect in a value judgment if, for instance,
this Court were to determine the case on the basis which we suggested as
the only relevant one in law, namely whether Respondent's purpose is
bona fi.de an honest one for promotion of well-being and progress.
\Ve indicated how standards could help in that regard, i.e., that if Re
spondcnt could be said to be out of step with the whole of the modern
world in respect of the applicable standards then that might be an in
dication which could assist the Court in coming to a conclusion that per
haps the Respondent's purpose is not an honest one. We indicated also
that that type of allegation would again necessitate a full enquiry into
all necessary facts, into the content of the suggested standards, into
whether the standards are qualified, whether they are absolute, how they
apply, whether they are justifiable in fact, or not, or whether they would
be subject to modification with experience.
Then where there is a conflict between the Respondent's policies and
practices, on the one hand, and those standards, on the other, one has to sec
what the conflict consists of. Does it relate to the basic underlying pre
cepts of justice, fairness or morality which are involved, or does the
conflict relate purely to questions of method which could not, in any
true sense, be elevated to standards?
That was the sense in which we suggested that standards could be
relevant in such an enquiry. If my learned friends speak of standards,
as described by the Respondent, do they suggest then that the Court
is to indulge in that kind of enquiry, despite the fact that they said
repeatedly in other instances that their case does not rcst on a proposition
of mata fides in that sense?
Or have they some other alternative basis in mind, Mr. President,
for the application of these standards? If so, v,rould that basis be one
which lets in any enquiry into facts, or would it not be such a basis?
And if it would not be such a basis, then what is the basis upon which
they suggest that these standards woulcl apply? That is the other matter
wh1ch, I submit, still requires clarification before we can know with
certainty that a factual enquiry of the type envisaged is and would be
irrelevant.
Then, Mr. President, there is this other factor, namely that of the
contents of the norm relied upon by the App1icants. I pointed out
before that the definition of the norm at IV, page 493 of the Reply SOUTH WEST AFRICA
appeared to indicate an absolute norm-we made it clear that we
understood the definition in that way and indeed my learned friend this
morning confirmed our understanding when he said that the definition
is intended in that way. May I just refer to the wording again-
"... the terms 'non-discrimination' or 'non-separation' are used
in their prevalent and customary sense: stated negativcly, the
terms refer to the absence of governmental policies or actions which
allot status, rights, dutics, privileges or burdens on the basis of
membership in a group, class or race rather than on the basis of
individual merit, capacity or potential: stated affirmatively, the
· terms refer to govemmenta1 po1icies and actions the objective of
which is to protect equality of opportunity and equal protection of
the laws to individual persons as such." (IV,p. 493.)
That indicated, Mr. President, no qualification to the norm at all.
Although the terms "non-discrimination" and "non-separation" were
used, by description they, in effect, referred to the absence of any dif
ferentiation on the basis of membership of groups or classes or races, as
described. That is the sense in which we understood it, that is the sense
in which we made it clear in our Rejoinder that we understood it, that is
the basis upon which we said that if the Court were to find that this norm
is binding on Respondent then it would find in favour of the Applicants
independently, and even in the event of the policy as a whole enuring to
the benefit of the population as a whole.
Now, in the course of his address on the legal argument, my learned
friend indicated (I forget the date of the passage, but I referred to it
before and the Court will be aware of it), that he no longer regarded that
norm as being an absolute one, i.e., as relating to differentiation abso
lutely and perse. He indicated quite clearly that there was to be intro
duced a qualification which he then very vaguely and broadly referred
to as one of protection being authorized, but not compulsion. I do not
have to refer to the terms of it because we have a further explanation on
record, and that first referencc was a very bald and a verv broad one.
It was in VIII, at page 262. '
Now, in reply to the first part of the question put by Sir Gerald
Fitzmaurice on 28 April, my Iearned friend reverted to this question.
ln the first part of the question, it may be recalled, l\fr. President, it
was, amongst others, specifically asked-
"... is the Applicants' contention about 'apartheid' to be under
stood in the sense that a policy of group differentiation is in ail
circumstances, necessarily and in itself. contrary to Article 2 of the
Mandate, irrespective of any other steps taken by the Mandatory
for promoting the welfare of the inhabitants of the l\landated
Territory?". (VIII,p. 22.)
My Ieamed friend's reply to that, and also to the second part of the
question which went on to pose the supposition that "if the Applicants'
contention does not go so far as that, and if there may be circumstances
in which measures of group differentiation might have some justifica
tion" (ibid),went on to indicate, at page 44, supra, that "a policy which
differentiates among individuals as such, or as members of identifiable
groups,}vould be permissible and indeed desirable in appropria te circum
stances . ARGUME:-lT OF MR. DE VILLIERS 79
Therefore, irr.President, the norm is now not an absolute one, it is
not one which would apply necessarily and per se, in itself, to ail cases of
differentiation on the basis of group and so forth. And my leamed friend
indicated:
"\Ve have in that connection cited the minorities treaties, among
other examples, in which it is just, prudent, wholly desirable for
governments to take account of differences between individuals and
between individuals as members of groups, thereby leading to the
conclusion that differences are permissible with respect to the
treatment of groups as such." (P. 44 supra.)
But, Mr. President, the passage proceeds:
"There are instances known to all of us in all of our countries of
such examples of differentiation of groups, the protection of minors,
the protection of other segments of the population, arranged in
accordance with their choice-normally-sometimes by reason of
other considerations, in which their choice where possible, plays a
very important and, indeecldecisiverole-their choice as individuals.''
Now, I shall just analyse that for a moment. The exceptions mentioned
are clearly not stated as being exclusive. My learned friend does not
attempt or purport to define all circumstances in which exceptions to
a norm of non-differentiation might be permissible. He mentions certain
exceptions and he mentions, in that regard, the important element
played by choice normally, but he also indicated, "sometimes by reason
of other considerations" (italics added), and these are, for the moment,
not defined. My learned friend proceeded that "The problem therefore,
in the Applicants' respectful submission is not summarized in terms of,
or is H answerable in terms of, the expression 'group differentiation',
except in a sense which is mutually understood between the questioner
and the responder. There is, in this case, no submission on the part of the
Applicants, which condemns or attacks, or criticizes, differentiation
between individuals as such, or as members of groups, in, for example,
the aspects which I have mentioned as illustrations" (p. 45, supra)
again making it clear: "for cxample", "aspects which I have mentioned
as illustrations".
Then my learned friend went on to say that for that reason our
description of non-differentiation was nota good description of the norm
at ail, and he said, further, that-
"The Applicants' formulation relates to the policy of discrimination
and separation, and the distinction is more than a verbal one
between those words and the general concept of differentiation.
Members of churches, organizations of various kinds-1 have men
tioned minors, those of non-age and so forth, as groups are differ
enti~ted among and within themselves frequently in terms of the pro
tection which they are offered as a matter of good government and
clecent society. This is just part of the human condition and human
experience.''
But then cornes the contrast, Mr. President:
"A policy of diffe·rentiation, however, which allots rights, burdens,
status, privileges, and duties on the basis of membership in a group
bv reason of race, colour or other circnmstance of a similar nature,
\Vhether called ethnie, tribal or otherwise, on such a basis, whichBo SOUTH WEST AFRICA
does not pay regard to the individual quality, capacity, merit or
potential is, inthe Applicants' view, an impermissible premise and
an impermissible policy at ail times, under all circumstances and
in ail places." (P. 45, supra.)
Now, Mr. President, we have, on the one hand, the statement of some
examples where group differentiation "would be permissible, and indeed
desirable, in appropria te circumstances". \Ve have, on the other hand,
the statement that what is described as discrimination and separation,
as defined here, when no regard is paid to individual quality and so forth,
is impermissible at all times, under all circumstances, and in ail places.
Now, what is the suggested dividing line to be? That is not clear to us
yet. Is it to be a dividing line of fact, involving a value judgment of the
Court to the effect that this is a case in which group differentiation
serves a good purpose or a bad purpose, or that it has, or is likely to have,
a good effect or a bad effect? Is that the basis of distinction between the
permissible and the impermissible, or what is to be the basis? What is the
role played by this formulation: "on such a basis as does not pay regard
to the individual quality, capacity, merit or potential?" Is it an assump
tion, l\Ir.President, that as soon as you base your differentiation on
membership in a group then that does not pay regard to individual
merit or capacity, or does it involve an independent factual enquiry
into the totality of a particular situation, to ascertain whether the
distinction is of such a nature, of such a purpose, or of such an effect
that it does or does not pay regard to individual quality or capacity?
Those things are still not clear.
If the qualifications in the norm itself are to be such that the Court is
to indulge in a factual enquiry, then it would, par excellence, be necessary,
Mr. President, to have this further enquiry into the facts, and the
evaluation of the facts, which we envisage by way of evidence and by
way of an inspection. But if my learned friend makes it clear that that is
now no longer his case-that that is not contradictory to what he said
this morning, when he again revertcd to his norm as defined at IV,
page 493 of the Reply, and when he reverted to our statements in that
regard that the norm would then apply independently and irrespectively
of whcther the Court found that the policy as a whole enured to the
benefit of the whole of the population-then, of course, if that can be
made clear, it seems that it would purely be a question of adjudication
whether the norm exists or not, and this particular difficulty would fall
away-the possible factual enquiry involved in an application of the
very norm for which my learned friend contends.
Therefore, Mr. President, applying, by way of summary, these remarks
which I have made on the question of hearing witnesses and the question
of having an inspection, it is submitted that the hearing of such evidence
and the holding of such an inspection could be necessary in various
eventualities. It could be necessary, firstly, if there should still, on the
basis of the factual allegations that still stand on record, be an invitation
on an alternative basis, to the Court to make a value judgment con
demning Respondent's policies on a factual basis, whether in regard to
its purpose or its effect, or both. That, for the reasons I indicated this
morning, we understand has fallen away, although my learned friend
has not clearly said what his attitude is in regard to those statements
still standing on record.
Secondly, if the very existence of the norm, Mr. President, is sought ARGUMENT OF MR. DE VILLIERS Sr
to be justified-the existence or the creation of the norm or the content
of the norm is sought to be justifted on a factual basis which relates,
inter alia, to disputed allegations in regard to South West Africa-in
other words, ifthe Court is to engage upon an enquiry whether such a
norm is a factually valid and a justified one-then, of course, it would
still be necessary to have expert testimony in that regard, and partic
ularly expert testimony relating to South West Africa and other terri
tories and people in Africa. We understand, Mr. President, that that
possibility also falls away. As my learned friend says, that question of
justification for the norm is not to be decided by the Court, it has been
decidcd by the organized international community and the organizations
referred to. That is an understandable legal contention, whatever its
merit may be, and whatever its moral effcct may be on the whole factual
situation in this case. If in municipal law there were to be say, a law of
Parliament, an Act of the legislature, has proceeded on a certain factual
assumption, which has incorporated a certain norm into the Statute and
has made it the subject of a peremptory provision, then a person who is
accused of contravening that statutory provision cannot corne to court
and say to the court: "Weil, the factual basis upon which this norm was
taken up by Parliament and put into its Statute is an erroneous or a
false one and, therefore, I am not guilty of contravening this Act of
Parliament." The court would then say to him "But Parliament exer
cised that judgment, Parliament made this percmptory provision, and I,
the court of law, must apply it and you, as somebody to whom the law
applies, must obey it. lt is for Parliament to review the situation and
when Parliament finds that this norm is not a sound one, then the
Statute itself is to be repealed or modified." The same is possibly true in
the case of a contract; a contracting party cannot corne and say: "Our
bargain was a bad one and for that reason I am no longer to be bound to
the obligations."
i\Ir. President, it seems, in effect, that that is the nature of the Appli
cants' contention here. My learned friend in effect says that in some way
or other an alleged vicw on the part of the organized international
community, as he called it, must be seen as creating a law, a norm,
which is to appiy here, and whether that judgment was a good or a bad
one is not for the Court to decide. Even if the Court should think it was
bad, that judgment is binding upon it, it has created a norm which is to
apply here. If that is the sole contention, then of course, Mr. President,
the factual enquiry or the need for it would fall away and it would be
merely a question of decision by the Court whether in law such a con
tention could possibly be sound-but we are not concerned with that
for the moment.
Ifthat is the position, the only further point that hc would have to
make clear, Mr. President, is that in support of his norm be no longer
relies upon what he calls the "ovenvhelming weight of scientific author
ity", because that is an aspect upon which again, as I have pointed out
to the Court before, there is a vital dispute of fact between the Parties on
the record, viz., as to what is the overwhelming weight of scientiftc
authority in this regard. If my learned friend relies on factual justifica
tion for bis norm, then obviously we would like to bring in that evidence
on our side and that evidence might well be very vitally illustrated by
examples and by what one can see in South West Africa and in other
parts of Africa. But if my leamed friend makes it clear that all that82 SOUTH WEST AFRICA
would not be relevant, and he appcars to do so, i\lr. President, if that
could be absolutely, firmly established, then, of course, this difficulty
would fall away.
The third possibility, in which the factual enquiry through evidence
and an inspection may be necessary, would be on the basis of the alter
native in regard to standards. My learned friend would have to make
clear exactly what he means in that regard.
The fourth possibility would relate to the very application of the
suggested norm in a qualified form. That would require a factual en
quiry and a value judgment on the part of the Court. Again it seems, in
the light of what my learned friend said this morning, that those quali
fications may no longer appear to be adhered to; and it would seem that
he now says that in the making of allotments, differentation perse must
be regarded as being violative of the norm.
If clarity could be obtained, Mr. President, on ail these aspects of the
matter, then the need which we envisaged for the evidence and the
inspection would fall away; but that is an important proviso. I cannot
take the responsibility of saying that on what 1 have heard thus far, my
learned friend's case is indeed crystal clear in regard to these questions
and queries. It would, with respect, be a matter for the Court on which
to satisfy itselfjf the Court should also feel that further clarification is
required, through the asking of questions or otherwise. The Court has,
with respect, facilities at its disposai which I have not. If the Court could
be satisfied that no factual enquiry on any one of these alternative
bases would be necessary, and could make a decision to that effect, then
the whole basis for the leading of evidence or for an inspection as I
envisaged them thus far would fall away. but that finding on the part of
the Court-that satisfaction which, with respect, the Court would have
to attain for itself-would have to make it quite clear, i\Ir. President,
that the Applicants' case !caves no basis upon which the Court could
find adversely to the Respondent on the factual allegations. i.e., no
possibility that the Court could itself still pronounce an adverse factual
judgment cither on the basis of purpose or on the basis of effect, or even
on the basis that the Court might assume the correctness of the adverse
factual allegations which stand on record and which are of the nature of
a condemnation on a value basis of the policy as a whole.
If the Court could satisfy itself that thatis the position, that there is
nothing further left which could provide a basis or a necessity for a
factual enquiry or which could leave a basis for a Court upon which to
make a finding, then the question will solely be a legal one: do the_norm
as now contended for and the standards as now contended for, ex1st, do
they bind the .M.andatory? \Vhat legal justification is there for the
argument? That would have to be the implications of the Court's finding.
On the other hand, as long as it appcars, evcn on a contingent basis,
that there may have to be an enquiry of that nature, then my application
and my tendering of the evidence must stand.
Mr. President, that concludes the general remarks J wish to make on
this subject of relevancy and I think that is the crux of the matter.
There are matters of practical detail which would now have to be dealt
with only on a contingent basis. I do not know whether the Court would
like me to continue with those whcn it resumes, or whether it would
prefer to leave those over for further consideration, after we have had
further clarity about the legal aspects. I could adapt myself to either of
those possibilities. 13. ARGUMENT OF MR. GROSS
AGE:ST FOR THE GOVERN!IŒNTS OF ETHIOPIA AND LIBERIA AT THE PUBLIC
HEARING OF 3 MAY 1965
Mr. President and Members of the honourable Court, during the pro
ceedings of 30 April 1965, following the reply of the Applicants to the
question addressed to them by the honourable President on 28 April
1965, Respondent presented to the Court a reply on the issue of the
request by the Respondent for inspection.
In its address to the Court, Respondent adverted to the possibility
that, in the light of the Applicants' response to the question of the hon
ourable President-and possibly also in the light of other arguments ad
vanced by the Applicants-the factual enquiry envisaged by Respondent
both in regard to the prospective calling of witnesses and in regard to
inspection, might, after ail, be legally irrelevant to an adjudication of
the submissions alleging breach of Article 2,paragraph 2,of the Mandate
and Article 22 of the Covenant of the Leaguè of Nations.
In the comments which follow, l\Ir. President, the Applicants address
themselves to the queries propounded by Respondent in the course of
its address to the Court on 30 April 1965. These queries are to be found
in the verbatim record, supra, pages 66 and following. The Applicants
will endeavour to keep in mind that the Court is now considering solely
the request of Respondent for inspection, and that the Applicants are
not now called upon, nor may they appropriately at this stage endeavour,
to resume the argument on legal issues, which argument has been sus
pended in order that the Court may give consideration to Respondent's
inspection proposai. This is, in any event, the situation as the Applicants
understand it. This posture of the proceedings inevitably creates a certain
difficulty of selection of such considerations as may be reasonably rele
vant to the inspection proposai as such, without on· the one hand tmduly
anticipating the resumption of argument on the legal issues, which is
stillunder way, and on the other hand, producing sufficient clarity and
completeness so that the Court may consider and decide upon the inspec
tion proposai itself.
Nevertheless, on the basis of considerations which the Applicants will
endeavour to make clear, discussion of the inspection proposai may be
helpful to a fuller understanding of the Applicants' consistently held
theory of the case and certain fundamental issues underlying that theory.
Turning now to Respondent's queries with regard to clarification, and
its appropria te suggestion of the necessity to thcse proceedings of absolu te
clarity, in all respects, the Applicants start by painting out that the sub
missions, as set forth in the Memorials at I,page 194, open with a request
for adjudication and relief in respects set forth in the submissions,
"whether the Government of the Union of South Africa is present or
absent".
The Applicants considered then, as they do now, that the Memorials
made out a prima facie case of breach of the Mandate.
With respect to Submissions 3 and 4-those immediately relevant to
Respondent's inspection proposai-the Applicants have adviscd the SOUTH WEST AFRICA
honourable Court that described laws and regulations, and the official
measures and methods by which they are put into effect in the Territory,
the existence of which is conceded by Respondent, constitute a per se
violation of the sacred trust and, more particularly, that embodied in
Article :2,paragraph :2,of the .Mandate for South West Africa.
The Applicants, therefore, rest their case on the basis of such laws,
regulations and official methods and measures of implementation, which
comprise the policy and practice of apartheid, and the Applicants limit
themselves to those laws, regulations, measures and methods, the exis
tence of which is conceded by Respondent.
The Applicants contend that apartheid constitutes a per se violation
of Article 2,paragraph 2, of the Mandate. The characterizations of Re
spondent's policies and practices which comprise apartheid, as they are
set forth in the Applicants' pleadings, are those which, the Applicants
understand, correspond to the judgments reached by the organized inter
national community and its constituent institutions.
In the Applicants' written pleadings, they have characterized apartheid
in a manner identical with or analogous to characterizations which have
been made over the years by competent international institutions dealing
with problems of racialdiscrimination, and most particularly, although not
exclusively, the organs of the United Nations and its specialized agencies,
includingof course the International Labour Organisation. The judgments
of these international institutions are set forth in the Applicants' pleadings
at some length. They present the Court with evidence of the existence
of the international legal nonn and international standards for which the
Applicants contend. That norm, and those standards, are precisely the
outcome of the collective processes of the competent international in
stitutions. lt is the competence of such institutions to render authorita
tive characterizations of Respondent's policies and practices in the man
dated Territory. It is these policies and practices which, as the Applicants
have repeatedly pointed out, underlie the Applicants' contention that
apartheid is per se a violation of Article 2 of the Mandate, and which
accounts for the characterization thereof in the Applicants' pleadings.
The laws and regulations, and the methods and measures of their im
plementation, the existence of which is conceded by Respondent, have
been characterized by Respondent in its address to the Court as "a hand
ful of relative minor aspects of a policy", a figure of speech repeated with
variations in the proceedings of 30 April 1965.
Mr. President, I will say with regard to that comment only that the
Applicants obviously do not share this view of the matter, and moreover,
more to the point perhaps, arguments on the merits have not yet com
menced. The Applicants turn to another matter, as to which they under
stand Respondent hàs made a renewed query with regard to clarification.
During the Oral Proceedîngs of 28 April 1965, Respondent requested
clarification of certain matters. One of these was that certain conse
quences relevant to the inspection proposa! and the calling of witnesses
might follow-
"If they [that is, the Applicants] can demonstrate that they rely
solely on a norm, or on norms and standards of a technical nature
technical in the sense that it or they prohibit differentiation accor
ding to some definition which applies irrespective of whether the
differentiation, in fact, has a good or a bad objective, or a good or a
bad effect in regard to well-being and progress." (P. 54, supra.) ARGUME'.'<T OF MR. GROSS 85
On the same day Respondent likewise requested clarification as to
the question whether Applicants' case does or does not call for what
Respondent called a "value judgmcnt" by the Court with respect to its
policies. Respondent explained its use of the phrase "value judgment"
as follows:
"What I mean by a value judgment in that regard is a judgment
which would relate to the question whether those policies are good
or bad, in relation to promotion of well-being and progress-good or
bad in respect of their objective, or in respect of their effect in that
regard, or in respect of both." (P. 54, supra.)
The Applicants sought to address themselves to the foregoing queries
immediately following their response to the questions addressed to them
by the honourable President. The Applicants' remarks wiH be found in
the verbatim record, supra, pages 63 and following.
Queries posed by Respondent on 30 April referred, inter alia, to the
Applicants' response to a question put by Judge Sir Gerald Fitzmaurice
on 28 April 1965, which is set out in the verbatim record. In this connec
tion, Respondent appeared to be rcnewing or restating its query con
cerning the bearing, if any, of the Applicants' theory of the case upon
the question whether it would involve the Court in a so-called value
judgment, as to whether "group differentiation serves a good purpose or
a bad purpose, or that it has, or is likely to have, a good effect or a bad
effect". That is in the verbatim record, at page 80, si,pra.
Mr. President, if the Applicants understand aright, accordingly, Re
spondent has renewed its query regarding the necessity, if any, for a so
called value judgment, although thequery is expressed in slightlydifferent
terms than the formulation of the query on 28 April 1965. In partial ex
planation of the basis of its renewcd query, Respondent referred to the
Applicants' comment concerning minorities treaties in the course of the
Applicants' response to the question of Sir Gerald Fitzmaurice. I refer to
the verbatim record, at page 79, supra.
Respondent appears to understand the Applicants' contention to be
that the minorities treaties are to be regarded as "exceptions" to the
international legal norm and international standards described by the
Applicants as that of "non-discrimination and non-separation", as defined
in the Rcply at IV, page 493. Respondent likewise characterized the
Applicants' view of the minorities treaties and other examples, in the
same verbatim, not only as "exceptions", but also as "qualifications of
the norni. itself". (VIll, pp. 663-664; p. 80, supra.)
In this context, Respondent has repeated its use of the term "norm
of non-differentiation" which, as the Applicants have pointed out, does
not appropriatcly describe the norm and standards for which the Ap
plicants contend. The Applicants clarify this point not as a matter of
mere terminology, but, as will appcar, in order to aid in clarification of
underlying considerations, which the Applicants will endeavour now to
set forth.
As has been said, Respondent appears to understand the Applicants'
position to be that the minorities treaties, for example, stand as excep
tions to, or qualifications of, the norm of non-discrimination or non
separation. On such an assumption, Respondent cites the minorities
treaties apparently for the purpose of showing that no such norm or
standards as those for which the Applicants contend cxist, or, if they do86 SOUTH WEST AFRICA
exist, are not of the content or scope described by the Applicants. Re
spondent also appears to suggest that if the Applicants conceive the
minorities treaties to be exceptions to, or qualifications of, such legal
normand/or standards, it would follow that differentiation on the basis
of membership in a group is permissible under certain circumstances and,
hence, that the Court should make a "value judgment" concerning
whether an exception likewise should be made with respect to the policy
of apartheid. That is the way the Applicants understand the Respondent's
position.
The Applicants, in fact, cite the minorities treaties, notas exceptions
to the norm of non-discrimination, not as amendments of qualifications
therein, or thereof, but as an element relevant to an understanding as
to how the norm and standards have developed in the international or
ganized community. It is for this reason that it seems relevant to point
out that the Applicants' view, concerning the true distinction between
the nature and purpose of the minorities treaties and apartheid, in rela
tion to the international legal normand international standards governing
·Article 2,is confirmed by, and reflects, the judgment which has been
made by the competent international institutions speaking for the orga
nized international community.
The word "differentiation", accordingly, appears to be used in different
senses, or, inany event, to reflect a wholly divergent significance as be
tween the Parties to these proceedings. That such divergence is seriously
held, and sincerely contended, on both sides, is not questioned by the
Applicants, so far as Respondent is concerned. \Ve know what we think
we mean by it. On the contrary, the question arises: what is the source
of the divergence, which is a striking one, and which could only account
for the contrast in the treatment accorded by the respective parties to
the relevance of the minorities treaties and their significance in these
proceedings?
At an earlier stage of this discussion, the Applicants referred to the
obvious, and, in the Applicants' view, inescapable difficulty confronted by
Respondent in its effort to demonstrate what facts would be relevant to
judicial enquiry in loco, or elsewhere. Reference was made to repeated
use by Respondent of such generalizations as "all the facts", or "all the
facets". The same difficulty (which is inescapable, in the Applicants'
respectful view) is manifest from Respondent's use of the expression "all
necessary facts" in Respondent's address to the Court on 30 April in
which it posed its queries for clarification. (Supra, p. 80.)
From a legal and a logical point of view, it seems to the Applicants
that such a generality begs the question. Unless the Court is cognizant
of the facts or facets which it would be looking for, or looking at, or
listening to, in a judicial enquiry either by inspection or audition of wit
nesses,the purpose of such an enquiry would be obscure, and it would be
impossible for the Court to determine where to go, how long to stay there,
what to do when they got there, or how often to return.
These considerations, in the Applicants' view, have a direct bearing
on Respondent's query concerning the nature of the judgment, ifany,
which the Court is asked to make on the basis of the Applicants' theory
of the case. ln the Applicants' view, certain judgments would, indeed,
have to be made bv the Court, but these would relate, Mr. President, to
the purpose and relevance of the enquiry itself.
Such judgments by the Court would necessarily presuppose certain ARGUMENT OF MR. GROSS
considerations or reflections fundamental to the theory of the Applicants'
case and of the Respondent's theory of the case, as well, as the Applicants
understand it. And it is in this sense, and for this reason, that although
in our respectful view the inspection proposai was laid before the Court
out of context in an untimely manner, it ncvertheless may have served,.
or may yet serve, to clarify fundamental propositions as to which the
Applicants would now like to submit, with respect and with humility,
their reflections concerning the basic issues with which this momentous
litigation deals. ·
The considerations to which the Applicants refer in this connection
relate to the clearly divergent views between the Applicants and the
organized international community, speaking through its competent
organs, on the one hand, and Respondent, on the other, concerning the
role of the individuaI, the group and the social order. The Applicants
and the international community, speaking through its competent or
gans, on the one hand, and the Respondent, on the other, view these
inseparably related factors of the individual, the group, and society, from
wholly different perspectives.
The Applicants believe it necessary, in this context, to undertake to
comment, as briefly as possible, upon the character of this divergence
of perspective.
Another fondamental divergence relates to the nature and scope of
international institutions with regard to the development of legal norms
and standards, and the basis upon which such norms and standards are
applied in the international order, nascent as it is. The significance to
these proceedings of this latter divergence of view, with respect to the
function and role of international organs in the normative process, will
be more fully developed in the Applicants' further arguments when the
Iegal issues are discussed again concerning the origin, content and nature
of the international legal normand international standards for which the
Applicants contend. The Applicants will also endeavour, at an appropri
ate stage, to analyse the basis upon which, and the processes by which,
the norm and standards relevant to these proceedings have been de
veloped by the organized international community, through its compe
tent organs. This matter the Applicants will reserve also for consideration
at a more appropriate stage of these proceedings, when discussion of
legal issues is resumed.
In respect of the initial divergency of view concerning the individual,
the group, and the social order, the Applicants, and, we believe, the
organs of the international community, proceed from the perspective
(and I speak of perspective) of the individual persan as the basic social
unit. Respondent, on the other hand, proceeds from the perspective of
the group as a basic social unit.
The angle of vision of the Applicants' case, which we believe is also
that of the organized international community, through its competent
organs, proceeds, Mr. President, from the perceived requirement for
protection of the status and needs of the individual persan. The angle
of vision of Respondent's case, on the other hand, proceeds from the
perceived need and requirement for the protection of the status and needs
of a group, or groups. For this purpose, J refer to ail groups as such,
leaving aside the question of whether or how preferences, privileges,
duties or burdens are allotted.
If one starts from the premise of the individual pcrson, rather than88 SOUTH WEST AFRICA
from the premise of the group, important consequences follow, even with
respect to the usage and meaning of words. Even more, logical and
psychological processes are affected by the perspective by which the
entire matter is approached. Thus, the word "differentiation", as applied
in the context of the minorities treaties, centres on the protection of the
individual, as such-as an individual. The treaties are perceived as a
means of assuring that the individual does not suffer by reason of his
membership in a group. He is entitled to daim protection as an individual
persan. He can, as an individual, normally, quit his group. He is not
irrevocably assigned to a group by legal fiat. The true significance of the
minorities treaties, as the Applicants view the matter, is that the in
dividuaI person is considered to have the right not to suffer as an indivi
dual on account of his membership in a group. ln so far as his personal
welfare and progrcss arc concerned, this right protects him from differen
tiation from other individuals by reason of the colour of his skin, the
language he speaks, the tribe in which he was born, or the form of worship
in which he chooses to engage, or not to engage.
The minorities treaties established the rights of an individual to fulfil
his individual merit, quality and capacity, against any modification or
restriction thereof, which might otherwise be brought about by reason
of his membership in a group-whether ethnie, linguistic, religious, or
national.
Under apartheid, on the other hand, and I simply point the contrast
for the moment without referring toits quality, the individual persan is
subject to burdens, restrictions or duties precisely because of his member
ship in a group-a group moreover, of which he is made an irrevocable
life member. Such membership is determined by the circwnstances of
his birth or, what cornes to the same thing, and I quote from the census,
"general acceptance"-it cornes to the same thing, Mr. President,
because such acceptance is officially determined in case of doubt. The
individual who is obviously "White" in the language of the census, but
generally accepted as "Coloured", is "Coloured". ·
In the Applicants' use of the term "coercion", and this was the term
used in the context of the discussion of the minorities treaties, the
imposition or allotment of burdens, restrictions or duties upon such a
basis, for the avowed or assumed, and perhaps genuinely and sincerely
assumed, protection of a group or groups, is coercive upon the individual.
The theory and premise of apartheid, as the Reply seeks to point out,
involves the promotion of the welfare and progress of "groups of inhab
itants" rather than of "individual inhabitants" (IV, p. 269). This is the
theory of the Applicants' case, consistently held from the beginning.
The welfare and progress attained by each group under apartheid,
measures and determines the welfare and progress of the individuals
assigned to or belonging to that group.
Accordingly, Mr. President, the perspectives of the Parties to these
proceedings clash; attempted legal definitions blur. The Applicants and
the organized international community, on the one hand, look at the
group in terms of protecting the individual; Respondent, on the other
hand, looks at the individual in terms of protecting the group. This
contrast of perspective underlies the philosophy and vocabulary of
apartheid, as the Applicants and we believe the organized international
community understands it and has judged it. Whether such a perspective
is right or wrong, good or bad, is not in question at the moment. It is ARGUMENT OF MR. GROSS
clear from the record however, that in the mandated Territorv, in the
respect under discussion, the individual is essentially looked upon as a
"Native"; the "Native" is not looked upon as an individual.
Reverting to the divergent perspectives of the Parties concerning the
significance of the minorities treatiès in this litigation, the legal distinc
tions sought to be drawn by the respective Parties thus reflect a conflict
of meaning concerning the nature and objective of the so-called "dif
ferentiation" envisaged in the minorities treaties, as distinguished from
that implicit in apartheid.
Under the minorities treaties, as has been said-and this was the point
which the Applicants respectfully sought to make in the response to
Sir Gerald Fitzmaurice's question-an individual may claim protection
of his individual rights, ifhey are thwarted by reason of his membership
in an ethnie, religious, linguistic or other group, which he normally is
free to disclaim.Under apartheid, by definition, the individual's member
ship in a group largely determines his rights-Respondent said this is a
good thing. If the controlling authority says to the individual, "You may
not form or join a labour organization because you are a Native", it is
not permissible for the individual to re-act by saying: "Weil then, I
would rather not be a Native." He may not say to the controlling author
ity, "I really don't appreciate or understand the kind of protection you
are giving me".
These considerations, and others of a similar nature, underlay the
Applicants' comment, in the context of their discussion of the minorities
treaties and of the 1929 Declaration of the Rights of Man, and I quote
from the verbatim:
"... the point relevant in the context of the discussion at this
moment, Mr. President, is that although the concept of genuine
'group protection' for those who desired and required-protection
as distinguished from coercion-was widely accepted, as it is today,
such a concept has, in the proccss of evolution, now become a
generally accepted, basic, international, human rights norm, which
is described by the Applicants as a norm of non-discrimination or
non-separation." (VIII, p. 263.)
The Respondent, no doubt with genuine misunderstanding, charac
terizes this reference to protection as distinguished from coercion as an
exception to or a qualification in the norm. It was a source of surprise,
Mr. President, to learn that Respon<lent had interpreted the passage
just quoted in the sense indicated. The origin of the norm was then in the
course of being described. The legal normand the international standards
universally prevalent in the international community, as the Applicants
understand it, say:
The approach, the policy, and the practices which characterize apart
heid are inherently and per se incompatible with the objectives of the
social order in contemporary society anywhere in the world, under ail
circumstances, and at any time. The individual, not the group, is the
decisive unit of the social order. Fulfilment of individual capacity, full
realization of individual quality, full recognition of individual merit
these are the supremc ends of the social order.
In the Applicants' view of the case, it is not relevant or open for the
Respondent to reply-"This is all right as a moral, political or social
doctrine; it does not, however, constitute a legal norm or applicable
standard relevant to our duties as Mandatory." SOUTH WEST AFRICA
In the situation which prevails in the society of a mandated territory,
Respondent in effect says, in the light of its history, taking into account
the attitudes of the people in the Territory and of all other facts and
facets of the situation, it is in the interest of the individual to allot
restrictions, burdens, rights and privileges to him on the basis of his
membership in a group.
\Ve, say the Respondent, are working toward the end that in the
future his personal welfare and progress will be promoted to the utmost,
that welfare and progress will be promoted to the utmost that way.
If now we give too much weight to the capacity, merit or quality
inherent in an individual Native or other person grouped on that basis,
if we give too much weight to such factors in a person as an individual
and not as a Bantu, as a Coloured or as an Asiatic, our social order
would disintegrate, frictionand tension would mount and everyone,
particularly the Natives, would suffer.
That appears to be Respondent's argument as Applicants understand
~- .
Mr. President, the Applicants have referred, merely as an illustrative
example, to Respondent's policy in respect of Natives qualify;ng as
engineers and an explanation made by the Minister of Bantu Education
in May 1960. This was set forth in the Memorials, I, pp. 157-158.
I will say no more about this except to say that in the course of
Rcspondent's comments requesting clarification to which the Applicants
are addressing themselves on 30 April, Respondent referred at some
Iength to this malter describing it, inter alia, as a "relatively minor"
example.
It may, accordingly, help to clarify the Applicants' underlying purpose
in citin~ this example, which the Applicants in any event perceived to
be sigmficant rathcr than minor, another illustrative example, and I
will do so briefly. The Memorials set out, at I, page 156, the following
illustrative example:
"175. Separate registers and rolls are kept 'in respect of white
persons, coloured persons and natives'. [This is reference to the
Nursing Act of 1957] lt is made a criminal offense to cause or permit
any 'white person' registered or enrolled as a nurse or as a student
auxiliary nurse to serve under the 'control or supervision of any
registered or enrolled person who is not a white person, in any
hospital or similar institution or in any training school,' except in
an 'emergency'."
This averment of fact is undenied in Respondent's written pleadings.
Respondent's only comments concerning the Nursing Act, 1957, from
which the quoted passage has just been derived, are set forth in the
Counter-Memorial, III, at pages 468-474 and pages 523-525. No reference
whatever is made in Respondent's written pleadings to the provision of
the Nursing Act making it a criminal offence to cause or permit any
"white person'' registered or enrolled as a nurse, or as a studcnt auxiliary
nurse, to serve under the control or supervision of any registered or
enrolled person who is not a white persan, except in a case of emergency,
presumably a matter of life and death, where the highest skill would
normally be required.
In .respect of Respondent's proposai for inspection or the proposed
taking of testimony, there is nothing the Court could look for in the ARGUMENT OF MR. GROSS 91
Territory which might assist it in fonning a value judgment or, in the
Applicants' respectful view, any judgment concerning the significance
of this criminal provision, ift does not speak for itself. What testimony,
and what witness could be of assistance to the Court in arriving at a
value judgment on this matter? I would refer in this conncction to the
provisional list of proposed witnesses in which it appèars tentatively
that a nurse is to testify. .
Respondent says to the Court, "Come and inspect the Territory. The
Court, or a Committee thereof, will then see the whole problem from
our point of view when it has viewed ail the facts and facets of the
situation."
The Applicants say to the Court, to the contrary: "We ask the Court
to look at the record of laws and regulations and the official methods
and measures, the existence of which is conceded by Rcspondent. If that
is not sufficient to persuade the Court of violation of the international
rule of Article2 of the Mandate, read in the light of the applicable legal
normand the international standards for which the Applicants contend,
the Submissions 3 and 4 must fall."
The Applicants, of course, are aware that the question still remains
conceming the validity of their submission that the international legal
norm and the international standards for which they contend is an
essential e1ement of their case. The Applicants are aware that the nature,
scope and content of such an international legal normand international
standards must be defined by them to the satisfaction of the Court if
their Submissions are to prevail. The argument is still in progress on
legal issues, Mr. President, in which the Applicants are anxious to
address themselves to these very questions and this phase of the pro
ceedings has been suspended by reason of Respondent's injection for the
proposai of inspection. The Applicants accordingly confront some dif
ficulty in addressing themselves to Respondent's query for clarification
concerning the nature, scope and the content of the international legal
normand the international standards, for which the Applicants contend.
And Mr. President, in a very few moments I shall conclude, with your
permission, Sir, my remarks addressed to this aspect of the Respondent's
queries.
ln the course of Respondent's address to the Court on 30 April 1965,
requesting clarification, Respondent raised certain questions which
appeared to relate, inter alia, to the content, nature and scope of the
norm or standards for which the Applicants contend. Reference has
been made to the difficulty of dealing with Respondent's queries con
cerning the nature of the scope and the content of the legal norm and
international standards contended for, in anticipation of the resumption
of the arguments addressed to Jegal issues in these proceedings.
In Respondent's address on 30 April 1965, Respondent asked the
following questions, which I should like to quote in the record:
"Does it [the Applicants' case] rest on the one basis only or does
it rest on more than one basis, legally speaking? Does it rest on a
norm only to the exclusion of norms and standards in the plural or
does it rest in the alternative on a norm or on standards? Does it
rest only on a legal norm which automatically and technically
renders certain described fonns of conduct illegal, or does it rest in
the alternative upon factual allegations in respect of which they
ask this Court to pass an adverse value judgment either as to the92 SOUTH WEST AFRICA
purpose or as to the effect or as to bath the purpose and the effect
of the Respondent's policies in South West Africa." (Supra, p. 66.)
These queries need to be sorted out.
\Vith respect to the last sentence quoted, there would seem to be no
basis for renewed clarification; the Applicants have stated explicitly
that the conduct described-and by "conduct" the Applicants refer to
the laws and regulations and the official methods and measures by
which they are effectuated, the existence of which is conceded by Res
pondent--constitutes a perse violation of the relevant provisions of the
relevant Article of the Mandate. It necessarily follows that the Court is
not requested by the Applicants to pass an adverse "value judgment"
either as to the purpose or as to the effect or as to both, of the Respon
dent's policies in South West Africa. The Applicants intend, :Mr. Pre
sident, to demonstrate the existence, content and applicability of the
international legal norm described in the Reply, IV, at page 493. In
addition, the Applicants intend to demonstrate the existence of inter
national standards having a content similar to that of the international
Iegal norm. These alternative formulations are the same international
rule of conduct governing the interpretation of Article 2 of the Mandate
and Article 22 of the Covenant of the League of Nations-these are
alternative formulations.
The Applicants intend to demonstrate that Respondent's obligations,
pursuant to the foregoing Articles of the Mandate and Covenant, are
govemed by this international legal normand, alternatively,that if this
honourable Court should hold that no such international legal norm exists
or is applicable tothe relevant Articles, then, in any event, the interpre
tation and application of Article z of the Mandate is to be governed by
the relevant international standards. This theory and approach is in
accord with the approach and theory consistently advanced in the
written pleadings and oral arguments of the Applicants.
One further comment in conclusion, Mr. President, and by way of
clarification,appears to be desirable. At page 80, supra, of the verbatim
record, Responden t commented as follows:
"Secondly, if the very existence of the norm, Mr. President, is
sought to be justified-the existence or the creation of the norm or
the content of the norm is sought to be justified on a factual basis
which relates, inter alia, to disputed allcgations in regard to South
West Africa-in other words, if the Court is to engage upon an en
quiry whether such a norm is a factually valid and a justified one
then, of course, it would still be necessary to have expert testimony
in that regard, and particularly expert tcstimony relating to South
West Africa and other territories and people in Africa."
If the phrase "an enquiry whether such a norm is a factually valid and
a justified one" is intended to suggest that the Court should conduct an
enquiry, or hear expert testimony, as to whether the nonn and standards
are "justified", then the Applicants, rcspectfually, disagree. On the other
hand, if the Respondcnt merely intended tore-phrase an earlier question
involving the per se nature of apartheid, the Applicants consider that
they already have furnished clarification in regard to this query. There
fore, in conclusion, Mr. President, it has been the endeavour of the Ap
plicants to confine themselves within the bounds of such considerations
and underlying perspectives, as seem to them their duty to present to ARGUMENT OF MR. GROSS
93
the Court in the content and context of the inspection proposal, which
has, so obviously, opened up the heart of the issues in these proceedings,
and bas, in the Applicants' respectful view, thereby served a useful pur
pose in this Iitigation indeed.
Thank you, Mr. President.94
14. ARGUMENT OF MR. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA AT THE PUBLIC HEARINGS
OF 3 AND 4 MAY 1965
Mr. President and honourable Members of the Court, let us consider
in what context this questioning and the series of answers to the question
ing started. It is, Mr. President, in the context of an application, or a
proposal, by the Respondent that, in the course of conducting a factual
enquiry into the facts which appear to be in issue between the Parties,
the Court should inspect the Territory of South West Africa, conduct a
limited visit to South Africa itself, and also undertake limited visits to
certain other Territories in Africa, notably to Applicants' Terri tories, and
to others of the Court's own choosing.
i\Iy learned friend submitted a contention to the Court in that regard,
in which he displayed anxiety that the Court should not exercise judicial
fonctions "elsewhere than at the seat of the Court". I think that expres
sion must have been used about 20 times. I stopped counting in the rec
ord when I came to 12. Numerous and varied reasons were given, Mr.
President, but the main theme was this-that the Applicants' case rests
on so narrow a basis as to render unnecessary such a factual enquiry,
of which such an inspection would form a part. The Applicants em
phasized in that regard that even the enquiry through the medium of
calling witnesses. of producing to this Court oral testimony of witnesses
and experts, would be unnecessary because of this limited basis upon
which, Applicants say, their theory of this case, and their contention or
contentions to the Court, rest. It was in the course of the debate on
that question that these various queries were raised, viz., what portion
of the Applicants' case, as it was originally made to this Court, still
stands, and what portion does not stand; in how far, in particular, do
certain factual averments made by the Applicants, not only in their
Memorials, but also in the Reply, and in the oral argument on the legal
issues of this case, still stand?
Those queries were raised in a dual context. The first relates to the
question whether, apart from the norm, or the norm and standards,
upon which the Applicants say they rest their case, there exists an alter
native basis on which the Court would be invited to make a value judg
ment of the policy in the respects under discussion a value judgment as
toits purpose or effect. That was the one aspect of the enquiry. The other
aspect related to the very nature of the case which the Applicants say
they are making in regard to a norm, or a normand standards, which is
such as to require a factual enquiry on the part of the Court, in which
this evidence we intend calling, and the inspection which we offered in
respect thereof, would be relevant.
The Applicants, obviously, in order to succeed on this basis in their
objection to the inspection proposai had to satisfy the Court that their
case was so narrowly conceived as to exclude the factual enquiry in both
the senses, or contexts, I have mentioned.
There have been attempts at clarification in answer to questions put
by honourable Members of the Court and the honourable President, and ARGU!tlE~T OF llIR. DE VILLIERS 95
in answer to queries which I put. \Ve did not obtain full clarity on Fri
day, and I am afraid we still have no complete clarity on either of those
two aspects, or contexts, of the query which I have mentioned.
Let us take the first one. My learned friend says, in so many words,
that he rests his case on his norm, or his norm and standards, but, Mr.
President, he nevcr answers me explicitly ori my query whether those
factual allegations, to which I referred on Friday, do, or do not, stand.
Does he, or does he not, ask the Court to find in terms of those allegations?
My leamed friend gave a part of the answer to that question in indicating
that those statements are, as he said today, "characterizations which
correspond to the judgments reached by the organized international
community and its constituent organs", or words to that effect-I have
quoted them as best I could take them down today.
He proceeded to say that these judgments are set forth in length in the
pleadings. In other words, Mr. President, the case seems to amount to
this. Those judgments of the organized international community are
set forth in the pleadings. The Applicants take sides in this dispute
against the Respondent with the organized international community.
Those judgments have been made, and they stand. They have been set
forth in the pleadings, and they stand as far as the Applicants are con
cemed. They are not willing to withdraw those allegations, nor to make
it clear to the Court that those allegations do not forma necessary part
of their case, i.e., that the Courtis not required to take them into account,
whether by pronouncing in favour of them or by enquiring into them, or
by assuming them to be true or untrue. That is the equivocation which
is still left in regard to thisart of the query. I can demonstrate it in
another manner, which I shall do in a moment.
Other aspects of the cnquiry, Mr. President, relate to the role which a
factual enquiry might possibly play in regard to the Applicants' legal
basis of its case, namely its norm, or its norm and standards, or, in the
alternative, its standards. Now, Mr. President, before passing over to
that, may I just indicatc for a moment how unclear the position still is
in regard to the first of the two queries which I mentioned, namely about
those statements still on record. I think I can demonstrate the same
problem by referring to the counterpart of that question, i.e., by referring,
not to the question as to those allegations as thev stand, but to the
question of what the Applicants mean when they say that the facts
which the Respondent has adduced-has placed on record-are admitted,
save where otherwise indicated.
The Court will rccall-and I quote from the verbatim record of 27
April, at page 21,supra-that the Applicants said the following:
"The Applicants have advised Respondent as well as this honour
able Court that ail and any averments of fact in Respondent's
written pleadings will be and are accepted as true, unless specifically
denied. And the Applicants have not found it necessary and do not
find it necessary to controvert any such averments of fact. Hence,
for the purposes of these proceedings, such averments of fact, al
though made by Respondent in a copious and unusually voluminous
record, may be treated as if incorporated by reference into the Ap
plicants' pleadings."
They confirmed this, Mr. President, in the verbatim record of 28 April,
at page 44, supra, and now the question arises: what do the Applicants96 SOUTH WEST AFRICA
mean by the expression "averments of fact"? As I have said, the ques
tion may be said to be the counterpart of the questions I put on Friday
as to whether certain statements still stand on the record, i.e., statements
to the effect that the policy discriminates deliberately and systematically
against the Native population; that it subordinates their intcrests to
those of the Europeans; that it assures their domination by the Euro
peans; that it offers them no horizon of hope; that it is injurions to the
interests of the whole population-the whole population-and so forth.
I gave the quotations in the verbatim record of 30 April at pages 68-72,
supra; I need not give them again. I should like, in this context, Mr.
President, and especially in the light of the distinction which my learned
friend sought to draw today between approaching the matter from the
point of view of the individual, and approaching it from the point of
view of the group, to refer the Court to one formulation in that regard in
the Memorials at I, page r6x, in paragraph 189. The Court willthen see
that this theory, said by the Applicants to be so consistently hcld-this
approach, diverging to such a large extent from that of the Respondent,
certainly did not apply in the Memorials. \Ve find in paragraph 189 the
statement made that-
"Under apartheid, the status, rights, duties, opportunities and
burdens of the population are fixed and allocated arbitrarily on the
basis of race, color and tribe, without any regard for the actual necds
and capacities of the groups and individuals affecte<l." (1, p. 161.)
What do those words "of the groups" do in that sentence, if the Appli
cants' concern was mainly with the individuals affected? What, Mr. Presi
dent, was the purpose of all these statements which related to the Native
population as a whole which, soit was said, "constitutes overwhelmingly
the larger part of the population of the Territory"-the words used in
paragraph 190? Mr. President, we cannot get clarity upon this matter
unless the Applicants are prepared to admit, as they must admit, if they
w1:1t to limit this case in the manner which they now suggest to the
Court, that they are changing their case, and that they are running away
from factual allegations they made to start off with. Before they make
that clear we cannot have the clarity which, the Applicants say, the
Court must have in regard to the question whether there is, or is not, to
be any further factual enquiry. It is, I may emphasize, for the Applicants
to satisfy this Court in this opposition of theirs to the inspection proposai
that their case, whenever it may be decided or further considered, is so
narrow that it does not require any further factual enquiry. l\fr. President,
they do not succeed in doing so as long as we have these equivocations.
May I refer also, Mr. President, to the fact that in Submissions 3 and 4,
which stand on record, which are reaffirmed by the Applicants, and which,
as far as we know, they do not intend to amend, except in regard to Sub
mission 4 to the extent indicated the other day, we still have incorporated
by reference the allegations set forth in Chapter V and summarized in
paragraphs 189 and 190 of Chapter V of the Memorials. The Submissions
3 and 4 are at page 197. Submission 3 reads, to begin with:
"the Union, in the respects set forth in Chapter V of this Memorial
and summarized in Paragraphs 189 and 190 thereof, has practised
apartheid ... '',etc.
And No. 4 reads:
"the Union, by virtue of the economic, political, social and educa- ARGUME~T OF MR. DE VILLIERS 97
tional policies applied within the Territory, which are described in
detail inChapter V of this Memorial and summarized at Paragraph
190 thereof, has failed to promote to the utmost ... "
Mr. President, the Applicants rely on the hasis of a norrn, or a norm
and standards, which they tried to make as narrow as they can for pur
poses of their opposition to the inspection proposal. They say they rely
on that basis only for their case, and on that basis they still ask for adju
dications by the Court in terms of Submissions 3 and 4-in other words,
they say statements which incorp:'.Jfatevalue judgments and condemna
tions as set forth in Chapter V, and particularly in paragraphs 189 and
190, are to stand, although, as they make clear now, they do not ask the
Court to enquire into the question whether those condemnations and
those judgments are correct. They say the organized international com
munity has decided, and the Courtis not to embark upon such an enquiry
at all. The Courtis apparently, it now seems, on analysis, to a,ccept that
judgment and to incorporate it into its own judgment merely upon the
basis of finding that the norm itself is a sound one in law, i.e., the norm,
or the standards, or both.
Mr. President, it will be seen that allegations of the kind to which I
have referred do not hinge simply on questions of fact. It is not simply a
question whether there are two or three schools in a particular area. or
whether 50 or 70 bore-holes have been sunk in a particular area. They
concern evaluations of facts. They concern also contemplated future
developments. They concern the intentions of the Respondent in regard
to such developments. When I say they concern future developments, I
have in mind statements to the effect that the policy contains no horizon
of hope for the Native population. The difficulties, Mr. President, can
also be demonstrated by reference to some other examples. Let us take
cases in which we offer, or offered, in our Counter-Memorial and in our
Rejoinder, explanations of certain events ordevelopments of the past. We
can take an example from the realm of education. We dealt with varions
factors which in the history of the Territory retarded the development
of Native education; the Court will find that. inter alia, in the Counter
Memorial, at III, pages 407-424. We showed amongst, other thing:;, what
an immense problem the training of Native teachers has been. We showed
how there was, initially, an attitude of non-interest in modem education
on the part of the bulk of the Native population. We showed, also, that
similar problems and attitudes revealed themselves in other parts of
Africa, and still do so to some extent. Now, Mr. President, what was the
Applicants' attitude in regard to this review which we gave? The attitude
was in general, that Respondent's policy was one of laisser-faire and that
Respondent was to blame for the slow clevelopment of which it speaks.
And in so far as we showed that similar problems existed, and in a rneasure
still exist, inther territories of Africa, the Applicants' simple attitude
was that that was not relevant. We dealt with this subject generally,
Mr. President, in the Rejoinder, VI, at pages 121 and following, where
the relevant references will be found.
The question arises, Mr. President: what do the Applicants now say
in that regard? Do they agree that there is substance in our explanations?
Do they agree that the circumstances attending on the life of the Natives
40 years ago, and for rnany years thereafter, were such as to retard edu
cation, and that our view in that regard is an acceptable one? Do they
agree, Mr. President, that similar retarding factors existed, and in ag8 SOUTH WEST AFR!CA
measure still exist, in other parts of Africa? \Ve do not know. And this
question arises, not only in regard to education, but also in regard to
the complaints made by the Applicants under varions headings such
as economics, government and citizenship, freedom of movement,
rights of residence, security of the person, and so forth. My learned
friend has specifically reserved argument dealing with the factual side
of the matter to a later portion of his argument. If tbere is to be no factual
enquiry at aU, one wonders why it should be necessary to deal with the
factual portion of the evidence at ail. And, in any case, to corne back to
examples which illustrate this difficulty of determining what is now
common cause in regard to the facts, and what are still in issue: what do
the Applicants say of our averment that members of the Native groups
have so far not shown themselves ready, or mature enough, for individual
ownership of land bccause their traditional system of ownership has been
different-that it has been a system of communal ownership: that they
have not desired (and that for the greater part they still do not desire),
and they are not ready to make a transition to individual ownership of
land; and that the matter must, if success is to be achieved, be ap
proached with caution, and with the maximum of co-operation on the
part of the Native population concerned? Do the Applicants accept that,
or do they not? \Vhat do they say of our averment that uncontrolled
admission of Natives to urban areas has such disadvantages that there
must be a system of control of movement, not only in the interest, Mr.
President, of groups of the population, but in the interest and for the
protection of the very individuals about whom my learned friend and
his theory are so concerned? The law-abiding citizens of a community,
each and every one of them, and their fg.milies, need, for reasons which
we set out in our pleadings, to be protected by a system of what \\Tcall
"influx control". We deal with that matter in detail, and indicate why
that is so: is that now accepted, or is it not accepted, l\rr. President?
\Ve could multiply such questions, but it is unnecessary to do so. The
important thing to remember is that they often involve considerations
concerning the level of development, the ways of life, and so forth, of the
Native population.
It isobvions that the answers whichhave to begiven in such circumstan
ces involve evaluations;theyare not straightforward questions of fact and
detail; it is not merely a matter of admitting or denying that a particular
fact does or does not exist. But there are other matters, Mr. President~
more fondamental matters. In the pleadings we set out the various ad
vantages which the policy of separate development has, in our sub
mission, as facts. Thcse are summarized broadly in the Rejoinder,
V, at pages 244-247 and the question arises: do the Applicants con
cede that our policy of separate development indeed possesses these
various advantages? In the Hghtof the distinction whichmy learned friend
sought to draw today between the approach from the point of view of
the individual and the approach from the point of view of the group, I
should like to refer the Court to the wording of our summary in that
respect in the Rejoinder, V; it is not much to rcad-I must ask the
Court's patience and indulgence to listen to the quotation, because this
matter is of crucial importance. \Ve said at page 244, paragraph 6:
"\Vhen considering Applicants' detailed points of criticism, the
Court should, it is respectfully submittcd, bear in mind the above
considerations, the cogency of which is increased in the present case ARGUMENT OF Il:!R. DE VILLIERS 99
by the fact that Applicants do not seriously attempt to meet Re
spondent's case regarding the advantages of separate development
as compared with attempted integration as a possible policy for
South West Africa. These advantages were discussed in the Counter
Memorial and may be summarized as follows:
(a) Separate development is not a policy of domination, but the
very antithesis thereof-it contemplates evolutionary termina
tion of guardianship in a manner calculated to lead to peaceful
co-existence. Attempted integration, on the other hand, must,
in the circumstance prevailing in South West Africa, inevitably
lead,at least, to domination of some groups by others.
(b) The aim of separate development is justice for all, not only for
some. lt seeks to avoid a situation where the exercise of self
determination by some of the inhabitants would involve the
denial of self-determination to others.
(c) Separate development seeks to prevent a situation in which
the more developed groups, which are at present responsible
forthe economic progress and high standards of administration
and prosperity in the Territory, may be swamped and probably
forced out of the Territory by much Jess advanced groups with
entirely different values and outlooks.
(d) Moreover, separate development would not involve, as àttemp
ted integration would, the abdication of the sacred trust re
garding the least developed groups, which would under the
latter policy be left at the mercy of a new majority government
with competing interests and possible hostile inclinations or
intentions, as was the position in the past.
(e) Separate development avoids the deleterious results of ignoring
ethnie differences, loyalties and reactions which manifest them
selves strongly when one people feels its existence or basic in
tereststhreatened by another. Such results, as noted above,
have often included tension, unrest, hostilities and bloodshed,
and, in some cases, the imposition of rnthless dictatorial mle
in order to suppress the tensions in question."
Then the question arises, Mr. President: what remains of this distinction
in such circumstances between the approach from the point of view of
the individual and that from the point of view of the group?
)ir. President, I am reading from pages 244 to 246 of the Rejoinder
(V) a summary given by the Respondent of what it considers to be the
advantages of the policy of separate development as a whole, and the
disadvantages of the only possible alternative, namely a policy of inte
gration as suggestcd by the Applicants. My reason for doing so is to
enquire whether these statements are accepted or not by the Applicants
when they say that they admit ail relevant facts, save where otherwise
indicated. I proceed to read at page 245:
"{/) Avoidance of tension and group reactions of self-preservation
is secured by separate development not only in the political sphere,
but also in the economic life of the country. This policy provides
parallel, protected spheres of economic interest for the various
groups, in which their members can advance without constituting
or being regarded as a threat to other groups, as compared with
well-known forms of discrimination and resistance almost invari-IOO SOUTH WEST AFRICA
ably encountered where integration between differing groups is
sought to be attained against the wishes of one or more of such
groups.
(g) Separate development renders possible constructive co-operation
between White and non-White groups, on a basis of equality, to
their mutual benefit-in contrast with the fa.te which has befallen
\Vhite minorities, in other African countries h:mded over to Native
rule-to the detriment of all.
(h) Separate development renders possible the achievement of
self-determination by various groups at different points of time.
This implication avoids unnecessary dclay in the attainment of
self-determination by more advanced groups merely because of lack
of advancement and maturity on the part of other groups. Con
versely, it involves for the latter groups the safeguard of retention
by Respondent of the sacred trust obligations towards them even
after other groups may have chosen independence in the exercise
of their right of self-determination.
(i) Finally, separate development leaves to the free will of the
groups concerned the ultimate decision whether, and in what form
and to what extent, they will link up or co-operate with others,
inter se, politically, economically and otherwise-as opposed to
forcing upon them a pre-determined system whether unitary or
federal. which some may feel to constitute a threat to their existence,
interests oridentity." (V, p. 245.)
Mr. President, that is a summary of advantages of Respondent's
policies, and of disadvantages of the only possible alternative, and the
question arises, do the Applicants accept it? \Ve summarize the whole
situation finallyat page 246 as follows:
"In short, separate development is intended and calculated,
negatively, to avoid the human tragedies.which have occurred, and
are occurring, in African territories such as the Congo, the Sudan,
Rwanda, and others, as well as in the systems of ruthless dictator
ship found necessary in so many other territories with a view to
maintaining even a semblance of order. Positively, separate devel
opment envisages the establishment of a system of peaceful and
friendly co-existence, based on mutual respect for one another's
identity, culture, right to existence and human dignity, coupled
with fruitful co-operation in matters of common concern. Attempted
integration, on the other hand, involves inevitable injustice to
minority groups-the highest and the least developed ones-inevi
table retrogression in standards of economy and administration,
and a very high degree of probability of a repetition of the human
tragedies of other terri tories, or ruthless dictatorial rule or both."
Mr. President, there is implicit in these statements the question of the
total effect of these policies not only as far as total populations or
groups are concemed, but also as far as the individuals. each and every
one of them, comprising those groups are concemed. Now, do my
leamed friends accept that or do they not?
There is implicit, also, the question of Respondent's state of mind.
Do the Applicants accept that Respondent, in framing and in executing
this policy, is and has always been imbued with an intention of promoting
to the utmost the material and moral well-bcing and the social progress ARGUMENT OF MR. DE VILLIERS lOl
of all the inhabitants of the Territory? On this point the answer would
seem to be in the affirmative. The Applicants have conceded that motive
or intent is a fact-they stated that in the verbatim record of 27 April,
at page 27, sitpra. And they say at various places in the record that they
do not allege bad faith on Respondent's part, and that thev do not ask
the Court to adjudge or declare with respect to Respondent's state of
mind. That we have explicitly in passages such as those in the verbatim
record of 27 April, at page 17, supra, and in the same record at pages 26,
and 22, supra.
Mr. President, there is another aspect of this matter which demon
strates how far we are lacking in clarity in regard tothe factual situation.
The Court will recall that my learned friend, on 28 April, in dealing with
the inspection proposai, posed the question, amongst others, whether
there would be an ascertainment of the wishes or the views of the
members of the various population groups in regard to the policies
applied to them, or to be applied to them. He even asked, rhetorically,
whether there would be a plebiscite in that regard.
In the Rejoinder, V, pages 281-291, we demonstrated, contrary to
what the Applicants alleged in the Reply, that the vast majority of the
population, White and non-White, of South \Vest Africa favoured the
policy of separate development. If my learned friends are serious in
saying that they accept statements of fact, or explanations, and that
they can be incorporated by reference into the statement of the facts, do
they accept this factual conclusion at which we arrive, or do they not?
We have alleged, Mr. President, that various interim measures, which
involve what may be called a negative type of differentiation between
various groups, are to be seen not only as transient but also as being
required, and as being necessary, to bring about the preponderant
advantages of the system of separate development to which we have
just referred. The Court will find those points dealt with in the Re·
joinder, V, pages 307-308, and, also, in the same volume, at page 246.
In other words, Mr. President, these negative elements to which I
referred-and, I repeat, correctly referred-as a handful which my
learned friends would distil from the whole picture, constitute the main
target of attack on the Applicants' part. \Ve have said as a fact that they
are to be seen as temporary-as being required to bring about an orderly
transition to the advantages which we see in the system as a whole.
Do the Applicants accept those statements of fact, or do they not? If
they do, Mr. President, if they accept ail the averments of fact to which
I have just referred, then the Applicants' case would seem to amount
to this.
Firstly,that there are certain differentiating provisions of what may
be termed a negative type; that those have been imposed as transitory
measures by the Mandatory, acting in good faith, and that those mea
sures are, in fact, necessary in order to secure the advantages of the
policy as a whole. The policy as a whole is considered by the Mandatory,
and is, in fact, markedly preferablc to the alternative suggested by the
AppJicants. In addition, the great majority of the population desire the
implementation of the Mandatory's policy. Nevertheless, the Applicants
say, the whole policy should be abandoned because of the existence of
the provisions in question, although such abandonment would probably
result in bloodshed and chaos. And this course, according to the Appli
cants, is dictated by a process of interpretation of a provision whichI02 SOUTH WEST AFRICA
requires the promotion ta the utmost of the well-being and progress of
the inhabitants.
That would seem to be the case made by the Applicants, Mr. President,
if they really mean what they say about accepting our factual averments.
We should like to know exactly where we stand in that regard.
Mr. President, all that relates to the question of factual averments
over and above the case which the Applicants say they are making on
the basis of a technical norm. Last week a thought worried me in this
regard, namely that even if the Applicants relied solely on a norm, or a
norm and standards could one then necessarily say that the factual
enquiry which we envisaged by way of evidence and inspection would be
excluded? I could not quite place my finger on the difficulty, but during
the weekend, in a discussion of the matter with my colleagues, it became
as plain as a pikestaff.
The Applicants' contention in regard to their normand their standards
rests on a factual basis which is the very antithesis of what the Respon
dent wishes to demonstrate with its evidence and the inspection offered.
The Applicants indicate that they rest either on a norm, or, alterna
tively, on standards. The norm, they say, is distilled from the standards,
and if the norm is said not to be established in law then, nevertheless,
they still rest, in the alternative, on the standards. How do they describe
those standards, Mr. President? They describe them as standards
"universally accepted". They rely on the standards for the purpose of
distilling the norm therefrom and, in the alternative, they rest on them
perse. And they made it clear-so we understood them in their pleadings,
and, also, in my leamed friend's oral argument-that, when they speak
of standards in that regard, they derive those standards from the spheres
of the political and social sciences-from the weight of scientific author
ity, from the practices of governments and from the standards currently
operative in modem society in regard to methods of government, fair
ness, equity, and so forth.
Now, Mr. President, is not the question of the universal acceptance of
those standards, in itself, a question of fact?
And, Mr. President, if one looks at the evidence which we intend to
lead before this Court, one will find that the preponderant part of it will,
in its effect, be directed towards showing that the assumption of the
universal acceptance of the type of standards relied upon by my learned
friend is totally wrong, and totally unfounded.
\Ve propose, Mr. President, to call the evidence of experts in the
political and social sciences. We propose to call the evidence of practical
men on the application of those sciences. We propose to cal! the evidence
of practical observers of events, which confirm the view of the experts.
And the proposed inspection would serve to illustrate, and to confirm
and to support, the evidence of all these people-of the experts, of the
practical men on the application of the sciences, and of the practical
observers.
Mr. President, in regard to the evidence, we propose, as the Court
will see from the list which we have handed in, to call, apart from wit
nesses and experts from South Africa, a number of witnesses and experts
from outside South Africa-from the Continent of Europe, from the
United Kingdom, and from the United States. Our list has not been
completed in that regard, but, in general, we can say that we propose
calling men of the highest standing in their particular branches of the ARGUMENT OF MR. DE VILLIERS 103
theory and practice of the political and social sciences. They include
eminent sociologists and political scientists, who have made a special
study of the subject which is hcre in issue-,-of the particular type of
question which is here in issue-narnely whether one ought, or ought not,
in all circumstances all over the globe, to adopt an approach of integra
tion, of ignoring differences between people, and of not allotting rights,
status, burdens, etc., on the basis of membership in a group.
Our list includes persons from outside South Africa who have occupied
some of the highest political offices in their countries, and of the highest
diplomatie offices as representatives of their countries. We propose call
ing journalists of very high standing as observers. We propose to call
other observers in various branches of learning and achievement, who
have seen African reality, in many cases including South West Africa
and South Africa itself.
From South Africa and South West Africa we intend bringing a
variety of persans of high standing, representing similarly wide fields of
leaming, achievement and experience. They will include theologians who
will deal with the moral questions involved, and with the attitude of
religious leaders in general. They will include, further, persans who aie
engaged in the practical application of aspects of the policies in issue, and
men of leaming who will support and give evidence similar to that of
witnesses from overseas.
l\lr. President,the evidence. will be directed speciftcally at showing,
amongst other things, that a general principle of non-discrimination or
non-separation, in the sense relied upon by the Applicants, cannot, in
all circumstances, be applied to produce beneficial results. The evidence
will be directed at showing that such an approach often would not, and
often does not, produce beneficial results, but that it, in fact, often
leads to detrimental results for ail concemed. The evidence will show
that the overwhelming weight of authority, and the actual practice of
States in that regard, certainly does not support an absolute principle
of the nature of Applicants' norm or standards-standards which, my
learned friend said, are to be seen as having as content similar to that of
the norm. And, finally; Mr. President, the evidence will show that circum
stances, as they exist in South West Africa, par excellencecall for a policy
of differcntiation, and not for a policy of attempted integration, in the
interests of all concemed, including every individual.
So, Mr. President, if I have correctly analysed the Applicants' case
in regard to their normand their standards, this evidence will be 100 per
cent. relevant to the question whether that norm and those standards
are factually in existence as alleged by the Applicants, and whether
they have universal application and universal acceptance. And yet my
learned friend says that in some way or another such an enquiry is to be
excluded, and that evenîf an inspection can aid the witnesses by illus
trating and demonstrating points they make to the Court even more
fully and adequately than they can by the spoken word, such inspection,
also, isto be excluded.
In other words, Mr. President, even fodhe purpose of seeking to apply
their norm, and for the purpose of seeking to apply, in the alternative,
their standards, the Applicants cannot escape this factual enquiry
unless they are prepared to do one thing, and that is, they would have to
say and make it explicitly clear that all that is relevant to their legal
contention is what international bodies have said-what States have 104 SOUTH WEST AFRICA
said in thosc international bodies and in the political context-that that
is the only reJevant thing. And the Court looks no further: it does not
look at what the States do, in practice; it does not look at what is con
tained in the relevant constitutions; it does not look at actual practice
in States. It does not look at what is thought in political and social
sciences, what the views of the authorities conccrned are, where the
weight of opinion lies in those spheres, and at what is actually being
demonstrated in that result by factual events and trends in various parts
of the wor1d. If my leamed friends make it clear that that is their pro
position, viz., that one does not look at the factual picture at ail; one
says the organized international community has spoken, through political
judgments, in its organs, and through political judgments expressed by,
or on behalf of, various governments, then, of course, this enquiry would
be an irrelevant one, and one should merely look at the suggested legal
merits of that contention.
lt is clear also, Mr. President, that if the Court should accede to the
legal argument, which we addressed to the Court earlier on the question
of the suggested norm and the suggested standards, and if the Court
should find it convenient to corne to a decision on those questions of law
before proceeding with the rest of the case, then, of course, also on the
basis of such a decision, the suggested factual enquiry might fall away.
But that is entirely a matter for the Court to decide in its own discretion
and for its own convenience. ln other words, what I want to make clear
is this,that it seemed tous from the reactions of the Applicants to this
proposa! for an inspection that there may possibly be a short-eut in this
case-there may possibly be a method of rendering unnecessary the
factual enquiry which we envisaged, both in regard to evidence and in
regard to an inspection. That possibility could corne about in one of two
ways. One way would be for the Applicants to make it perfectly clear to
the Court, and for the Court to satisfy itself, that the contention, and
the sole contention, or contentions, relied upon by the Applicants do not
involve any invitation to the Court, do not involve any basis, which
would make relevant a factual enquiry into this situation. We have tried,
, by way of questions, and by way of getting answers to questions, to
clarify the situation, i.e., to ascertain whether that is really so. I can only
submit to the Court that, as far as we are conccrned, we cannot see
clarity yet. If the Court can satisfy itself that there is clarity in that
regard, that may be a different matter, but, as far as we are concerned,
it seems that the one explanation after the other still carries within
itself, in some form or another, the same equivocations as before, and
we still cannot have clarity that, on the basis proposed by the Applicants,
no factual enquiry would indeed be relevant.
The other possibility of cutting the matter short would be if the Court
should decide that it ought to go into the legal questions first-that it
ought now to decide the legal questions before it decides whether there
is any further need for a factual enquiry. If it should decide upon that
course as a matter of convenience, the Court could possibly corne to the
conclusion that the whole of the :Mandate had lapsed. The Court could
possibly corne to the conclusion that Article 2, paragraph 2-alleged
violations thereof-were not intended to be justiciable at ail. The Court
could, possibly, conclude in favour of our alternative contention as a
matter of law-that the only possible basis upon which alleged violations
could be judgcd would be one of alleged bad faith in the sense of policies ARGUMENT OF MR. DE VILLIERS
105
directed at an unauthorized objective. If the Court came to that con
clusion then the Applicants' specific denial that they bring any case on
that basis would, in itself, be sufficient to conclude thls whole part of the
case. That conclusion would, of course, carry within itself a rejection
of the Applicants' case-their suggested case-based on the existence
of suggested modern norms and standards, or a norm and, in the alter
native, standards. The legal question particularly to be decided in that
regard would be whether any such norm or standards could be binding
in law upon the Respondent, upon a mandatory, without the consent of
the Respondent or the mandatory. And, if the Court should conclude
those legal questions in faveur of the Respondent, then, of course, that
would be a basis upon which no further factual enquiry would be neces
sarv.
A further alternative could be, Mr. President, that if the matter is
viewed on the basis of the Applicants' premise that there could arise in
law a binding norm or binding standards (as apparently they suggest)
bascd on what is generally accepted in the modem international com
munity, quite independently of the consent of the mandatory, and ifthe
Applicants suggest to the Court and the Court agrees that it is not itself
to indulge inthat factual enquiry as to whether such a norm exists, that
the Court must only take as its guiding factor the pronouncements
which have been made by political bodies in the organized international
communities-then, again, Mr. President, it would be a pure question of
law, and if that contention of the Applicants is rejected that is also the end
of the question. Then there would be no necessity for a factual enquiry.
But, Mr. President, if the Court should, as a matter of convcnience,
find it better to hold over all decisions, including decisions of law, until
the end of the proceedings, the Court must now, on that basis, determine
in advance whether a factual enquiry is a necessary one or not. Then
the question becomes a very difficult one-it becomes very difficult to
say that the Applicants have now made the position clear that such a
factual enquiry could not, on any view of the situation, be, in law,
relevant. If it wishes to go into the matter piecemeal, the Court could
decide that, looking at the evidence on record, it becomes perfectly
clear that the Applicants cannot establish any factual basis for saying
that these suggested standards and these norms are universally accepted,
and that no further evidence on the Respondent's part, or no inspection,
would be necessary to demonstrate that. That could be a further basis
upon which the Court could corne to the conclusion that such an enquiry
would not be necessary, but that, again, would entai! that the Courtis
to go into that question now at this intermediate stage of the proceedings.
I am merely putting those possibilities to the Court to see where we
stand because, as my learned friend has said, the nature of this objection
to the inspection has really opened up the heart of these very proceedings,
and those seem tous to be the implications involved.
Our submission is that ifthe Court does decide to hold over its decisions
on ail questions, including the questions of law, until the whole enquiry
has been conducted-until the end of the enquiry-then it is not pos
sible for the Court, on the analysis which we have given so far of the
Applicants' attitude, to say that such an enquiry could not, on any
basis of the legal questions involved, be a relevant one, and that we
would, therefore, insist upon the relevance of the whole of that factual
enquiry. If the Court could satisfy itself by additional means that we106 SOUTH WEST AFRICA
are wrong in that respect and make a decision to that effect, then, of
course, it would be different.
That, Mr. President, brings me to an allied consideration, one which
the Applicants suggested in regard specifically to the inspection proposai
and in which they took up the strange and contradictory attitude that
our application in regard to that inspection was both too late and too
early: too late because it was never raised in the pleadings or by way of
correspondence at the pleadings stage (that complaint we find in the
verbatim record of 27 April at p. 4, supra), and in the very next
breath-too early, because the matter was, as they said, introduced
prematurely at a stage while the Court was still considering the legal
basis of the case. They said it should have been held over until later.
That we find stated in the verbatim record of 27 April, at page 4, sitpra,
and also a conclusion stated at page 7. The argument in that regard was
apparently this, Mr. President: it was said that the Respondent itself
contemplated certain contingencies that might make it unnecessary for
the Court to go on an inspection or to have a factual enquiry at all,
whether in regard to evidence or in regard to an inspection. In our sub
mission, these conflicting complaints made by the Applicants failed to
take any account of the purpose intended to be served by written
pleadings. The rules of the Court provide that Memorials and Counter
Memorials shall contain statements of fact, statements of law and sub
missions-that we find in Article 42 of the Rules. The object of the plead
ings, Mr. President, would seem to be, as in municipal systems, to clarify
the issues of law and of fact which are presented in each case to the Court.
The purpose is to clarify thosc issues before the Court proceeds with the
hearing of the issues. It is only after the issues have been crystallized in
the pleadings that the Parties are in a position to decide at ail what
further factual enquiry may be necessary by way of evidence or an in
spection or both. The Rules of Court, particularly Article 49, contempla te
that situation in that it requires that notification should be given to the
Court in regard to the calling of witnesses and experts, not during the
pleading stage but in suffi.dent time before the commencement of the
Oral Proceedings.
There is no specific provision regarding inspections in loco but on the
analogy of that rule, Mr. President, it is evident that a proposai in regard
to an inspection cannot be said to be too late because it îs made at the
oral hearing stage and not during the pleading stage. Indeed, during the
pleading stage one would be as unable to say whether an inspection
would be necessary as whether evidence would be necessary.
By the same token, Mr. President, on the other hand, an inspection
proposai cannot be said to be premature mcrely because it has been
made at the very outset of the Oral Proceedings. As an ordinary matter of
considering the convenience of the Court and again on the analogy of the
rule in regard to oral evidence, this would indeed be the most opportune
time for a party to notify the Court of its intentions in that regard, or of
raising a proposai in regard to an inspection. It does not matter that
decisions on particular questions of law may possibly render a factual
enquiry unnecessary at all. That position, in fact, applies at the pleading
stage already. In the pleadings, the party must raise its questions of law,
itscontentions of Ia,1/and its contentions of fact, and some of those con
tentions of law may be such that if they are accepted, no enquiry into
the facts will be necessary but yet a party is required to go ahead and to ARGUMENT OF MR. DE VILLIERS IO'J
set out its contentions of facts in the pleadings on the contingency that
the question of law is not decided in its favour.
So also, when it cornes to the trial stage, Mr. President, the parties are
required in tenus of Article 49 to give notice before the commencement
of the Oral Proceedings of the evidence which the parties intend to lead,
despite the fact that a decision on particular issues of law raised in the
pleadings may render such evidence wholly unnecessary. And in principle
there can be no distinction in that regard between the notification re
garding evidence and a proposai in regard to an inspection. The inspection
itself would just be part of the factual enquiry to which the oral evidence
would be addressed. So, in both cases we fi.ndthat the notification to the
Court is a provisional one; it is provisional upon the factual enquiry
being found to be necessary at ail. The Court's procedure in regard to
deciding whether the factual enquiry will be a necessary one is, of course,
entirely a matter for the Court to decide in its discretion. The Court may,
in appropriate cases, consider it convenient and best to corne to a decision
on the legal issues first and thereby to determine whether further factual
enquiry will be necessary at ail for the purpose of finally disposing of the
case. On the other hand, the Court may proceed to hear the evidence and
the argument on all the issues and postpone a decision on all the issues
until the end of the whole case.
In the present case, the Court might also follow either of these courses.
It is entirely a matter for the Court to decide and we fully contemplated
that in our proposai as appears from our very statements, which the
Applicants quoted on 27 April, at pages 5 and 7, supra, of the verbatim
record, where we indicated, Mr. President, that on a particular decision
in regard to the particular questions of law, the factual enquiry may fall
away and then the evidence and the inspection may not be necessary and
I dealt with that a moment ago.
It is quite true that if the Court should follow the course of first de
ciding on the legal questions, then certain possible decisions at which
the Court might arrive would make the evidcnce and the inspection un
necessary. I have given the examples of the cases in which conclusions
arrived at by the Court could bring about that conclusion. On the other
hand, if the Court should follow that course, consider the legal questions
first, rejcctour legal contentions, and conclude at least provisionally in
favour of the Applicants' legal contentions, subject to due proof of cer
tain factual premises, then, of course, the factual enquiry would be neces
sary. Altematively, the Court might prefer to hold over ail decisions
for simultaneous final determination and in that event too, the factual
enquiry would have to proceed. And, Mr. President, to bring this point
to bear again on the question whether we came at the right time or at
the wrong time with this proposai, for the mere sake of enabling the
Court to decide on a balance of convenience which course it ought to
pursue, i.e., whether it ought to decide the legal questions fi.rst or at
least to attempt to decide them first or whether to hold over all decisions
until the end of the case, it may be a matter of the greatest importance
to the Court to know-now what would be the practical implications of
these two courses? What would be the practical implications of holding
over all decisions until the end? Would that involve an enquiry into
facts, with evidence and with the possible inspection which may take
a very long time, which rnay be expensive and so forth, and which may,
in the Iight of an ultimate decision on a legal question, be shown to havernS SOUTH WEST AFRICA
been unnecessary? That is certainly a factor which the Court will takc
into account in deciding whether 1twill follow the one course or the
other, and for that reason it is so essential in our submission to inform
the Court bcforehand whether we intend to call witnesses, how many
witnesses we propose to call, and whether we makc any proposal in regard
to an inspection.
\Ve do find, however, that the Applicants' objection to the inspection
proposa! in tlus particular case, based on a consideration of relevancy, in
effect invites this Court to consider at this interim stage (I take it to be
the end of the argument on the legal questions), what its attitude is
on the Iegal basis of the case-at least provisionally, to see whether there
can be any basis at ail upon which it can be said whether the legal issues
-the conflicting contentions of the parties in this regard-are of such
a nature that it can be concluded in advance that an inspection will not
be necessarv. As I have said before, the Court could corne to the conclu
sion that no factual enquiry would be necessary, either on the basis of a
decision of legal questions which have that result,or on thebasisof satis
fying itself that the Applicants' case invites no factual enquiry what
soever, but the second would, in my respectful submission, seem to have
been excluded for the reasons which we have given.
I can, therefore,Mr. President, continue to deal with the various points
which my learned friend has raised in regard to the inspection issue only
on a contingent basis. I have to put this contingency to the Court that
if it should fmd in one way or other that a factual enquiry would be
necessary, then the further question would arise-should an inspection
be included in that factual enquiry? That would be a sound basis for
enquiring into the validity of the various other points raised by my
learned friends on this question whether there ought or ought not to be
an inspection.
The Applicants gave a number of what I might call "minor reasons"
why they said even on this basis, there ought not to be an inspection at
all. \Vhen we analysed them Mr. President, we found that they can best,
in our submission, be described as frivolous and vcxatious as far as the
preponderant number of them is concerned. They contain the sugges
tion, which I have dealt with that we were both too early and too late,
that the whole case should fi.rst be disposed of by the Court, both in
regard to the legal questions and in regard to the factual questions, before
there is to be a decision on the inspection question at ail. They also raised
the question why a committee of the Court only is proposed as a possibil
ity, when we have said that it is so important for everybody to see African
reality. They raised that question, Mr. President, although in almost the
same breath they expressed concern, amongst others. about the expense
and cumbersomencss of the proposed inspection. They said that the visit
to South Africa, which is proposed, ought to have been unqualified and
unconditional, but they said that in spite of the fact that their real
attitude is that there should be no visit to South Africa at all. or, in
deed, to any other African territory. They went to the lengths, l\Ir. Presi
dent, of saying that an inspection would necessarily involve the taking
of evidence, and that that would have some fantastic results. This is the
nature of the objections which were raised.
Mr. President, bcfore I deal with any of them, I would suggest, with
the greatest respect, that the real reason forthisattitudewhythere isto
be no inspection at all, is a perfectly obvious one. lt is perfectly obvious ARGUMENT OF MR. DE VILLIERS 109
that the Applicants cannot face up to this factual enquiry, they cannot
face up to a comparison of standards of weU-being and progress in their
own countries and those in South West Africa. They had to find a formula
to rule out the whole proposai and, in doing so, they emphasized the
fondamental weakness of their case in law, in fact, and in morals. My
learned friend said the whole heart of the case has been torn open. \Vhen
I say these things, Mr. President, they may sound hard, but I am not
hitting at individuals, I am hitting at my learned friends least of ail or
at anybody bringing this case against us. I am hitting at the case
itself, a case which is,n its essence, a hypocritical case, one which can
not stand up to enquiry by this Court but which invites this Court to act
as a rubber stamp, in the way in which I have indicated before. It is
against that background that 1 deal with these objections, because it
throws a considerable light upon the whole situation.
I might as well deal first with the last one-the suggestion that an
inspection will necessarily involve the taking of evidence, and then the
building of some really fantastic results upon that suggestion. Those re
sults we fmd set out in the verbatim record of 28 April 1965, page 49,
supra, where my learned friends say that if one has an mspection in
South West Afrjca, then there must necessarily be an enquiry into the
views of the peoples concerned, and they pose the questions of how many
of these peoples are to be hcard-how many of the individuals concerned?
Is there to be a plebiscite? \Vhat is the position about petitioners, who,
the Applicants say, have fled the country? Are they to be allowed to
return to give evidence? And so forth.
Now, Mr. President, let me immediately make tlris clear. I have never
heard of the concept of an inspection including necessarily, or otherwise,
the taking of evidence. An inspection is one particular manner in which
a court informs itself by looking, not by taking evidence. The court looks
at what it considers to be relevant, and what itconsiders to be informative
for the purpose of any factual enquiry upon which it may have to indulge.
There is no suggestion that if one inspects, then one must hear evidence,
and there was never any such suggestion from our side. Therc ,vas never
any suggestion that if the Courtis to inform itself about the ways in which
people live, about their standards of living, about the differences between
them, and so forth, the Court is to talk to those people or to hear any
evidence in that regard. The Court will see those things for itself. There
may have to be some identification, somebody may have to say to the
Court that it is now looking at a Damara township and not at a ~ama
township, or similar, and if there should be any dispute about that, it
would have to be a subject of evidence, when the Court resumes again.
But normally one finds no difficulty about things of that kind.
Normally, a court, or inspecting committee if it may be so decided
in this case, will record what it has seen, in so far as it regards that as
being important. And what is recorded is normally, in the practices that
I am acquainted with, read out to the parties first in a provisional form,
when the case resumes in open court again, so that the parties can offer
comment, whether the recordings are accurate or not, before the court
cornes to a final conclusion thatthat is to be the record of its observations
on inspection. So, therefore, ail these fantastic questions asto how many
people are to be heard, whether there is to be a plebiscite, whether peti
tioners are to be heard, and so forth, ail fall away.
Mr. President, I should like to say something furthcr about this ques-IIO SOUTH WEST AFRICA
tion of the petitioners. First, my learned friend made this statement:
"... some petitioners have been among the numerous inhabitants
who have managed to leave the Territory for the purpose of pursu
ing educational advantages not permitted to them in the Territory
under the admitted policies and practices of apartheid". (Supra,
p. 49.)
I should like, Mr. President, to hear proof or evidence in substantiation
of this wild statement about the "numerous inhabitants who have man
aged to leave the Territory for the purpose of pursuing educational advan
tages not permitted to them in the Terri tory ... ''. I do not know of
any possible justification for an averment of that kind.
We heard more, Mr. President. \Ve heard that the Applicants have not
relied upon the accuracy of statements in such petitions-that is at the
same page-and yet, later in that same sentence we are told that the
Applicants have cited such petitions for the bearing they may have as
confinnatory of the reasonably predictable consequences of the practices
and policies which are undisputable. Mr. President, if petitioners cannot
be believed, if any person cannot be believed, how can their statements
be relied upon as being confi.rmatory of anything? I could say this about
the petîtioners. The whole basis upon which the suggestion was dragged
across the trail, falls away, of course, because the proposed inspection
does not envisage the taking of any evidence. \Ve certainly do not pro
pose to call petitioners, either here or elsewhere, as witnesses because
we know, and we have demonstrated on the pleadings a!ready, that no
reliance can be placed upon their evidence. \Ve could consider quite
seriously, if my learned friends should wish to call them, whether we
ought not to offer to pay their witness fees so as to allow us the privilege
of cross-examining them. That is ail I think I need say about the peti
tioners.
Next, Mr. President, I must refer to my learned friend's suggestion
that Respondent advanced three principal grounds in support of its
proposai. He said that the first of these grounds was the alleged moti
vation underlying these proceedings-the alleged motivation on the
part of the Applicants. That we find in the verbatim record of 27 April,
at page 9, supra.
Mr. President, nothing is further from a true analysis of what we said.
\Ve did not rely on the alleged motivation on the part of the Applicants
as a reason perse why there ought to be an inspection. \Ve referred to
that motivation in a completely different context. We referred to it as
demonstrating a part of the tremendous conflict of fact which there is
between the Applicants, on the one hand, and the Respondent, on the
other. That becomes perfectly clear ifwe look at the verbatim record of
30 March, VIII, page 272 and again at page 277, where I was putting the
proposai in regard to the inspection. At page 272 we made it clear that
the attitudes of the two Parties in that regard were such poles apart that
the leaders of the campaign against the Respondent Government:
"... like to portray that campaign as something in the nature of a
holy crusade of modern times-as something required to liberate
fellow human beings from conditions which are said to be worse
than slavery".
I omit a sentence, and proceed: ARGUMENT OF MR. DE VILLIERS III
"From the South African point of view we see that campaign as
being one of abuse and vilification, motivated on the part of its
leaders by purely political objectives with very little, if any, bearing
on the real merits of administration of the Territory of South West
Africa, or the real interests and needs of the population of that
Tcrritory." (Ibid., p. 273.)
In reading out this latter portion to the Court, my leamed friend
omitted the first portion. He omitted the whole point of it, the comment
which isdirected at demonstratingthat at thatstage therewas that dispute.
There was no intention, as I made clear immediately afterwards, of going
into the merits of the dispute at this particular stage, because, quite
clearly, those merits had no bearing upon the question whether there
ought to be an inspection or not. It is the fact of that dispute, which
was part of the background of the application, which was one of the
reasons why it was said that this was a case wherc the Court should leave
nostoneuntumed to have an absolutely full enquiry into all relevant facts.
That is made clear at page 277, where we said:
"It is against the background of the extraordinarily wide divergence
between the Parties, both in respect of the motivation behind these
proceedings and in respect of the merits of the solution to be arrivecl
at as regards policy. lt is also because of the importance of appreci
ating all aspects of the facts and particularly the factor which I
mentioned earlier, the importance of seeing African reality, as dis
tinct from just reading or hearing about it." (Ibid., pp. 277-278.)
That made it clear in what context we raised this matter, Mr. President.
;\1v learned friend need not be afraid, I shall, in due course, when we
corné to that part of the proceedings, deal fully with, and I shall sub
stantiatc fully, what we said in that regard-in regard to this motiva
tion-but it is not relevant at this stage to go into the merits of that.
What is relevant is the fact that there is that wide divergence.
Then, Mr. President, mv leamed friend asked what this Court is
going to look at in South West Africa, either on the basis of the Appli
cants' contentions, or on those of the Respondent. On either basis, he
said there was no need to sce anything; there was nothing the Court
cou Id see which could be of assistance to the Court.
Now, 111:rP.resident, in order to answer the question of what the Court
will look at in South West Africa, it is sufficient for me to make the very
simple statement that we invite the Court to look at all phases of the
material and moral well-being of the peoples concerned, and at all
surrounding circumstances which have a relevant bcaring upon the
promotion of that well-being and progress.
We ask the Court to look at ail the phases raised by the Applicants in
their pleadings-political. the rights of residence, freedom of monment,
sccurity of the person, education, economics. We shall ask the Court in
the political sphere, Mr. President, to have regard to this alternative
policy which the Applicants suggest to the Respondent Government, on
the basis of the norm or the standards on which thev relv. I refer the
Court to the Reply, IV, page 441. where the Applicants state the fol
lowing. under the heading ''Statement of Law":
"With regard to political rights, the relevant and generally
accepted norms by which the obligations stated in Article 2, para
graph 2,of the ilfandate should be measured, have been establishedII2 SOUTH WEST AFRICA
by the United Nations. These include the institution of universal
adult suffrage and the promotion of participation on the part of all
qualified individuals in all levels of government and administration,
within the framework of a single territorial unit."
In other words, this mcans complete, or an attempt at complete, political
integration of all those various peoples of South West Africa into one
political unit.
l\fr. President, the inspection could be of tremendous value to the
Court, or toits committee, if it were to observe for itself what are indeed
the differences between the varions groups; what are indeed their
various standards of living, their various modes of living, and so forth.
\Ve talk about those things on paper; we give descriptions as far as we
can; we say there are these differences; but, Mr. President, those are
mere words. Those words have to be brought to life in order to evaluate
them with reference to a proposition such as this: that all those people
are to be thrown together into one political unit in an attempt to inte
grate them all, and into a system which is then expectcd to work for the
bcnefit of them all, and particularly for the individuals about whom my
learned friend is so concerned. Those things have to be brought to life.
There is always some aspect of a situation of that kind which has to be
evaluated, as distinct from merely spoken about, which is not contained
in a description on paper, which is not contained evcn in a description
by a witness telling aboutit in the witness-box. There are always varions
elements in the situation which one sees, but about which one does not
talk. If a valuator has to value a farm, he may get all the details on
paper about the size of the farm, the improvements that exist, descrip
tions of the improvements and the type of land and so forth, but still,
Mr. President, he does not rely on that atone; he goes to the farm and
secs for himself; he makes the varions elements live; he brings thern
into conjunction with each other, and then he evaluates. It necd hardly
be necessary to emphasize to the Court the importance of seeing those
things for oneself beforc one makes a value judgment of that kind.
In regard to rights of residence, freedom of movement and security of
the pcrson, my learned friend rather challenged me to suggest anything
which the Court could sec in that respect. Then he himself spoke of the
alleged suffocating weight with which the varions pass laws and so forth
rest upon the shouldcrs of the persons affected by them. He invited this
Court to put itself in the position of persons affected. l\Ir. President,
that in itself is a false comparison, unless one puts oneself completely
into that person's position. It is not for somebody from outside South
\Vest Africa, from outside the life, the traditions and the background of
the people conccrned, to try to put himself, with his diffcrent back
ground, into the position of those people. What is to be judged is the
weight, the suggestcd weight, or the cffect of those provisions on a
person with that particular background, with thosc particular circum
stances, with the modes of living to which he is accustomed. l\lr. Pre
sident, that is what I suggest the Court could observe in an indirect way,
very validly and in a valuable way, for itself. The Court can see whether
there is to be observed in the bearing of the people, in the way in which
they move, in the way in which they live, and so forth, any suggestion of
such suffocating weight, any indication that these people are mere
slaves,that everv movement of thcirs is controlled from dawn till dusk,
as is suggested in that particular portion of the Memorials which, inci- ARGUMENT OF MR. DE VILLIERS IIJ
dentallv, we analyse in the Counter-Memorial, and which we show to be
materiàlly incorrect in so many respects.
Mr. President, in regard to schools-the school-children of the various
Native peoples of the Territory; where they go to school, where they
learn, where they arc taught, whcre one sees·them in their actual life
surel:y one can get an impression whether they are really children of
whom it can be said that they are being educated for slavcry, or for
servitude; whether they make the impression of being reprcssed or
oppressed; or whether they are being taught in a practical and an
effective way, which develops their personalitics and their minds in ail
relevant respects of their lives; which looks at them, in other words, as
individuals in their particular circumstances, and not in terms of a norm
which says that there is to be a manner of educating them which is to be
applied irrespective of whcther it benefits them or not.
Ifit cornes to the economic sphere, l\Ir. President, surely the Court
will be able to sec whether it is truc to say that the Natives are merely
employed as menial labourers; that they are not allowed to rise above
that level at ail. Surely it will be possible for the Court, or the inspecting
committee, to see what the primary economic needs are of the people
that it secs there; whether the primary needs are that one or the other
should be able to become an engineer, or whether those needs are of an
entirely different kind; whether Respondent's policies really relate to
the problem of assisting those people to overcome the difficulties of a
hard and a harsh Territory, as far as making a living out of its soi!, and
out of its climate, and out of its conditions is concerned. The Court can
see and evaluate for itself what degree of technology is required in order
to make any economic progress at ail out of the soi! and out of the con
ditions of South West Africain regard to the combating of cattle diseases;
in regard to exploitation of the minerai wealth of the Territory for the
benefit of the whole population; in regard, 1'fr. President, to overcoming
difficulties of water scarcity; in regard to overcoming difficulties of
poomess of the soi!, or of soils that have been spoilt by salt content and
that sort of thing; matters which ail require the application of modem
techniques, modern technology, in order to enablc any progress to be
made at al!.
An inspecting committee is able to evaluatc whether it is true to say
that there is a population pressure on the land in the Native areas, and
that that population pressure makes it necessary for the Natives to corne
out to work as menial labourers for the Europeans. The inspecting
committee can see for itself whether those Native areas are indeed, as is
alleged, the poorest areas, or whether they are, as we say, of the best
areas of the Territory. It is not merely a matter of accepting the one
statement or the other; there is still the question of degree involved;
there is a question of evaluating that, and of observing the degree to
which those territories are, in fact, better than anv of those occupied by
the Europeans. ·
1'lr. President, the Court will see-the inspecting committee will be
cnabled to see-the good with the bad. It can look at elements; it can
look for evidence of what is alleged to be badin the whole system, to see
whether it finds anything of that kind, whether it finds a system of
slavery, of oppression, or what have you, or whether it finds a situation
of \'arious peoples growing in stature, growing in confidence, growing in
the degree of trust and co-operation which they have in one anotherII4 SOUTH WEST AFRICA
when thcy know that the one's existence is not threatened by the other.
The visiting grnup, whether it be the Court or a committee, wiH be able
to see in what respects it could possibly be said that the .i\Iandatory
could have improved upon what it has done; in what respects ail is nol
exactly as it should be; but how that is to be evaluated in the total
picture. I am not going to suggest to the Court that the Mandatory
Govemment has been faultless in every respect, that there is nothing
which a committee will see, or which the Court will see if it goes as a
whole, which it will not find to be unfavourable. But I do suggest,
Mr. President, that the Court or that committee will find that, viewing
the whole situation, it is one in which there is a real endeavour to pro
mote well-being and progress to the utmost; where one can see, and
where one can feel the pulse of it, and the manner in which the whole
situation is growing in the way foreseen in the basic principles of this
policy. That is what I suggest the Court may see, very beneficially, for
itself.In general, Mr. President, in South West Africa or in any of the
other territories which I have suggested, it will be possible for the Court
to see instances where the standards of development of the indigenous
peoples may be below that of the Europeans. The committee or the
Court will be able to judge for itself whether that is to be attributable to
a particular policy, or whether it is to be attributable to African reality;
and in that respect particularly it will be so useful to the Court to be
able to make the comparison between territories in which this policy
has been applied and is being applied, and territorics in which it is not
and has not been applied.
[Public hearing of 4 May 1965]
Mr. President, at the conclusion yesterday, I was dealing with the
Applicants' question as to what the Court would see on an inspection
that could be helpful and relevant, either from the point of view of the
approach of the Applicants in the case or from the point of view of the
Respondent. I had virtually concluded what 1 had to say in that regard,
provided that it is borne in mind that I was giving examples only. I was
not trying to state what a full itinerary would look like-tha t would be
a matter for later consideration.
I may revert to the fact that my learned friend asked the Court
yesterday, in that regard, whether an inspecting body would look at the
operation of a penal provision in the Nursing Act. It seems that my
learned friend, not being able to obtain complete satisfaction from the
engineers' example which he used, tried to tum to this one. Mr. President,
from what I know of the situation in general, it seems most unlikely that
it would ever be found necessary to appJy this provision at ail, soit seems
most unlikely that the Court would see this provision in operation. But
what the Court would see in regard to nurses, would be the training of
Native and Coloured girls as nurses, both as fully qualified nurses and as
auxiliary nurses. The Court would see the facilities, the Court would see
the people involved, and the Court would be able to judge for itself whether
it would be a fair judgment to say that there is any sign of proclaimed in
feriority inthat regard. I could conclude, :'.\Ir.President, on this aspect by
saying that in view of the allegations of deliberate oppression which are
still onrecord-the allegations of the suffocating weight of restrictions, ARGUMENT OF MR. DE VILLIERS rrs
the allegations of subjugation, the allegations of the absence of any hori
zon of hope coupled, l\Ir. President, with allegations made with regard to
alleged militarization, and with the allegations of the arming of the
European population with a view to the suppression of the Natives-in
the light of these allegations it might be very instructive for the inspecting
body to see for itself whether there cxist any of the signs of a police state
or the signs of tension or unrest that one would expect to be associated
with a situation as so described.
Now, :\Ir. President, I proceed to deal with another query raised by my
learned friends, to this effect, that if African reality requires to be seen
in order to be appreciated, why do we suggest the possibility that a
committee of the Court might go on this inspection as distinct from the
whole Court, according to the Court's own preference. This point was
made by my learned friend in the verbatim record of 27 April, at
page 15, supra. Now, Mr. President, it is quite true that if one were to
look only at the strictly logical consequences of the desirability of seeing
for oneself-if one were to look onlv at that consideration-then it
would be preferable for the whole co·urt to go. Surely there are other
practical considerations also to be brought into the scales and it is for the
Court to decide, because we left this to the Court's preference, what
weight is to be assigned to such practical consîderations to the contrary.
My learned friends themselves referrcd to the factors of expense and
cumbcrsomeness. In addition, thcre is this important factor whièh came
to mind from our side, viz., that for personal reasons of health and
strength it might well be that in the case of individual members of the
Court it would be unfair and unreasonable to expect of them to undertake
a strenuous task-undoubtedly a strenuous physical task-such as an
inspection of the nature envisaged. It was for reasons of this kind that
we thought that the Court might well consider that it might be prefer
able, weighing the pros and the cons of the situation, to have an inspec
tion by a committee rather than by the whole Court, but we still leave
the decision and the preference in that regard entirely to the Court.
Wc also considered Mr. President, with submission, that if the Court
should find it undesirable that the whole Court should go then it would
still prefer that thcre should be an inspection through a committee
rather than no inspection at al!.
Surely the difficulty which my Iearned friend raised about how the
committee would convey its impression to the Court, is highly exag
gerated. Surely it woulcl make a very big difference to the Court to be
informed in that respect as to the total impressions, and the reasons for
those impressions, of a body consîsting of its own l\Iembers: that would
surely mean vcry much more to the Court than merely being informcd
by one or other of the Parties or by a witness for one or other of the
Parties.
Then our learned friend raised the question, in the same context and
on the same page of the record, as to how impressions gained on an
inspection by the Court, could be adequately recorded. Mr. President,
that question, in my submissîon, is merely a facetious one. Therc are
so many instances in life and in the legal process itself in which it is
impossible to record every minute aspect that goes into an impression,
and yet the impressions themselves, as a whole, are treated as being
highly relevant and highly important in many instances. To take an
cxample from the legal process·itself, there is the illusive question of then6 SOUTH WEST AFRICA
demeanour of a witness in a trial, and the whole atmosphere of the
trial, factors to which a court of appeal, sitting on appeal against a
judgment of a court of first instance on a trial on fact, always give the
greatest weight in considering whether there is justification for it to
differ from the finding arrived at by the court of first instance. It is
quite impossible, and it is accepted that it is impossible, to describe
every aspect and detail of what gocs into those impressions as to the
demeanour of a witness or the atmosphere of a trial-and yet they play
important parts. It is the totality of the impressions honestly and
thoroughly arrived at by a process of investigation which counts, and
some indication of the reasons why that totality of impression was
arrived at is always possible.
Equally facctious, Mr. President, is the next point to the effect that if
the Court sees other territories in Africa other than South \Vest Africa
itself,why should it stop there? Why should it not see terri tories outside
Africa as we1l? That we find in the verbatim record of 28 April, at
page 48, supra.
Mr. President, we did not suggest that a comparison of general con
ditions in countries outside Africa would, in any way, be helpful or
relevant in this case, as we suggested in respect of territories in Africa.
\Ve spoke, in the course of our pleadings, about particular points of
rclevance in such countries, specific facts, for instance, about migrant
labour, manifestations of group reactions, and so forth, but we nowhere
suggested that, for the purposes of the points we wish to make in that
regard, it would be at ail necessary or desirable for the Court to make an
inspection in that regard. If one were to go through the list of items
laboriously and analyse each one. item by item, it might be found that
in the case of somc item it would perhaps assist the Court if it could have
an inspection, but surely there are degrees of relevance and degrees of
importance in regard to questions of this nature. \Ve refer to such
countries in respect of isolated points in regard to such questions, but
there could never be a serious suggestion, as far as we could sec, that
there should be an inspection of the countries concerned. If it had been
my learned fricnd's case that there should be an inspection of such
countries, one could still understand a point of this kind being raised,
but his case is, in truth, that there is to be no inspection at al!. Indeed,
on this aspect his case is that consideration of the questions which arise
in regard to these other countries is totally irrelevant.
Mr. President, I think we can now leave that point. A good fricncl of
mine has a description for points of that kind. He calls them "talking
points", and I think that description could, with submission, well apply
in respect of this particular point.
\Ve have a similar manifestation of inconsistencv, i\lr. President, in
regard to our suggested visit-a limited visit-to "South Africa itself.
My learned friend says that that inspection, or visit, should be an
unconditional and an unqualified one, or nothing at ail. That point we
find dealt with at some length in the verbatim record of 28 April, at
pages 50-53, supra. Again, 1'1r.President, this cornes very strangely from
a party who says there should be no inspection at ail. The fact that there
are special limitations with regard to relevance, as far as South Africa is
concerned, as compared with South West Africa, is so obvious that it
does not, in my submission, require any demonstration or elaboration.
It is also quite wrong to suggest, as my lcarned friend did, that we did ARGUMENT OF MR. DE VILLIERS IIJ
not indicate a similar limitation with respect to the other territories in
Africa, other than South West Africa. Of course we did not indicate a
limitation based on the same grounds, but we did indicate a limitation
in the sense that the inspection, or visit, should be a limited one, limited
to a particular purpose.
I should like to refer the Court to the verbatim record of 30 March,
where we dealt with the matter, at VIII, page 279 in the paragraph
beginning "Secondly", i.e., the proposed visit to the Applicant States,
Ethiopia and Liberia. We said that that was to be:
" ... for the purpose, and to a sufficient extent, to enable the Court
or its committee to form a general impression of comparable con
ditions and standards of the material and moral well-being and
social progress of the inhabitants concerned; a Iimited purpose,
limitcd to what I have just mentioned".
I need not quote any further.
Then, when we came to the third part of the proposai, i.e., in regard
to other territories in Africa, we expressly linked it up with what we had
said in regard to Ethiopia and Liberia. \Ve said at page 280 of the same
record:
"Thirdly, ~'l.r.President, we propose that a visit should be in
cluded to one or two further sub-Saharan countries of the Court's
own choosing, also for the purpose of gaining a general impression
regarding comparable standards of the same nature as I have just
mentioned in regard to the Applicant States."
I do not think I necd say anything further in that regard.
Mr. President, we thcn heard a contention by my learned friend
that an inspection, as proposed, would virtually convert this Court"s
fonction into one of administrative supervision. \Ve find that in the ver
batim record of 28 April, at page 36, supra. At page 41, of the same
record, the further suggestion was made that if this enquiry were to relate
to bona or ma!afides, it might we11have to be a continuous enquirybecause
what would be found in one year, might not necessarily apply in the next.
This last suggestion, Mr. President, of course, would apply to any factual
enquiry, not only an enquiry in regard to bona or mala fides. Any factual
enquiry by a court or by a visiting group or inspecting body on a ques
tion of fact would carry that implication with it.
My learned friend seems to have forgotten that thcse and similar con
siderations were the very ones that we stressed in regard to our main
contention on the justiciability of issues arising under Articl2 (2) of the
Jlandate-the very considerations why we suggested and we submittcd
that this Court was never intended to exercise a function of that kind; but
I need not enlarge upon that in the context of this inspection proposai.
My learned friend further emphasized that certain factors of conve
nience, expense, and time were to be considered and to be weighed in the
balance. We fully agrce that they are to be weighed in the balance, l\Ir.
President, and we submit that they surely cannot be regarded as out
weighing the importance of a proper and full investigation into a case of
this kind which, in my learned friend's own description, is one which
affects the lives of such a multitude of individual human persons. Surely,
when that consideration is brought into the balance, it must outweigh
the relative considerations of time and expense and convcnience referrcd
to by my learned friend.us SOUTH WEST AFRICA
In this regard, I could make it clear that the test of convenience would
certainly play an important part in respect of various of the practical
arrangements which would have to be made for the purposes of conduc
ting an inspection, and I want to emphasize, Mr. President, that in re
gard to detailcd matters or particular points involved in our proposai,
if the Court should have any difficulty about those, as distinct from the
general principle of the proposai as a whole, then our suggestion is, as
we tried to indicate initial! y. that those are matters for further consulta
tion between the Court and the Parties through the ordinary channels.
We cannot, by way of a discussion in open court, decide upon every de
tail. They would certainly have to be dealt with in a practical way by a
more direct form of negotiation. What I do want to make clear is that if
anything we have mentioned as a matter of detail on a particular point
may present the Court with some difficulty, the Court is not to assume
that its difficulty in that respect ought necessarily to wreck the whole
scheme.
Mr. President, this ties up with another question of convenience, in
regard to which the Court also has to weigh the balance of convenience.
It is a matter to which I referred yesterday and to which I wish to revert
very briefly by way of conclusion in this regard. It is the balance of
convenience between, on the one hand, deciding certain legal questions
at the stage of completion of the legal argument, and, on the other, hold
ing over all questions until the end of the factual enquiry.
I indicated in that regard, Mr. President, that if the former course is
followed, i.e., if the Court decides that it is now more convenient to con
sider whether it can corne to conclusions about the legal questions, then
it may well be possible for the Court to rejcct the Applicants' contention,
or·contentions, based on norms, or a norm, or norms and standards,
without further factual enquiry, and I want to make it perfectly clear
what we mean in that regard. We contend that there could be such a
rejection of the Applicants' contention, without further factual enquiry,
but that there could not be a fmding in favour of that contention without
further factual enquiry, at least not on a basis of giving effect to the
principle of audi alteram partem. The first basis upon which the Court could
decide that there would be no further need for a factual enquiry, could be
the legal basis we suggested, namely that no such norm or standards could
be binding upon the Respondent independently of its consent. That
would entai! no further enquiry because it is common cause that no such
consent has been given-the Applicants do not attempt to establish
any such consent to such a norm or such standards. An alternative basis
upon which the Court could corne to a similar conclusion from a practical
point of view would be a factual one, even \.V.ithoutfurther factual en
quiry. This could happen in one of two instances. One of these could be
if the Applicants were to make it clear to the Court, and the Court were
clearly to understand them as saying, that for the purpose of finding in
their favour on this norm and upon these standards, the Court should
look only at the decisions and the statementsof international bodies such
as the Ùnited Nations and its specialized agencies, and at statements
possibly also made by certain governments upon which they rely to the
exclusion of any further factual enquiry into relevant sources of norms
or standards, of any relevant factual enquiry of the kind I indicated
yesterday with reference to expert evidence, and evidence of people who
deal with the matters indicated in practice and in life. If the Applicants ARGUMENT OF MR. DE VILLIERS
should make it clear that that is the narrow basis upon which their case
rests, and the Court is satisfi.ed that that is not a sufficient factual basis
upon which one could possibly corne to the conclusion contended for by
the Applicants, then that would again be a reason for the Court to say
that no further factual enquiry is necessary.
Finally, there is a further alternative, and that is that the Court rnay
look at what is already on record in regard to the question whether the
standards relied upon by the Applicants from which they wish to distil
their norrn, are in truth universally accepted or not; and the Court rnay
well, ifit should find that convenient, ask the Parties to address it
specially on that question, because rny suggestion is that upon considera
tion being given to that question, the Court rnight very well corne to the
conclusion that it is perfectly plain on the record, which the Applicants
have made clear they do not want to supplement by way of evidence,
that it is impossible for thern to establish a contention that thosestandards
upon which they seem to rely are, in truth, universally accepted.
Alternativelv, Mr. President, if the Court should find that the matter is
not decisively answered in our favour by the facts already on record, then
I submit that the Court could not rnake a finding against us in that respect
without considering the further evidence which we wish to tender in
that regard-the evidence and the proposed inspection.
Now, Mr. President, as regards the other possible approach on the part
of the Court, viz., that it should decide to hold over ail decisions until
everything has becn disposed of-in other words, that everything should
be decided at the conclusion of the proceedings, if that should be the ap
proach, )fr.President, I submit that it is very clear that the factual en
quiry would have to proceed, except for one further possibility, and that
is that the Court might make one exception to its policy, its suggested
policy, ofnot making any decisions at this stage, that the Court does make
this one decision-narnely that the Applicants have made it clear that
they do not, and that they will not, make any case bcyond of saying that
the decisions of the political international bodies and the statements of
the govemments are the only relevant factual considerations. If they
make it clear that they rest, as a matter of fact, only upon what the
United Nations and other international organizations may have dccided
and said, plus what certain governments may have said, and that they
do not rest their case on anv other factual consideration whatsoever, then
the Court rnight conclude that even if it were to hold over ail its other
decisions till the end, it would be already clear that no further factual
enquiry would be necessary. But the only possibility of coming to such
a conclusion, would be if that course of procedure should be adopted by
the Court.
There is a further point raised by the Applicants in this respect to
which I should refer briefly, and that is a suggestion which they made in
the verbatim record of 27 April, at page 5, supra. That was a suggestion
to this effect: that the Applicants have reserved to themselves the
right to show in the factual phase of the proceedings how important the
so-called requirement of international supervision is; and they went so
far, if I understood them correctly, Mr. President, as to suggest that for
that reason the Court would have to wait until the end of the factual phase
of the case before it could even make a decision on the question whether
an inspection would be relevant at ail. Mr. President, surely that point
could not be sound. Surely, if rny learned friends wish to refer to anyI20 SOUTH WEST AFRICA
facts as being illustrative of a legal argument, they can do so while they
put the legal argument. It is not necessary to have an enquiry about
the facts first, or that the facts should be found to be established by the
Court, or that they should be common causes between the Parties. If
one illustrates a legal argument by reference to a factual situation, one
postulates that situation, and one says "Let us asswne the facts are so
and-so", and that is a sufficient illustration of the legal argument. There
is no reason whatsoever why my learned friend need find it necessary to
reserve such illustrations of his legal argument to the factual phase of
the case. He will have a full opportunity, during the presentation of
his legal argwnent which he wiUcontinue in the course of his reply to the
Court, of stating any fact he wishes by way of illustration of his argument,
and he can make any assumption he likes for that purpose.
That, Mr. Presîdent, concludes my argument strictly on the question
of the inspection. There is one point which my learned friends raised
in close conjunction with the inspection proposal-they referred to it
several times-and it may be convenient if I were to react toit straight
away. It is a practical point, namely the suggestion that the evidence
which we propose, if the Court should find it necessary to have regard
to that evidence, could or should be put before the Court by deposition
and not orally. Now, Mr. President, if we had wanted to put more facts
in writing before the Court than we have done already by referring to
people who can be quoted as authorities for those facts, then we would
have done so, and if we had required more time, then wc would have
asked for the time. That is not the purpose of the calling of the evidence
at all. The purpose of suggesting that the Court might find assistance
from the oral evidence is an entirely different one. It is that the Court
would, through the very process of having evidence presented to it,
viva voce, by witnesses in open Court, be placed in the best position
to evaluate the conflicting contentions on questions of fact-to evaluate
the facts to be weighed in the scales against one another. The Court would
have an opportunity of observing the personalities of the witnesses who
express particular views, particular conclusions, particular opinions to
the Court-the results of their experience, and the like. The Court
would be able to judge whether those persons are to be seen as fanatics or
crackpots, or whether they are balanced persons, i.e., persons with a
reasonable and balanced judgment. The Court would have the facility
of questioning the witnesses and the experts on their rcasoning, to test
them as far as may be necessary-as far as that may be of assistance to
the Court. Then there would be the facility afforded to the opposition
to cross-examine if they wished to use that. My learned friend has in
dicated he does not wish to make use of that facility, but, Mr. President,
there is that facility, and if the opposition does not use it, it would still
be open to the Members of the Court to put questions. And it would be
exactly by those processes, Mr. President, that the Court woulclbe placed
in the best position to evaluate. That is the basis upon which we suggest
that it would be of considerable assistance to the Court. if the further
factual enquiry were found to be necessary, to hear these persons giving
their eviclence in open Court.
;\frPresident, that concludes my argument. Before I sit down I would
like to indicate-it may be convenient to you-what our intentions are
in regard to answering the remaining questions put by Members of the
Court: by Judge Jessup and by Judge Koretsky. ln regard to the question ARGUMENT OF MR. DE VILLIERS I2I
put by Judge Koretsky, wlùch was putto us alone, it seems tous to be
fair that we should answcr that before my learned friends commence
the reply on the legal argument, because although the question was put
to us only it may be that they would like to have an opportunity of
commenting on our answer in the course of their reply. Therefore we
propose, Mr. President, subject to your approval, to answer that question
at the beginning of whichever hearing may be dctermined for the com
mencement of my learned friend's argument in rcply on the legal issues.
Our answer should take a very short time; we propose to deliver it at the
beginning of whatever session the Court determines, and then my learned
friend could continue straight afterwards with the commencement of
his reply on the legal question.
In regard to the question put by Judge Jessup, we have had a discus
sion, my learned friends and we, on the question of the order in which
the Parties ought to answer that, and we are agreed that it may be more
convenient if the Applicants answer first. My learned friends have indi
cated also that they intend giving that answer fairly near the beginning
of their reply on the legal questions, and it will then be a matter for the
Court to determine a convenient time afterwards for us to reply. We
shall be ready at any time provided we are given, say, a day in which to
consider the answer given by my learned friends.I22
15. STATEMENT BY MR. GROSS
AGENT FOR THE GOVERNMEXTS OF ETHIOPIA AND LIBERIA AT THE
PUBLIC HEARIXG OF 4 MAY 1965
The comments which the Applicants would wish to address to the Court
will be brief, tohe point, factual and unpolemical. lf these remarks cannot
be completed within ten minutes, they will have failed of their purpose.
The purpose is as follows, two-fold: (1) to place a formal proposal before
the Court, without argument, and (2) to call to the Court's attention
certain citations from the record, without argument or characterization,
which bear directly upon a statement made by Respondent in the course
of his address to the Court yesterday. On behalf of the Governments
for which I speak, it seems important to call such citations to the Court's
attention by way of brief reading at this point in the record; this wiH
be completed within five to ten minutes.
In the course of the verbatim record of 30 April 1965-that is, page
63, supra, the Applicants suggested the possibility of a stipulation on
depositions to which reference has just been made bv the Respondent.
The Applicants would respectfully submit this as a formal proposai to
the Court.
In view of my undertaking, Mr. President, not to elaborate or argue
upon the matter, the proposai is made in this form and it remains only
to say that its central basis is to balance the preference of the Respondent
against the inconvenience, burdcn and expense upon the Applicants.
Secondly, with regard to the matter of Respondent's statement in the
Oral Proceedings of 3 May 1965, may I refer the Court, without comment
or characterization, to page 108, supra, of the verbatim record from which
I should like to read to the Court at this moment for the record, without
comment.
"It is perfectly obvious that the Applicants cannot face up to this
factual enquiry, they cannot face up to a comparison of standards
of well-being· and progress in thcir own countries and those in
South West Africa. Thev had to find a formula to rule out the whole
proposai and, in doing ~o. they emphasized the fondamental weak
ness of their case in law, in fact and in morals."
Mr. President, without comment, I refer the Court to the Reply, IV,
at page 364, from which I quote.
"... Respondent's frequent rcfcrences to practices in other African
States, including those of Applicants, are whol!y irrelevant to the
present proceedings, inasmuch as there is no other African State
subject to Mandate, nor any other State, anywhere in the world,
which practises the policy of apartheid".
That is from the Reply. at which time no reference to an inspection had
been made.
I now quote from the Rejoinder, V, at page n6.
"Applicants' second reason for contending that practices in other
States in Africa are irrelevant, is that no other State practises the STATEMENT BY MR. GROSS 123
poiicy of apartheid. This attitude would be pertinent in so far as
Applicants rely on the existence of an alleged Iegal norm, which
would by itself render Respondent's admitted policies violative of
the Mandate.''
I refer the Court to the other portions on that page so that it can be
read in context. "In fact Applicants themselves make copious reference
in their Reply to circumstances in other territories." This is asserted as
a reason in opposition to the Applicants' contention.
The footnote appended to the quoted comment calls attention to the
Reply, IV, pages 398-403, pages 426-430, and pages 451-457. These are
references to United Nations views upon certain territories and areas,
bath inside and outside Africa, United Nations views with respect to
education policies, economic life, govemment and citizenship. They do
not refer, Mr. President, as the passages make clear upon reading, to
Applicants' views concerning those territories, but to the relevance of
United Nations views thereon.
The formal proposal, Mr. President, is to place before the Court, re
spectfully, the proposed stipulation, the terms of which are outlined on
page 63, supra, of the verbatim record of 30 April 1965, and to re
spectfully request the Court to consider it with the Respondent's prefer
ence for personal testimony, for the reasons advanced by way of its
response to my earlier proposai. That is to say, as I understood, that
such evidence should be read into the record, viva voce, and that the de
meanour and personality of witnesses should be available.
Evidence could indeed, in terms of this stipulation, be read viva voce
into the record by Respondent's Counsel or by anybody else who Re
spondent felt could do the job dramatically.
So far as the demeanour of personality, or personality, of witnesses is
concemed, it is part of the stipulation proposed that if the Court should,
upon reading the depositions, regard the demeanour or personality of
expert witnesses as of help, that it would be within the terms of the
stipulation that those witnesses would be presented in persan at the
request of the Court but not as a general proposition which will be, in
the Applicants' view, utterly unnecessarily consuming of time of the
Court and, more particularly our concem, the time, undue expense and,
of course, the burden upon us of being present in the courtroom and not
being busy about othcr duties.
These are, of course, considerations of a highly professional nature in
terms of the balance of convenience and interest of representatives of
the Parties concemed.
The preferences of the Respondent are entitled to full weight and con
sideration but, Mr. President, it seems tome that there should be a rea
sonable basis for such a request and ifthe Court considers that the basis
which has been advanced by Respondent is reasonable then the Appli
cants would naturally abide by such a decision.
Therefore the proposai formally placed before the Court is that the
Court pass upon the desirability of the stipulation being entered into be
tween the Parties. Or, if failing such stipulation on those terms, that the
Court as an exercise of sound, judicial discretion decide to uphold the
submission and issue an order according1y.124
16. REPL Y OF MR. GROSS
AGENT FOR THE GOVERNME~TS OF ETHIOPIA AND LIBERIA AT THE
PUBLIC HEARINGS OF 7-19 MAY 1965
:1\fr. President and Members of the honourable Court, during the
Oral Proceedings on 14 April 1965 Judge Jessup addressed to both
Parties the following question :
"In the interpretation and application of Article 73 of the Charter
of the United Nations, is South West Africa to be considered one
of those territories whose peoples have not yet attained a full
measure of self-government, as this phrase is used in that Article?"
The Applicants will now endeavour, respectfully, to give their reply
to Judge Jessup's question.
For the purposes of clarity and convenience, the Applicants will set
forth first their general conclusions and the basic considerations which
they believe to be most directly related to, and in support of, these
conclusions and, secondly, a general survey of historical considerations
which are in support of, and illuminative of, these general conclusions.
The historical considerations will be presented within the context of
the Applicants' analysis of the establishment of United Nations super
vision over the administration of South West Africa. The analysis itself
will consist of the major portion of the Applicants' reply with regard to
the survival of administrative supervision over the mandated Territory.
In the Applicants' respectful submission, the question addressed to the
Parties by the lcarned judge involves for a complete answer and con
sideration the entire matter of the history of events and transactions
which mark the assumption by the United Nations of an administrative
supervision over the Mandate.
However, as I have said, for the sake of clarity and concision there
will, at the outsct, be a statement of conclusions on the part of the
Applicants which represent the direct response to Judge Jessup's
question and what will follow will be explanatory thereof.
First, dealingwith the question in terms of prescnting the Applicants
conclusions thereon, the Applicants respectfully submit that South
West Africa is to be regarded neither as a trust territory under Chapters
XII and XIII of the United Nations Charter in view of South Africa's
exercise of its legal right to withhold the Territory from the trusteeship
system, nor as a non-self-goveming territory subject to the reporting
requirement stated in Article 73 (e) of the Charter. .
South-West Africa, however, is subject to international supervis10n
by the General Assembly, as well as to the jurisdiction of the Inter
national Court of Justice, in accordance with Article 7, the compromis
sory clause of the Mandate. The international supervision by the Gen
eral Assembly has been, and is to be, exercised in accordance with a
special system designed to meet the unique situation presented by this
sole surviving Mandate for South West Africa. Such United Nations
supervision is to conform, as far as is practicable, with appropriate
adaptations to meet changed circumstances, to the form of supervision
previously exercised by the League of Nations. IŒI'I.Y OF MR. GROSS 125
i\lr. President, the foregoing conclusion, it is respectfully submitted,
reflects the intentions of the authors of the United Nations Charter, the
Advisory Opinion of this honourable Court in 1950 and the consistent
practice of the General Assembly of the United Nations throughout the
years.
That ends the conclusion by way of direct response to Judge Jessup's
question.
I turn now, with the Court's permission, to a discussion of the con
siderations which relate to, and are in support of, the foregoing con
clusions. This discussion encompasses matters of a historicaJ nature and
other relevant matters which are directcd towards the support of the
conclusion just stated by the Applicants in response to the question
propounded by Judge Jessup.
For the sake of convenience of the Court and clarity of presentation
and fullness of analysis of the considerations relevant to an answer
to Judge Jessup's question, these remarks to follow are, in addition,
designed to serve as the Applicants' reply on the issue of survival of
international supervision over the l\Iandatc,
The inhabitants of South West Africa undoubtedly are, along with
those of trust territories and colonies or dependencies of evcry variety,
entitled to enjoy an administration conforming to at least the minimum
standards laid down in paragraphs (a)-(d) of Article 73 of the Charter.
By virtue of its special status under the l\fandate Agreement, which
continues in full force and effect, however, the inhabitants of the Terri
tory of South West Africa are also entitled to the protection of an
arrangement for international supervision of its administration which
goes well beyond the limited scheme envisaged in paragraph 3 of
Article 73.
The standards of administration of non-self-governing territories
stipulated in the first four paragraphs of Article 73. that is paragraphs
(a)-(d), apply to South West Africa in the sense of providing a floor
below which the treatment of the inhabitants of the Terri tory cannot be
permitted to fall.
The procedure of international accountability stipulated in paragraph
(e) of Article 73 does not. however, satisfy the requirement of effective
international supervision under Article 6 of the .Mandate Agreement
which was originally exercised by the Council of the League of Nations
and which now falls within the competence and under the responsi
bility of the General Assembly of the United Nations.
The Applicants submit, therefore, that Article 73 (e) does not apply
to South West Africa but that an arrangement for international super
vision, more closely analagous to that exercised by the Permanent
Mandates Commission and the League Council, is required in view of
the unique legal status of the Territory.
There is no room for doubt, in the Applicants' respectful vîew, that
the framers of the United Nations Charter hoped and intended that all
territories would be placcd under the trusteeship system, for which
provision was made in Chapters XII and XIII of the United Nations
Charter. That system was designed to give continuing expression to the
purposes of the League mandates' system and the supervisory arrange
ments contemplated under the trusteeship system were deemed fully
appropriate for mandated territoties,as extended and enlarged in the
trusteeship system itself.126 SOUTH WEST AFRlCA
The authors of the Charter did not rcstrict this new svstem to man
dated terri tories nor, as the Court held in 1950, did they make it legally
obligatory for such territories to be converted into trust territories.
But, Mr. President, the authors of the Charter manifested the con
viction that the normal and proper procedure would be for the man
datory powers to conclude trusteeship agreements in every case, thereby
assuring to the mandatcd territories the benefit and protection of an
improved and expanded system of international supervision. Thus the
authors of the Charter exprcssed the aim of providing a more effective
system of international accountability, applicable to the mandated
territories, and any others that might be placed under it.
The San Francisco Conference, moreover, produccd the significant
innovation of Chapter XI which represented an attempt to provide a
meaningful expression of international concern in respect of the admin
istration and de\"elopment of all non-self-governing territories.
In Article 73 (e) the United Nations initiated the implementation
of the principle of trustecship in a limited way in respect of colonies in
general, thus beginning to extend the benefits of this principle beyond
the limits of the coverage of the mandates system. The scheme of
Article 73 (e) was intended to introduce a new element into the general
colonial situation,to provide at least a minimum degree of international
accountability with respect to the administration of non-self-governing
tenitories which had never been placed under the mandates system,
and which might not now be placed under the new trusteeship system.
The central objective of the San Francisco conference in this matter
was to maintain, and even to increase, the effectiveness of international
supervision already developed with respect to the mandated territories,
and to begin side by side with that development the process of providing
international supervision with respect to all other non-self-governing
territories. This, inny event, is the way the Applicants read the history
of the events attending the formation of the Charter. Read literallyand
apart from the context in which it was formulated and adopted, Article 73
(e) appears to apply, in terms, to all non-self-governing territories other
than those which are actually made the subject of trusteeship agreements.
Read within the context, and with the understanding of the spirit and
hopes of the authors of the Charter, however, Article 73 (e) must be
seen, in our view, as an evolutionary plan to provide some measure of
international accountability for the benefit of dependent territories
which had enjoyed none before.
Article 73 (e} was not conceived as meeting the requirements of
mandated territories, or as providing an adequate basis for giving
effect tothe obligations of mandatory powers, in the Applicants' respect
ful view. The trusteeship system itself, not the scheme for restricted
reporting "to the Secretary-General for information purposes"-the
phrase is quoted from Article 73 (e)-was conceived as the appropriate
and necessary device for implementing the continuation and improve
mentof the arrangement previouslyrepresented by the mandates system.
To place a mandated territorv mereiy under the regime stipu1ated in
Article 73 (e) would have been, contrary to the spirit and intention of
the authors of the Charter, to reduce rathcr than to maintain, to say
nothing of increase, the degree of international supervision to which the
territories had been subject during the League period, and it would have
allowed international accountability to fall below the level required by REPL Y OF MR. GROSS 127
the mandate agreements, w'hich, it was understood at the same time,
were to continue in force until superseded by other agreed arrangements.
The Charter thus provided a trusteeship system, conceived as the
legitimate heir of the mandates system, and an arrangement for reporting
of information to the Secretary-General under Article 73 (e), conceived
as a means of initiatingthe extension of the trusteeship idea to dependent
territories previously excluded from that historical process, a very
important development indeed.
Failure to obligate the mandatory powers to put their mandated
territories under the trusteeship system left open the possibility that
particular mandated territories might not corne within the purview of
the Trusteeship Council. Such a lacuna obviously could have such a
foreseeable result.The authors of the Charter, although recognizing that
possibility, evidenced no intention whatever, so far as the Applicants
ha\·e been able to discover, that international responsibility pertaining
to such a residual mandate could properly be, and adequately be,
exercised under the terrns of Article 73 {e). We have found no evidence
to support such a proposition which, in our respectful view, is inherently
likely in any event, given the spirit and aim of the founding fathers
with respect to the extension of international accountability to dependcnt
territories not theretofore receiving the benefit of international super
vision or reporting in any form.
To the contrary, the founding fathers of the Charter met the con
tingency posed by the lacuna by leaving open the possibility to the
United Nations of devising, under Article IO of the Charter, special
arrangements for carrying out the function of international supervision
as might be required in any particular case. Article IO itself is broadly
drawn and, as the Court found in 1950, does establish the competence,
the power of the Assembly to deal with this situation.
As noted by the Court in the 1950 Advisory Opinion, the Charter
"did not contemplate or regulatc a co-existmg mandates system"
(l.C.]. Reports I950, p. 140). And, as the Applicants perceive it, the
Respondent cites that quotation in precisely the opposite sense in which
it strikes the Applicants. The San Francisco Charter, in our reading,
assumed that failure to place a mandated territory under a trusteeship
agreement would be an exceptional phenomenon: Rather than under
taking to formulate Charter provisions applicable to such a phenomenon,
the conference left this matter, like many others, to be dealt with on
a pragmatic basis, within the flexible framework of principles and
procedures provided by the Charter, and the competence with which
the General Assembly was endowed. There were, as has been made clear,
other reasons, in addition, why interim arrangements were not made,
and these will be considered in the course of the remarks to follow.
Respondent thus far has converted the contingency, foreseeable at
San Francisco, of a lacuna, into an actuality, by refraining from placing
South West Africa under the trusteeship system. The fact that definite
arrangements in anticipation of this actuality were not made at the
San Francisco conference, nor in the Preparatory Commission of the
United Nations, nor at the final session of the League of Nations Assem
bly itself. in no way, as the Applicants see it, debarred the United
Nations from meeting that contingency when it arose, and from con
tinuing to meet it so long as it continues. It could, of course, be ended
any day, any moment, by the Respondent submitting a trusteeship128 SOUTH WEST AFRICA
agreement: it is not an irrevocable or permanent contingency, by reason
of any legal operation, in any event.
The Organization has never renounced its indisputable competence,
nor has it declared its unwillingness to meet such a contingency if it
should arise, and it was under no obligation or compulsion to provide
in advance for dealing with an exceptional situation which it hoped,
strongly hoped, might be avoided.
The record shows that the United Nations did respond to the ab
normal situation thus thrust upon it by Respondent by developing in
a pragmatic manner an appropriate special arrangement for effectuating
its responsibility to exercise international supervision over South West
Africa. Recognizing that the trusteeship system could not apply in the
absence of a trusteeship agreement, and recognizing equally that the
system of reporting under Article 73 (e) was not appropriate to the
case of a mandated territory, the General Assembly met the problem
by improvising a special system, a kind of third system, specially appli
cable to South West Africa, a unique phenomcnon in this whole enter
prise.
The Assembly did not consider, nor did South Africa invite it to take
the position, that it was either necessary or proper to subsume the
Territory undcr the heading of Article 73 (e). It has never becn suggested
by Respondent, and careful reading of many records by the Applicants
has never revealed an instance in which such a possibility was ever
adverted to in the United Nations, and in fact South West Africa has
never been included in the list of non-self-goveming territories on which
information is transmitted undcr Article 73 (e). Citation may be made
at this point to the book by Mr. Sady, United Nations and Dependent
Peoples, published by the Brookings Institution in 1956, at page 80,
which comments on this matter-authoritatively in the Applicants'
view-and sets forth the list of non-self-goveming territories regarded
as falling within the purview of Article 73, paragraph (e). Rather, the
Assembly took action consistent with its view that it had bath the
competence and the responsibility to carry out supervision of the
administration of South \Vest Africa in a manner comparable to that
which had characterized the operation of the mandates system under
the League.
The General Assembly's development of a spccial system for exercising
supervision over the mandated Territory of South West Africa-what
I have called a "third system", falling between the arrangement for
reporting on non-self-governing territories, under Article 73 (e), and
the more elaborate procedures conducted by Trusteeship Council, with
respect to trust territories-thisspecial system received the endorsement
of this honourable Court in the Advisory Opinion of 1950. The Court
held that ail the obligations of South Africa under the mandate agree
ment continued in full force and effect, explicitly including the central
and essential obligation to submit to international supervision of its
administration of the Territory. Reference is made to the I.C.J. Reports
r950, at page 136.
The Court went on to find that-
"... the General Assembly of the United Nations is legally qual
ified 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 REPLY OF MR. GROSS
to submit to supervision and control of the General Assembly and
to render annual reports toit''. (I.C.J. Reports I950, p. 137.)
Having thus confirmed the competence of the Assembly, which the Court
declared was derived from the provisions of Article 10 of the Charter,
the Court refrained from prescribing the mechanism which the Assembly
should utilize in the performance of its supervisory fonction. Instead,
the Court laid down several criteria, which it held to be essential to the
proper performance of that fonction, and I quote from page 138 of the
Opinion:
"The degree of supervision to be exercised by the General Assem
bly should not therefore exceed that which applied under the
Mandates System, and should conform as far as possible to the
procedure followed in this respect by the Council of the League of
Nations. These observations are particularly applicable to annual
reports and petitions." (l.C.J. Reports I950, p. r38.)
Mr. President, within the framework of these standards the Court left
the Assembly free to devise an appropriate system for exercising super
vision over the Territory. In this respect, the Court's conclusion coin
cided with the view expressed in the written statement of the United
States Government submitted to the Court in 1950 from which I quote:
"The Union of South Africa continues to be obligated under the
Mandate to submit reports on its administration of the territory,
submitting these to the United Nations for consideration by the
organ which the General Assembly designate for this purpose."
(InternationalStatusof South WestAfrica, AdvisoryOpinion of IIJuly,
at p. III.)
The Court noted that reference had been made, in a number of state
ments presented to it, to Chapter XI of the Charter, but the Court ob
served as follows:
"Having regard to the results at which the Court has arrived,
the question whether the provisions of that Chapter are applicable
does not arise for the purpose of the present Opinion. It is not in
cluded in the questions submitted to the Court and it is unnecessary
to consider it." (I.C.J. Reports I950, p. 138.)
These holdings combine with the Court's assertion that the question of
the applicability of Chapter XI "does not arise for the purpose of the
present Opinion" to indicate, in the Applicants' analysis, that the Court
did not wish to be understood as holding that the international super
vision of South West Africa should be carried out under Article 73 (e)
of the Charter. At least that is a fair inference to be drawn, to say the
least, in our view. If the Court had intended to hold or suggest otherwise,
it could have said so, it seems to the Applicants, by way of invoking
Chapter XI rather than declaring it irrelevant to the problem under dis
cussion. Moreover, the Court's definition of the requirements of the su
pervisory process, its findings that supervision should not exceed but
should be comparable to that exercised under the mandates system, and
that supervision should include annual reports and petitions, provides
further evidence that the Court could not have had in mind resort to the
arrangement provided for in Article 73 (e), which does not contemplate
or include-does not, in any event, include-petitions, or annual reports
of the sort envisaged in the mandates system.130 SOUTH WEST AFRICA
As the Court was aware, and as had been pointed out in a statement
before the Court by the Representative of the Secretary-General of the
United Nations, Dr. Ivan Kerno-"The system of reporting under Article
73 (e) did not conform or measure up to the standards of supervision
defined by the Court". (Oral Arguments, International Status of South
West Africa, Advisory Opinion of July II r950, pp. 223-224.)
Itseems evident that the Court was, in effect, endorsing a line already
being followed by the General Assembly, that of asserting the Assembly's
competence and responsibility to supervise the administration of South
West Africa, and developing a special system-a third system-unique
to these circumstances, distinct from thatgrowing out of Chapter XI, and,
in this way, exercising its responsibility to supervise the Mandate as a
sacred trust which had been laid upon the League as an organized interna
tional community.
Moreover, the Court found that South Africa had acted within its
legal rights in refraining from placing South West Africa under the
trusteeship system (p. 139 of the Opinion), and thereby acknowledged
that the supervisory arrangement provided for in Chapters XII and XIII
could not be applied in this instance. The Court went on to note that the
Charter was silent as to the system of supervision to be applied to man
dated territories which did not acquire a different status, and, as I have
said, it was in that connection that the Court said the Charter "did not
contemplate or regulate a co-existing mandates system" (p. 140 of the
Opinion).
The Court thus endorsed the course followed by the Assembly prior
to 1950 in beginning the development of a special system of supervision
applicable to the mandated territory of South West Africa, specifically
and as a special case. If the Assembly was to carry out the supervisory
fonction attributed to it by the Court, either it had to develop such a
special system, or it would have had to deal with the mandated territory
pursuant to Article 73 (e) of the Charter. But the Court, as I have said,
dismissed Chapter XI as irrelevant toits consideration of the case, which
it would not have done if the Court had intended to suggest that inter
national supervision of South West Africa should be carried out under
the provisions of that Chapter. By brushing Chapter XI aside, therefore,
rather than by invoking it, the Court evinced its endorsement of the
proprietvoftheAssembly'saction in improvising a system, on the basis of
the broad and flexible competence conferred upon the Assembly by
Article 10 of the United Nations Charter, for performing the exceptional
task of supervising the administration of a residual mandate-the one
residual exception.
Moreover, the findings of the Court as to the nature and degree of the
supervision to be exercised by the United Nations with respect to South
West Africa confirm that the Court was not suggesting recourse to the
reporting arrangement provided for in Article 73 (e) of the Charter, for,
as will now be shown, that arrangement fell far short of meeting the re
quirements of a proper supervisory system for South \Vest Africa, as
defined by the Court.
An important measure of comparison between League supervision un
der the mandates scheme and the United Nations processes under Article
73 (e) of the Charter is that of the type of information transmitted pur
suant to the respective systems. The information required of manda tories
was more extensive in scope than that required by Article 73 (e) of the REPL Y OF MR. GROSS 131
Charter. The broad scope of the annual report requirement for mandatory
powers was initially rendered clear by the Belgian representative to the
League Council ~nwhat came to be known as the Hymans Report. An
excerpt from this report has been quoted already by the Applicants at
VIII, page 145. Particular attention of the Courtis respectfully directed
to the following passage from the Hymans Report:
"The annual report stipulated for in Article 7 [that is to say, Arti
cle 22, paragraph 7, of the Convenant of the League of Nations]
should certainly include a statement as to the whole moral and
material situation of the peoples under the Mandate. It is clear,
therefore, that the Council also should examine the question of the
whole administration." (League of Nations Council P.V. 20/29/r4,
8th Session, p. 187.)
The purpose thus envisaged or conceived to be served by the reports
confirms the necessity for the breadth and scope of the information re
quired to be submitted to the competent organ. This relationship between
the purpose and scope of the reports has been confirmed by scholarly
authority. Thus, one of the leading authorities on the mandates system
frequently cited by both Parties to these proceedings, Mr. Hall, has com
mented-"The annual reports of the mandatory powers and their exami
nation by the commission were the heart of the mandates system".
(Hall'sMandates, Dependencies and Trusteeship, p. 186)
The fact that the whole administration, in the words of the Hymans
Report, was covered by the reports required of manda tory powers is very
clear from others-on the basis of other sources, as well as scholarly
authority. Thus, the League of Nations publication, The Mandates System
states that-
"All fields of the administration and ail aspects of the life of the
mandated terri tories, administrative organizations, political systems,
public finances, justice, economic conditions, agriculture, trade com
munications, social, moral, and material conditions of the Natives"-
all these were to be covered by the annual reports of the mandatory
powers. I quote from the League of Nations publication, The Mandates
System---Origin, Princip/es, Application, published in Geneva in 1945,
page 47.
This aforegoing scope of mandatory reporting contrasts with the re
porting requirement under Article 73 (e) of the United Nations Charter.
That section of Article 73 (e) might, for the convenience of the Court,
be read into the record at this time. I quote from 73 (e):
"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,
other than those territories to which Chapters XII and XIII apply."
The omission from Article 73 (e) of any mention of political informa
tion is of prime significance. Other limitations are to be noted as well.
The information referred to in Article 73 (e), which I have just quoted,
is confined to that of a "statistical" or "technical" nature, and is "sub
ject to such limitation as security and constitutional considerations may
require''.
As will be known to the Court, pressures were exerted by non-adminis-132 SOUTH WEST AFRICA
tering authorities at the United Nations between 1946 and 1949 for
transmission of political information under Article 73 (e), but it was ar
gued in reply that such information was in a wholly optional category.
Thereafter, in 1947,the General Assembly decided that the voluntary sub
mission of political information would be in accordance with the spirit of
Article 73 (e) and should be encouraged. This is evidenced in General
Assembly resolution 144.II, 3 November 1947.
The Assembly, in a 1949 resolution, likewise expressed the hope that
administering authorities which had not already done so would submit
political information in their reports under Article 73 (e).(General As
sembly resolution 327.IV, 2 December 1949.)
These General Assembly resolutions reflected increasing awareness of
the importance of political information in any supervisory plan, however
limited in other respects. The evolution of Article 73 (e), in other words,
confirmed the validity of that elernent of the mandates scheme which
recognized that the progress and welfare of inhabitants of dependent ter
ritories could not be evaluated without political information. But even
this salutary evolution has left the scope of Article 73 (e) significantly
narrower than the supervisory plan embodied in the mandates system,
and which itself was improved and enlarged in the trusteeship system.
Under the mandates system, the manda tory transmitted annual reports
to the Permanent Mandates Commission, through an authorized repre
sentative, who, inturn, participated in the discussions by the Commission
ofthe report. The Mandates Commission, after discussion of each report,
would submit observations thereupon, both to the Council of the League
and to the authorized representative. The reports of the Mandatories also
were forwarded by the Commission to the Council, together with the
Commission's observations, together with any which the representatives
of the manda tory powers might wish to make and have endorsed thereon.
The Commission attached great importance to the questioning of
representatives of each Mandatory with regard to annual reports under
discussion. Recommendations and observations as well as criticisms
were made by the Commission directly to the manda tory power whose ad
ministration was under discussion. It may not be without a tinge of
irony that Respondent refers to these procedures as evidencing the
peculiarly special significance attached to the Permanent Mandates Com
mission in the form of experts to accomplish the purposes which I have
just described. Of course, Respondent draws different conclusions
from that premise but the premise, the description of the role of the
Permanent Mandates Commission, for which Respondent contends,
precisely corresponds to the description which I have just outlined and
which establishes with certainty the special requirements of the type
of administrative supervision, required under the Mandate, as compared
with reporting to the Secretary-General technique envisaged by Article
73 (e). Reports under Article 73 (e), as I have said, are transmitted to
the Secretary-Genera1 of the United Nations. The information is sum
marized by the Secretary-General and his sununaries and analyses are
transmitted to a committee established by the General Assembly for its
further consideration. The Committee originally known as the Ad Hoc
Committee was replaced in 1947 by the Special Committee on Informa
tion transmitted under Article 73 (e). This Committee later became
known as the Committee on Information from non-self-governing terri
tories. The Committee is authorized by the General Assembly to examine REPL Y OF MR. GROSS 133
the summaries and analyses prepared by the Secretariat and "To submit
such substantive recommendations as itmay deem desirable relating to
functional fields generally but not with respect to individual terri tories."
This is General Assembly resolution 993 (X), 8 November 1955. This of
course differs significantly as to both scope and procedure from the sys
tem of administrative supervision exercised by the League over Mandates.
As one scholar has observed:
"Unlike the Mandates Commission of the League of Nations or
the Trusteeship Council of the United Nations, the Committee on
Information does not examine the basic information transmitted on
each territory--0nly occasionally is it even referred to. The Commit
tee attempts to gain insight into trends, mainly through the sum
maries, analyses and special studies of the Secretariat and from
statements by experts in non-selfgoverning territories generally.
Since 1950 the Committee has given special attention in rotation
each year to educational, economic and social conditions."
1 quote again from Sady's book, The United Nations and the Promotion
of the General W el/are, the Brooking's publication to which I have already
referred-this quotation is from pages 885-886.
Mr. President, another measure of comparison between supervision
under the mandates plan and supervision under Article 73 (e) of the
United Nations Charter is the right of petition or as the scholar already
referred to,Duncan Hall, has described it: "the natural right of petition"
that phrase is used in the cited work of Hall, at page 198.
Under the mandates system, petitions by inhabitants of mandated
territories were submitted to the Secretariat of the League through the
mandatory governments, and petitions from outside the territories could
be sent directly to the chairman of the Permanent Mandates Commission.
In both cases, the Commission discussed the petitions, along with the
authorized representative, and the Commission's observations thereon
were reported to the Council. The manda tory powers submitted observa
tions on the petitions transmitted from, or with regard to, territories
under its administration.
On the other hand, Article 73 (e) of the Charter, both in wording and
in implementation and practice, made no provision for tqe right of peti
tion. When the United Nations, because of a default in reporting from
Respondent, granted a hearing to a petitioner from South West Africa,
the Organization not only went beyond the limited requirements of Chap
ter XI of the Charter, but established a form of supervision over the
mandated territory at least as extensive as the supervision formerly
exercised by the League of Nations in accordance with the League of
Nations Council Rules. The historical evolution has been such as to place
South West Africa under a specia:lregime of United Nations supervision
as a mandated territory, rather than as a colonial territory under the
more limited requirements of Article 73 (e) of the Charter.
The General Assembly thus has continued the development of its
special procedures for supervision of South West Africa, in the face of
Respondent's refusai to submit to supervision and the Assembly has
twice sought to and obtained the advice of this Court regarding the con
sistency of the elements of the procedure adopted with the criteria laid
down in the 1950 Advisory Opinion-! refer of course to the Advisory
Opinions of 1955 and 1956. All these Opinions have been accepted by ther34 SOUTH WEST AFRICA
General Assembly, although of course not by Respondent. Hence, it is
evident that the General Assembly has expressed in action its adherence
to the conviction, endorsed by the Court in 1950, that the General As
sembly is competent to apply a special system of supervision, a third
system, to the mandated Territory of South West Africa. The General
Assembly has taken care to follow the standards prescribed by the Court
in 1950 with regard to the nature and degree of international supervision
to be exercised.
It is submitted, respectfully, that all these considerations, to which I
have referred, directly and immediately are relevant to and support the
conclusion as set out in the first part of this response to Judge Jessup's
question.
However, it is essential, in the Applicants' view, for a full understanding
of the considerations to which I have addressed myself, to incorporate as
a part of the Applicants' response to Judge Jessup the material which I
shall now endeavour to lay before the Court, which shows the plan in
action and the events and transactions which, in the Applicants' view,
conclusively demonstrate that it was not the intention and could not
have been the intention of parties concerned to consider the mandated
territory of South West Africa to be within the purview of Article 73 (e).
vVhat I am about to say, therefore, Mr. President, will be part of the
response to Judge Jessup's question but will also comprehend the com
plete reply of the Applicants to the rebuttal on the issue of survival of
administrative supervision-this is necessary for a full understanding of
the Applicants' response to the learned judge.
The central intent expressed in the San Francisco Conference debate
and proposais, relating to dependent areas was to establish more effective
and more extensive international supervision of dependent areas than
had been the case under the League of Nations. This aim was implemented
by the formulation of Chapters XII and XIII of the Charter, to carry for
ward the ideas expressed in Article 12 of the League Covenant. On the
other hand, Chapter XI of the Charter including Article 73 (e) was de
signed to give fuller expression to the commitment contained in Article
23 (b) of the Covenant of the League of Nations; Article 23 (b) in this
sense was the precursor, the progenitor, ifI may put it that way, of Arti
cle 73 of the Charter of the United Nations. The mandates system was
the progenitor of the trusteeship system; Article 23 (b) of the Covenant
of the League was the progenitor of Article 73 ( e) of the Charter of the
United Nations.
The trusteeship system was intended, of course, to represent an im
proved version of the mandates system, and the Declaration regarding
non-self-goveming territories, Chapter XI, was conceived as the basis for
a more meaningful and effective international effort to deal with the
general colonial problem, as I have already said.
It is clear from the records of the San Francisco Conference that the
founders of the United Nations did not envisage that international
supervision over a mandated territory would be limited to, or satisfied by,
reports to the Secretary-General under Article 73 (e} of the Charter-!
have endeavoured to explain why the Applicants are forced to this con
clusion. Sub-sections (a) through ( d) of Article 73 represen t an advance
over the standards of the mandates system, but section (e) of Article
73 carries a less onerous obligation of accountability than was involved
in the mandates system. Mere reporting under Chapter XI would have REPLY OF MR. GROSS ,135
been a step backwards in the light of the type of supervision, and the
procedures attending it, provided for under the mandates system.
That the United Nations founders intended to continue international
supervision in so far as mandated areas were concemed is obvious, in
the Applicants' respectful view-obvious to the Applicants at least. The
proposals and discussions at San Francisco were entirely consistent in
that mandated territories were discussed solely within the context of
trusteeship; in so far as Chapter XI was debated at all, mandates were
never mentioned.
Thus, the "Working Paper" presented to the Conference by the five
major powers as a basis for discussion was divided into two sections;
the first was a general statement of policy applicable to all dependent
territories, whilethe second outlined a proposed international trusteeship
system. The general policy section of the paper did not mention man
dates; the trusteeship section included "territories now held under man
date" as one of the categories to which the trusteeship system itself should
apply. (UNCJO, Vol. IO, pp. 677-678.) The general policy section of the
"Working Paper" eventually became Chapter XI of the Charter; the
trusteeship section became Chapters XII and XIII-this was the fork
fo the road.
The "Working Paper'' was itself based on proposais made by the
United Kingdom, which are to be found in the UNCIO Documents,
Volume 3, pages 609-614. The British paper divided itself also into two
sections; the first dealt with general principles of administration in de
pendent areas and the second stated a proposai for a trusteeship system.
Immediately following the statement of general principles in paragraph 1
of the Proposals submitted by the United Kingdom, the statement
continues as follows and I quote from page 609, of the UNCIO, Volume 3:
"2. For certain territories in each of the categories mentioned
below, it is desirable to establish special machinery to ensure the
application of the principles stated in paragraph 1 of this Chapter.
These categories are-
(a) territories administcred by States Members of the United Na
tions under Mandate from the League of Nations;
(b) certain territories which as a consequence of the present war
may be removed from the sovereignty of Mandate of States
not Members of the United Nations;
(c) any other territory to which the special machinery prescribed
in this chapter may be applied voluntarily by the State under
whose sovereignty or protection the territory is administered."
Category (a) in the United Kingdom scheme, from which I have just
quoted, as in the Five Power Working Paper and in the text of Article 77,
as finally adopted, comprises a fmite and definite group of territories
the territories under mandate. Thus, these preparatory papers, as well
as the ultimate Charter provision, demonstrate clearly that the San
Francisco Conference was intent upon the application of the maximum
or optimum degree of international supervision to the mandated terri
tories. The debates in Committee 4 of Commission 2, Trusteeship, at
San Francisco, were entirely consistent with the ideas first propounded
in the British proposai, and to be found in the Working Paper. That is
to say, mandates were discussed in that Committee only within the
context of the proposed trusteeship system, and I refer to part B of the 136 SOUTH WEST AFRICA
Working Paper which formed the basis of the discussion in the Com
mittee, and not at all were they discussed within the context of the
general principles of colonial policy, which is part A of the Working
Paper, from which Article 73 emerged. There are no indications that the
Applicants have been able to find, despite most careful survey of the
matter, that the delegates were prepared to place the mandated terri
tories under the general principle section ofthe Working Paper, that is,
the section which eventually became Chapter XI of the Charter.
As the discussions of section A of the Working Paper continued, the
details of what then became Article 73 (a) through 73 (d) were gradu
ally filled in. On19 June 1945, the delegate for the United States of
America moved the adoption of a completely new sub-paragraph (e) in
the following terms:
"To transmit regularly to the Secretary-General for information
purposes, subject to such limitations 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 respon
sible,other than those to which Section B of this chapter applies."
(UNCIO, Vol. ro, p. 563.)
The delegate of Greece proposed, and the Committee agreed, to insert
the word "territories" after the word "those" in the passage I have just
quoted from the draft United States proposai. Sub-paragraph (e) was
then adopted without discussion and without dissent. I t seems clear
that this provision, which became Article 73 (e) of the Charter, was not
intended or designed to cover the requirements for international super
vision of mandates, inasmuch as those territories were expected to be
placed under the trusteeship system envisaged in section B of the
Working Paper, which would provide a supervisory arrangement corn-
. parable to, but even more extensive than, that of the mandates system.
The reference to territories "to which section Bof this Chapter applies"
obviously related to mandates. In fact, as already mentioned, Mr.
President, mandated territories were the only territories to which sec
tion B applied speci.fically,and section B, of course, became Chapters XII
and XIII of the Charter of the United Nations. The only clearly known
finite and identifiable territories which fell within scope of section B,
then under discussion in this context, were the mandated territories
themselves.
After the adoption by Committee 4 of sub-paragraph (e), the delegate
of Australia presented an analysis of the progress which had been made
in respect of the original text of the Committee's Working Paper.
According to the UNCIO Documents, Volume ro, page 563, the delegate
of Australia "stressed the importance of statistical information as a
measure of the progress of the inhabitants of dependent territories".
This supplies one more indication, the Applicants believe, that the
founders of the United Nations made no connection between mandated
territories and Article 73 (e) of the Charter. The information supplied
by mandatory powers, as has been pointed out in the earlier portion of
this response to Judge Jessup's question, went far beyond the require
ments imposed by Article 73 (e).
Accordingly, it is reasonable to assume that the "measure of the
progress", to which the Australian delegate referred, related not to REPLY OF MR. GROSS 137
mandated areas, but rather to other non-self-governing territories. There
would be little "importance" to be perceived in a requirement that
mandatory powers, who did not submit trusteeship agreements, would
become responsible or liable to a reporting system less significant than
that that they had been submitting to since the inception of the League
of Nations.
The view of the Australian delegation on these matters is significant
forat least two reasons, in the Applicants' view. First, it will be recalled
that Australia was of the opinion at San Francisco that the mandates
necessarily had to be placed under the trusteeship system. Thus, at the
second meeting of Committee Il/4, Trusteeship, on 10 May 1945, the
Australian delegate stated as follows (tlus is from a summary of the
record):
"The principal issue before the Committee, in his opinion, was
whether the application of the trusteeship system to territories
other than League Mandates and ex-enemy dependencies should be
left to the voluntary action of the powers responsible for their
administration. In the Australian view, a merely voluntary proce
dure was inadequate." (UNCIO, Vol. ro, pp. 428-429.)
In the view of the Australian delegate, therefore, at that time, there
seems to be no question concerning the appropriate disposition of the
mandated territories, other than by way of trusteeship. The same was
true of ex-enemy dependencies, in the Australian view. The only question
perceived by Australia was the application of the trusteeship system to
all other non-self-governing territories, and, even in this area, the
Australian delegate expressed the opinion that "a merely voluntary
procedure was inadequate".
Given the view that mandates must be placed under trusteeship, in
the sense which I have just described the Australian delegate's view,
then the "importance" which Australia attached to reporting under
section Bof the Working Paper could not be reasonably thought to have
referred to reporting by mandatory powers. The designation, or use of
the word "importance" in that respect would have been out of context
of the Australian views about the whole proposition.
It will be recalled also that the Australian delegation wished the
reporting requirement for non-self-governing territories, under section A
of the Working Paper, to be more onerous than the limited requirement
finally agreed upon. Thus, on 25 May 1945, Australia proposed a new
Part C to be added to the Working Paper, and paragraph 2 (a), of the
new Part C, is as follows:
"In order to give fuller effect to the general principles declared
in Section A, the General Assembly may specify territories in respect
of which it shall be the duty of the states rcsponsible for their
administration to furnish annual reports to the United Nations
upon the economic, social, and political development of the terri
tories concerned." (UNCIO, Vol. 10, p. 696.)
The Court will note the reference to the word "political", which was
omitted from the United States draft proposai, the one which became
Article 73 (e) of the Charter in its final form.
The Australian proposai, of course, was not accepted in the form in
which itwas proposed, and the reference to political reporting was, as I
have just said, de]eted from the final concept or notion. However, the SOUTH WEST AFRICA
138
Australian proposai demonstrates that if the reporting requirement for
mandated territories was thought to be more stringent even than the
proposai implicit in the new proposed Part C, then it would seem to
follow that it could not have been reasonably thought by the Australian
delegate that the reporting for mandatory powers could be less onerous.
In other words, in this attempt to establish the reasonable inferences to
be drawn from the Australian delegation's position at that time, these
considerations are respectfully submitted for what they may be worth
in the context and in the light of the Australian views as expressed at
that time, and the Australian approach toward the relationship of
Article 73 (e), the trusteeship system itself, and the importance, indeed,
the necessity, which the Australian Government then perceived that all
mandates should become trusteeships; and the only problem was with
respect to other non-self-governing territories: what would happen to
them? Article 73 (e), of course, is less burdensome than Australia would
have wished. The Australian Government at least-at least-wanted
those States administering non-self-governing territories to report on
economic, social and political developments, and the Australian delega
tion therefore could not have been satisfied to have mandated terri
tories, which itthought must corne under the trusteeship system, super
vised only under the limited obligations of Article 73 (e).
This analysis, Mr. President, is further supported by the comments
made by the Deputy Prime Minister of Australia, Mr. Forde, at the third
meeting of Commission II held on 20 June 1945. The Deputy Prime
Minister stated as follows:
"Although our proposai to include an obligation to report to
the United Nations on administration in colonial territories has
not been agreed to, a very important forward step which we sug
gested as an alternative has been adopted, namely: an obligation to
transmit regularly to the Organization statistics and other infor
mation of a technical nature relating to the economic and social
development of the inhabitants of non-self-governing territories ...
I regard the furnishing of statistical information as of great impor
tance. From that source we can obtain the facts as to the health,
nutrition, and labour conditions of the native people, and we shall
be able to ascertain therefrom what has been achieved in their
interest from time to time. This should result in a healthy com
petition between colonial powers for the achievement of better
conditions for all the peoples under their care. We believe that man y
practical achievements will flow from this part of the Charter, and
that the potentialities of the dependent peoples will have a much
wider scope for development."
That is from the UNCIO Documents, Volume 8, at page 136.
It will be noted that the Deputy Prime Minister referred in the
statement I have just quoted to administration in "colonial territories",
and to competition between "colonial powers". This indicates that he
perhaps had in mind the application of the reporting system envisaged
in Article 73 to the general run of colonies, not to mandates. Moreover,
the characterization by the Australian Deputy Prime Minister of Ar
ticle 73 (e) as "a very important forward step" seems to make it clear
that he could not have conceived of mandatory powers reporting
thereunder-that would have been a backward step in terms of the REPL Y OF MR. GROSS 139
content and scope of reporting. Article 73 was obviously intended to
be new and forward-looking; its progenitor was Article 23 (b) of the
Covenant. Although Article 73 (a) through (d) had its precedent in
that article of the Covenant, reporting itself was not as new and not as
rigorous as reporting under the mandate.
In the course of his remarks the Australian Deputy Prime Minister
characterized section A as finally adopted in the form of Chapter XI of
the Charter as-
".. .'tpe most important and far-reachlng joint declaration of
colonial policy in hlstory. lts significance for the future could
scarcely be exaggerated."
This was at the UNCIO volume, at page 135. Here again is evident a
concept of a new, a forward-looking, step, the significance of whlch to
the future could scarcely be exaggerated; but such a remark, Mr. Presi
dent, hardly seems to be consistent with a view that Article 73 (e)
would become the measure of the mandates' coverage with respect to
reporting, because that would be a stepping backward, a reduction of
the obligation of reporting on the mandates to the level stipulated in
Article 73 (e).
Yet another indication of this point came in the remarks of Mr. Peter
Fraser, the distinguished Prime Minister of New Zealand who, as the
Court will be well aware, was the Chairman of Commission II (4), the
Trusteeship Committee. Referring to sections A and B as finally adopted
by Commission II (4), Prime Minister Fraser stated:
"Might I quote from the Bible and say that in this document,
as in many others, 'The letter killeth and the spirit giveth life'.
It is the spirit in whlch it will be operated that will count."
That is from UNCIO, Volume 8, page 152. Prime Minister Fraser
went on to say:
"What we have been endeavouring to do-and I think we have
succeeded-is to point the way, although as Commander Stassen
[of the United States] pointed out, and I would underline, the
important thing is to take it. \Ve have built the road. The important
and essential thing is for all the nations who have mandated terri
toriesto take the road laid clown for the mandated territories, and
those who have other territories, colonial terri tories to do the same."
This is from UNCIO, Volume 8, at page 152; Mr. President, the fork
in the road: mandated terri tories down the one road; the other-the
colonial territories-down the long and vitally important road which
Article 73 (e) opened up with its significant vistas for the future of the
dependent territories.
Again one finds the distinction here, in what I have just quoted,
drawn between mandated territories subject to intensive international
supervision and other territories, colonial territories,subject to the
more limited requirements of Chapter XI. The Prime Minister, Mr.
Fraser, concluded with these remarks:
"... whatever difficulties there are, the rule that we v,ill be guided
by-1 know I speak for my own country, but I feel I speak also for
every country in a similar position-is that we have accepted a
mandate as a sacred trust, not as part of our sovereign territory.
The mandate does not belong to my country or any other country.140 SOUTH WEST AFRICA
It is held in trust for the world. The work immediately ahead is
how those mandates that were previously supervised by the Mandate
Commission of the League of Nations can now be supervised by the
Trusteeship Council with every mandatory authority pledging
itself inhe first instance as the test of sincerity demands, whatever
may happen to the terri tory afterwards, to acknowledge the author
ity and the supervision of this Trusteeship Council that has been
helped towards its formation this evening."
That is from page 154 of the same UNCIO Documents, Volume 8.
Mr. President, I had just read the remarks of the Chairman of Com
mittee II/4, the Trusteeship Committee, that is, the remarks of Mr. Peter
Fraser, Prime Illinister of New Zealand. This statement by the Chairman
of the Committee which I have just read, the very Committee which
drafted the provisions of Chapters XI, XII and XIII of the United
Nations Charter, is reveaüng.
First, it demonstrates that the authors of the Charter disclosed no
intention that any mandatory power would report only on the basis of
the limited scope of Article 73 (e). The clearly essential requirement
perceived by the authors of the Charter was the more thorough inter
national supervision inherent in the mandates system itself. .
Secondly, the reference in Prime Minister Fraser's statement to
"every mandatory authority pledging itself" sheds light on the pledges
made by the several mandatory powers in April of 1946. The statement
affords evidence that the pledges then made must have been intended to
include an acknowledgment of the supervisory powers of the United
Nations over mandated territories. I shall deal with this point later.
Thirdly, and perhaps most important, the statement by the Prime
Minister of New Zealand indicated that had the authors of the Charter
considered the contingency that a mandatory power might not place its
territory under trusteeship, they would have assumed that the United
Nations nevertheless would carry out the most extensive international
supervision of that Terri tory rather than rely upon the limited reporting
obligation under Article 73 (e).
The second half of Prime Minister Fraser's statement is a clear intima
tion that the founders of the United Nations may indeed have been
aware that such a contingency could occur. The South African delegation
to the Charter Conference had certainly indicated that, at least as a
possibility,to put it mildly. The response was to emphasize the need for
United Nations supervision of territories under mandate "whatever may
happen to the territory afterwards". That is from Mr. Fraser's statement.
Taken in conjunction with his emphasis upon the quotation from the
Bible "that the letter kiHeth and the spirit giveth light", it is clear that
the preference of the founders was for mandated territories to be subject
to the United Nations supervision, whether or not they were placed
under the trusteeship system. Hence the founders of the United Nations
evidenced in a clear manner the intention that mandated territories
should be subject to international supervision and they planned for the
inclusion of these territories in the trusteeship system.
There is no intention made apparent anywhere in the records, as far
as the Applicants have been able to discover, either to leave mandated
territories completely unsupervised internationally, as Respondent con
tends, or subject to the limited obligation of reporting under Article 73,
paragraph (e). REPLY OF MR. GROSS
141
Itwill be noted in this connection, and presumably will be dealt with
by Respondent in its reply to Judge Jessup's question, that it appears to
be common cause between the Parties that South \Vest Africa is not
within the scope or purview of Article 73 (e) of the Charter. This was,
as the Applicants stated in their earlier phase of these proceedings, why
the Applicants did not make argument in 1962 upon this question of the
construction of Article 73 (e) of the Charter and took the liberty to do so
in these Oral Proceedings in view of the obviously important question
of Charter interpretation thus presented.
The Chairman of the Committee which drafted Chapters XI, XII and
XIII of the Charter indicated that the intent and the preference of the
authors of the Charter was to place such mandated territories under
United Nations supervision "whatever may happen to the territory
afterwards".
Mr. President, I turn now to a consideration of the Preparatory
Commission procedures and the system of pledges. This also has a
bearing upon and direct relevance to the response to Judge Jessup's
question.
The debates in the Preparatory Commission confirm the attitudes of
the.authors of the Charter, as I have attempted to describe them. The
proposai for a temporary trusteeship committee indicated the importance
attached to international supervision of mandatcd territories, even prior
to the establishment of the Trusteeship Council. The proposal was
turned down essentially for the pragmatic reason that it might tend to
encourage delay in setting up the Trusteeship Council. ·
No one, however, so far as the Applicants are aware, disputed the
principle that the United Nations was competent to supervise mandated
territories until trusteeship agreements were entered into. Nor did
anyone argue that Chapter XI, that is to say Article 73 (e), providcd a
suffi.dent basis for such supervision.
Indeed South Africa, Australia and the United Kingdom, and this is
to be marked, these three Mandatory Powers were in favour of the
proposai for a temporary trusteeship committee. This appears from
PC/TC/2 at pages 4-5.
The South African attitude was clearest of all. Mr. Nicholls, the
South African dclcgate, stated that:
"... it seemed reasonable to create an interim body as the Man
dates Commission was now in abeyance and countries holding
mandates should have a body towhich they could report".
That statement was made on 29 November 1945, and is at page 4 of the
document I have just cited.
So far as the Applicants have discovered from a reading of the written
pleadings and attention to the Oral Proceedings, Respondent has not
made mention of Mr. Nicholls, or the statement which I have just quoted.
Mr. Nicholls has not found his niche in these proceedings.
This statement is worthy of emphasis. The statement illustrates the
importance which the founders of the United Nations generally, and
Respondent specifically, attachcd to international supervision of man
dated territories, prior to the conclusion of other agreed arrangements.
That is to say, the question was never one of supervision or no super
vision, asthe Applicants put it in the earlier phase of these proceedings
with regard to legal issues, so far _asthe founders of the United Nations SOUTH WEST AFRICA
were concerned and so far as Respondent itself was concerned. There
was a presumption of supervision over the Mandate until some other
arrangement was agreed upon and Mr. Nicholls' statement in the
Preparatory Commission of 29 November 1945 did not have, and could
not have had, any other significance.
Mr. Nicholls, speaking for South Africa, exp:i:essedthe view that the
mandatory powers were obligated to subject their administration of
mandated territories to the supervision of the United Nations. He was
so convinced of the fact, as appears from his own statement, that he
advocated the creation of an interim United Nations body to undertake
such supervision until the establishment of a permanent body. His
statement permits of no other construction.
Mr. Nicholls did not say that no United Nations supervision of the
mandates was necessary or permissible, he did not say that Chapter XI,
or Article 73 (e) of the Charter covered the situation, rather he said:
"countries holding mandates should have a body to which they could
report".
The fact that the Preparatory Commission of the United Nations
rejected this proposai in favour ofan alternative means for dealing with
the immediate situation can not be taken to imply rejection of the view
so clearly expressed by Respondent's delegate, Mr. Nicholls, that effec
tive United Nations supervision over mandated territories was a matter
of direct, immediate and urgent importance and must be continued
on an interim basis if necessary, prior to the creation of permanent
machinery.
Furthermore, the statement by the South African delegate and the
Preparatory Commission, apart from indicating what was Respondent's
attitude in 1945, also sheds light upon the several declarations made by
the· mandatory powers in April 1946 and also illuminates the final
League resolution of 18 April 1946.
The Preparatory Commission debates make clear that at least some of
the manda.tory powers, including Respondent, certainly Respondent,
wanted United Nations supervision of mandated territories and asked for
it, even before trusteeship agreements were entered into. This being so,
the declarations made by the mandatory powers in April 1946 must be
read in the light of the intentions of these powers as expressed at San
Francisco and in the Preparatory Commission.
Thus, the last part of the South African declaration of 9 April 1946,
read in the light of Mr. Nicholls statement in the Preparatory Commission
becomes quite meaningful. I should like, with the President's permission,
to quote briefly from the South African declaration of 9 April 1946.
"The disappearance of those organs of the League concerned with
the supervision of mandates, primarily the Mandates Commission,
and the League Council, will necessari!y preclude complete com
pliance with the letter of the Mandate. The Union Governmcnt will
nevertheless regard the dissolution of the League as in no way di
minishing its obligations under the Mandate, which it will continue
to discharge with the fulland proper appreciation of its responsibili
ties untilsuch time as other arrangements are agreed upon con
cerning the future status of the Territory." (League of Nations
Official Journal, Special Supplement I94, at p. 133.)
The meaning seems clear. Respondent in 1945 expressed the view,
through Mr. Nicholls, "it seemed rea~onable to create an interim body REPL Y OF MR. GROSS 143
as the Mandates Commission was now in abeyance and countries holding
mandates should have a body to which they could report". The United
Nations Charter, of course, was in existence.
On 9 April 1946 Respondent referred to the disappearance of the
League's superv1sory organs, and in its statement of 9 April said that
"The Union Government will nevertheless regard the dissolution of the
League as in no way diminishing its obligations under the Mandate ... ".
This was just a few months later than Mr. Nicholls' statement.
Reading both of these statements together it seems obvious that Re
spondent, at the time, expressed views entirely consistent with the
expectations of the authors of the United Nations Charter, including the
other mandatory powers, that is to say, to submit to international super
vision until other arrangements were concluded. If Respondent was of
the opinion that any mandate obligation had la'psed,there is no informa
tion in these proceedings to explain why they expressed a position to the
contrary. This of course relates to 1945 and 1946. We will find many
expressions to the contrary thereafter, that is true.
Another significant indication of Respondent's position at that period
isto be found in the events connecting a proposal for a temporary trustee
ship committec with the declaration made by the mandatory powers
in April 1946. This relationship has already been touched upon in the
analysis of the relation between Respondent's statement, Mr. Nicholls'
statement in November 1945, and the April 1946 declaration to which I
have referred and which figures in the Advisory Opinion of 1950 as well.
But further analysis of this event or transaction or series of declarations
is revealing.
As I have already noted, the authors of the Charter attached impor
tance to international supervision, even prior to the establishment of the
trusteeship system.
The historical record indicatesthat two basic methods were conceived
of by the founders of the United Nations. One was the proposal for a
temporary trusteeship committee, interim; the other was a proposai for
a set of pledges to be made by each of the mandatory powers. There
can be no question that these two proposais were linked to each other,
and that each was viewed as a method for ensuring international super
vision of mandated terri tories: this was their purpose. The second method
was adopted in preference to the first, that is the technique of pledges,
evidently because it was thought more in keeping with the spirit of the
Charter to minimize the delay in giving effect to the trusteeship system
than to develop arrangements, or risk developing arrangements, by the
establishment of an interim, formai supervisory system.
The idea of a pledge by the manda tory powers first became important,
obviously important, by reason of the speech made by Mr. Peter Fraser,
the Prime Minister of New Zealand, who, as I have said, was Chairman
of the Committee which drafted Chapters XI, XII and XIII of the
Charter. The concept of a pledge was taken very seriously and the series
of declarntions made by the mandatory powers at the final session of the
League of Nations was not merely a happenstance, it was not merely
coincidental; it was the result of thought and planning.
Although the pledge envisaged by Prime Minister Fraser was one which
would merely "acknowledge the authority and the supervision of the
Trusteeship Council" until other arrangements were concluded "what
ever may happen to the Territory afterwards", the pledge envisaged by SOUTH WEST AFRICA
the delegates to the Preparatory Commission shortly thereafter went
much further. The pledge would have required a declaration of willing
ness, on the part of the mandatories, to place mandated territories under
the trusteeship system. That was the original thought, or concept, of the
pledge. This would have been sufficient, of course, to ensure international
supervision of mandated territories, but only as of the time that those
terri tories were actually placed under the trusteeship system in a forrnal
ized way, that is, with a regularly constituted Trusteeship Council or other
mechanism to carry out the supervisory function which the mandated
territories, by such a pledge, would have agreed to submit.
The delegates at the April session of the League in 1946 made pledges
which were more in line with Prime Minister Fraser's conception-to
acknowledge the authority and the supervision of the Trusteeship
Council when it came to be formed.
Although such pledges involved no commitments to place mandated
territories under the trusteeship system, they nevertheless represented
explicit undertakings to carry out all the obligations of the existing man
dates. There could be no explicit pledgc to acknowledge the authority
and supervision of the Trusteeship Council, because at that time there
was no Trusteeship Council: its establishment depended upon a requisite
number of trusteeship agreements to be submitted and accepted.
There was, of course, nothing inconsistent in refusing to pledge that a
mandated territory would be placed under trusteeship and at the same
time pledging to carry out all the obligations of the mandate, including
international supervision, until some other agreed arrangement was con
cluded. Indeed, this must have been the point underlying Mr. Nicholls'
statement in November 1945 in the Preparatory Commission.
At the San Francisco conference, immediately prior to Mr. Nicholls'
statement to the Preparatory Commission, the South African Delegation
had reserved its country's position in so far as trusteeship was conccrned.
For the sake of completion of the record at this point I quote from the
Counter-Memorial, Il, at page 34:
"The Delegation of the Union of South Africa therefore daims
that the Mandate should be terrninated 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."
Itis not only for the sake of completeness but for the sake of balance
and fairness that I have put into the record, at this point, this statement
bythe delegation of the Respondent at San Franciso. However, in addition
it sheds light upon the developments with respect to the route taken via
the pledge system as distinguished from the route proposed to be taken,
but not taken, vja the temporary trusteeship procedure.
That the method of pledges or declarations must be read and under
stood together with the proposa! for a temporary trusteeship committee
seems clear, as I have said, but it is confirmed by a substantial portion
of the debates in the Preparatory Commission which linked these two
methods of ensuring international supervision of mandated territories.
The record abounds with examples: I shall take two or three representa
tive ones. For example, the Yugoslav Delegation, after stating that the REPL Y OF MR. GROSS 145
difficulties inherent in the dissolution of the League "could be overcome
in the spirit of the Charter without the formation of a temporary trustee
ship committee", went on to make a recommendation towards this ob
jective as follows:
"Of the three catcgories of territories mentioned in Article 77 of
the Charter, the territories under Band C remain uncertain [that is
Sections Band C of the paper]. Only the territories under A, manda
ted territories, are certain.
This delegation is of the opinion that a necessary step would be
the adoption by the Preparatory Commission of a recommendation
to the first part of the first session of the General Assembly, to in
vite the mandatory powers who are members of the United Nations
to submit declarations of their willingness to put the territories over
which they have so far been acting as administering authorities to
the trusteeship system of the Charter, and at the same time to make
known which powers they consider as States directly concemed with
these territories." (PC/TC/4, p. 8.)
The Yugoslav proposai included the following:
"An ad hoc Committee of the General Assembly to examine these
declarations of the present mandatory powers could usefully be
formed. After the Security Council or the General Assembly had
approved the agreements a TrusteeshipCouncil could then be formed.
The need for a temporary trusteeship committee would thus be elimi
nated." (Ibid., p. 9.)
The foregoing statement hy the Yugoslav delgate on the Committee
evidences the view of the founders of the Organization that the proposals
for a temporary trusteeship committee, and for a series of declarations
or pledges, were techniques for ensuring continued international super
vision of mandated territories. The true significance of the declarations
made by the mandatories in April 1946 thus can be dearly and fairly
appreciated only when viewed in this historical context of the perceived
relationship between the proposais for pledges on the one hand, and the
proposais for a temporary trusteeship committee on the other hand, and
the juxtaposition of the two as viewed by the founders of the Organiza
tion.
Another strong indication of the validity of this proposition-that the
United Nations founders linked the temporary trusteeship committee
idea with the notion of pledges-is found in a statement by the New Zea
land delegate who said:
"The Trusteeship Councii could be set up on receiving a sufficient
number of declarations of readiness to place territories under trustee
ship and he [that is the New Zealand deiegate] hesitated to agree
that a temporary committee of any kind was necessary." (PC/TC/32,
p. 25.)
In other words, inasmuch as international supervision of mandated
territories wouid commence in any event upon the reception of a suffi
cient number of declarations, the specific machinery of a temporary
trusteeship committee was viewed by the New Zeaiand Deiegation as
unnecessary. And simiiariy, other delegations: among them may be
cited the Soviet Union. The Soviet Government was opposed to the idea
of a temporary trusteeship committee and favoured the Yugosiav pro- SOUTH WEST AFRICA
posal instead. Thus, the Soviet representative, Mr. Gromyko, stated:
"He was not surprised that the manda tory powers were in favour
ofsubstitute organs, but if the problem were dealt with along these
lines discussion could continue for months or years wJthout any
action being taken. It was, however, unnecessary for him to repeat
the reasons which he had given on many previous occasions why it
would be wrong to establish substitute organs. If the mandatory
powers really adhered to the Charter, they should corne to the
General Assembly and state that they were to place territories under
trusteeship, and at the same time present trusteeship agreements."
That is the summary of Mr. Gromyko's remarks in PC/TC/32 at page 26.
Likewise, the distinguished delegate of China stated as follows:
"The Chinese Delegation also wanted the mandatory powers to
declare their intentions of placing the mandates under the trustee
ship system."
That appears at the same page. He stated further that-
"... use should be made of the main Trusteeship Committee of the
General Assembly, thus leaving the question of a temporary or ad
hoc committee for the General Assembly itself to decide''. (PC/TC/32,
p. 27.)
Thus, the link between the temporary trusteeship committee proposa!
and the concept of pledges is evident. There was general agreement that
the mandated territories should be under international supervision. The
mandatory powers wanted that supervision to be carried out by an inter
im or temporary body prior to the establishment of the Trusteeship
Council. Mr. Nicholls said so.
This clearly was Respondent's position at that time. However, other
governments feared that this procedure would lead to delay in the estab
lishment of the trusteeship system and pressed for pledges by the man
datory powers to place these territories under the trusteeship system.
What occurred historically, upon the Applicants' careful analysis, was
a compromise between these two positions. That is, pledges were made
but not pledges to place the mandated territories under the trusteeship
system: rather, the pledges were to carry out all the obligations of the
mandate, including the obligation to submit to international supervision,
the essence of the mandate, until other agreed arrangements could be
made.
This is the answer to the problem posed by the Respondent's sugges
tion that 1945 and 1946 events are consistent only with, or even reason
ably consistent with, the proposition that the essence of the mandate
somehow became excluded along the road.
Viewed in this context, and from this historical perspective, the pur
pose of the declarations made by the several mandatory powers in April
1946 becomes crystal clear. Pledges had only been made as a means of
ensuring the continuancc of international supervision, and were undoubt
edly made with the same problem in mind. The Nicholls' statement of
29 November 1945 and Respondent's declaration of 9 April 1946, a few
months later although not so explicit, form part of a consistent pattern
of behaviour by the manda tory powers generally, including Respondent.
The pattern was to reject the idea of making an unqualified pledge that
the mandated territories were replaced under trusteeship. REPLY OF MR. GROSS 147
Of course, the South African Government had indicated its reluctance,
if that is the right word, to do so-to take such a step-but the pattern
was to pledge, without qualification, not that the rnandated territories
would be placed under trusteeship, but, ail the mandatories would agree,
in the meantime, to carry out ail the obligations inherent in the mandates
system, including its very essence-international supervision.
This interpretation, Mr. President, appears consistent with the entire
historical trend, which has been rnentioned repeatedly in these proceed
ings, and, more particularly, this rnorning-the entire historical trend
concerning the relationships between administering States, dependent
peoples and international organizations, which had begun with the in
ception of the League of Nations itself. As I have said, Chapter XI of the
Charter was an expansion and an elaboration of the obligations contained
in Article 23 (b) of the Covenant of the League. The trusteeship system,
Chapters XII and XIII, were an expansion and development of Article
22 of the League of Nations Covenant.
These were the respective progenitors, as I have tried to point out, of
these two notions of Chapter XI in the general colonial area, and Chapters
XII and XIII-the extension and broadening of the mandates system.
The consistent direction of the historie trend has been towards more
international supervision of the administration of dependent peoples,
and never towards less supervision, towards dirninished obligat10n. Re
spondent is the only State in the world, of which the Applicants are aware,
which has attempted, by reason of what the Court in 1950 called "an
erroneous conception of the legal position created by the dissolution of
the Leagne", to resist the trend of the historical development in the di
rection of increasing supervision by the international community over
dependent peoples, and the Respondent has resisted a trend, by reason of
its mistaken legal position, as in the terms of the 1950 Opinion, notwith
standing the opposition of l\1embers of the United Nations-the huge
generality of the membership--expressed in repeated resolutions and in
the actual assumption by the United Nations of supervisory powers over
this Mandate itself.
This historical perspective demonstrates also the incorrect nature of
Respondent's analysis of the events of the period in question, which in
correct analysis emerged most clearly and vividly in Respondent's re
buttal during the course of these Oral Proceedings. The rejection of a
proposai for a temporary trusteeship committee, far from being a new
fact, which would have caused the Court in 1950 to corne to a different
decision, as Respondcnt maintained in 1962 and is reaffirming here, actu
ally furnishes evidence which reinforces the 1950 Opinion in the light of
the historical perspective and analysis which I have endeavoured to lay
before the Court.
As I have already noted and as the record makes clear, the temporary
trusteeship committee idea was favoured by the mandatory powers, in
cluding the Respondent-and it was supported by them. Its rejection
and the substitution of a pledge to carry out ail the obligations of the
mandates until other arrangements were agreed-a pledge which fell
short of the pledge to place mandated territories under trusteeship, as
advocated by the Soviet Government and others, to which I have referred
-cannot reasonably be interpreted as a rejection of United Nations
supervision of mandates prior to the conclusion of trusteeship agreements.
The fact is that the temporary trusteeship comrnittee proposai was re- SOUTH -WEST AFRICA
jected as inadequate, notas going too far and as threatening to interpose
a factor which might encourage, or permit, delay or stalling in the devel
opment of the trusteeship system itself. The defeat of the temporary
trusteeship comrnittee idea, therefore, reflected the conviction that the
most urgent thing, to which all efforts should be directed, was to expedite
the establishment of the Trusteeship Council so as to minimize or obviate
the necessity for temporary supervisory machinery. It was rejected be
cause the majority view, which was evidently not shared by allthe man
datory powers, and certainly not shared by Respondent, was that it
would hinder, rather than ensure, international supervision of mandated
territories. This was not felt to be the case in respect of the system of
piedges, and hence that technique was adopted for the same purpose and
to the same end.
Respondent's attitude before the PreparatoryCommission, asexpressed
by Mr. Nicholls' statemcnt, demonstrates that in 1945 Respondent had
no doubt as toits obligation of international accountability, and it was
not simpiy, as Respondent has since corne to state, an obligation to report
to a specificorgan of a specificorganization, with specificmembership.
Mr. Nicholls' statement that Respondent and other mandatory powers
"should have a body to which they could report", notwithstanding the
demise of the League, shows clearly the recognition by Respondent of the
true basic nature of its obligation of international accountability under
the mandates system.
The heart of Respondent's argument regarding the work of the mem
bers of the Preparatory Commission seems to lie in Respondent's state
ment that-
"... the indications are that they considered that there was no
provision in law foranysuch supervisory power on the part of United
Nations organs-no provision for any machinery in tha t regard-and
that if there was a desire to exercise such supervision, spccial pro
vision had to be made for it. That indication is apparent from a
number of circumstances, including the very wording of these pro
posals that were made in regard to a possible temporary trusteeship
committee." {Vffi, pp. 386-387.)
Again, Respondent stated that-
"... everybody concemed knew there was no express provision for
any supervision of mandates in the Charter, and if there was any
intent to have supervision of that nature, then special provision
would have to be made for it". (Ibid., p. 387.)
I think this fairly distils or reflects the heart of Respondent's argument in
this respect, in any event, soit is understood by the Applicants.
Now, of course, these statements by Respondent which I have quoted
are purely speculative and opinion, not to be ignored for that reason,
but they are supported by no evidence whatever. The fact that provisions
for the United Nations supervision were drawn up, and advocated by
the mandatory powers, and then rejected in the temporary form as
having a lower priority than measures designed to expedite the forma
tion of the trusteeship system, would point more toward the inference that
the founders believed that the United Nations could assume supervisory
powers over mandates if that should prove necessary, in exceptional situ
ations, and hence that no special provision was required. This is a more
reasonable inference than Respondent's. In fact, that appears to the REPL Y OF MR. GROSS
Applicants to be an understatement. It is an inference which seems to be
compelled by the events and transactions themselves, by Respondent's.
statements at the time, Mr. Nicholls' and the later declaration, and by
the trend of hlstorical events which are so manifest from the record of
the proceedings of San Francisco. The "special provision regarding ex
ercise of supervision", to use Respondent's phrase, was dropped for rea
sons having no relevance whatever to the broader question of United
Nations supervision vel non of mandates. Indeed, fo so far as there was
any bearing on the issue of United Nations supervision, the rejcction of
the proposai for a temporary trusteeship committee indicates rather
more, than it does less, the interest of the United Nations in maintaining
intact the principle of international supervision, and carrying it forward
into implementation and practice in the new trusteeship regime as rapidly
as possible. To conclude that the essence of the Mandate was excluded
along the avenue of this approach seems to the Applicants amisreading
of the events and transactions and undertakings of the period. There is.
no inconsistency between the decision of the United Nations at that time
not to create temporary machinery for supervision of mandated terri
tories, as suggested by Respondent and other mandatories, and its sub
sequent action in developing special supervisory machînery for the man
da ted Territory of South West Africa.
The former decision {that is the decision not to establish a temporary
trusteeship commission) reflected the hope that prompt conclusion of
trusteeship agreements would render an interim body unnecessary, not
withstanding the expressed reluctance of South Africa to submit a trust
eeship agreement. The United Nations has, nevertheless, persistcd for
years to try to persuade Respondent to change its mind. They have never
given up the hope, but the decision not to establish a temporary Commis
sion based upon that hope is certainly no evidence that international
supervision fell by the wayside-fell away somewhere along the route
or that it was replaced, or that it would take the form of the more limited
provisions and scope of Article 73 (e), for which nobody who participated
in these matters (nobody at San Francisco and now the Respondent it
self) contends for.
The special machinery, on the other hand, for supervising a rcsidual
mandate had become necessary, contrary to the hopes earlier entertained
that no such special, or third, system would be necessary. It was not
within the range of practical consideration at that time, because the
practical consideration was to get the job done, set up the Trusteeship
Council as rapidly as possible, hope that all mandatories including South
Africa would submit trusteeship proposals, and not interpose any ma
chinery, or procedures, which might work toward delay, or toward stalling
tactics.
The United Nations, therefore, never confronted any problem in terms
of the majority of the Organization when it became manifestly clear,
after negotiations over a long period with Respondent, that a special
third system had to be devised to meet this unique residual situation
which could not be cured through the diplomatie processes of negotiation
and persuasion.
The United Nations simply refrained from exercising its competence
to provide such a special method until events demonstrated the necessity
for the action, and, of course, the Court in 1950 fully confirmed the judg
ment and the power of the General Assembly in that respect. SOUTH WEST AFRICA
The inconsistency lay on the sidc of Respondent which originally
asserted in 1945, through Mr. Nicholls, that the creation of a temporary
body to implement the accountability of mandatories was necessary.
Respondent, of course, bas since reversed itself to argue that the crea
tion of such supervisory machinery was impermissible-that the ad
ministrative supervisory authority had lapsed. If Respondent's analysis
isto be taken seriously, it must mean that the founders of the United Na
tions were content, as I have remarked, to permit dependent peoples,
already under mandate, to lose the benefi.t of international supervision
which had been theirs since 1920, since not even Respondent in 1945 or
r946 argued that the United Nations had no supervisory powers over
South West Africa, and indeed, actually affirmed the necessity for super
vision even in temporary form. Respondent's present analysis, to the
contrary, does violence both to its own earlier and more meritorious
position, as well as to the entire historical development beginning with
the League of Nations itself.
Mr. President, Respondent presents a similar analysis with regard to
the work of the Preparatory Commission. At VIII,page 382, Respondent
argues as follows :
"... the fact that there was no such provision [that is for United
Nations' supervision over Mandate} has got not only a negative
value but also has a positive value. It has the positive value, I sub
mit, of showing by inference that that question was deliberately
avoided-that the decision to have no agreement in that regard was
a deliberate decision."
Stated this way, that of course begs the question-the question is what
it was deliberate about, what the deliberate nature of the decision cen
tred on. The fact that the Preparatory Commission rejected this specific
provision for supervisory machinery for obvious reasons of expediency
and policy, read in the light of the views of the mandatory powers, in
cluding Respondent, that there should be such machinery until other ar
rangements were concluded, is consistent with the inference that the
members of the Preparatory Commission felt that there was no need for
special provision and that the United Nations, if it wished and if it be
came necessary, would assume powers of mandate supervision in residual
and exceptional situations, which is precisely the case presented by
South \Vest Africa and, as I have said, no one ever spoke against United
Nations supervision over mandates in r945 or in 1946; Respondent's
representative, to the contrary, Mr. Nicholls, exphcitly favoured it.
Hence, as we have already noted, the relationship between South African
support for the temporary trusteeship committee and the South African
pledge to the League of 9 April 1946 become very meaningful, and pre
cisely the same pattern may be seen in the pledges made by each of the
other mandatory powers.
However, Respondent, in its rebuttal, has sought by dissection, the
process of dissection, of these declarations, to minimize their significance
in sundry ways, e.g., in an analysis by Respondent of the pledge made
by the United Kingdom Government, Respondent argues that if it were
intended to submit to supervision by the United Nations then-"the
question immediatcly arises, why did he not say so? Why did he use these
vague general words 'in accordance with the general principles of the
existing mandates'?"-this is the question posed by Respondent quoting REPLY OF MR. GROSS
the "vague general words", in Respondent's description, used by' the
British delegation at that time. I have just quoted from VIII,at page 394.
Surely Mr. President, the more pertinent question would be if the
United Kingdom representative considered that every mandate obliga
tion remained binding with the single exception of the essence of the
mandate and its continuance of international supervision, then why did
he not say so? The logical form of the question is to the contrary of the
way it is posed by Respondent-the phrase "general principlcs" is not
properly to be read as excluding the very essence of the mandate, the
obligation of international accountability-if he was agreeing to anything,
if he was pledging anything, he was pledging to follow the essence of the
mandate. Respondent relies also on the fact that the United Kingdom
pledge used the phrase "continue to administer these territories"-the
stress is on the word "administer". The argument made by Respondent
in its rebuttal is that the word "administer" refers to interna! adminis
tration only and not, in the words of Respondent "to anything falling
outside the concept of administration, such as the concept of account
ability"; that is from the same verbatim report at VIII, page 394.
No evidence whatever is given by Respondcnt to support such an
interpretation and indeed, the word "administer", it is submitted, can
not fairly be read out of context of the phrase in which it is included:
"continue to administer these territories in accordance with the general
principles of the existing mandates". On the contrary, this must rcason
ably be read as a pledge to administer the Mandate under the super
vision of competent international organs and in accordance with each of
the obligations of the Mandate including international supervision
there is nothing implicit in the word ''administer", particularly in this
context, to suggest exclusion of international supervision.
[Public hearing of IO May I965]
l\frPresident and Members of the honourable Court, at the conclusion
of the Oral Proceedings on 7 i\fay 1965 the Applicants were referring to
Respondent's interpretation of the United Kingdom pledge in April of
1946 to "continue to administer" (the mandated territories, that is)
"m accordance with the general principles of the existing mandates".
That was quoted in the verbatim record on this page above. Respondent,
by a process of verbal shredding, urges upon the Court that the word
"administer" in this context is pregnant with significance. Respondent
asks rhetorically why the United Kingdom pledge related the phrase
"general principles of the existing mandates" merely to the word "ad
ministrat10n" of the Territory. "The concept of administration", in
Respondent's phrase, excludes "the concept of accountability or the
rendering of reports"; that is from the verbatim record, VIII, page 394.
Hence Respondent concludes, and I quote from the same verbatim record:
"If the intention was to comply in full with all the obligations pre
scribed in the varions British mandates, including an obligation of
accountability, then surely, Mr. President, the words 'in accordance
with the general principles of the ... mandates' would have been
inappropriate. They would not have been used."
Respondent then goes on to argue that if the United Kingdom had
contemplated survival of the obligation of accountability, it is to beI52 SOUTH WEST AFRICA
expected that the United Kingdom would have adverted "to the problem
which would arise by reason of the fact that the only supervisory body"
(that is, the Permanent Mandates Commission) "would cease to be in
existence". Hence, Respondent reminds the Court, and I quote again
from the same verbatim record:
"... the wording was confined to the question of administering these
territories, and the basis upon which that was to occur, was said to
be 'inaccordance with the general principles of the existing mandate'.
The wording of that statement itself, Mr. President [says Respon
dent], is therefore, in my submission, destructive of the Applicants'
contention." (VIII,p. 395.)
In light of fact, Mr. President, that the Applicants' contention is
nothing less than that international accountability, the essence of the
Mandate, survived the League's dissolution, Respondent's argument boils
down to the proposition that the United Kingdom, then responsible for
the administration of five mandated territories-lraq, Palestine, British
Togoland, British Cameroons and Tanganyika-envisaged and intended
its pledge in April of 1946 as excluding the obligation of international
supervision which this Court has described as "the very essence of the
Mandate", in the words of the 1962 Judgment, at page 334; in light of the
fact that the United Kingdom, along with Australia and South Africa
itself, expressed inthe Preparatory Commission support for the creation
of a temporary trusteeship committee, Respondent's interpretation of
the phraseology employed in the British pledge made only a few months
later is inherently incredible. The attitude of these three mandatories
which I have mentioned has been described in the verbatim record, 7 May
1965, at page 14r, supra. Respondent's construction of the intent of the
British pledge is, of course, relevant to Respondent's contention con
·cerning the limited scope of its own pledge, which was couched in similar
terms. Respondent's pledge in April 1946, indeed, was fonnulated even
more explicitly than the British pledge. Respondent then pledged, inter
alia:
"The Union Government will nevertheless regard the dissolution
of the League as in no way diminishing its obligations under the
Mandate, which it will continue to discharge with the full and proper
appreciation of its responsibilities until such time as other arrange
ments are agreed upon concerning the future status of the Territory."
(League of Nations Official Journal, Special Supplement 194, p. 133,
9 April 1946.)
The Advisory Opinion of this honourable Court in 1950 quoted the lan
guage I have just placed into the record, along with other declarations
made by the Respondent, and the Court concluded:
"These declarations constitute recognition by the Union Govern
ment of the continuance of its obligations under the Mandate and
not a mere indication of the future conduct of that Government."
(I.C.J. Reports I950, p.135.)
The history and purpose of the pledging procedure, read in the light
of the rejection of the Mandatory's proposai for a temporary trusteeship
<:ommittee, has been set out by the Applicants in some detail in the
verbatim record at pages 140, su,pra, and following. Respondent, however,
does not rest its construction o( the British pledge solely upon a strained REPL Y OF MR. GROSS 153
interpretation of the terms of the pledge itself. Respondent goes on to
argue in the verbatim record of 5 April (VIII) that its interpretation of
the wording of the British pledge is confinned by the actions of the
United Kingdom during the following year in relation to the question of
Palestine; this is set out at page 395 (VIII) of the verbatim record.
The Applicants shortly will deal with the actual significance of the
procedures attending the solution of the long and diffi.cult problem of
Palestine.
This honourable Court will be well aware of the complex issues which
confronted the United Nations in respect of this matter, as well as the
tragic events with which the road to solution was strewn. It is enough
at this point merely to say, for reasons which we shall endeavour to make
clear, that the United Kingdom not only consented ta but, with under
standable anxiety, insisted upon a full role for the United Nations in
supervising and directing the disposition of the Palestine Mandate.
United Nations activities, however, were rooted in the supervisory
powers of the mandate instrument. Respondent's construction of the
United Kingdom pledge of April 1946 not only is erroneous in the
Applicants' submission, but indeed does injustice to the actual British
attitude which at all times was marked by acknowledgement of the
continuance of its obligations of international accountability with
respect to all its mandates pending conclusion of other agreed arrange
ments. Only in the case of the Palestine Mandate, upon which Respon
dent placed unusually heavy reliance, did a special problem arise which
called for an extraordinary regime of supervision, far transcending
normal mandate procedures. The events and transactions which have
been described, including the juxtaposition of the proposa! for a tempo
rary trusteeship committee made by three mandatory powers including
the Respondent, and the pledging procedures-this juxtaposition sheds
light on the true significance also of the League of Nations resolution
of 18 April 1946, paragraph 4 of which took note-
"of the expressed intentions of the Members of the League now
administering territories under mandate ta continue ta administer
them for the well-being and development of the peoples concerned
in accordance with the obligations contained in the respective
Mandates until other arrangements have been agreed between the
United Nations and the respective manda tory Powers". (I,pp. 42-43.)
The phrase "expressed intentions" in the resolution of 18 April 1946
refers to pledges, and that word was used in several of the statements
made at the time; to the pledges which ea"chof the mandatory powers
made pursuant to a plan and design which was chosen in preference to
the proposai for a temporary trusteeship committee to which they would
have reported until other arrangements had been agreed between them
and the United Nations-that was the plan.
Except for the Territory of South West Africa itself, such "other
arrangements", in the words of the18 April resolution, in fact have been
agreed upon in the case of every one of the territories which were under
mandate in 1945. In the case of South West Africa alone it has proven
necessary ta create a system of supervision appropriate to the sacred
trust, a third system as I have called it, alongside the trusteeship system
and the reporting requirements of Article 73 (e) of the United Nations
Charter.:154 SOUTH WEST AFRICA
Mr. President, I revert now to consideration of the true significance
,of the pledge given by South Africa on 9 April 1946, which the Court
in 1950 interpreted as "recognition by the Union Govemment of the
,continuance of its obligations under the Mandate", that is to say, an
undertaking rather than a mere revocable statement of intention.
Respondent, indeed, does not rest any part of its case upon the premise
that it expressed any intention whatever, present, or revocable, or
otherwise, with respect to the matter of continuing accountability. To
the contrary, Respondent contends that an inference is to be drawn
from the events and transactions of that period, to the effect that the
-obligation of ail mandatories to submit to international supervision
lapsed by force of the termination of the League, and that happened as a
matter of law, and that no pledge given was intended to carry on the
obligation of international accountability; that is the stand of the
Respondent.
And Respondent at the same tirne has, of course, continued to retain
the rights derived from the Mandate, a position which, the Court held
in 1950, could not be justified.
During the Oral Proceedings of 5 April 1965, Respondent sought to
.bolster the contention that its pledge of 9 ApriI\}46was not intended to
.signify recognition of the continuance of its obligation of international
.accountability. In the oral argument on that day, reported in the
verbatim record, VID, page 396, Respondent placed reliance upon the
.following phrase in its pledge:
"In the meantime the Union will continue to administer the terri
tory scrupulously in accordance with the obligations of the mandate,
for the advancement and promotion of the interests of the inhabi
tants, as she has done during the past six years when meetings of
the Mandates Commission could not be held."
Laying stress on the clause, as she has done during the past six years
when meetings of the Mandates Commission could not be held, Respon
·dent argues that inasmuch as no reporting occurred during the period
·when the Permanent Mandates Commission could not meet, its pledge
was intended merely to relate to an unsupervised obligation to promote
the material and moral well-being and social progress of the inhabi
tants. This may be called the spirit of the mandate concept, according to
which Respondent's highest officiais have ever since continued to ad
minister the Mandate on the basis of self-enquiry and self-appraisal.
Respondent's argument, set out in the verbatim record, VIII, pages 396
and following, proceeds along the following lines. Respondent quotes the
second paragraph of its pledge of April 1946, which reads as follows
(thisis from the League of Nations Official Journal, Special Supplement
.No. I94, p. 33):
"The disappearance of those organs of the League concemed
with the supervision of mandates, primarily the Mandates Com
mission and the League Council, will necessarily preclude complete
compliance with the letter of the mandate. The Union Govemment
will nevertheless regard the, dissolution ofhe League as in no way
diminishing its obligations under the mandate, which it will con
tinue to discharge with the full and proper appreciation of its
responsibilities until such time as other arrangements are agreed
upon concerning the future status of the territory." REPL Y OF MR. GROSS r55
The quoted language, Mr. President-even read by itself, without
reference to Mr. Nicholls' statement of November 1945, proposing,
urging the establishment of temporary machinery to which Respondent
might report--draws no distinction whatever between the two inter
dependent groups or kinds of obligations, to wit, those which corres
ponded to the sacred trust, in the words of the 1950 Opinion, and those
which corresponded to the securities for the performance of the trust.
Despite this, Respondent argues that the second paragraph just quoted
from the pledge, read in the light of the earlier reference to the period
during which the Mandates Commission did not meet, clearly indicates a
contemplation that there would be no accounting or reporting under the
Mandate in this interim period to which the statement of intent relates.
That is Respondent's statement in the verbatim record, Vill, at page 397.
The second sentence of the quoted paragraph, in which Respondent
pledged that it "will nevertheless regard the dissolution of the League
as in no way diminishing its obligations under the mandate", Respondent
contcnds isto be taken as relating only to obligations regarding adminis
tration of the Territory and excluding obligations to account and report.
Such a construction, which the words themselves do not bear, is ex
plained by the Respondent by reference to the first paragraph of the
pledge, the phrase relating to the period during which the Permanent
Mandates Commission could not meet, when their meetings were in
abeyance.
Mr. President, this exercise in semantics does not kill the spirit by
the letter; it ignores both spirit and letter, and in addition it ignores
Mr. Nicholls and his statemcnt of November 1945.
Respondent throughout this phase of its rebuttal, as in its written
pleadings, centres its argument on the question why should it have
acknowledged accountability in view of the absence of United Nations
supervisory machinery at that time, and in view of its announcement in
San Francisco of an intention to take up at the Peace Conference the
matter of the termination of the Mandate. Respondent makes this point
at VIII, pages 398 and 399 of the verbatim record to which I have
referred.
In the Applicants' respectful view the question answers itself. Respon
dent's Government at that time, as Respondent now concedes, con
sidered that the Mandate would survive the dissolution of the League as
a matter of law. Respondent, along with the other mandatories, in
cluding the British Govemment, suggested the establishment of interim
machinery to which to report. Mr. Nicholls, indeed, urged such a course
upon the Preparatory Commission. Instead, a pledging procedure was
devised for the purpose of assuring that all legal obligations would
remain intact until substitute arrangements had been agreed with the
United Nations.
Article 80, paragraph r, of the Charter confirms the understanding
of the authors of the Charter that all such obligations would survive,
although, as has been said, the Article is a saving clause and does not in
itself maintain or create any rights or obligations. But it does, in the
Applicants' view, confirm that the authors of the Charter assumed
that rights would remain in existence until other agreements were
concluded, and it was hoped, of course, that these would be trusteeship
agreements.
Above all, the two groups of mandate obligations~administration SOUTH WEST AFRICA
.and accountability-were inseparably linked in Article 22 of the Cove
nant, as parts of a designed and integrated whole. Respondent adduces
no evidence and, indeed, there is none to adduce, showing that any
Member present at that time drew any distinction between the two
groups of obligations. On the contrary, the assumption obviously was,
and must have been, that they stood or fell together: there is no evidence
to the contrary.
Respondent in its second alternative argument, to wit, that the lapse
-ofArticle 6 must collapse the Mandate as a whole, demonstrates aware
ness of this very basic proposition, the inter-related, inter-dependent
nature of these two groups of obligations. In support of its interpretation
-0f its pledge, Respondent again cites the United Kingdom pledge as
-confirming Respondent's present interpretation of its own pledge. This
is in the verbatim record already cited at page 398.
Indeed, Respondent in this part of its argument goes even further
than before. Respondent explores probabilities and then asks, rhetori
-cally,
"Why should the South African delegation alone, of all the man
datory powers, have manifested an intention of that kind? I have
indicated a clear intent to the contrary on the part of the British
delegation, and I shall proceed to indicate a clear intent to the
contrary on the part of the New Zealand, the French and the
Australian delegations, the Belgian delegation's statement being
neutral on this particular point." (VIII, p. 399.)
The concession to Belgian neutrality, so-called, is not quite generous
-enough. The Belgian pledge, indeed, included the following declaration
from which I quote-this is from the summary-
"In the course of the same declaration of 20 January we ex
pressed our confidence that the Trusteeship Council would soon
corne to occupy in the United Nations Organization the important
place which it deserves. \Ve can only repeat that hope here and
give an assurance that pending its realization, Belgium will remain
fully alive to all the obligations devolving on Members of the
United Nations under Article So of the Charter." (League of Nations
Official Journal, Special Supplement No. r94, p. 43.)
No distinction is drawn or implied between the two groups or kinds of
inter-related obligations.
For its part, the Australian Government's pledge stated, inter alia:
"Until the corning into force of appropriate trusteeship agree
ments, under Chapter XII of the Charter, the Government of
Australia will continue to administer the present mandated terri
tories in accordance with the provisions of the mandates for the
protection and advancernent of the inhabitants. In due course these
territorieswill 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 Assem
bly today, but also by the explicit international obligations laid
down in Chapter XI of the Charter." (Ibid., p. 47.)
The Australian pledge nowhere explicitly or implicitly distinguishes
between the two groups or kinds of inter-related obligations.
It appears relevant at this point, 1\fr. President, to consider the
possible significance of the reference in the Australian statement to REPL Y OF MR. GROSS 157
Chapter XI of the Charter. In the light of the question propounded by
Judge Jessup, it may be appropriate to refer to the joint dissenting
opinion of the honourable President and Judge Sir Gerald Fitzmaurice,
appended to the Judgment of 1962 on the Preliminary Objections.
In the course of discussing the role of Article 73 of the Charter, the
opinion cites, inter alia, the foregoing reference in the Australian state
ment to Chapter XII of the Charter as evidencing the intent of the
authors of the Charter to provide the protective cover of Article 73 to
mandated territories, the disposition of which might not otherwise be
agreed upon pursuant to the League resolution of 18 April 1946. In
respect of the point directly under discussion, that is, Respondent's
contention that the pledge made by Australia excluded the obligation
of accountability, the foregoing analysis of the joint dissenting opinion
of the learned Judge and the honourable President would, of course, be
irreconcilable with Respondent's interpretation of the Australian pledge.
The question would be, what type of international accountability or
reporting was intended to be referred to by the reference to Chapter XL
The opinion of the learned Judges appears to assume, without question,
so far as the Applicants understand it, that the Australian statement
included within its ambit the obligation to report. The only issue left
open then would appear to relate to the method of accountability, not
to its inclusion in the Australian pledge. ln respect of that issue, the
Applicants with great respect, at an earlier stage of their response to
Judge Jessup's question, sought to demonstrate why, in their sub
mission, the territory of South West Africa was not to be regarded as a
territory within the scope of Article 73 (e) of the Charter.
The reference to Chapter XI in the Australian pledge necessarily
confronted Respondent with a certain dilemma. Respondent's case, on
the issue now under discussion, rests upon satisfying the Court that the
mandatories, including Australia, excluded the principle or the obligation
of international accountability from the scope of their pledges in April
1946. In addition to all other indicia of the importance attributed by
the Australian Government to the conversion of mandates into trustee
ships, and the extension of international accountability to the general
colonial area, the Australian pledge made reference to Chapter XI,
which, of course, includes Article 73 (e). Consistently with its objective
of construing the pledges in a manner to exclude accountability, therefore,
Respondent has now sought to construe Article 73 (e) itself in precisely
the same manner, that is as excluding international accountability.
In Respondent's words, and I quote from the verbatim record, VIII,
at page 402, Respondent argues, with respect to this matter, as follows:
"And now, Mr. President, if we corne to analyse what that explicit
international obligation [that is, Chapter XI] is, as laid down in the
Charter, we find that it is not an obligation of accountability under
a mandate at all. It is not an obligation involving supervision on
the part of supervisory organs. It is merely a very limited obligation
of supplying information of a technical nature on economic, social
and educational conditions in its dependent territories for the in
formation of the United Nations."
In the course of the same address to the Court, the Respondent went on
to say;
"It [that is Chapter 73 (e)] is very clearly a very much lesser158 SOUTH WEST AFRICA
obligation-a very minor obligation-as compared with the obliga
tion of reporting and accountability under the Mandate." (VIII,
p. 403.)
And, then, Respondent adds:
"... my leamed friends who represent the Applicants, admit that
this distinction exists as a matter of law. As a matter of law this
obligation cannot be equated with one of accounting and reporting
under the Mandate." (Ibid.)
Mr. President, the Applicants do indeed draw this legal distinction
between Article 73 (e) and the reporting and accountabîlity under the
Mandate, but a more appropriate word for the Applicants' position
might have been "insist" rather than "admit". In the Applicants' view,
Respondent's analysis, however, attributes much too narrow a scope and
significance to Article 73 (e), which is not supported by the history of
the Article, and, indeed, one which is contradicted by the views con
sistently expressed by the Australian Government itself during the
evolution of Chapter XI, and these views have been set out in some
detail by the Applicants at pages 137 to 139, supra.
Respondent's narrow interpretation of Article 73 (e), designed to
demonstrate that the Australian pledge did not include or encompass
a continuing obligation of accountability, is, as I say, incompatibleboth
with the views of the learned judges in the joint dissenting opinion of
1g62 and with those of the Applicants, although for different reasons.
If Respondent's narrow construction of Article 73 (e) were correct, it
would support the Applicants' contention that Article 73 (e) could not
have been regarded by the authors of the Charter as an adequate cover
for residual mandates.
On the other band, Respondent's analysis is inconsistent with the
leamed judges' view in the joint dissenting opinion, that Article 73 (e)
was intended to provide just such a cover.
Respondent's argument falls between ail stools. Respondent's ana
lysis of Article 73 (e), narrow though it be, does not, in any event,
support Respondent's construction of the Australian pledge. lndeed, the
distinction sought to be drawn by Respondent between accounting and
reporting, in this context, is little more than a quibble. Article 73 (e)
explicitly provides for the regular transmission of information within
enumerated categories. Obviously, this is designed to be, and by defini
tion is, a form of international accountability.In the words of the joint
dissenting opinion, "It [that is, Article 73(e)] provided for a reporting
obligation to the United Nations".
The Applicants are, of course, aware that by stressing the proper sig
nificance to be attributed to Article 73 (e), an aspect of the response to
Judge Jessup's question is involved, but it is believed by the Applicants
that the important Charter construction question here presented justifies
as objective an analysis and evaluation of Article 73 (e) as lies within
the Applicants' competence to present to this honourable Court. And
Article 73 (e), contrary to the Respondent's position, clearly, in the
Applicants' view, provided for a form of international accountability
although, in the Applicants' respectful submission, it was not contem
plated that it would be adequate cover for the obligation under residual
mandates.
But, Mr. President, in the Applicants' respectful submission, in sum, REPLY OF MR. GROSS 159
the Australian pledge, on its face, made clear its acknowledgment that
the obligation of international accountability continued, but that, until
the trusteeship council commenced to function, the Australian Govern
ment would carry out all its obligations under the Mandate, as the pledge
said, including the duty to report to the United Nations. Reference was
made, in that connection, to Article 73. The question is open whether the
reference was intended to include Article 73 (e); it may well have been.
However, it is true, and the Court's attention is called to the fact,
that the Australian Government, in response to the Secretary-General's
request of 29 June 1946 for an enumeration of its non-self-governing
territories, concerning which it intended to supply information under
Article 73 (e), did not list the Australian mandated territories, and this
will be found in the Repertory of United Nations Practice, Volume IV, at
paragraphs 21-23, pages II-12.
Itmight be inferred from this fact, as I have said, that the reference
to Chapter XI in the Australian pledge was intended to refer only to the
substantive obligations of (a) to (d) of Article 73 notwithstanding the
fact that the Australian Government, it is true, in an earlier reference
in the same pledge, did refer to Article 73 (e) specifically. This, of
course, will be found in the League of Nations Official Journal which I
have cited, the Special Supplement No. I94, at page 47.
However this may be, whether the Australian Government intended
to include in its pledge an interim obligation to report under Article 73 (e)
or not, in either event there is no question but that it did include in its
pledge reference to an obligation of international accountability.
Precisely the same thing was true in the case of all mandatory powers
at the League's final session. The change of Government in South Africa
in 1948 brought with it a reversai of Respondent's position with regard
to Respondent's obligations towards the Territory, in the sense under
discussion here.
Respondent now concedes that until 1948, and I quote from the ver
batim of 6 April 1965, VIII, at page 428, there was "a conception on the
part of the South African Government that the Mandate as such could
be regarded as still in operation". Indeed, only several months prior to
Respondent's pledge, as I have mentioned, the Respondent's representa
tive at the Preparatory Commission, Mr. Nicholls, explicitly solicited
United Nations supervision over mandated territories, and the question
of "probabilities of interpretation of events", to use the Respondent's
phrase-the question of probabilities in 1945-1946 was a very different
question from that which it became after 1948, and has remained ever
since.
In summary, then, Mr. President, the system of pledges adopted by
the mandatory powers was carried out precisely for the purpose of en
suring international supervision of mandated territories without resorting
to the alternative plan original1y favoured by the mandatory powers,
including Respondent, to establish an interim body, or interim machinery,
which it was generally feared might result in delay in the establishment
of the trusteeship system, and this system of pledges must be understood
in this historicalcontext and perspective.
Both alternatives, interirn machinery and pledges, were viewed as a
means of ensuring international supervision of mandates until other
agreements were made. The first alternative, that is the establishment
of interim machinery, was favoured by mandatory powers but was160 SOUTH WEST AFRICA
rejected for reasons of expediency, and its rejection cannot be interpreted,
as Respondent seeks to do, as a rejection of international supervision of
mandates prior to the conclusion of other arrangements. This would,
indeed, have been an implicit exclusion ofthe very essence of the mandate.
I turn now, Mr. President, to a consideration of the Chinese draft
resolutions. The foregoing analysis sheds light also on the significance
properly to be attached to the two Chinese draft resolutions presented
to the League Assembly. These were referred to in League of Nations,
21st Assembly, 1st Committee, 2nd Meeting, The League of Nations
Official Journal, Special Supplement No. r94, at page 58.
The first Chinese draft was, in essence, an attempt to return to the
first alternative proposai favoured by mandatory powers in the debates
of the Preparatory Commission. Indeed, the wording of the first Chinese
draft was in close accord with Respondent's view conveyed at the time
of the Preparatory Commission by Mr. Nicholls that-
"it seems reasonable to create an interim body as the Mandates
Commission was now in abeyance and the countries holding manda tes
should have a body to which they could report". (VIII,p. 152.)
The Chinese delegate's attempt to revive the alternative proposa! fav
oured by the mandatory powers was rejected however, as it had been
in the Preparatory Commission, and a second Chinese draft referred to
the several pledges made by the mandatory powers. In short, the As
sembly of the League of Nations, consistently with the action taken
by the Preparatory Commission, rejected the plan of interim machinery
supported by the mandatory powers and, instead, adopted the system of
pledges. And this was done, of course, as the record makes amply clear,
to prevent undue delay or to encourage delay in the establishment and
flowering of the trusteeship system.
Respondent insists however, that the reason for the change was lack
of unanimity among the States concerned; Respondent makes this con
tention in the verbatim record of 5 April at VIII, page 410. Respondent
argues that Respondent itself could not agree to the first Chinese draft
resolution and unanimity was required; yet, Respondent had stated
four months previously, through Mr. Nicholls, that it favoured interim
supervision, and there is nothing in the record to demonstrate that Re
spondent had changed its view in the interval. It is reasonable to assume
on the basis of this record that the Respondent indeed would have pre
ferred the first Chinese draft to the second but the record is silent on
this point-this certainly would have been more consistent with the
Respondent's position at that time than the strained and unsupported
interpretation of the event which Respondent now advances. Respondent
also speculates that the United Kingdom could not have agreed to the
first Chinese draft, but again, in the Preparatory Commission, the
United Kingdom delegates spoke in favour of the plan for a temporary
trusteeship committee and hence, it is at least as likely as not, and indeed
more likely, that the United Kingdom would have preferred the first
Chinese draft resolution to the second-there being no evidence in the
record to indicate a change of position on the part of the British delegation
in that interval.
Respondent speculates also that Egypt could not have agreed with
the first Chinese draft because of her views on Palestine, but Egypt
did not agree with the second Chinese draft eHher; Egypt stood alone in REPLY OF MR, GROSS
the view that mandates did not continue in force after the dissolution
of the League and hence, it was quite natural for the Egyption delegation
to voice objections to both Chinese draft resolutions. In short, the action
of the League Assembly in adopting the Chinese draft resolution, is
consistent with the reasonable hypothesis and reflected the same con
siderations that accounted for the decision in the Preparatory Commis
sion to adopt the pledge syst~m-the pledge technique-rather than the
temporary trusteeship commission technique. The actions taken by the
League Assembly are perfectly consistent with the historical develop
ment of international supervision of dependent areas. \Vhile the League
of Nations broke new ground by instituting a system of international
supervision of mandated territories, the United Nations extended the
development stilI further by providing a more e1aborate system of super
vision and by creating important new obligations for colonial areas. Un
der no circumstances have the United Nations contemplated that the
administration of dependent areas would be completely devoid of inter
national obligations nor has it ever been thought that dependent peoples
once having had the right of international supervision should be deprived
of that right-this is simply counter to the historie tren<l-yet, this is
precisely the proposition which Respondent urges upon this honourable
Court. Respondent's contention is not only in the teeth of the position
taken by it in the Preparatory Commission by Mr. Nicholls, it is not only
in the teeth of the clear meaning of the text of its pledge of April1946-
it runs directly counter to the historical development of major historical
signiftcance, as the Australian delegation and many others pointed out
at the time.
Mr. President, with your permission, I should now like to turn to a
consideration of the Respondent's incorporation proposa1 and the Gen
eral Assembly's treatment of it in the light of arguments made by Re
spondent during its rebuttal. Perhaps the most important historical de
velopment in respect of the evolution of the South West Africa problem
was the establishment by the United Nations of a system of international
supervision over the territory, a system which isneither trusteeship super
vision nor colonial supervision, if I may use that phrase, under Chapter
XI of the Charter. As noted by a scholar already quoted-Mr. E. Sady
in his work found in The United Nations and Dependent Peoples published
by the Brookings Institution, Washington D.C., in 1956, I quote from
page 132:
"The system for the international supervision of South West
Africa is sufficiently different from that established by the Assembly
for the implementation of Chapter XI of the Charter and from the
International Trusteeship System to merit continuous study in the
effort to improve international organization in this field."
The historical development in this respect is clear, Mr. President, and
is consistent with the evolution of international supervision over depen
dent areas generally. Analysis of events during the years 1946 to 1949
at the United Nations makes it clear, in the Applicants' respectful sub
mission, that the system of international supervision over the mandated
territory of South West Africa was developed at ftrst with the co-operation
of Respondent and subsequently in the face of increasing opposition. It
was, of course, well known that Respondent desired to incorporate South
West Africa into the Republic of South Africa-this was never concealed,162 SOUTH WEST AFRICA
and it would have followed, of course, that the Mandate would have been
terminated. Now Respondent has conceded that in the opinion of the
then Government-the Smuts Government-the Mandate remained in
full force and effect, notwithstanding the dissolution of the League, on
its legal interpretation of the situation at that tune. The Smuts Govern
ment however, in accordance with its view that the mandate obligations
continued byond the League's demise, quite clearly recognized the com
petence of the United Nations. Thus, on 22 January 1946, Respondent's
representative to the Fourth Committee of the General AssembJy stated
that its Govemment's final decision on incorporation of South West
Africa and I quote "would be submitted to the General Assembly for judg
ment", this was quoted by the Court in the 1950 Opinion, I.C.]. Reports
1950, at page 142. In the same statement the South African representa
tive made reference to South Africa's asserted rights pursuant to Article
80, paragraph 1, of the Charter.
Accordingly, this may be a convenient moment, Mr. President, tore
ply briefly to Respondent's rebuttal on the question of Article 80,
paragraph 1, although the matter is slightly digressive in respect of
the main line of the Applicants' argument regarding the significance of
Respondent's acknowledgment in 1946 of United Nations competence
to wh.ich I have just referred.
In the statement of 22 January 1946, the South African delegate is
rcported as saying, inter alia: "Referring to the text of Article 77 (this
is the summary record] he said that under the Charter the transfer of
the mandates regime to the trusteeship system was not obligatory. Ac
cording to paragraph I of Article 80, no rights would be altered until
individual trusteE;ship agreements were concluded. Itwas wrong to as
sume that paragraph 2 of this article invalidated paragraph 1.The posi
tion of the Union of South Africa was in conformity with this legal
interpretation." That is the statement of 22 January 1946 by the
South African delegate. It is quoted in the Counter-Memorial, Il, at
page 42.
The Applicants accordingly take a different view of the proper con
struction of Article 80, paragraph 1, than did Respondent in 1946. The
Applicants, as has been stated in an earlier phase of these proceedings are
in respectfuJ agreement with the views expressed on this matter in the
joint dissenting opinion of the honourable President and Sir Gerald
Fitzmaurice, at page 516 of the I.C.J. Reports r962, that Article 80,
paragraph 1, does not maintain or stabilize rights nor does it insure the
continuance of those rights or increase or diminish them. Article 80,
paragraph 1, as is pointed out at page 516 of the I.C.J. Reports r962,
figures in the Charter as an interpretation clause commonly called a
"saving clause". The Applicants, at an carlier stage of these proceedings,
expressed regret if their argument during the 1962 Oral Proceedings
gave rise to a contrary impression as appears to have been the case.
Respondent, after duly noting the Applicants' expression of regret at the
misunderstanding for which they, the Applicants, were responsible, pro
ceeded with an argument of its own which would deprive Article 80,
paragraph 1, of any significance whatever following the effective date
of the United Nations Charter.
Before turning to Respondent's specific contention in this respect how
ever, the Applicants consider it may be helpful to set this matter at rest
so far as their own views are concerned, to formulate their analysis of REPL Y OF MR. GROSS
the relevance in these proceedings of Article 80, paragraph r, of the
Charter in the following three propositions:
r. The term "existing international instruments" as used in Article
80, paragraph r, includes mandate instruments. This interpretation of
the Article seems ta be undisputed.
2. The authors of the Charter would not have included a saving
clause in the Charter pertaining to rights under mandates unless they
assumed that such rights would continue to exist apart from anything
in the saving clause itself.
3. The assumption underlying the phrase in Article So, paragraph r,
"until such agreements [that is trusteeship agreements] have been con
cluded" demonstrates that the authors of the Charter, not only assumed
that rights under the mandates would continue to exist, but they would
do so until and unless superseded by other agreed arrangements.
Now, Respondent, in its own words, contends in the verbatim record
of 2 April 1965, that there was-
"... a contemplation on the part of the authors of the Charter, at
the time when the United Nations was formed, and at the time when
the Charter came into effect, that there were unaltered rights and
obligations under mandates". (VIII, p. 388.)
Respondent, of course, in this connection, is necessarily faced with the
problem of explaining the reference to Article Soin Respondent's state
ment of 22 January 1946. Respondent, however, goes on to contend
that, whatever the significance properly attributable to Article 80 (r),
the Article became a dead letter when the United Nations Charter came
into effect; that is the Applicants' characterization, not Respondent's.
In Respondent's words, which I quote from this same verbatim, at the
same page:
"We must emphasize, Mr. President, that Article So (r) could
clearly do no more than indicate which rights were, in the views of
its authors, in existence as at the stage of its drafting and possibly
the stage of its coming into effect." (Ibid.)
Respondent's argument, accordingly, seems to be, as understood by the
Applicants, that the force and effect of the saving clause was spcnt at
the moment the Charter became effective. If this is a correct interpreta
tion of the phrase just quoted-and I am not sure that it is, I perhaps
do not understand the phrase at all-it is, of course, an inherently in
credible proposition. Respondent's contention, if this be the contention,
ignores and fails to give any significance to the phrase in Article 80 "un
til such agreements have been concluded". But, apart from playing word
games with the language used by Respondent, which is not clear on its
face, in Applicants' view, on 12 November 1948, the Belgian Rcpresenta
tive, in the Fourth Committee of the General Assembly, referred to the
provisions of Article So in terms clearly evidencing that the Bclgian
Government assumed that the saving clause of Article So was still opera·
tive, as muchas it ever had been and for the same purpose that it had
been inserted in the Charter. This was in November 1948-more than
two years· following the dissolution of the League. The Belgian state
ment itself is quoted in relevant part in Respondent's written pleadings,
and the reference to it is General Assembly Official Records of the 3rd Ses
sion, Part I, Fourth Committee, 79th Meeting, page 326. Two days later,
on 16 November 1948, the Delegate of India said in the same committee: SOUTH WEST AFRICA
"The provisions of Article 80 of the Charter, safeguarding the existing
rights of the people of South West Africa until a trusteeship agreement
had been concluded, had to be recognized." This is the same citation, the
81st Meeting, page 352.
The Uruguay delegation made a similar reference to Article 80 during
the same session, at page 3rr, and in 1949 Cuba did likewise (4th Session,
Fourth Committee, 21 November 1949, p. 216) and there was no ques
tion, apparently, that the saving clause was still alive at that time. The
question of its relevance to these proceedings, however, has been respect
fully submitted now in the form of three propositions in which the Appli
cants have attempted ta formulate their understanding of the Article.
Mr. President, I revert now to the main line of the Applicants' argu
ment regarding the significance of Respondent's acknowledgement in
1946 of United Nations competence.
Reference has been made to Repondent's statement in the Fourth
Committee that the Respondent would submit its decision for incorpora
tion of South West Africa to the General Assembly for its judgment. That
was quoted in the 1950 Opinion at page 142.
Respondent also requested at that time that the question be placed
on the agenda of the General Assembly for the Second Part of the
1st Session, in 1946, and on 4 November 1946, Marshal Smuts told the
Fourth Committee:
"... that ... [South Africa's] international responsibility pre
cluded it from taking advantage of the war situation by effecting
a change in the status of South West Africa without proper con
sultation either of allhe peoples of the Territory itself, or with the
competent international organs". (l.C.]. Reports z950, p. 142.)
As the Court pointed out in the 1950 Opinion:
"By thus submitting the question of the future international
status of the Territory to the 'judgment' of the General Assembly
as the 'competent international organ', the Union Government
recognized the competence of the General Assembly in the matter.
The General Assembly, on the other hand, affinned its competence
by Resolution 65 (I) of December 14th, 1946." (I.C.J. Reports I950,
pp. 142-143.)
This response was given by the honourable Court in the 1950 Opinion
in answer to question (c), which had becn asked by the Genèral Assembly,
and which read in part "... where does competence rest to determine
and modify the international status of the Territory?" That is quoted
from page 141 of the Opinion.
The Court in 1950, of course, explicitly held that the organ vested
with supervisory powers is also the competent international body to
determine and modify the international status of a mandated territory.
Thus, at page 141, of the 1950 Opinion, it is stated:
"The international status of the Territory results from the inter
national rulcs regulating the rights, powers and obligations relating
to the administration of the Territory and the supervision of that
administration, as embodied in Article 22 of the Covenant and in
the Mandate. It is clear that the Union has no competence to
modify unilaterally the international status of the Territory or any
of these international rules." REPLY OF MR. GROSS
And the Court went on to say in the 1950 Opinion:
"Article 7 of the Mandate, in requiring the consent of the Council
ofthe League of Nations for any modification of its terms, brought
into operation for this purpose the same organ which was invested
with powers of supervision in respect of the administration of the
Mandates." (I.C.J. Reports I950, p. 14r.)
The Court evidently took the view that the vesting in the League
Council both of a supervisory role and a competence with regard to
modification of the terms of the Mandate, was not merely coincidental
but logical, and the Court suggested that by the same logic the com
petence of the General Assembly to supervise mandates extended also
to the matter of approving changes in the status of the Territory. It was
given the authority to consent, if it thought fit,to a modification of the
terms of the Mandate.
It may be relevant at this point to take note of Respondent's con
tention with regard to this matter, which was advanced in rebuttal.
The Applicants had sought to show why it is essential that the same
administrative organ should be vested with power to supervise and
power to consent to a modification of status of a mandated territory.
This must be so, in the Applicants' respectful view, because the consent
to which Article 7 (r) refers clearly must be an informed consent. The
modification of the terms envisaged, include, and encompass all the
terms of the Mandate-any terms of the Mandate.
As we have noted earlier-I quote from the verbatim record, vm,
at pages 127-128:
"Only the same organ entitled to receive 'full information with
regard to the territory', in the words of Article 6, could be in a
position to exercise. an informed judgment in respect of proposais
for modification of the terms of the Mandate."
Clearly such modifications could include major or minor modifications
of any or all provisions of the Mandate, not necessarily modifications
relating to the basic status of the Mandate as an international territory.
It follows, in the Applicants' view, that the lapse of Article 6 and the
consequent falling away of Article 7 (r) of the Mandate would, as was
pointed out, necessarily create one of two intolerable situations: either
the Mandate would be frozen in its present form in perpetuity, for
reason of the absence of an organ whose informed consent would be
required to a modification, or Respondent would have the right unilat
erally to modify the terms of the Mandate in the absence of an organ
whose consent would have to be obtained before such modification
whose consent would have to be obtained, not whose consent could be
obtained, if the Respondent decided unilaterally to seek such consent.
It is obvious, in the Applicants' view, that the latter alternative-the
right unilaterally to modify its terms, which would exist unless there
were an organ in existence whose consent was required before modifica
tion~would carry with it the power to destroy unilaterally the inter
national status of the Terri tory, thus annexing it both in law and in fact.
This conclusion the Applicants thought was clear, in respect of the con
sequences which would flow from a lapse of Article 7, paragraph I,and
this seemed to the Applicants to confirm the essenhal nature of the
retention of international supervision as a legal conclusion, and an organ
competent to consent whose consent was essential, was required.I66 SOUTH WEST AFRICA
Respondent's answer, or discussion, of this analysis seems to the
Applicants to be both ambiguous and evasive. ln the first place, Respon
dent appears to misconceive the purpose of Article 7, paragraph I.
ln the Oral Proceedings of 9April 1965, Vlli, at page 518, the Respondent
stated:
"The fonction of Article 7, paragraph 1, was simply to provide
machinery of a useful and a practical nature whereby the terms of
the Mandate could be modified with binding legal consequences.
It was a useful procedure involving the consent, on the one hand,
of the mandatory and, on the other hand, of a body of limited
composition, the Council of the League."
Respondent proceeds by arguing that the lapse of the authorized ma
chinery really would not be an important detail; there is nothing for
the Applicants to get excited about, the Respondent says; the con
sequence merely would be, and I quote from the same verbatim record,
at page 519, getting "the consent or the recognition of ail who have
legal interests in the matter". This general reference to "all who have
legal interests in the matter" is then followed by an argument on the
part of Respondent which seems to concede~just seems to concede
or imply the concession of nccessity to obtain consent to modification.
Thus, at page 519 of the same verbatim record, Respondent expresses
the thought that-
"if it [the Mandate] was still to be seen as a treaty relationship
[the alternative argument so familiar in the proceedings]-all the
interested parties, who would probably be all the Members of the
League, would have had to give their consent .... [If] it was no
longer to be seen as a treaty relationship, but as a continuing
institution involving special status for the Territory the same
position would, in substance, have applied.
There are recognized international processes whereby a change
of status of a territory can occur in such a way as to be legally
recognized. ''
The last-quoted sentence as a legal proposition is unassailable, but it
is wide of the mark. The question is wide open on the basis of Respon
dent's apparent analysis as to who ail the interested parties would be;
Respondent suggests they might be, as a tentative suggestion, probably
have to be regarded as all the Members of the League. The Applicants'
point, Mr. President, is that unless Respondent is obliged by the Mandate
to obtain consent of an organ which has the information which is avail
able only to a supervisory organ, then it must follow that at the very
least utter confusion would mark the question as to whose consent,
if anybody's, would be required; infinite debate would ensue at best;
or Respondent would be free unilaterally to destroy its international
status. Respondent's present position as expressed in its pleadings, and
repeated in the Oral Proceedings, is that it has stated an intention
voluntarily not to alter the international status of the Territory, in
accordance with what it calls "the spirit of the Mandate". But this
is a unilateral statement of intention and, of course, is revocable at any
moment, without notice. This is not to say that the Respondent would
do so~we are talking of the legal obligation inherent in the situation.
When we get to the basic question of Respondent's duty to obtain
consent, which has been rather the subject of alternative hypotheses and REPLY OF MR. GROSS 167
arguendo assumptions, we find that Respondent's argument really evades
this crucial point. Respondent concedes at VIII, page 520, of the ver
batim record that if the Mandate is in existence, Respondent is "not
entitled as a matter of law to modify the status of the Territory uni
laterally". Rcspondent then goes on to say, quite irrelevantly in our
view, that in any event it is its expressed intention not to do so. But the
Applicants' argument is that it is nccessary that there be in existence
a continuing obligation to obtain consent, a legal requirement, unless
Respondent is free to annex the Territory; and it is this necessity that
there be such a legal obligation fi.xed in the Mandate, with a specified
organ competent to give its consent, and an organ which could give an
informed consent-it is this series of considerations which, in the Appli
cants' view, seems to provide evidence to confirm the existence of the
Mandate itself in general, and of Article 7 (r) in particu1ar. The Appli
cants sec the need for consent as proof of the existence of the Mandate;
Respondent merely concedes that ifthe Mandate existed there would be
an obligation to obtain consent.
But the matter goes further than this, and is indeed, in the Applicants'
view, a very important matter to clear up. The Applicants, as has been
stated, sought to make clear why the organ the consent of which is
necessary also must be the same organ which has continuing supervision
over the Mandate. As has been said, consent to modification of the terms
of the Mandate, and this could refer to any term of the Mandate, includ
ing the substantive obligations, must be an informed consent. The
Applicants accordingly see the need for an organ the consent of which
is necessary for modification of the terms of the Mandate as evidence of
the need for the existence of a supervisory organ. The Applicants think
it, and respectfully submit it to be a logical proposition, that if Article 7
{r) must be considered to have-remained in effect because of the intol
erable alternatives which would follow if it were not, that if, as the
Applicants submit, a competent organ must exist whose consent is
required to modification, and if that consent must be an informed
consent, then the survival of Article 7 (r) has a direct and logical relation
ship with the question of the survival of Article 6.
The argument at the close of the earlier portion of this session had
just reached the point at which the Applicants contended that as a
logical proposition, and as a matter of legal analysis, if Article 7, para
graph 1,is needed to preclude unilateral annexation, and if the organ
relevant to the purpose of Article 7 (1) should be an identified organ,
with continuing supervisory functions over the Mandate, and therefore
in a position ta give an informed consent to modification of terms of the
Mandate, then as a logical proposition and as a matter of legal analysis
the logical conclusion is that the same competcnt organ should be the
supervisory agency over the Mandate with respect to Article 6. And that
if Article 7, paragraph r, survives, as it necessarily must, in the Appli
cants' view, it would follow that Article 6, for the reasons which have
been advanced, must also be deemed to have survived.
The Respondent, so far as the Applicants noted, does not deal with
this precise point, the real heart of the matter, at ail. Respondent instead
refers to the separate opinion of Judge McNair, which was appended to
the 1950 Advisory Opinion, in the l.C.J. Reports r950, at page 32. But
Judge McNair dealt with the effect of lapse of Article 6 upon the fate of
Article 7, paragraph r, and the leamed judge concluded that the lapse of168 SOUTH WEST AFRICA
Article 6 "by reason of the ensuing impossibility of obtaining the consent
of its [that is, the League's] Council" meant that Article 7 (1) also had
lapsed. (I.C.]. Reports I950, p. 162.)
Thus, as the Applicants understand the position, Judge McNair
perceived a necessary interconnection between the two Articles, in
precisely the same way as did the majority of the Court, although of
course Judge McNair reached a contrary conclusion as to the survival
of both Articles. He linked them as the Court had done, but, having
concluded that Article 6 lapsed, for reasons set forth in his separate
opinion, he concluded that Article 7, paragraph 1,also had lapsed.
It would seem clear that the Court in 1950 made no distinction between
the international organ competent to detennine and modify the status
of the mandated territory and the organ competent to supervise the
administration of the territory. Not only did the Court make no such
distinction, but it indicated the linkage between the two Articles, and
it would seem fair to conclude that the Court in 1950 at least indicated
its view that the two must be one and the same-the organ under
Article 7 and the organ under Article 6 should be the same or~an.
In the Applicants' view, therefore, the Respondent's subm1ssion in
1946 of the question of the status of South West Africa to the competent
international organ for a judgment, in the words of the submission,
clearly evidenced Respondent's recognition of the United Nations as the
international body competent to supervise administration of the Terri
tory. There is nothing in the record to indicate a position contrary to the
inherent logic of the position that if Respondent was submitting to the
judgment of the Organization, the competent international organ, the
question of modification of the terms of the Mandate, there is nothing
to indicate that Respondent would have or could logically have drawn
a distinction between the competent organ under Article 6 for super
visory purposes, and the competent organ under Article 7, paragraph I,
for the purpose of exercising a judgment with respect to modification of
the terms of the Mandate.
But Respondent now insists on separating what the Court in 1950
placed together, and has devoted much argumentation in the rebuttal
to an attempt in this context to avoid the significance of the actions of
the Smuts Government at that time, at the time when the Respondent's
Govemment considered that as a matter of law the Mandate's existence
survived the dissolution of the League. Thus, Respondent argues that
supervision and consent to modification are, in the words of the Respon
dent, "entirely distinct concepts". This is from the verbatim record, VIII,
at page 430.
The Respondent seeks to draw the distinction between supervision
on the one hand and consent to modification on the other, on the basis
that since supervision is a continuing process, and is onerous, while
consent to modification is "confined to a particular occasion", it is
apparently less onerous. This is still from page 430 of the same verbatim
record. The fallacy 'ofthe distinction has been made clear, it would seem
from the Applicants' point of view, in any event, and the distinction
!oses any plausible significance in the light of the considerations which
have been adduced conceming the crucial linkage between Article 6 and
Article 7, paragraph r, which have nothing to do with whether either is
more or less onerous. It is a logical proposition with respect to the
requirement that the organ under paragraph r of Article 7 be the super- REPLY OF MR. GROSS
visory organ, so that it might be in a position to give an informed
consent.
Respondent continues its argument by referring to the wording of the
League resolution of 18 April 1946, in this context. The reference in the
resolution to other arrangements to be agreed between the United
Nations and the mandatory power is relied upon by Respondent as
showing that certain issues could be submitted to the United Nations
without submitting to supervision. This argument is set forth at VIII,
pages 430-431 of the verbatim, to which I have referred.
As we have already noted, however, Mr. President, the very purpose
of the mandatory pledges and the final League resolution was to assure
the continuation of international supervision. These wcre the procedures
used in lieu ofthe temporary trusteeship committee device which the
mandatory powers had requested. The tact that the question of the
status of several areas, other than mandated or trust territories, has been
submitted to the United Nations has no relevance to Respondent's
action in 1946.
Respondent's central argument, in this regard, seems to be that, even
if the organ competent to modify or determine status must be in a
position to make an informed judgment, the founders of the League
provided for supervision in the Covenant-Article 22-whereas the
requirement of consent to modification of the mandate was embodied
only in the mandate. Respondent makes this argument at page 434 of
the same verbatim.
Respondent condudes, frorn this premise, that-
"... if one starts from the initial position that ... and there is an
intention of making provision for a change in the status of the
territory ... then the mere tact that that contèmplation involves
going to a particular international organization about it, surely
cannot possibly carry with it a contemplation that there must also
be this more onerous obligation, about which nobody has said
anything, namely that of international supervision by that organiza
tion over the actual administration of the territory".(VIII, p. 434.)
Among the many difliculties with Respondent's argument, in this
respect, one of the greatest is that far from the Powers "starting from
the initial position" in 1946, as Respondent phrases it, as Respondent
now concedes, the Respondent's Government at that time understood
that the Mandate had survived the dissolution of the League; there was
not any starting from scratch. As for Respondent's contention that
nobody said anything about international supervision over the Territory,
it may be said only that Respondent consistently in this record has
ignored the statement of Mr. Nicholls at the Preparatory Commission,
in which he, on behalf of the then Government, urged the establishment
of interim machinerv, and Mr. Nicholls has not earned mention either in
Respondent's written pleadings or in its oral arguments.
Respondent advances yet another argument to explain Marshal Smuts'
use of the phrase "competent international organs". Respondent has said:
"... there could, for purposes of bringing about a change of status
of this nature, be a change in competent international organs, and
there had, in his view, occurred such a change, there being a com
petent organ, that is, competent in the sense that when agreement
was reached with that organ, an effective new arrangement would170 SOUTH WEST AFRICA
corneinto effect-effective in the sense that it would be recognized by
other members of the international community". (VIII, pp. 440-441.)
The position seems to be that Marshal Smuts was drawing what could
only be called a subtle distinction between an international organization
competent in fact but not competent as a matter of law. Marshal Smuts
himself evidenced no such intention. He said:
"International responsibility precluded it from taking advantage
of the war situation by effecting a change in the status of South
West Africa without proper consultation either of all the peoples of
the Territory itself or with the competent international organs."
He, thus, recognized the obvious legal bar to action without sub
mission to a competent international organ.
Respondent's final argument regarding the legal significance of its
submission to the General Assembly in 1946 of the issue of termination
of the Mandate is that such submission cannot be taken as evidence of
acceptance of international supervision, inasmuch as Respondent's
willingness to report was limited by reference to reporting in terms of
Article 73 of the Charter. Respondent's position with regard to the
applicability of Article 73 in the verbatims, from which I have quoted,
may, indeed, possibly be developed further in response to the question
propounded to the Parties by Judge Jessup. In any event, on the basis
of the verbatims and the treatment of the question of Article 73, it is
interesting to note how Respondent actually treated the matter of its
obligations, if any, pursuant to Article 73 (e) of the Charter, and this
would directly bear, in the Applicants' respectful submission, on the
question posed by Judge Jessup.
With regard to the procedures followed by Respondent in connection
with this matter it is to be noted, first, that at no time in 1946 did
Respondent, or anyone clse for that matter, question the supervisory
powers of the United Nations in any respect. Respondent first did so
in 1947. ln his statement, Marshal Smuts referred to Article 73 of the
Charter in connection with Respondent's reports to the United Nations.
Respondent contends that his statement contained what Respondent
callsan "ambiguity"; that word is used in the verbatim, VIII,at page 453,
and that this ambiguity, as Respondent calls it, was cleared up in 1947.
The ambiguity relates to the question whether or not Rcspondent was
obliged to report to the United Nations under Article 73 (e), that is to
say, whether Marshal Smuts intended to convey the impression in his
statement that Respondent was offering a voluntary activity or whether
it was, on the contrary, tending to acknowledge a legal responsibility.
This was the ambiguity to which the Respondent refers.
Now this ambiguity, as Respondent refers to it, was cleared up in
several statements made by Respondent's representatives at a later stage,
stating explicitly that the Respondent did not regard the Mandate as
falling within Chapter XI. This was, of course, at a timc when Respon
dent's Government of the day considered that the Mandate was legally
in existence. Respondent itself has cited thesestatements to demonstrate
that the Territory does not fall within the scope of Article 73 (e).
Thus, we have the statement made at the General Assemblv, second
session ofthe Fourth Committee at page r6- ·
"The Union of South Africa did not claim that South West Africa
was a colony but it was willing to submit annual reports like those REPLY OF MR. GROSS 171
required for the non-self-governing terri tories under Article 73 (e)."
Similarly, it was explained by the Respondent's representative, this
was at the second session of the General Assembly as well-
"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 Arti
cle 73 (e) of the Charter."
This is from the General Assembly Official Records, the second session,
Plenary, Volume II, page 538.
In the cases at bar, Respondent has adopted these positions as its own
-the positions reflected in the two statements just quoted. Thus, at page
58 of the Counter-Memorial, II, Respondent states that the report actu
ally submitted by Respondent in 1947 for the year 1946 contained "the
same type of infonnation on the territory as required for non-self-govern
ing territories under Article 73 (e) of the Charter". On 7 April 1965 in
these Oral Proceedings, Respondent's counsel stated "there was no con
ception that the case fell under Article 73 (e) as a matter of law"
this is from the verbatim record, VIII, at page 454. This proposition
therefore, seems to be common cause. All this being so, Mr. President,
the events of 1946 begin to emerge more clearly-the Government of
South Africa was of the opinion that the Mandate for South West Africa
continued in law. It also considered that its international responsibilities
precluded it from unilaterally changing the status of the Territory and
that the United Nations was the competent international organ in this
regard. The only rcmaining question, if indeed it is separable from the
competence of the United Nations to consent to a change of status is
the question of survival of accountability itself; the matter becomes
reduced to its essence in this formulation.
On 23 July r947 Respondent advised the Secretary-General of the
United Nations that the obligations of the Mandate preYented the South
African Government from "flouting the wishes of those who under the
Mandate have been committed to their charge". This is from United
Nations document A/334, the second session of the General Assembly,
Fourth Committee, page 135, and Respondcnt went on "inasmuch as
the request for co-operation of the territory and the termination of the
Mandate had been turned down by the General Assembly in resolution 65
(I) 'the Union Government have no alternative but to maintain the
status quo and to continue to administer the territory in the spirit of
the existing Mandate"'.
Respondent's communication referred to a resolution adopted on II
April 1947 by the House of Assembly of the Union Parliament, the letter
to the Secretary-General, which containcd the statement just quoted.
The resolution by the House of Assembly of the Union Parliament stated
as follows-
"Whereas in terms of the Treaty of Versailles, full power of legis
lationand administration was conferred on the Union of South Africa
in respect ofthe territory of South West Africa, subject only to the
rendering of reports to the League of Nations, and whereas the
League of Nations has since ceased to exist and was not empowered
by the provisions of the Treaty of Versailles or of the Covenant to
transfer its rights and powers in regard to South West Africa to the
United Nations Organization or to any other Organization or bodyI72 SOUTH. WEST AFRICA
and did not in fact do so; and whereas the Union of South Africa
has not by international agreement consented to surrender the right
and power so acquired, and has not surrendered these by signing
the Charter of the United Nations Organization and remains in full
possession and exercise thereof; and whereas the overwhelming ma
jority of both the European and non-European inhabitants of South
West Africa have expressed themselves in favour of the incorpora
tion of South West Africa with the Union of South Africa. Therefore,
this House is of the opinion that the territory should be represented
in the Parliament of the Union as an integral portion thereof and
requests the Government to introduce legislation, after consultation
with the inhabitants of the territory, providing for its representa
tion in the Union Parliament and that the Government should con
tinue to render reports to the United Nations Organisation as it has
done heretofore under the Mandate."
This resolution thus makes explicit Respondent's awareness of its re
sponsibility to report to the United Nations "as it has done heretofore
under the Mandate". Further it is evident from the wording of the reso
lution that the obligations to report to the United Nations were regarded
as following from the fact that South Africa retained rights under the
Mandate. It referred, as the Court will recall, in the preamble, that South
Africa has not by international agreement consented to surrender the
rights and powers so acquired under the Mandate.
Now Respondent seeks to evade the significance of the resolution
just quoted by disclaiming an official character for it. Respondent con
tends in its rebuttal that the reference in the resolution to reporting to
the United Nations and I quote from the verbatim record, VIII, at page
464, that the reference to reporting-
''... is not a reference to anything said by, or on behalf of, the Union
Government to the United Nations, or in any international context.
lt is purely a reference to a phrase occurring in a resolution, as it is
here called, ofthe Union Parliament. Itwas not even a rcsolution of
the Union Parliament. lt was a resolution of one of the Houses of
the Union Parliament-a resolution of the House of Assembly in
the Union Parliament."
Respondent proceeds then to argue that it is not legally bound as a
matter of constitional law to carry out or heed the opinion of one of the
Houses of its Parliament, but Respondent nowhere, that the Applicants
are aware of, adverts to or seeks to explain why this resolution was
referred to in Respondent's official communication of 23 July 1947 to the
Secretary-General. Respondent's communication to the Secretary-Gen
eral commences as follows-
"I have the honour to inform you by direction that the Resolution
of the General Assembly has been duly considered by the Union
Government and was discussed in the Union Parliament when a
Resolution in the following terms was adopted."
This is the commencement of the communication from Respondent to the
Secretary-General of 23 July 1947 and is in the General Assembly Official
Records, second session, Fourth Committee, at page 134.
At that time, Respondent's Government attributed sufficient weight
and legal significance to the resolution to communicate it textually to the REPL Y OF MR. GROSS
173
Secretary-General of the United Nations with an introduction which I
have just quoted. There is no reason appearing from the record and no
explanation as said by Respondent to deny or refute the fact that Re
spondent thereby in its communication intended to make officialrepresèn
tation to the Secretary-General in terms of the resolution itself, the text
of which was communicated, as I have said. It would be a perfcctly ob
vions understanding of the intcnt of the letter by the Secretary-General
and there is nothing in the record to indicate any explanation to the
contrary. Indeed, in the last paragraph, of the very same communication,
the Govemment explicitly associated itself with the resolution in the
following terms-
" I am finally asked to observe that in the Parliamentary resolution
quoted above, the Union Par!iament inter alia expressed the opinion
that the territory of South West Africa should be directly repre
sented in the Union Parliament and that, after consultation with
the inhabitants of the territory, legislation should be introduced
to that end. Steps will therefore be taken in due course to carry out
the required consultation."
And the letter stated also-
"The Union Government have already undertaken to submit re
ports on their administration for the information of the United Na
tions."
This is at page 135, of the record already quoted.
Thus, the Respondent associated itself directly and explicitly with the
Assembly reso]ution in respect specifically of the representation in the
Union Parliament of the Territory, and stated that the Union Govern
ment have already undertaken to submit reports on their administration
for the information of the United Nations. The resolution made two re
quests for action on the part of Respondent's Government; in both cases
the requests were carried out by the Government, were treated as
obligations which the Government would implement or had already
carried out, and the resolution was transmitted to the Secretary-General
in the form and with the covering paragraph which I have quoted.
In the 1950 Advisory Opinion, this honourable Court took the letter
under discussion as one of the declarations constituting, in the Court's
words: "recognition by the Union Government of the continuance of its
obligations under the Mandate", that is from the I.C.J. Reports I950, at
page 135. This was a finding by the Court and Respondent has deduced
no new facts or any other kinclof evidence to militate against this judicial
finding.
In summary, up to the autumn of 1947, the South Africa Government
had-
(a) recognized that in law the Mandate of South West Africa con
tinued in full force and effect, notwithstanding the dissolution of the
League, and this is now common cause;
(b) advocated the establishment of intcrim machinery for the super
vision of mandates pending other arrangements since, in the words of
Mr. Nicholls at the Preparatory Commission "the Mandates Commission
was now in abeyance and countries holding mandates should have a body
to which they could report" ;
(c) taken part in the system of pledges by which each of the manda-174 SOUTH WEST AFRICA
tory powers in terms undertook to carry out all of the obligations of the
mandate until the conclusion of other agreed arrangements;
(d) submitted the issue of the incorporation of the Territory of South
West Africa and the termination of the Mandate of the General Assembly
as the competent international organization for judgment;
(e) associated itsclf in a letter to the Secretary-General of the United
Nations with a resolution of the House of Assembly of the Union Parlia
ment, calling for reports to be rendered to the United Nations as hereto
fore under the Mandate.
Not until September of 1947, did Respondent's Government begin to
question openly the supervisory powers of the United Nations and only
in 1948, did it for the fi.rst time begin to question the legal existence of
the Mandate as a whole. Respondent's repudiation of its earlier acknow
ledgment of a continuing obligation to carry out its responsibilitics laid
upon it by the Mandate, as wcll as its reversa! of its previous recognition
of the authority of the United Nations to assume the task of international
accountability with respect to the obligations of the Mandate, until
other arrangements had been agreed with the United Nations, in the
terms of the 18 April 1946 resolution-such a repudiation and reversa!,
Mr. President, has never been and are not now acceptable to the United
Nations.
On the contrary, the United Nations has adhered to the position that
it is endowed by the Charter with the competence and vested with the
responsibility to give to the inhabitants of South West Africa no less and
no fewer of the benefits of international supervision than the inhabitants
had previously enjoyed under the League of Nations whilc it survived.
There was never an issue with the United Nations-there never has been,
in the Applicants' respectful submission, between exercising or not exer
cising international supervision over South West Africa. The only ques
tion which has ever arisen, except for Respondent's position, has per
tained to the method by which that supervision would be carried out.
There were, as we shall see, ambiguities, inconsistencies, confusion
much is made of that by the Respondent in this record, and I will refer
to those matters in a few moments-and this is why the United Nations
submitted its request to this Court to clear up the doubts and confusion
and thcn accepted the Advisory Opinion overwhelmingly. The only ques
tion which ever arose pertained to the method by which the supervision
would be carried out. The supervisory arrangement, wlùch had been
specifically designed for application to mandated territories generally,
was that embodied in the trusteeship system. The expectation and the
preference of the United Nations Members was that all mandated terri
tories,other than those gaining independence, should be converted into
trust territories, thus becoming subject to the normal supervisory pro
cedures of the Trusteeship Council.
The United Nations, nevertheless, was vested by Article ro of the
Charter with compctence to undertake the task of devising special meth
ods for dealing with any mandated territory which might not be brought
into the trusteeship system. The Court in 1950 raised no question an?
apparently entertained no doubt that this was within the scope of Arti
cle IO.
Respondent's rejection of the trusteeship principle created the neces
sity for the development of an exceptional scheme of supervision. When
it became apparent and ail too clear that continued effort on the part REPLY OF MR. GROSS 175
of the General Assembly, of which the Applicants \Vereand are members,
to persuade Respondent's Governmcnt ta submit a trustceship agree
ment for South \Vest Africa was not likely to achieve success, the As
sembly showed no hesitancy in addressing itself to the task of developing
arrangements for the international supervision, which it was clearly en
titled to exercise, and which Respondent, in our respectful view, equally
clearly was obliged by its own declarations and pledgc to accept.
Mr. President, the Applicants shortly will discuss the development of
the special system-or the third system, as I have previously styled it~
for the implementation of the duty of Respondent to submit to, and the
right of the inhabitants of the Territory to enjoy the protection of, inter
national supervision. Before tuming to that matter, however, which was
raised at length in the rebuttal, it is necessary to deal with certain other
contentions which were emphasized in the rebuttal relating to the disposi
tion of the Palestine Mandate and its significance to thesc proceedings.
Palestine, of course, was the only other instance, other than South
West Africa itself, in which the United Nations, in the mandate field,
was confronted with a special and highly complex mandate problem.
Obviously, the Palestine case was not analagous to the case of South
West Africa. The mandatory power in that case, the United Kingdom,
did not in any sense, of course, deny the continuing validity of its obliga
tionsunder the l\fandate, nor did it ever reject the authority of the United
Nations to exercise supervision. The only references made by Respondent
to justify its contention to the contrary, are its construction of the United
Kingdom pledge-and, in the Applicants' view, a strained construction
-and the course it followed with respect to the Palestine Mandate, and,
therefore, the Palestine problem looms up large as a factor relevant to a
fair and just appreciation of the Respondent's contention in this regard.
The United Kingdom Government never, as I have said, rejected the
authorityof the United Nations to exercise supervision over the Mandate
for Palestine. Certainly, the United Kingdom never avowed, nor did it
harbour, any design to incorporate or annex the mandated Territory
that goes without saying. The history of events relating to the disposi
tion of the Palestine Mandate is a long and tortuous one, and the record
of these proceedings need not be burdened with excessive detail, but one
thing which stands out most clearly, in the Applicants' submission, is
the warmth with which the United Kingdom welcomed the exercise by
the United Nations of a supervisory role with respect to the Mandate
with regard toits administration over the Mandate and the modification
of its then legal status as a mandate.
The contrast between the attitudes of the United Kingdom Govern
ment and that of Respondent-present attitude of Respondent-with
regard to their obligations as mandatory powers, is, in itself, dramatic
evidence of the distinction between the two situations. Respondent alone
among ail mandatory powers has steadfastly rejected the processes of
international accountability. The United Kingdom, in respect of the
Palestine Mandate, accepted gladly an enlargement of the responsibilities
to submit to international accountability, which it had always respect
fully accorded under the Mandate.
In an important sense, however, the Palestine case is relevant, if not
essentially analagous, to the case of South West Africa, inasmuch as the
Palestine question, and its handling by the United Nations, provides a
dramatic demonstration in the early years of the United Nations of the176 SOUTH WEST AFRICA
Organization's willingness and competence to supervise mandated terri
tories which were not placed under the trusteeship system. The United
Nations, in the Applicants' view, did not deal with the Palestine case on
the basis of a competence specially conferred upon it by the United King
dom, as Respondent insists. The historical record appears to make amply
clear, in the Applicants' view, that the United Nations acted on the basis
of _anauthority which was rooted in the Charter itself, that the United
Kingdom acknowledged and welcomed with relief the competence of the
Organization, inasmuch as the complexity and explosive dangers inherent
in the disposition of the Mandate confronted the United Kingdom with
dilemmas which it could not resolve by itself, but required full consulta
tion and co-operation with the international community, speaking
through the competent organ, the General Assembly, and later, the Secur
ity Council.
The United Nations, indeed, was constrained to exercise far more ex
tensive powers in regard to the Palestine question than the League ever
had to exercise, and certainly more than the United Nations has yet
had to assume with respect to South West Africa. The decisively im
portant rote played by the United Nations in the Palestine case may sub
merge, but does not alter, the fact that the basis of United Nations com
petence was rooted in the proposition that the United Nations was exer
cising supervision over amandated territory, and the United Nations was
doing so as a competent international organ which had replaced the
League of Nations, and one upon which the sacred trust had been laid
as an organized international community, in the words of the 1962 Judg
ment, at page 329.
In February 1947, Mr. Creech Jones, then United Kingdom Secretary
of State for Colonies, said in the House of Commons:
"\Ve are not goingto the United Nations to surrender the Mandate,
we are going to the United Nations setting out the problem and
asking for their advice as to how the Mandate can be administered.
Ifthe Mandate cannot be administered in its present fonn, we are
asking how it can be amended." (International Conciliation, October
1949, No. 454, p. 614.)
On 2 April 1947, less than a year after the dissolution of the League
and only a short while after the first session of the General Assembly,
the United Kingdom Government addressed a communication to the
acting Secretary-General of the United Nations, stating, inter alia:
"His Majesty's Governmcnt in the United Kingdom request the
Secretary-General of the United Nations to place the question of
Palestine on the Agenda of the General Assembly at its next regular
annual session. They will submit to the Assembly an account of
their administration of the League of Nations Mandate and will ask
the Assembly to make recommendations, under Article ro of the
Charter, concerning the future government of Palestine." (A/364,
Add. 1, 9 September 1947, p. 1.)
The British communication, from which I have just quoted, also re
quested that a special session of the General Assembly be convened as
soon as possible forthe purpose of constituting and instructing a special
committee to prepare for the consideration of the question at the next
regular session to follow. The special session of the General Assembly,
which was held in pursuance of the British request, established the United REPLY OF MR. GROSS 177
Nations Special Committee on Palestine, commonly called UNSCOP,
by resolution 106(S1) of 15 May 1947. This Committee was given extra
ordinarily wide powers with regard to Palestine, much beyond any which,
of course, had ever been exercised under a mandate, within the concept
of Article6.
The breadth of powers given to the Committee is indicated by the
following two or three paragraphs from the resolution which I have just
cited:
"Paragraph 2: The Special Committee shall have the widest powers
to ascertain and record facts and to investigate ail questions and
issues relevant to the problem of Palestine.
Paragraph 4: The Special Committee shall conduct investigations in
Palestine and wherever it may deem useful, receive and examine
written or oral testimony, whichever it may consider appropriate in
each case, from the mandatory power, from representatives of the
population of Palestine, from Governments, and from such organi
zations and individuals as it may deem necessary.
Paragraph 6; The Special Commlttee shall prepare a report to the
General Assembly and shall submit such proposais as it may consider
appropriate for the solution of the problem of Palestine."
Of course the United Kingdom consented to this breadth of power;
it needed the co-operation of the United Nations in carrying out a task
of this magnitude. The efforts of the United Nations to carry out such
a task would be frustrated without the co-operation of the United
Kingdom. To interpret this as a grant of special power to the United
Nations to carry out normal responsibilities of supervision under the
Mandate, as if that did not exist without this grant of power, if it may be
called one, would seem tome to involve a strange construction indeed of
the British pledge and the British position historically.
White UNSCOP stated in its report to the General Assembly, dated
3 September 1947, that in the absence of the Permanent Mandates
Commission, the mandatory power had no authority to which it might
submit reports and otherwise offer an accounting "in accordance with
the terms of the Mandate", and I lay stress upon the word "terms" of
the Mandate-this is from A/364, pages 26 and 27-it seems evident
from the terms of reference established for UNSCOP that the General
Assembly was convinced that the United Nations possessed supervisory
powers over Palestine-already possessed supervisory powers over the
Mandate. Everybody concerned referred to the Mandate as still in
existence-every document and every report demonstrates that assump
tion, that _premise.
The actions taken by the Special Committee itself amply demonstrate
that it shared in that conviction and assumption. Indeed, in the very
next sentence, after the phrase just quoted from the UNSCOP report,
the Committee buttressed the concept of the supervisory authority of the
Unite~ Nations by doing what, Mr. President? By quoting from the
United Kingdom's pledge to the last session of the Assembly of the
League, and quoting from the Assembly's resolution of 18 April 1946
pertaining to the Mandate. The report of the Special Committee properly
and sensibly called attention to the impossibility, clear impossibility,
of adhering literally to the terms of the Mandate~these referred spe
cifically to defunct organs of the League-those were the terms of the178 SOUTH WEST AFRICA
Mandate. The Committee did not in any sense, visible sense, question
the survival of the basic obligations of the Mandate, or deny the com
petence of the United Nations to serve as the international agency for
giving effect to the central obligation of submitting to supervision and
to control over the alteration of the status of the Territory-these were
"givens" in the situation-the Assembly went far beyond them to meet
the exigencies of the situation, the crisis situation. UNSCOP actually
exercised, in accordance with its terms of reference as defined by the
General Assembly, powers of unprecedented scope with respect to the
mandated Territory of Palestine, and this fact, of course, will be well
known to this honourable Court. lndeed, those powers went so far
beyond the reporting requirement that the accounting which the United
Kingdom had promised-had pledged-to submit to the United Nations
became superfluous. Respondent's reliance upon the absence of such
reports misses this central point. The detailed description of the work
of the Special Committee in Palestine is contained in pages 4-7 of its
report; for instance, one of the headings indicates that the Committee
received "oral and written testimony from governments, organizations,
religious bodies and individuals", and it is noted that the Committee
took and actcd upon the decision to visit various parts of the mandated
Territories-this is from page 4 of the UNSCOP report. This went far
beyond reporting-it made reporting superfluous. There was no problem
in defining the investigative authority of the Special Committee; the
then British representative, Sir Alexander Cadogan, had stated on behalf
of the United Kingdom on 7 May 1947, prior to the establishment of
UNSCOP, and I quote from the General Assembly Official Records, First
Special Session, First Committee, at page 86:
"Of course it is agreed by everyone here that the committee of
investigation we set up will hear witnesses from ail sides, represen
tatives from all interests",
and the Committee did so.
Finally UNSCOP's recommendations themselves leave no doubt as to
the Committee's conception of the supervisory power of the United
Nations over the mandated Territory. For the period immediately prior
to Palestine's acquisition of independent status, as contemplated by the
Committee, it was recommended that: "The authority entrusted with
the task of administering Palestine and preparing it for independence
shall be rcsponsible to the United Nations"; this is from A/364, page 43.
The report of the Special Committce also stated that-
"The relative success of the authority entrusted with the admin
istration of Palestine during the transitional period in creating the
proper atmosphere, and in carrying out the necessary preparations
for the assumption of independence, will influence greatly the
effectiveness of the final solution to be applied. It will be of the
utmost importance to the discharge of its heavy responsibilities
that, while being accountable to the United Nations for its actions
in this regard,the authority concerned should be able to cowit upon
the support of the United Nations in carrying out the directives of
that body."
This is from the same document, at page 44.
But Respondent's attempt to deny the significance of the United
Nations handling of the Palestine problem, aside from citing statements REPL Y OF MR. GROSS 179
of UNSCOP to the effect that the dissolution of the League meant that
Great Britain could no longer discharge fully its obligations in accordance
with the terms of the Mandate; Respondent's attempt to deny the
significance of the United Nations activities with respect to the handling
of the Mandate is premised----entirely premised--on the argument that
the supervision came about solely as a result of what the Respondent
calls "a specific arrangement" between the United Kingdom and the
United Nations. ln the verbatim record, VIII, pages 494-495, the Respon
dent states its key contention in this respect as follows, and relies very
heavily indecd upon the line of argument, because it all goes back
to the interpretation of the British pledge in April of 1946 which Res
pondent insists must be interpreted in the light of its construction
of the Palestine case handling by the United Nations. Respondent
argues:
"i\lrPresident, as regards the supervisory powers in respect of
Palestine, which the United Nations eventually obtained, it is true
that shortly before Palestine was, in fact, divided and became
· independent on that basis, there was a brief period of United Nations
supervision, but the very point which is emphasized by the record
is this,that that supervision came about as a result of a specific
arrangement, agreed to by the United Kingdom-and it was quite
clearly the contemplation of ail concerned that that specific arrange
ment was necessary in order to bring about that supervision. There
was no contemplation whatsoever of a previously existing super
visory power on the part of the United Nations."
I have sought to make clear that the record in fact shows that the
United Kingdom acknowledged and accepted the competence of the
General Assembly, but it did not confer such competence upon the
Assembly. The co-operation of the United Kingdom, as I have also said,
was indispensable to the successful discharge of the difficult task which
the United Nations undertook; but the fact that the Organization needed
and obtained the collaboration of the member State most intimately
concerned cannot be construed reasonably as indicating that the United
Nations lacked authority to deal with the problem in the absence of
special competence conferred upon it by that State. In offering its
collaboration Great Britain designated itself as the Mandatory; in
offering its collaboration Great Britain was carrying out its obligations
as a mandatory beyond the bounds of the obligation; in order to deal
with the exigencies of the situation, they went beyoncl the bounds of
their obligations, as the United Nations undertook an extraordinarily
wide responsibility. The Assembly was supervising a mandate-that is
clear,obvious-but it was doing something much more, in addition, and
the accomplishment of that additional burden and function depended
largely upon the co-operation of the î\fandatory Power, which was never
withheld. Respondent's suggestion to the contrary has ironie, if not
ludicrous, overtones; it conjures up a vision of what might have happened
if the United Kingdom had followed the same course as Respondent,
if the United Kingdom had rejected arole for the United Nations in the
supervision and disposition of the Palestine Mandate; the head reels at
the thought/ '\Vhat happened, fortunately, was that the United Kingdom
accepted with relief a greater United Nations role and responsibility
than the latter would have exercised merely as the supervisory organ180 SOUTH WEST AFRICA
over the Mandate, pending an agreed arrangement to supplant the
Mandate. The issue of the authority of the General Assembly to exercise
supervision over the mandated Territory was raised and discussed in the
ad hocCommittee on the Palestinian Question which met after the report
of UNSCOP was released. This Committee, the ad hoc Committee on the
Palestinian Question, after reviewing the recommendations of UNSCOP,
made the final recommendations concerning Palestine to the General
Assembly. The discussion of the competence of the General Assembly
which took place in this body did not involve the issue, never involved
an issue, concerning what power could be or had been bestowed upon the
Assembly by any so-called "specific arrangement", to use Respondent's
phrase, supposedly made on the initiative of, or in agreement with, the
United Kingdom; rather, that discussion in the ad hoc Committee quite
properly focused upon the question of the scope and extent of the powers
relating to the supervision of mandated territories falling to the General
Assembly by virtue of the Charter of the United Nations. Several
member States, on the basis of special interest in the future of Palestine,
contended that the United Nations had no competence whatever to deal
with mandated territories, and accordingly lacked competence to pass
upon the recommendations made in UNSCOP's report. A draft resolution
was prepared, which would have submitted several questions to the
International Court of Justice with a request for advisory opinion.
Among the questions proposed to be asked-among them-were the
following-I select those strictly relevant to the point under discussion
here, in thiscontext:
Question (e) whether the legal basis for the Mandate for Palestine has
not disappeared with the dissolution of the League of Nations, and
whether it is not the duty of the Mandatory Power to hand over power
and administration to a government of Palestine representing the right
ful people of Palestine;
(g)-whether the United Nations is competent to recommend either
of the two plans and recommendations of the majority or minority of the
United Nations Special Committee on Palestine, or any other solution
involving partition of the Territory of Palestine, or a permanent trustee
ship over any city or part of Palestine, without the consent of the
majority of the people of Palestine; and
(,Juestion (h)-whether the United Nations, or any of its member
States, is competent to enforce or recommend the enforcement of any
proposai conceming the constitution and future government of Palestine,
in particular any plan of partition, which is contrary to the wishes or
adopted without the consent of the inhabitants of Palestine.
I have quoted these three questions proposed in a draft resolution
circulated m the ad hoc Committee from the General Assembly Official
Records, Second Session of the ad hoc Committee, pages 300-301. These
questions were based upon the opinion expressed in a report drawn up by
representatives of Pakistan, Syria and Saudi Arabia that-
"The United Nations Organization has not inherited the con
stitutional and political powers and fonctions of the League of
Nations, and that it cannot be treated in any way as the successor
of the League of Nations insofar as the administration of mandates
is concerned."
That is fromthe same report, page 276. These were the opinions expressed REPL Y OF MR. GROSS r8r
by Pakistan, Syria and Saudi Arabia at that time, in connection partic
ularly in the context of the Palestine Mandate in which they asserted a
special interest,as the Court will know.
It will be noted at once that proposed question (e), the crucial one,
whether the legal basis for the Mandate for Palestine has not disappeared
with the dissolution of the League, and so forth, related to the issue of
lapse or survival of the Mandate upon the dissolution of the League.
This is, however, no longer an open issue in these proceedings. Respondent
and the Applicants have reached common cause, it would appear, that
the Mandate did survive the dissolution of the League; as a matter of
law that proposition was accepted by the then Government of Respon
dent. Respondent has conceded, in short, that the Government of South
Africa, during the period of and at the time of the dissolution of the
League, proceeded on the premise that the mandates system as a matter
of law survived the League's dissolution; I cite the verbatim record.
VIII, pages 428-429.
No question was raised concerning the lapse or survival of inter
national accountability in the resolution of these three powers, to which
I have referred, in the ad hoc Committee procccdings; no question was
raised about the lapse or survival of international accountability apart
from the so-called legal basis of the Mandate itself, in the phrase they use.
Nor was any question raised on the basis of the assumption voiced by
Respondent, to wit, that conferment of competence upon the Assembly
was accomplished by a "special arrangement" with the United Kingdom.
No such question was raised.
The only question raised was the survival or not of the Mandate upon
the dissolution of the League of Nations.
Questions (g) and (h) which I have quoted referred merely to the
competence of the United Nations to recommend or enforce any solution
without the consent of the inhabitants of the Territory. That was the
point of questions (g) and (h). And obviously those questions assumed
that such competence would exist if the inhabitants manifested consent
to a proposed solution, if the question (e) had becn submitted to the
Court and answered to the effect that the legal basis for the Mandate
had survived.
The majority of the members of the ad hoc Committee did not share
the doubts voiced in the report of UNSCOP and reflected in the quota
tions relied upon by the Respondent, which I have just quoted. The
decision of the ad hoc Committee not to request an advisory opinion
followed release of the UNSCOP report, as I have said. In the ad hoc
Committee discussions preceding the decision not to request an advisory
opinion, in respect of these questions, or any of them, the views of the
minority were refuted by several other members of the Committee. The
Polish representative declared that~
"... it was impossible 'to dispute the validity of the Mandate
conferred by the League of Nations and confirmed by the terms
of Article 80 of the Charter. Although the functions of the League
of Nations had corne to an end, that did not mean that ail control
was thereby abolished: that responsibility now rested with the
United Nations."
This is from the record at page 162. I pause merely to note the reference
to Article 80 of the Charter, a construction which appears to give anI82 SOUTH WEST AFRICA
affirmative, positive content, which was frequently done by Members
but which the Applicants do not give to that article.
The Soviet delegation's views are reflected in the summary record as
follows:
"Mr. Tsarapkin, the Soviet representative, dealt with the question
of the Assembly's powers in regard to the solution of the Palestinian
problem. It was surprisin~ and deplorable that those powers should
have been called in quest10n. Neither the United Kingdom, when it
had made its request to the United Nations, nor the representatives
who had attended the special session of the Assembly, nor the
members of the Specîal Committee had had any doubts on that
score. Such doubts as were being expressed in the ad hoc Committee
were completely unjustified, because Article IO of the Charter gave
the General Assembly the rîght and duty to discuss the Palestine
question [mark the word 'duty' to discuss]. It was in complete
accordance with the provisions of Article IO that the special session
had been called, the Special Conunittee established and the Pales
tinian question considered by the General Assembly. Any recom
mendations which the Assembly made would have sound juridical
foundations." {P. 84 of the record already cited.)
The Soviet Union thus expressed agreement with the position which
had been expressed by the United Kingdom in its letter to the Acting
Secretary-General on 2 April I947, from which I have previously quoted
in part. This was to the effect that Article IO provided the basis for the
Assembly's action regarding Palestine. Article IO, of course, also was
cited by the Court in the 1950 Opinion as establishing the legal founda
tion for the competence of the Assembly to exercise supervision and to
receive and examine reports conceming mandated territories (I.C.J.
Reports I950, p. 137).
Mr. President, the United States delegate's views are reported in the
summary records of the Committee as follows:
"He had wished to say that the legal competence of the United
Nations having been called in question, he did not consider that it
should be referred to a sub-committee while the principal com
mittee waited for its judgment. He stated emphatically that there
was no doubt in the mind of the United States delegation that the
ad hoc Committee and the General Assembly had complete authority
to deal with the issue." (P. 135 of the ad hoc Committee report.)
It is noteworthy that the views of the Syrian delegate, who opposed
the Assembly's competence to deal with Palestine, are reported in the
summary record as follows:
"The mandatory could present the case to the General Assembly
in one of two or three forms. The first way would be to rccognize
the independence of the mandated territory, since it is mature and
entitled to that independence, and to notify the General Assembly
to take note of that fact.
The second way would be to corne to a trusteeship agreement
with the States directly concerned, as provided for in Article 79
of the Charter, and to present the trusteeship agreement to the
General Assembly for its approval.
The third way would be for the mandatory to corne to the General REPL Y OF MR. GROSS 183
Assembly and say-'The mandate which I have from the League
of Nations has failed, it is unworkable. I give it up and return this
trust to the General Assembly to manage it in whatever way it
likes'." (Official Records of the General Assembly, 1st special session,
Plenary, Vol. I, p. 136.)
The clear and specific assumption that the :Mandate existed, that the
United Kingdom as mandatory had duties under it, and the third
alternative suggestion was that the United Kingdom might corne to the
United Nations and surrender the Mandate, return this trust.
In summary, Mr. President, the record provides evidence that, con-.
trary to Respondent's contention, there was no evidence of a reliance
upon a British so-called special arrangement to confer powers upon the
United Nations over mandated terri tories. The question of the Assembly's
competence was discusscd in terms of the provisions of the Charter,
notably Article ID, with respect to the scope of the exercise of its powers
in this extraordinary situation which, as was evident to all concerned,
far transcende<l the responsibifüies ever exercised by the League, ever
exercised by the United Nations in any other case with respect to a
mandate. The Assembly affirmed a competence derived from and based
upon the Charter by rejecting the suggestion that its authority was
sufficiently uncertain even to require clarification by the Court, and by
taking action reflecting confidence in its own view of the matter. This
is to be contrasted with the 1950 action, in which the confusion pre
vailing in the Assembly at that time led to a decision to request the
honourable Court for an advisory opinion, with respect to the range of
questions involving the Mandate's existence itself and ail the corollary
factors, in view of the Respondent's obdurate rcfusal and failure to
comply with its pledge of April 1946.
It will be recalled at this point that Respondent's version of the
history of the Palestine question has a twofold significance in these
proceedings. First, it is asserted as a so-called new fact, unknow'll to
the Court in r950, which the Respondent asserts must have led the
Court to a contrary conclusion had it known of Respondent's version
of the Palestine developments. And secondly, it is asserted in support of
Respondent's construction of the United Kingdom pledge of April 1946,
which in the Applicants' submission is a strained, distorted and wholly
erroneous construction of that plcdge.
Respondent seeks to bolster its contention with respect to the latter
point, that is to say, that the United Kingdom did not in its pledge
intend to recognize a legal duty to submit to United Nations supervision,
by arguing that, at the outset of the Palestine question (and I quote
from the verbatim record, VIII, at p. 495), "from the outset, the United
Kingdom made it clear that it would not necessarily accept any United
Nations recommendation". In proper context Respondent's argument
may be unwittingly misleading. The British delegate, in fact, under
standably drew a distinction between acceptance of the General Assem
bly's recommendations, on the one hand, and unwillingness to bear sole
responsibility for carrying them out, on the othcr hand.
. Thus, during the first special session of the Assembly, upon being
questioned as to his Government's attitude, the British delegate replied
as follows:
"Ali we say, and I made this·reservation the other day, is that SOUTH \\'EST AFRICA
we should not have the sole responsibility for enforcing a solution
which is not accepted by both parties and which we cannot reconcile
with our conscience. ls there any other Member of the United
Nations which, in our place, would not make so reasonable a stipula
tion? But, if the question is addressed to us conceming our accep
tance of any recommendation which the Assembly may make, I
suggest that it might also be addressed to other interested parties,
and indeed to all other Members of the United Nations." (Official
Records of the General Assembly, ISt special session, main committees,
Vol. III, p. 184.)
That seemed to be his way of saying the question is superogatory.
[Public hearing of II May I965]
Mr. President and Members of the Court, at the conclusion of the last
session Ihad referred to the distinction to be drawn between the British
delegate's acceptance of the General Assembly's recommendations, on
the one hand, and Britain's unwillingness to bear the sole responsibility
for carrying out such recommendations, and that, in the Applicants'
submission, the failure of Respondent to draw this distinction might
inadvertently create an erroneous impression of the significance of the
transaction, and I had quoted a statement made by the British delegate
during the first Special Session of the General Assembly in which he
made clear, or so it seems to the Applicants, that Britain was painting
out very naturally that it should not have "the sole responsibility for
enforcing a solution which is not accepted by the parties and which we
cannot reconcile with our conscience". Those were the words of the
British delegate. And I had said, i\fr. President, that the distinction
clearly was appreciated by other members. Thus, for example, the
New Zealand delegate, Sir Carl Berendsen, said, and I quote from the
records of the Second Session Official Records of the Assembly, the ad hoc
Committee on the Palestinian question, the 28th Meeting, 22 November
1947, at page r66:
"The mandatory power must not be charged with the sole
responsibility forthe implementation of any partition plan. If the
United Nations assumed the responsibility for partitioning Palestine
then each member must assume proportionate responsibility for the
implementation of that decision"~
a burden-sharing most appropriate in the circumstances.
An undertaking by Respondent in terms similar to those expressed
by the British Government at that time would indeed be a historie
forward step, with regard to the :Mandate for South West Africa. The
distinction made by the United Kingdom was explained in more detail
by the then Colonial Secretarv, Mr. Creech Jones, as follows, from the
same minutes at page 97: •
"lt had been suggested that the United Kingdom should carry
the full responsibility for the administration of Palestine and for
enforcing changes proposed by the United Nations during an
indefinite transitional perioduntil independence was attained. The
United Kingdom was to act under the supervision of the United
Nations and to be assisted by a programme of aidas mentioned by
the representative of the United States (nth Meeting) including REPLY OF MR. GROSS 185-
the possible assistance of a voluntarily recruited international police
force. Itwould be unreasonable to ask the United Kingdom Govem
rnent to carry sole and full responsibility during the transitional
period.''
And, as a final evidence of the fact that the true significance of the
British position and the distinction sought to be drawn between bearing
the sole responsibility and accepting the decisions or recommendations
of the General Assembly, this distinction was perceived, among others,
by President Masaryk of Czechoslovakia who added at the same pro
ceedings at page 45:
"With the United Kingdom ready to withdraw from Palestine
and not prepared to implement alone the decisions which the
General Assembly might take on the basis of the recommendations
of the ad hoc Committee, that Committee's responsibility had
greatly increased since it would have to find a means of implement
ing the General Assembiy's decisions in which everyone would have
to help."
The true significance of the British position, therefore, Mr. President,
was not that which is contended for by Respondent. The United Kingdom
was merely asking for international implementation of any plan adopted
for dealing with the difficult problem of Palestine, and it was accepting
the authority of the United Nations even beyond the degree of super
visory power which the United Nations would have had the competence
to exercise under the terms of the Mandate.
Respondent argues finally that the resolution of the General Assembly
on the Palestine problem-the last one-and the attached plan of parti
tion, and these are Respondent's words, ."makes abundantly clear the
need for consent thereto by the former manda tory power". This was in
the verbatim record, VIII, at page 499. The inference which Respondent
seeks to draw from this statement on the resolution is that a special
consent was conferred-a special arrangement was entered into--upon
the basis of which solely the United Nations had authority to deal with
the matter.
The only evidence cited in support of Respondent's contention in this
regard is that the final resolution, which is 181 (Il), 29 November 1947,
after noting in its preamble that the Assembly had met in special
session at the requcst of the rnandatory power, states in the first opera
tive paragraph:
"Recommends to the United Kingdom, as the mandatory power
for Palestine, and to ail other Members of the United Nations the
adoption and implementation [and so forth, that is to say, the plan
that follows]."
Respondent, in its rebuttal argument, stresses and repeats the phrase
"Recommends to the United Kingdom". This was in the same verbatim
record at page 499, and again seeks to draw an inference of a special
arrangement between the United Kingdom and the United Nations which
solely was responsible for vesting authority or power or competence
in the United Nations w.ith respect to this matter. The word "Recom
mends", of course merely reflects the fact that the powers of the General
Assembly, under Article IO of the Charter, are recommendatory, as the
Court would be aware. The use of the term "Recommends" in United186 SOUTH WEST AFRICA
Nations General Assembly resolutions, of course, is customary and has
no special significance in thiscontext at ail. What is unusual, however,
about the quoted operative paragraph is not the element to which the
Respondent draws the Court's attention, it is that the quoted paragraph
addresses its recommendation not only to the United Kingdom, as
mandatory, but to ail other Members of the United Nations as well. The
significance of singling out the United Kingdom is highlighted by it
being addressed in the resolution as "mandatory". It was addressed in
that capacity, as distinguished from all other Members of the United
Nations, to whom the recommendation was also addressed. The General
Assembly thus confirmed that the ri.fandate was in existence, that the
United Kingdom was the mandatory, and, by the clearest implication,
that the General Assembly considered that the legal basis for the exercise
of the power was rooted in the Mandate itself. There would be no other
reason for singling out the United Kingdom from among all the other
Members of the United Nations to whom the resolution was addressed
unless that legal fact had some significance in the context. And the
quoted paragraph, accordingly, in the Applicants' respectful view, is to
be accorded a significance quite the contrary to that for which the
Respondent contends.
The General Assembly, at ail times, evidenced a broad conception of
its competence in the Palestine question, a competence which was based
on the Assembly's supervisory powers under the Mandate, even though
it went far beyond the limits of those powers to meet the exigencies of
the problem. Perhaps the single clearest bit of evidence in support of
this contention is to be found in the final resolution of 29 November 1947
itself. The General Assembly incorporated in that resolution a request
directed to the Security Council urging the latter to assume respon
sibilities in connection with the recommended solution. This will be
found in the second operative paragraph, U.N. Document A/519,
pages 131-132. No reference whatever was made, in that operative para
graph addressed to the Security Council, to United Kingdom consent in
this connection. It was clearly regarded as irrelevant. Nor was any
reference made to United Kingdom consent in the partition plan itself,
which provided, inter alia,that the Commission which was to be estab
lished inthe plan "was to be guided in its activities by the recommenda
tions of the General Assembly and by such instructions as the Security
Council may consider necessary to issue". That is from page 135 of the
docwnent alreadv cited. No reference was made therein to United
Kingdom consent or the necessity for the United Kingdom's consent.
The Applicants respectfully submit that only one conclusion can reason
ably be dra\vn from the history of events and transactions which marked
the course of the Palestine question from its origination to its solution.
This conclusion is that the British Government at all times mani
fested its awareness and acknowledgemcnt of all its obligations as
Mandatory, that it was fully alive to the burden which it was forced ta
bear as Mandatory by reason of the extraordinary coinplexities of the
problem, that it proffered full co-operation to the United Nations to the
end that a just and orderly solution might be found through the pro
cesses of the United Nations and the processes in this case went far
beyond, but included its powers and competence under the Mandate.
For its part, the General Assembly at ail times manifested a very real
istic awareness that a solution could not be found in the absence of REPLY OF MR. GROSS
loyal co-operation on the part of the Mandatory, inasmuch as the
responsibilities undertaken by the United Nations in this matter went
far beyond the normal mandate burden as I have said.
The co-operative enterprise which resulted from the full co-operation
between a mandatory power and the United Nations was indispensable
to a successful resolution. References to consent of the United Kingdom
in various contexts relevant here-and the phrase was used in various
contexts, as Respondent propcrly points out-but the use of that phrase
in those contexts will be seen to reflect mutual realistic awareness of the
necessity for co-operation in processes far transcending those which
normally had attended or would attend the supervision over a mandate.
Such references to consent of the United Kingdom, read in the context
of the problem itself, merely show that the United Nations was exer
cising a fonction which included and was rooted in its supervisory power
over the Mandate but which, in addition, went far beyond the normal
exercise of such administrative authority.
In the separate opinion of Judge McNair, appended to the 1950
Opinion, the learned judge stated as follows, and 1 quote from page 157,
of the l.C.J. Reports I950:
"The dissolution of the League on 19 April 1946, did not automa
tically terminate the mandates. Each mandate has 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 29 No
vember 1947, the General Assembly of the United Nations adopted
a resolution approving a Plan of Partition of Palestine, which was
firmly based on the view that the Palestine Mandate still continued
as is evident from Articles 1 and 2 of part (a) and Article 12 of
part (b) of the Plan"
and Judge McNair went on to say-to point out again in the Peace
Treaty with Italy of IO February 1947-"it was considered necessary
Article 40-that Italy should renounce ail her rights under the mandate
system and in respect of any mandated territory".
Now of course it is common cause, or seems to be, that this Mandate
over South West Africa and the mandate system in general was regarded
by Respondent's Government, at the time, to have survived the dissolu
tion of the League of Nations as a matter of law, and, of course, that is
completely consistent with Judge McNair's opinion and needless to say,
with the views of this honourable Court in its 1950 Opinion. It is inter
estingly enough a reversai, this concession by Respondent, of the position
taken by Respondent through Dr. Steyn in his statement to the Court in
1950. At that time, the Respondent, as the Court will be aware, took
the position before the Court that the Mandate had lapsed upon dis
solution of the League and that the Respondent had the authority,
the power and the confidence to do what it wished with the territory.
Respondent seems, therefore, to have reversed itself back to the position
that it assumed in 1946, that is to say, it now conccdes that, at that time
in 1946, Respondent's Government considered that the Mandate was in
existence despite the dissolution of the League as a matter of law and
bas thereby withdrawn its presentation to the Court in that respect
in 1950.
The foregoing discussion, Mr. President, it is rcspectfully submitted,
sets into true perspective ail three so-called ncw facts upon the basis of-188 SOUTH WEST AFRICA
which Respondent asks the Court to erase or to ignore, to review and
reconsider the 1950 Advisory Opinion.
First, it has cited now again, as in1962 in the proceedings upon the
preliminary objections that had the Court been aware of the circum
stances attending the decision on the part of the Preparatory Com
mission to reject the proposai for a temporary trusteeship commission,
had the Court been aware in 1950 of these circumstances, the Court
could not have reached the conclusion which it did. As a matter of fact,
Mr. President, in the record of the presentation of the matter to the
Court in 1950, as we pointed out to the Court in the Oral Proceedings
of 1962, the submissions of the Secretary-General's representative,
Dr. Ivan Kerno, at that time, included reference to the action of the
Preparatory Commission in rejecting the proposai for the temporary
trusteeship commission. A careful reading of the submissions before the
Court in 1950, of the arguments before the Court in 1950, shows that
there was not an elaborate or even a studied demonstration or representa
tion to the Court in 1950 conceming the actual circumstances within the
Preparatory Commiss10nat that time-the Applicants have now endeav
oured to lay these before the Court in perspective.Itwould seem reason
able to assume that if the Court in 1950 had known, for example, about
Mr. Nicholls' proposai for the establishment of a temporary machinery
to which to report, if the Court had known that other Mandatories had
supported a similar procedure, if the Court in 1950 had known that there
was substituted for this proposai the technique of the pledging pro
cedures-if the Court had known this in 1950, it seems to the Applicants,
far from changing their view with regard to the proper interpretation of
the circumstances, they would have regarded their view to be fully
confirmed and justified. Then, the Respondent has relied upon the two
Chinese resolutions, as a new fact, which had the Court known in 1950,
would have led to a conclusion contrary to that reached by the Court.
The Court in 1950 it is true, so far as the record of the pleadings dis
doses, having not been advised of the circumstances in which the
Preparatory Commission had rejected the proposai of the mandatory
powers for a temporary trusteeship committee, there was no basis upon
which the Court could then adequately evaluate the two Chinese resolu
tions, even if they had been called to the attention of the Court-this is
obviously highly speculative at best-but the Respondent has placed
so much reliance upon these new facts that they have repeated them
here, at this phase of the proceedings, dcspite the fact that the Court in
its 1962 Judgrnent had said "ail important facts were before the Court in
1950". Even ignoring that however, looking at the new facts themselves
on their merits and on their own bottom, the two Chinese resolutions
are fully explained, as the Applicants have attempted to point out, by
the fact that the first draft Chinese resolution was an attempt to revive the
approach of the mandatories in the Preparatory Commission, which
envisaged the establishment of a temporary trusteeship procedure, and
was not accepted. It is purely speculative from anything appearing in
the record-it is purely speculative-why it was not accepted. The
inference sought to be drawn by the Respondent is contrary to what the
Applicants consider to be the reasonable inference, in the light of the
drcumstances which preceded this particular event and I refer, of
course, to the circumstance that in the Preparatory Commission the
mandatory powers, including the Respondent, had proposed the estab- REPL Y OF MR. GROSS 189
lishment of just such a procedure as the first Chinese draft proposa!
envisaged should be adopted by the Assembly itself. It is therefore at
least as plausible, in the Applicants' viewmore plausible, to infer that it
was perhaps the Respondent or other mandatories or a group of them
ail acting together who were overruled when the Assembly decided not
to accept the Chinese draft resoiution which would have set up the very
machinery the mandatories had proposed in the Preparatory Com
mission.
The second Chinese resolution, which was adopted, followed the
pledging technique, adopted a procedure which the Preparatory Com
mission itself had considered more appropriate in order to avoid the
possibility of temporary machinery being used, consciously or otherwise,
as a reason for delay in the preparation and conclusion of trusteeship
agreements.
Thirdly, the other so-caUed new fact which the Court did not have
before it in 1950, according to Respondent's submission, is the Palestine
Mandate history and the British attitude and actions with respect
thereto. According to Respondent's version thereof, and as the Appli
cants have endeavoured to make clear by a review of the Palestine
Mandate history leading to its disposition, it would seem that if the
Court had known about the Palestine Mandate history in its proper
context and setting, it would also have felt and deemed that its con
clusion with respect to the survival of the mandate, and the survival
of administrative supervision, were confirmed.
Indeed, Mr. President, the full story might have been persuasive to
Judge McNair himself. This is speculative but it will be recalled that
Judge McNair in his separate opinion described the several declarations
and statements made by the Respondent during the period in question
as being, and I quote from the leamed Judge at page 161, of the I.C.J.
Reports I950, as follows:
"These statements are in the aggregate contradictory and inconsis
tent; and I do not find in them adequate evidence that the Union
Govemment has either assented to an implied succession by the
United Nations to the administrative supervision exercised by the
League up to the outbreak of the war in 1939, or bas entered into a
new obligation towards the United Nations to revive the pre-war
system of supervision."
That was Judge McNair's comment on the basis of the record before
the Court in 1950 which with the omissions which of course I have de
scribed with respect to these three new facts, that is the omissions with
respect to the full circumstances, the full context, the full perspective
necessary to an understanding of these three so-called new facts. Of
course the majority of the Court, even on the basis of the more limited
record then available toit reached a conclusion contrary to that reached
by the distinguished learned Judges McNair and Read in the 1950 pro
ceedings, but full appreciation of the facts, had they been available to the
Court, including the position taken in the Preparatory Commission by
Mr. Nicholls on behalf of Respondent as well as the attitudes of the other
Mandatory Powers with respect to the proposai for the establishment of
temporary machinery to which the l\fandatories could account to pending
other agreed arrangements-these matters were not before the Court in
1950 and had they been, as the Applicants respectfully submit, the Court190 SOUTH WEST AFRICA
with a majority view would have been confirmed and not negated and
even perhaps the learned Judges who dissented with respect to supervisory
authority might have found in the circumstances a basis for the resolu
tion of what Judge McNair called the aggregate of contradictory and
inconsistent aspects of the statements read textually-the announcement
that South Africa intended to submit proposais for termination of the
Mandate, that they favoured annexation subject to the judgment of the
General Assembly as General Smuts said and other statements of that
sort indicating a plan or intention or design to terminate the Mandate,
to annex the Territory subject to the necessary international consents
and procedures. These were manifest.
But as has been sa.id, up to the change of government and as the Re
spondent concedes, up to the change of government in respect of the
replacement by General Smuts' government by the Malan government,
there was never at any time any question raised about the continuance
of international jurisdiction in a sense of survival of the Mandate and
there was never any explicit reference made on the basis of which one
would have to conclude that the Respondent was not fully aware of the
continuance of ail its obligations under the Mandate and never distin
guished between the two until the change of government, and then of
course its position changed markedly.
What will be related shortly-thc proceedings in the United Nations
itself-will I think, tend to confirm the reasonabJeness of these remarks
submitted on behalf of the Applicants.
The development of the United Nations supervision over the i\Iandate
for South West Africa is very revealing in itself, both in form, manner
and content of the necessities perceived by the Assembly of a special
system, a third system for supervision of this Mandate. The Territory
of course, it was hoped, would be placed under trusteeship. That hope
survived many storms, frustrations, and disappointments, and in the
records of the proceedings of the time the Court of course will find con
stant efforts, persuasions, cajoling, pleas, addressed to the South African
Government, to relent its view expressed at San Francisco, to relent and
to follow the tide of history and the expectations of the founders of the
Charter with respect to the orderly evolution and development and ex
pansion of the mandate system into the trusteeship system toward in
dependence and self-government on the basis of self-determination.
The differences inthe nature of the role played by the United Nations
as between the case of Palestine which has just been discussed, and of
South \Vest Africa-the striking differences in the nature of the role
played by the United Nations should not obscure the essential identity
of the competence asserted in both cases, the competence to give con
tinuing effect to the principle of international accountability for the
administration of and the international control over the disposition of
territories, all territories, whichhad acquired the status of l\fandates
under the League of Nations. The first step in the developments relating
to South West Africa was the refusai of the General Assembly in 1946 to
accede to the Respondent's request for incorporation of the Territory
and for the termination of the Mandate. By resolution 65 (1),the General
Assembly affirmed its competence to modify, determine and consent to a
change in the status of South West Africa, thereby beginning the move
ment toward the creation of a special supervisory arrangement, perceived
to be necessary for the mandated Territory of South West Africa. REPLY OF MR. GROSS
The next step in the process of development of United Nations super
vision over South West Africa as a mandated Territory was the adoption
by the General Assembly on 1 November 1947 of resolution 141 (II), in
which the Assembly once more urged Respondent to propose a Trustee
ship Agreement for the Territory and authorized, and I quote:
"Authorised the Trusteeship Council in the meantime to examine
the report on South West Africa recently submitted by the Govern
ment of the Union of South Africa and to submit its observations
thereon to the General Assembly:'
This is from the Official Record of the United Nations General Assembly,
Second Session, A/519/1948, at page 47.
By this action, Mr. President-and this I think is apropos of the ques
tion proponnded by Judge Jessup, as indeed many of the references to
the subject interspersed through the history of this matter are relevant
in the Applicants' submission, to the question propounded by Judge
Jessup-the General Assembly indicated that the report submitted by
Respondent was not to be treated as if it were a report under Article
73 (e) of the Charter, that is to say, merely for information purposes, in
the language of Article 73 (e).
Even though nota report relating to a trust territory, the reference by
the General Assembly of the report to the Trusteeship Council with the
instruction to that body, and I quote again: "to submit its observations
thereon to the General Assembly", manifested the intention to treat the
report as a basis of a more thorough procedure of supervision than could
have bcen justificd under the terms of Article 73 (e). The disposition by
the General Assembly of South Africa's report therefore, reflected the
General Assembly's decision that its competence and duty with respect to
South West Africa extended beyond the confines of Chapter XI of the
Charter. It signalled the actual beginning of the United Nations super
vision over a mandated Territory, other of course than the special
circumstances of the Palestine question, which was the other example,
but that was to lead to liquidation of the Mandate and of course in this
situation, what was designed as a temporary situation with the hope and
expectation of trusteeship has become, and is now, a continuing one.
The Trusteeship Council was not empowered of course to treat South
\Vest Africa as if it were a trusteeship territory, a point brought up quite
clearly and explicitly by several members of the Trusteeship CounciL
There was manifest disagreement among the members of the Council
as to the extent of its supervisory powcrs over the mandated Territory
of South West Africa. But there was no dispute as to the legal authority
of the Trusteeship Council to carry out the instructions set down by the
General Assembly in resolution 141 (Il), that is to sav, to examine the
reports submitted by the Respondent Govemment and to submit obser
vations thereon to the General Assembly.
Compliance with the instructions of the General Assembly, of course,
involved and pre-supposed the existence of supervisory fonctions with
respect to the Territory, which is consistent with no other assumption,
obviously.
Respondent's present contention that the Trusteeship Council did not
exercise supervisory powers, the present contention, was not Respon
dent's position at that time; to the contrary, the Government of Prime
Minister Malan protested strongly against what it insisted was an un- SOUTH WEST AFRICA
warranted exercise of supervisory powers on the part of the Trusteeship
Council. Thus, before the Fourth Committee of the General Assembly in
1948, Respondent's representative, Mr. Louw, stated that:
"... the Union Government could not admit the right of the Trustee
ship Council to use the report for purposes for which it had not been
intended. Still less could the Trusteeship Council assume for itself
the power claimed in its resolution, that is to determine whether the
Union of South Africa is adequately discharging its responsibilities
nnder the terms of the Mandate. Furthermore, that power was
claimed in respect of a territory which was not a trust territory and
in respect of which no trusteeship agreement existed. The South
African delegation considered that in so doing, the Council had ex
ceeded its powers." (OfficialRecordsoftheThird Session of theGeneral
Assembly, Part I, Trusteeship, Fourth Committee, p. 288.)
At that time Respondent-erroneously as a matter of law in Appli
cants' submission-but at that time Respondent protested the exercise
by the Trusteeship Council of a supervisory authority on the basis of
Respondent's contention that it exceeded its power. Today, Respondent
appears to argue, as understood by the Applicants, that the Trusteeship
Conncil was not at that time seekmg to exercise or intending to exercise
a supervisory authority. So we understand their contention, and perhaps
we are wrong in the way we interpret it.
The South African Government's belief that the Trusteeship Council
was not only asserting supervisory authority, but was actually exercising
it, was made even more explicit by its representative, Mr. Louw, at the
next meeting of the Fourth Committee. I quote from the record:
"It was clear from the observations adopted at a later meeting,
that is of the Trusteeship Council, and from the list of questions
submitted to the South African Government, that the majority
of the Council was not only very critical of the Union Government's
administration, but that it considered that the Council had a super
visory fonction in regard to South West Africa, and that the Union
Government was accountable to the Trusteeship Council for its ad
ministration of the territory.''
That is from the same GeneralAssembly Official Records already cited,
at page 297. In 1948, therefore, Respondent complained that the ma
jority of the members of the Trusteeship Council "considered that the
Council had a supervisory fonction with respect to South West Africa".
And in these proceedings, as I have said, the Respondent contends pre
cisely the opposite.
Applicants' statement in this regard reflects the comment made by
Respondent in the verbatim record, VIII, at page 468, from which I
quote: "The Trusteeship Council did not consider that it was required to
exercise a supervisory power in respect of this report." That refers to
the report of 1946, submitted by Respondent to the United Nations.
Itis clear, in the Applicants' respectful view, that Respondent's earlier
position was correct, in so far as it recognized and understood that the
Trusteeship Council asserted and exercised supervisory powers over
South West Africain this connection. Of course, Rcspondent's position,
in our respectful view, is totally erroneous, that the Trusteeship Council,
on reference from the General Assembly, lacked the power to exercise
such supervisory authority as a matter of law-those, of course, are two REPLY OF MR. GROSS
193
quite different propositions. But Respondent seeks to offset, or expunge,
its earlier and more meritorious position, that is, its acknowledgement
that the Trusteeship Council was, indeed, asserting and exercising a
supervisory function-meritorious in the sense that it corresponded to the
facts of the situation-but attempts to erase its position evidenced at
that time by Mr. Louw, by reference to statements made by several repre
sentatives to the Trusteeship Council, and in its rebuttal Respondent
places quiteheavy reliance upon several of these statements. These state
ments are taken, therefore, as demonstrating the soundness of Respon
dent's new argument. As will be seen, however, most of the statements
referred to seem to confirm quite clearly Respondent's 1948 position,
rather than its current position, with respect to the type of activity in
which the Trusteeship Council was engaged at that time.
It is true that of the 12 members of the Trusteeship Council, two-that
is to say, Australia and the Soviet Union-made statements indicating
the view that the. Council did not have supervisory powers over South
West Africa. The majority of ro members, however, gave no indication in
the Council debate that they supported Respondent's present contention,
that is to say, gave no indication that they believed that the Trusteeship
Council lacked power to review the report, or that it was not, in fact,
reviewing the report under the proper cxercise of the Assembly's com
petence under Article IO.
Even Respondent has had to concede that Belgium's attitude was what
Respondent called "a kind of in-between", in the phrase used in the ver
batim record, VIII, at page 471. In fact, analysis of the statement of the
Belgian representative, tifr.Ryckmans, honorary Governor-General of the
Belgian Congo, in the Fourth Committee (Mr. Ryckmans is quoted by
Respondent at VIII, p. 471, of the verbatim record), the statement
was not a statement of legal position at ail, on its face, but rather an
appeal for a politically acceptable rcsolution. Mr. Ryckmans suggested
an exchange of United Nations recognition of Respondent's right not to
place the Terri tory under trusteeship for Respondent's acceptance of the
Trusteeship Council as the heir of the Mandates Commission in tenns of
reporting.
In stating the legal position, Belguim at no time intimated the trustee
ship lacked supcrvisory powers, so far as the Applicants have been able
to findstatements and interpret them. Thus, in the very statement quoted
by Respondent, Mr. Ryckmans said:
"I do not think it advisable to tell the representative of the Union
of South Africa that the Trusteeship Council will examine the report
submitted by the Union Government as if it were a report from a
Power administering a Trust Territory. This is a controversial ques
tion. We shall in fact examine this report as we examine anyother,
but in principle we should consider it in the same way as it would
have been considered by the Permanent Mandates Commission."
(United Nations, Trusteeship Council Official Records, 2nd Session,
1st Part, p. 124-)
This seems to be a reasonably clear statement that the Trusteeship
Council was actually to exercise, and was actually exercising, a super
visory authority over the Mandate in terms of examining and recom
mending on the basis of a report regarding conditions in the Territory.
The Belgian view was that the report should not be treated as a report194 SOUTH _WEST AFRICA
from a "trust territory", but should in principle be examined as the
Permanent Mandates Commission had examined reports. The Applicants
will show shortly that this is precisely the way this report was treated
by the Trusteeship Council. ln fact, Belgium was clearly willing to go
even further and examine it as any other report-that is to say, as if it
were a report from a trust territory-but in principle the Belgian state
ment indicated clearly that the Belgian view was that the United Nations
was exercising supervision over a mandated territory, as had been the
case in the League of Nations era and under the League regime. lndeed,
the major issue discussed in the Council was, as I have said, the proper
extent of its supervisory powers rather than whether the Council and the
Assembly had such powers. Belgium was very clear on this point, Mr.
President; Mr. Ryckmans said on 12 December 1947 in the Trusteeship
Council:
"\Ve have now spent an hour discussing whether we shall examine
anything else in addition to the report. If we begin with the report,
and if during the discussion any member of the Council feels that
he cannot examine the report without consulting other documents,
we can ask the General Assembly for the authority to consult such
documents. I believe that we should begin by doing what we have
been asked to do, namely, to examine the report." (Trusteeship
Council Official Records, 3rd Session, 15th Meeting, p. 482.)
Again, Respondent has been compelled by the record to concede that
for Belgium there was no question of supervision versus no supervision,
rather the question was an issue as to the form and method of the United
Nations supervision to be exercised over the Mandate. Thus, before the
Fourth Committee in 1948, Mr. Ryckmans stated as follows:
"... felt bound to draw the attention of the South African represen
tative and the Committee to the terms of Article 80, which provided
that nothing in Chapter XII of the Charter should be 'construed in
or of itself to alter in any manner the rights whatsoever of any States
or any peoples .. .'. That included the people of South West Africa,
who, having had the benefit of international supervision under the
Mandate System, could not be deprived of that right." (United Na
tions, General Assembly Official Records, 3rd Session, 79th Meeting,
Fourth Committee, pp. 325-326.)
Of course, Mr. President, with respect to the reference to Article 80
by Mr. Ryckmans, the Applicants already have made their position clear
and, in their view, which corresponds to that expressed by the honourable
President and Judge Sir Gerald Fitzmaurice in the joint dissenting
opinion of 1962, Mr. Ryckmans' statement transcended the bounds of
interpretation of Article 80.
However, the significant point in his statement is not that; it is the
reference to the "people of South \Vest Africa who, having had the bene
fit of international supervision under the Mandate System, could not
be deprived of that right".
The next member of the Trusteeship Council, cited by Respondent
in rebuttal, was China, but, here again, it is difficult to perceive how the
several statements made by the representative of China can reasonably
be relied upon by Respondent in support of its contention, that is to say,
its contention that the Council was not treating the matter pursuant to
the exercise of a supervisory authority. In fact, Mr. President, the re- REPL Y OF MR. GROSS 195
presentative of China went so far as to argue that the report submitted
by South Africa should be treated as if it were a report from a trust terri
tory. Thus, Mr. Liu Chieh, who was the Chairman of the Council at that
time, was the opening speaker in the 1947 Trusteeship Council debate
regarding the question of South West Africa, and he stated in response
to a question :
"I would propose that, in accordance with the resolution of the
General Assembly, this Council should undertake to examine the
·report in the same manner as it would examine a report from a
Trust Territory. For that purpose, I am inclined to think that it
would be quite proper for this Council to extend an invitation to
the Union of South Africa, if the Government of the Union of South
Africa so chooses, to help the Council by sending a representative
here." (United Nations, Trusteeship CouncilO!ficial Records, 2nd Ses
sion, First Part, p. 121.)
The strong resemblance to the procedures followed by the Permanent
Mandates Commission is, of course, more than implicit in the suggestion
of Mr. Liu Chieh, it is explicit. Furthermore, in answering the argument
made by the Australian representative, Mr. Liu Chieh said as follows:
"... the authority we derive from the General Assembly does not say
that the Trusteeship Council can only look at the report from the
point of view of information. The very fact that it was referred to
the Trusteeship Council instead of being referred to the Special Com
mittee on Information transmitted under Article 73 e of the Charter,
which also has the right of exantining and not just of receiving in
formation, indicates that the General Assembly saw the propriety
of a thorough examination of the report from the point of view of
the interest of the inhabitants, and, as the Trusteeship Council has
the fonction of looking after the interests of the inhabitants of terri
tories to which the principle of trusteeship is applicable, definitely
gave us the authority to examine the report and not just to look at
it for information purposes." (United Nations, Trusteeship Council
Official Records,2nd Session, p. 478.)
The Chinese representative was there again distinguishing between
the application of Article 73 (e) to the Territory, and the broader
power, the broader authority, of reporting and accountability under the
mandates system, and cited the reference by the Assembly of the South
African report to the Trusteeship Council as evidencing the assumption
that this Territory was not within the purview of Article 73 (e) of the
Charter. Other members of the Trusteeship Council expressed the same
view, including the French representative, as I shall shortly cite.
Again, in 1949, the representative of China to the Fourth Committee
of the General Assembly referred to Respondent's letter of II July 1949
in which the ~espondent's Government informed the Secretary-General
that no benefit was derived from the submission of reports on South West
Africa-this was the Respondent's letter. The delegate of China pointed
out, and I quote now from the Official Records of the Assembly's fourth
session of the Fourth Committee, at page 208, that the Respondent's
letter-
"explained that the Union Government could no longer see that any
real benefit was to be derived from the submission of special reports196 SOUTH WEST AFRICA
on South West Africa to the United Nations, and had regretfully
corne to the conclusion that, in the interests of efficient administra
tion, no further reports should be forwarded. That decision by the
Union of South Africa [said the Chinese delegate] had made it
impossible for the Trusteeship Council to implement resolution 227
(III) of the General Assembly and to exercise the supervisory
functions conferred upon it by that resolution."
The Chinese delegate explicitly described the fonction performed by the
Trusteeship Council as a "supervisory function", which was precisely the
position taken by the Respondent at the time, and precisely why it
objected to the Trusteeship Council dealing with the report, namely the
Respondent's position that the Trusteeship Council was erroneously as a
matter of law exercising a supervisory fonction. Toda y Respondent says
the Trusteeship Council was not intending to exercise a supervisory
fonction. General Assembly resolution 227 (III) to which the Chinese
delegate referred, it will be recalled, gaveauthority to the Trusteeship
Council in almost identical language to resolution 141 (II), which has
previously been referred to. The authorization in the resolution is:
''Requests the Trusteeship Council to continue to examine such in
formation and to submit its observations thereon to the General Assem
bly."
In the premises, then, China does not belong on Respondent's Iist
of States which supported-are alleged to have supported-its newly
adopted contention, that is to say, that the Trusteeship Council did
not intend to exercise a supervisory authority over the Mandate. There
are numerous States listed by Respondent, and during rebuttal Respon
dent placed heavy reliance on this and in a rather extensive argument
went through the list. It is, in the Applicants' view, highly important,
even at the risk of burdening the record before the Court at this point, to
check through to see where this matter really stands, notwithstanding
Respondent's heavy emphasis on the aUeged significance of this list.
China has been referred to. The next State on Respondent's list is
Costa Rica. Even the citation by Respondent supports the Applicants'
view rather than the Respondent's present contention with respect to the
Trusteeship Council's assumption and attitude with regard to the
authority which it was asserting and exercising at that time. In the
Trusteeship Council, Mr. President, the representative of Costa Rica
made the following statement:
"The point under discussion is whether the mandate has expired
or not. I do not know how far the Council can succeed in deter
mining hastily whether or not the mandate is still in force.
It would be well to avoid the word 'mandate' and any reference
to the spirit or letter of the mandate. Perhaps we could use some
better word in conformity with the spirit of the Charter, for although
we know the Charter is barely two years old, the Government of the
Union of South Africa is one of the Members of the United Nations
and, as such, is bound to fulfil the terms of the Charter. That would
obviate the difficulty of using the word 'mandate', which is, as we
have said, so controversial."
This was from the second session, first part, of the Trusteeship Council
Official Records, at page 506. The point is that this exhortation, which
was rather typical of the appeal implicit, the political appeal, the persua. REPLY OF MR. GROSS
sion, the diplomatie effort, the undercurrent, which was manifest through
out these proceedings at that time, of which the record is redolent with
examples of attempts on the part of tact, diplomacy-even the use of
the word "mandate"-in an effort to persuade Respondent to carry out
the historie mission of the time which was to couvert mandates into
trusteeships. Costa Rica simply wanted to avoid the use of the word
"mandate" for fear of offending the sensibilities of Respondent, and
that fact is now used by Respondent, impliedly, as evidcnce that Costa
Rica implied doubts concerning the existence of the Mandate, or so this
would seem to be the implication sought to be drawn-none other is
apparent to the Applicants. But whether or not this is true-inter
pretation of Respondent's listing of Costa Rica-whether or not this
is the reason, the reason is far from clear, in the Applicants' mind.
The point is that at no time did Costa Rica ever express the view, at no
time did Costa Rica ever indicate a view, that the Trusteeship Council
should not consider, should not examine and should not submit observa
tions on the report submitted by the Respondent. The Costa Rican
statement demonstrated its support for the exercise of international
supervision, whether or not the Territory were placed under the trustee
ship system; at no time did the Costa Rican delegate ever express the
view that South Africa need not submit reports, or that United Nations
agencies could not examine them and submit observations upon them;
to the contrary.
The fifth member of the Trusteeship Council on Respondent's list is
France, and Respondent cites France as indicating the view at the time
that the Trusteeship Council was not asserting or exercising a super
visory fonction.
The representative of France, throughout the debates in the Trustee
ship Council, argued that the Council could not exceed the authority
granted to it by the resolution of the General Assembly. Indeed, the
representative of France stated-and I quote from page 480 of the
document already cited, the Trusteeship Council official records-
"That text [referring to the General Assembly resolution 141 (II)]
was very carefully drafted after lengthy discussion because the
Assembly, in referring the report of the Government of the Union
of South Africa to the Trusteeship Council, wanted above all to take
the first step in the direction of international supervision over the
former mandated territory of South West Africa, pending recon
sideration of the Assembly resolution by the Government of the
Union of South Africa and a decision of that Govemment in that
connection.''
The French statement referred to "the former mandated territory":
in the context that reference is very difficult to understand, particularly
in juxtaposition with "the first step" toward international supervision,
which obviously comprehended what the Trusteeship Council was doing
at that time. France in no respect, from this record, in its pledge in 1946,
in its adherence to the 18 April 1946 resolution, or in any other respect
ever evidenced doubt that the Mandate continued in effect, and this
reference to the former mandated territory is doubly confusing in the
light of Respondent's concession, now made, that the Mandate as a
matter of law survived the dissolution of the League in the opinion of
Respondent's Government then in office. SOUTH WEST AFRICA
Therefore, the reference by the French delegate to the former mandate
is difficult to understand in the context. Stress is laid, however, partic
ularly in the light of Respondent's concession that the Mandate did
survive the dissolution of the League, upon the reference by the French
delegate to "the Assembly wanted above ail to take the first step in the
direction of international supervision", and it will be seen again, shortly,
from the way the Trusteeship Council dealt with this report, that the
distinguished French member of the Trusteeship Council acted in very
much the same way as a member of the Permanent Mandates Com
mission would have acted in an earlier day. We will corne to that shortly.
The context of the debate, therefore, should not be ignored, as Respon
dent has ignored it. The issue under debate in the Trusteeship Council,
to which the French statement just quoted is relevant, was whether or
not, and if so to what extent, to go beyond the examination of reports
in so far as South \Vest Africa was concerned. I have referred to the
Chinese delegate's proposai that the Respondent might be invited, if it
chose, to send a representative to help the Council in examining the
report and understanding it more intelligently. France, and certain
other States, insisted on a strict reading of the General Assembly resolu
tion 141 (Il), and that resolution was regarded by many members as
the literai limit to be read upon the Council's supervisory powers.
The second part of the French statement to the Trusteeship Council,
the one just referred to, also contains the following statement, and it is
from page 480 of the same record cited:
"I should like to explain [said the French representative] for the
benefit of the Chinese representative why M. René Mayer proposed
that the report of the South African Government should be examined
by the Trusteeship Council and not by the Fourth Committee.
He [that is M. Mayer] feared that to entrust the examination of the
report to the Fourth Committee would conyey the impression that
the General Assembly regarded the territory, which was formerly
under South African mandate, as a Non-Self-Goveming Territory
and not as a Trust Territory or a territory that should be placed
under the Trusteeship System. Hence, the French delegation
proposed that the report should be examined by the Trusteeship
Council but that it should not corne under the regulations applying
to reports on Territories for which there are trusteeship agree
ments ...
For the time being, the actions of the Trusteeship Council are
strictly limited by the last paragraph of the Assembly resolution."
Here again, a fair reading of the context of the actual process, of the
actual history shows that the problem of the uniquely residual character
of this Territory, which was not fitting into the hopes and plans of the
international community, was not being converted into a trusteeship,
despite insistent pleas, tact, diplomacy, pressures, negotiation, that this
was not happening. There was confusion and there was considerable
discussion of a nature which, looked back upon now in these dusty
records, is ambiguous: one reason for the request for the 1950 Opinion.
The French delegate made clear, as I have said, the view that the
General Assembly "wanted above ail to take the first step in the direction
of international supervision over South West Africa" and the French
Govemment considered that resolution 141 (II) was just such a step, REPLY OF MR. GROSS
199
and that it marked the ambit, the four walls, of the authority of super
vision which should be exercised by the Trusteeship Council, pursuant
to tha t resolution.
The Council was limited by the terrns of the resolution and in the
absence of a trusteeship agreement it could not exercise powers beyond
the stipulations in the resolution, and this was the context, and the sole
context, within which the French representative was spea:king. And
Respondent's incomplete rendition and selective citation of his remarks
is likely to convey, unwitting1y, a distorted impression of the intention
of the French delegate at that time.
Mr. President, the next State on Respondent's list, on which it relies
so heavily, is Iraq. Once more Respondent has distorted the picture in
order to support its new contention-new contention in the sense that
at that time the Malan Government not only assumed that the Trustee
ship Council was emphasizing a supervisory authority, but it protested
that exercise. But in order to support its present contention, that the
Trusteeship Council was not asserting or exercising a supervisory
authority, Respondent cites Iraq, and according to Respondent, Iraq's
attitude was described in the verbatim record, VIII, at page 475 in the
following words:
"The Mandate is dead and, therefore, there is no possibility of
supervision in terms of the Mandate-only two possible alter
natives-trusteeship or independence-nothing in between."
According to Respondent's interprctation of Iraq's position, Iraq was
disagreeing with Respondent at that time, because Respondent at that
time assumed that the Mandate was continuing to have legal effect and
Iraq, according to Respondent, disagreed with Respondent at that time.
In fact Iraq agreed with Respondent at that time, as Iraq's statements
make clear if read in the context of the history and events of that time.
Mr. President and Members of the honourable Court, perhaps it might
be regarded as appropriate for the Applicants respectfully to refer to the
fact that we are here dealing with the very essence of the Mandate that
Respondent has put in issue, and heavily relied upon, the signifi.canceof
events and transactions and undertakings occurring during a period
which has become a crucial factor in the resolution of the issues joined
in the cases at bar. It is for that reason, and with the hope that the basic
element of the problem at issue will not be lost to sight or submerged in
a haze of detail-in a battle of words-that Respondent has indeed, in
our view, placed before the Court an interpretation of semantics, without
context, of events which are now receding from man's memory, of con
temporary events. Itis for that reason that, with respect, the Applicants
think it necessary to place before the Court what they, in any event,
view as the proper historie record and context of a very decisively
important era in the development of the international protection of
dependent territories.
I was referring, Mr. President, with your permission, to the statement
of the representative of Iraq made in the Trusteeship Council on 12 De
cember 1947, at the Second Session, First Part, at page 482. Iraq, it will
be recalled, is listed by Respondent as one of the States which indicated
or expressed a view that the Trusteeship Council was not asserting or
exercising supervisory authority with respect to the Mandate. The
Iraqui view, as was the case of so many others at the time, does indeed200 SOUTH WEST AFRICA
reflect confusion, with ail respect to the distinguished delegate of Iraq at
the time, confusion and ambivalence but an underlying hope andexpecta
tion, which characterized the time and marked the proceedings, that
this Territory would be placed under trusteeship, that its future would
be resolved in accordancc with the hope and intent of the authors of the
Charter.
In the statement the Iraqui delegate, inter aliasaid as follows, and in
the context I think it is clear why he said what I am about to quote:
"In my estimation the Territory is really hanging in the air and
not even the Union Govemment is trying to hold it in the air.
1t might legally drop to the ground at any moment, if it has not
done so already. I believe we all share the sentiment of our Vice
President that it is highly unfortunate that the Union Government
has acted in the way it has. To me, it is all the more unfortunate
that a member nation of this Organization finds it convenient many
times in the General Assembly to take a certain position and a
certain attitude towards various problems which indicates that it
acts according to the principles and nobility of the Charter of the
United Nations, and, not only that, but sometimes to shatter those
principles.''
The Iraqui delegate, cited by Respondent in its rebuttal, went on to say:
"I think the position of the Union Government cannot be said
to be free of motives and prejudice even if you give it the benefit
of the doubt, but, if you do not, I think you can even say worse
things, which I am not going to do at this time. The General Assem
bly resolution, which is under consideration, does not call for a
visiting mission. The Territory in question is not a trust territory
and we cannot send a visiting mission there. On the other hand, the
information before the Trusteeship Council, in the form of the
resolution of the General Assembly, does not tie the hands of the
Trusteeship Council at ail. The General Assembly asks the Trustee
ship Council to make observations regarding a loop-hole. It autho
rizes the examination. Since it does not tie our hands, I believe we
are entitled to seek other sources of information. The mere sub
mission of this loop-hole by the Govemment of the Union of South
Africa is, I take it, a confession of faith on the part of that Govern
ment that the matter is at least connected with the Trusteeship
Council and the General Assembly by more than one tie."
This was the attitude expressed by the Iraqui delegation, listed by
Respondent as among those who did not then feel that the Trusteeship
Council was exerting supervisory authority. The Iraqui statement
clearly shows that the representative of Iraq considered that there was
the possibility of international supervision of the Territory, irrespective
of a determination, from a lawyer's point of view, as toits status in law.
Herc again, we find, as in the case of the French statement, the Iraqui
delegatc describing the Territory as "hanging in the air" and not even
the Union Govemment is trying to hold it in the air. Even giving that
expression an implication of legal content, if it has a legal significance it
is contrary to the viewpoint then taken by Respondent, that the Mandate
as a matter of law continued in existence. This is common cause. As we
have already noted, the key issue in the debates of the Trusteeship
Council was whether or not the Council could go beyond the reports REPL Y OF MR. GROSS 20I
submitted by South Africain the search for information and whether or
not, and if so to what extent, the Council could, in the same context, go
beyond the literai four walls of the General Assembly resolution. Iraq
clearly did wish to go beyond the report.
Thus, her representative asked at the same session, at page 483 of the
document which I have just quoted~
"How am I going to examine this report alone, and without any
other information? I do not know the facts, I confess. The report is
too concise and too abridged to permit me to obtain a sufficiently
large fund of information. Therefore, at worst, not at best, but at
worst, I believe we are entitled to seek other sources."
This fairly reflects the view, the sentiment, the attitude, not only of
Iraq but of other members of the Trusteeship Council, including France
and the others cited by Respondent.
Respondent next turns to views of Mexico, to support its presently ad
vanced contention that the Trusteeship Council did not consider at that
time that it had supervisory powers over South West Africa, but once more,
Mr. President, an examination of the context of the Trusteeship Council
debates reveals that Mexico never intimated that South Africa should
be free of international supervision or was then free of international
supervision. In the pleadings before this honourable Court in 1950, it will
be recalled that a statement was submitted in this respect. However,
going back to the Trusteeship Council proceedings, in the Council's di
vision of opinion as to whether or not the degrce of supervision should
be limited by the strict terms of the Gencral Assembly resolution, the
delegate of Iviexicotook the stand that the enquiry should go beyond the
confines of the report submitted by Respondent. Thus, on 12 December
1947, in theTrusteeship CouncilOffecialRecord of the second session, first
part, at page 484, the delegate of Mexico, Mr. Noriega stated that:
"l feel that, in the interest of the Government of the Union of
South Africa, it is important that we should acquaint ourselves
fully with the whole background of this question and with the situa
tion of the indigenous inhabitants. For as soon as the general public
is informed that the Trusteeship Council refused to give ear to, or
have knowledge of, or obtain reports from, other sources than the
Government itself, they will think the Council is pursuing an ex
tremely conservative policy which disregards the very objectives of
the system which the United Nations has put into effect under the
name of the Trusteeship System. For although the terri tory in ques
tion isnot a Trust Tcrritory, it has indigenous inhabitants who are
in no less need of assistance than the inhabitants of other territories.
I thercfore believe and maintain that for the sake of the Council's
own prestige and the greater efficacy of its work, we should be given
the authority-which indeed wc already have-to obtain such_sup
plementary information as would help to enlighten us on this re
port from the Government of the Union of South Africa. Otherwise
any resolution we shall be able to submit to the Assembly will be
very weak and ineffective and this discussion will be reopened in the
Fourth Committee at the next session."
So spoke the Mexican delegate and Mexico is on Respondent's list.
The delegate for Mexico left no doubt as to his view that the Trustee
ship Council was competcnt to pass judgment upon Respondcnt's ad- SOUTH WEST AFRICA
202
ministration of South West Africa. For that very reason he was insisting
that the Council go beyond the report and obtain as much information as
possible from other sources, and he said this was authority "we already
have"-other delegates considered it beyond the four walls of the General
Assembly's resolution and this was the context of the debate then going
on.
At the same meeting of the Trusteeship Council, the Mexican delegate
said, at page 475:
"The point is rather whether or not the Council is in a position
to present a good report to the General Assembly, expressing its
opinion conceming the report from the Govemment of the Union of
South Africa. Therefore, in carrying out the task which the General
Assembly has entrusted tous, namely, that of considering the report
and of submitting our observations on it, the Trusteeship Council
is at liberty to avail itself of the best means of clarifying its judgment
so that it may be able finally to express its opinion."
In sum, Mr. President, Mexico, just as the case of most other Members
of the United Nations almost without exception, preferred that the terri
tory of South West Africa be placed under the trusteeship system. Itdid
not regard the fact that the Territory remained outside the system as a
bar to the exercise of supervisory powers by the United Nations although
the supervision would admittedly be more limited than if a trusteeship
agreement were in effect. At the time of this particular Trusteeship
Council debate, as the record makes clear, the nature and degree of super
vision was limited by the terms of the General Assembly's resolution to
which reference has been made.
The next member of the Trusteeship Council listed by Respondent as
supporting its present view is New Zealand. Respondent refers to New
Zealand in the verbatim record, VIII, at pages 478-479.Aclose reading of
that excerpt in the verbatim record-a careful reading by the Applicants,
in any event-reveals no trace of an opinion to the effect now contended
for by Respondent, to wit that the New Zealand Government considered
that the Trusteeship Council was not asserting or exercising a supervisory
fonction over the Territory. Ail the delegate for New Zealand was saying
in the Applicants' view, in the lengthy quotation set out by Respondent
on pages 478-479 of the cited verbatim record, was that the Council's
powers were limited by the terms of the General Assembly's resolution.
That is to say, in the view of New Zealand, shared by other members as
well, the Council's task was to examine the report submitted by South
Africa and to submit its observations thereon to the Assembly. ln the
context of the Council's debate, New Zealand was taking what might
perhaps be called a relatively conservative view that the Council could
not go beyond the report in seeking information because the General
Assembly had limited the authority of the Council to an examination of
that report. This does not, in the Applicants' respectful submission, sup
port in any way Respondent's contention that New Zealand thought,
at that time, that the Trusteeship Council was not asserting or lacked
the power to exercise supervisory fonction. New Zealand clearly favoured
a strict and literai interpretation of the General Assembly's authoriza
tion, tenns of reference of the Trusteeship Council in this respect. New
Zealand never argued that the Council could not consider and pass
judgment upon Respondent's administration in the mandated Territory, REPLY OF MR. GROSS 203
and as will be shown shortly, New Zeaiand not oniy participated in the
consideration of the matter on the substance of the report fully but,
as the other members of the Council did, concurred in the final report of
the Trusteeship Council to the General Assembly on tlus matter.
Mr. Reid, who was the deputy to Sir Carl Berendsen, at that time the
member of the Trusteeship Council, said at the Third Session of the
Trusteeship Council, at page 409:
"He recognized with the U.S.S.R. representative that it would
be very difficultto study the report in the absence of a special re
presentative, but believed that it was the Council's duty to comply
with the General Assembly's request and to supervise the treatment
of the inhabitants of the Territory to the best of its ability with the
limited means at its disposa!."
The Respondent then turns to the Philippines, and the best that Re
spondent can do with respect to the Philippines is to concede that the
views of the Phllippine Government were in its own words, "inconsistent"
-that is the characterization employed by Respondent in the verbatim
record, VIII, at page 481. Yet once more, it is clear in the context of the
Trusteeship Council's debate that the Philippine representative took
a very strong stand indeed-it was just the other way from that contended
for by the Respondent. Far from questioning the Council's powers, the
Philippine representative wanted to go well beyond the limitations
imposed by the General Assembly's resolution, and to accept petitions.
He also expressed the view that the report from South Africa could
appropriately be examined as if it were a report from a trust territory.
The Philippine delegate said at the second session, first part, of the
Trusteeship Council debate, at page 476, as follows:
"The least that this Council could do, therefore, is to examine
this report in the same way that the Permanent Mandates Com
mission used to examine the reports of the Union of South Africa.
I sav that is the least which the Council could do, because I also
associate myself with the observations of the representative of China
to the effect that the Trusteeship Council could examine the report
as if it were a report from a trust territory."
I have previously cited the statement by the Chinese delegate on the
Trusteeship Council, with which the Philippine delegate associated himself.
The Phi.J.ippinestatement just quoted affords strong support indeed for
Respondent's 1948 contention that the Trusteeship Council was asserting
and exercising supervisory powers, which was the very basis for the ob
jection by Respondent in 1948 with respect to the Trusteeship Council's
mter-position in the matter in any respect. The remaining two members
of the Council whose views are in dispute at this juncture are the United
Kingdom and the United States.
So far as the Applicants have been able ta see from a careful reading
of the 1947 Trusteeship Council debate, the United Kingdom did not
participate in the debates on this aspect of the matter, that is to say, on
the question conceming the scope of the General Assembly resolution
and the powers of the Trusteeship Council, the powers which appro
priately could be exercised by the Trusteeship Council, either within
the four walls of the resolution or beyond it, e.g., with regard to petitioners
or inviting a representative of South Africa to appear. But, Mr. President,204 SOUTH WEST AFRICA
Respondent's reliance on a 1948 statement to the Council by the British
delegate is, in the Applicants' respectful view, entirely misplaced. Once
again, one finds in the British statement in 1948 the view that the Coun
cil should limitits supervisory function to the precise terms of the General
Assembly's authorization, leaving it to the General Assembly to go fur
ther if it wished and if it wished, to authorize or instruct the Trusteeship
Council to go further in supervisory functions over the Mandate-go
further than the Assembly resolution did.
The British delegate, the member of the Trusteeship Council at that
timc, as the Court will be aware, was Sir Alan Burns of the United King
dom, and his statement confirms beyond doubt, in the Applicants' view,
that this is the question to which he was addressing himself. The state
ment is as follows-it appears in the same Third Session, Official Record,
at pages 531-532:
"The Council had been asked to consider the report on the ad
ministration of South \Vest Africa simply because that Territory was
formerly under mandate, [again the same phraseology used by the
delegate 'formerly under mandate', puzzling to interpret at this
stage, the Mandate is conceded to have been in force at that time]
and the General Assembly hoped soon to see it placed under the
trusteeship system. It was important, therefore, to bear in mind that
the Council's consideration of the report on the administration of
South West Africa and its report thereon to the General Assembly
were sui generis; the Council had no right to assume that the General
Assembly would take any particular course of action on the basis of
the Council's report.
Moreover, in view of the very strong feelings which this question
had aroused not only in the Territory of South West Africa, but in
the Union of South Africa as well, it was important for the Council
in complying with the Assembly resolution to avoid the use of words
or statements which might give offence in South West Africa or in
the Union of South Africa.
Because of the special conditions under which the Council was
acting and because of the possible repercussions which the Council's
actions might cal! forth in South West Africa, it should endeavour
to limit itself to observations, Jeaving it for the General Assernbly
itself todraw its o,vn conclusions." (TC/OR: Third Session, pp. 531-
532.)
Again part of the continuing ticle of diplomacy of the effort to persuade
the South African Government to submit a trusteeship agreement to
avoid offence-these were implicit in the debates. They must not, l\fr.
President, be used as a basis for interpreting these statements in this
context as implying the contrary of what Respondent itself, at that tirne,
insisted and protested the Trusteeship Council was doing, namely exer
cising supervisory authority over the Mandate-this is not a correct
reading or version of history.
The British representative, as will be made clear, took full part in the
discussion in the examination of the report-! shall corne to that in a
few moments. To revert to the statement of the British representative,
warning against using words or statements, as he said, which might give
offence, the British representative expressed the view that the Council
should limit itselfstrictly to the authorization of the General Assembly, REPL Y OF MR. GROSS 205
that is to say, that it should submit "observations" to the Assembly on
the report of South Africa, with regard to the Territory.
Indeed, Mr. President, the only Govemment to argue that the Council
could not even consider the report (notwithstanding the General As
sembly's authorization to do so) was the Soviet Union. The Soviet posi
tion was that the Cormeil could not deal with South West Africa because
it had supervisory powers only over trust territories, but that Respondent
had a legal obligation to place her territory under the trusteeship system
-this was the Soviet position at the time. Itwas, of course, prior to the
Advisory Opinion of 1950, in which the Court reached the conclusion
contrary to the legal position then contended for by the Soviet Govern
ment. The Soviet Union stood alone in the view that outside of trusteeship
under which it believed Respondent had a duty to place the territory,
the Council would have no supervisory function. Later of course, this view
was changed, after the 1950 Opinion. The point here is that an argument
that the Council had no powers whatsoever with respect to the Territory
means that the Council could not even receive the report, notwithstand
ing the General Assembly's resolution. In other words, the Soviet position
was whole, it was consistent and it did not deal with the question of the
manner of the exercise of supervisory power-it simply, because of the
legal theory adopted by the Soviet Government at that time, believed
that the Council should not deal with the matter and had no power to
deal with the matter at all; the Council, of course, felt otherwise-that
was what caused the protest from the Respondent.
Finally, we corne to the views expressed by the representative of the
United States as to the supervisory powers of the Trusteeship Council
because, Mr. President, the United States has eamed its place on the
list of States, prepared by Respondent. The United States' attitude emer
ges from Respondent's treatment with the appearance of a somewhat
curiously ambivalent or even distorted version of Respondent's new con
ception of what the Trusteeship Council thought it was doing at the time.
The deputy representative of the United States to the Trusteeship Coun
cil was Mr. Benjamin Gerig, whose name has fi.gured previously in these
proceedings. He was the deputy to the representative of the United
States on the Trusteeship Council, Professor Francis Sayre. Now, Mr.
Gerig had one point in the record and this is quoted in the verbatim rec
ord, VIII, at page 483. Respondent quotes the following statement from
Mr. Gerig and then makes a comment thereon, which I shall quote.
Mr. Gerig's statement, quoted by Respondent at this place in the record
of the Oral Proceedings is as follows:
"It was said here earlier this afternoon, and I did not hear any
member object, that while we ail hope-my delegation as muchas
any delegation feels that way-that there will be a trusteeship agree
ment for this territory, we do not, in the absence of a trusteeship
agreement, have supervisory fonctions over this terri tory. Therefore,
I do not think we ought to imply that we do have supervisory func
tions to ensnre that the Union Government discharges its duties
under the present mandate, admitting that it exist." (VIII, p. 483.)
This was the statement. Now from this quotation Respondent concludes,
quite catcgorically,and I quote Respondent's statement, that Mr. Gerig-
"... proceeded from the basis that the l\fandate is in existence but
had a clear and explicit view to the effect that the United Nations206 SOUTH WEST AFRICA
had no supervisory authority in respect of the Mandate". (Ibid.)
This is an interpretation of the statement of Mr. Gerig, that he proceeded
from the basis that the Mandate is in existence as a clear and explicit
view, and then proceeded to the view that the United Nations had no
supervisory authority in respect of the Mandate.
Irrespective of what Respondent means by its characterization of the
statement, it seems clear upon its face-and I do not intend to engage
in controversy with Respondent as to what it meant by characterizing
this statement-that what the Applicants think the statement shows is
that there was doubt expressed by Mr. Gerig, there was a question raised
as to whether or not the Mandate was in existence. He says "under the
present Mandate, admitting that it exist". He was just doubtful about
the whole proposition, if one looks at that statement alone, out of context.
Of course, there are other things that Mr. Gerig said and other tlùngs
that the United States delegation to the Trusteeship Council did which
show precisely what their position was.
Respondent omits reference to the concluding paragraph of Mr. Gerig's
same statement, at page 505 of the Trusteesliip Council Official Records,
Second Session, First Part, in which Mr. Gerig said:
"I cannot help but feel that there are difficulties of this kind which
we should not take up at this point. I am willing to consider it in
June, but I do not now feel clear in my mind that the Trusteeship
Council has implied or expressed supervisory functions over that
territory. However, I should like to hear the thoughts of the other
members of the Trusteeship Council."
Mr. Gerig was not clear in his mind, he admitted it, and he wanted to
hear the views of the other members of the Council before he cleared up
his mind. His expression of uncertainty was a candid confession. As to
the legal position, at that moment the Trusteeship Council members had
not yet exchanged views: there was a general desire and hope that the
South African Government would alter its position and subm1t a trustee
ship agreement. That was the preoccupation and that was the context of
the remark.
So far as the powers of the Trusteeship Council were concerned with
regard to the actual handling of the report, it will also be clear shortly
that the United States delegation to the Trusteeship Council played a
very affirmative and positive role indeed in commenting upon the report,
in expressing its views. Mr. Gerig's admission, therefore, should not have
persuaded Respondent that the United States representative took the
view that the United Nations had no supervisory authority in respect of
the Mandate, to quote Respondent's characterization. The conclusion to
which the United States Government came after hearing the views of the
other members, which Mr. Gerig invited, was presented to the Court in its
written statement in 1950, in the Advisory Opinion proceedings of that
year. And in the volume of Pleadings, Oral Arguments, Documents, the
Advisory Opinion of II July r950, at page II,in the United States written
statement it is stated that:
"It is believed, therefore, that the Union of South Africa con
tinues to be obligated, under the Mandate, to submit reports on its
administration of the Territory, submitting these to the United
Nations for consideration by the organ which the General Assembly
designates for this purpose." REPL Y OF MR. GROSS 207
I shall refer shortly to Respondent's unwarranted characterization of
that conclusion as special pleading. For the moment, however, in this
context, I should, with the Court's permission, like to summarize the
points just made with respect to the actual context of the debates in the
Trusteeship Council, with respect to the extent of the supervisory
powers appropriately to be used by the Trusteeship Council pursuant to
the terms of the General Assembly resolution, in which as I have said,
the only member of the Trusteeship Coundl which expressed a view that
the Council did not have supervisory powers in this respect was the
Soviet member of the Trusteeship Council, on the basis of its legal
reasoning and assumptions at that time, prior to the decision, the
Advisory Opinion, in which this Court spoke authoritatively on that
matter.
In summary then, Mr. President, the best that can be said of Respon
dent's contention, in our respectful view, is that two members of the
Trusteeship Council, for quite different reasons, expressed doubts-one
expressed a conviction-whether the Trusteeship Council had super
visory powers outside of the trusteeship system itself. Nine States were
of the opinion that the Council could examine and submit observations
on the report of the mandatory power, Respondent in this case, and one
State-the United States-sa1d its mind was not clear on this subject.
Many of the members felt that the Council could go much further and
treat the report as if it were a report from a trust territory, and even
accept petitions-Clùna, Mexico.
The more conservative view was that the Council should limit itself
strictly to the terms of the General Assembly's resolution. Thus, the
correctness of Respondent's view in 1948-when it acknowledged that
the Council was asserting and exercising supervisory powers over the
Mandate, but objected to the course being pursued for that very reason
is borne out by the record. That is to say, in the words of Respondent's
representative in 1948-I quote from the Official Records of the Fourth
Committee, 3rd Session of the General Assembly, at page 297, Respon
dent's representative, Mr. Louw:
"It was ... clear from the observations adopted at a later meeting
[of the Trusteeship Council], and from the list of questions sub
mitted to the South African Government, that the majority of the
Council was not only very critical of the Union Government's
administration, but that it considered that the Council had a super
visory function in regard to South West Africa and that the Union
Govemment was accountable to the Trusteeship Council for its
administration of the Territory."
This was the explicitly expressed view of Respondent contemporane
ously with the events and it speaks for itself.
In addition to the significance properly to be attributed, in the Appli
cants' view, to the fact that the Trusteeship Council considered Respon
dent's report of 1946, and the fuller 1947 supplement, it is just as reveal
ing to note not only that the Council considered it but to see what aspects
of the report were considered by the Council; and how the Council went
about the business of analyzing the report of the Respondent and its
supplemental report, and the report of the Trusteeship Council itself
to the General Assembly, pursuant to the resolution.
Striking conclusions are justifiably to be drawn from a study of the 208 SOUTH WEST AFRICA
record of the Trusteeship Council in this respect, as to striking simi
larities between the method of enquiry which the Council pursued and
its range of concern expressed, and those of the Permanent Mandates
Commission while it was in existence.
First, note might well be taken of the level of competence of the
members of the Trusteeship Council. \Ve have heard in these proceedings,
and we see in the written pleadings of Respondent, references stressing
the competence, unique competence, of the Permanent Mandates Com
mission as against the political character, etc., of the present situation.
In the Trusteeship Council the representatives were-or at least some
may be referred to in this context-Professor Francis Sayre, and his
deputy Mr. Gerig, an outstanding authority, as the Court will know, on
trusteeship and dependency mattcrs, and author; Sir Alan Burns of
Great Britain; i\L Garreau of France; M. Ryckmans of Belgium, the
honorary Governor-General of the Belgian Congo; l\Ir. William Forsyth
of Australia, later to become Executive Secretary of the South-East
Asia Commission; Sir Carl Berendsen, one of the stalwart founders of
the United Nations itself; General Romulo of the Philippines; and so
forth.
It will be observed from what follows in these remarks that many of
the most anxious questions addressed to the Respondent's report and
supplement, many of the most anxious questions directed toward the
racial policies then pursued by Respondent, wcre addressed by repre
sentatives of administering powers themselves, and I think that this
sheds some light on certain contentions now being advanced by Respon
dent with respect to some special considerations-we do not know
what-with respect to African reality.
It is, of course, an irrelevant comment, and it is submitted with
deference and diffidence, but there was nota single African State among
the membership of the Trusteeship Council at this time-if that is
relevant, which of course it isnot.
The report submitted by Respondent for the year 1946 and the sup
plementary report requested by the Trusteeship Council were both
examined closely, with particular attention directed to information
relating to Respondent's obligations under Article 2, paragraph 2, of
the Mandate. The statements made by representatives of members of
the Trusteeship Council in 1947 reflected the need for more information
from the mandatory power. In every case the additional evidence sought
from Respondent related to its obligations to promote to the utmost the
welfare of the inhabitants of the Territory in terms of Article 2, para
graph 2, of the Mandate. This was the preoccupation of the members of
the Trusteeship Council in considering the report.
In r948, the Council, having the supplementary report at its disposal,
examined the data therein entirely for purposes of determining whether
Re3pondent's administration of the mandated territory was in accor
dance with its obligations under the sacred trust.
A study of the Trusteeship Council's records for 1947 and 1948 demon
strates that the Council was primarily, as was to be expected, concerned
with the political, economic, social and cducational development of the
inhabitants of South West Africa. This is evident bath from the questions
asked of Respondent and the observations made by the members of the
Council.
The Council was clear that each of the substantive areas with which REPLY OF !IIR. GROSS 209
it was concerned, that is to say, political, economic, social and educa
tional advancement, was to be supervised within the context of what
was then assumed to be axiomatic, and that is, no official separation or
discrimination on the basis of membership in a group, class or race.
The records of the Council are replete with criticisms of Respondent's
racial policy, and they evidence the Council's unquestioning assumption
that the overriding purpose of the Mandate was found in Article 2,
paragraph 2, of the Mandate, and this of course is reflectcd similarly in
1962 in the Judgment of the Court, where at page 329 the Court stated:
"The rights of the Mandatory in relation to the mandated terri
tory and the inhabitants have their foundation in the obligations
of the Mandatory and they are, so to speak, mere tools given to
enablc it to fulfil its obligations. The fact is that each Mandate
under the Mandates System constitutes a new international institu
tion, the primary, overriding purpose of which is to promote 'the
well-being and devclopment' of the people of the territory under
Mandate." (l.C.J. Reports I962, p. 329.)
This is precisely the attitude and the basis upon which the Trusteeship
Council proceeded in examining the report and supplement in 1947 and
1948 respectively.
Apprcciation of the nature of the supervision exercised by the Trustee
ship Council and its axiomatic assumptions with respect to the question
of racial separation and discrimination is most easily observed by
reference to each of the substantive obligations subsumed under Article 2,
paragraph 2, of the Mandate. To begin with, it is clear that the Trustee
ship Council even then regarded Respondent's policies relating to the
political advancement of the inhabitants of,the Territory as discrimina
tory, and as such far short of the duty to promote to the utmost the
material and moral well-being and social progress of the inhabitants.
For example, the United States representative, Mr. Gerig, presented a
Iistof questions conceming Respondent's report for the year 1946. It
will be recalled that the report was considered by most members of the
Trusteeship Council to be inadequate, inasmuch as it did not contain
sufficient information to enable the Council to carry out the supervisory
fonctions authorized by the General Assembly-resolution 141 (II) of
I November 1947. Mr. Gerig's first question was, in relevant part, as
follows-this is from the Trusteeship Council Official Records, Second
Session, the first part, 12 December 1947, at page 490:
"... with regard to the Legislative Assembly and the Advisory
Council of the Territory, has the Union Govemment any plans to
appoint Natives to represent Natives in eîther or bath of those
bodies, in line with policies pursued in other parts of Africa?"
At the same meeting of the Trusteeship Council the representative of
Iraq previously mentioned set out severa] areas on which further informa
tion was needcd. In the course of the presentation of his views the
delegate of Iraq said as follows-this is at page 493 of the same report:
"... Africans and Coloured people are debarred on the grolllld of
race from voting for or sitting in the Legislative Assembly for
South West Africa, although in the Union of South Africa itself
they. have certain restricted political rights in elections to the Union
Parhamen t'.'.2IO SOUTH WEST AFRICA
That was true at the time. Now the lraqui delegate to the Trusteeship
Council, in the course of his presentation, addressed his enquiry for
further information on that proposition, on that question. By the 1948
Session of the Trusteeship Council, the supplementary report requested
at the previous Session had been submitted by Respondent's Govern
ment, and the observations on the part of members of the Trusteeship
Council with respect to the political aspects of the administration of the
Territory were therefore both more informed and, as it turned out,
more critical. Thus on 23 July 1948, and this is from the records of the
Third Session at page 412, the representative of China, Mr. Liu Chieh,
said:
"The Chinese delegation was of the opinion that greater participa
tion of the indigenous population in South West African public
affairs should be the primary concern of the Trusteeship Council.
According to the reply given by the Government of the Union of
South Africa to question I, page r of document T/175, franchise in
South \Vest Africa was restricted to Europeans; furthermore, in
order to be eligible for election to the Legislative Assembly, a
candidate must be enrolled as a voter ... The result, therefore, was
that the indigenous population was not represented on any legis
lative body of the Territory."
The same concern on the same basis and for the same reason was expressed
by the representative of New Zealand, Mr. Reid. Shortly after the
comments of the Chinese delegate to this Trusteeship Council the
representative of New Zealand-itself, of course, a trust administering
Power-said, and I quote from page 413 of the record:
"... the New Zealand delegation was most concerned with the
indigenous inhabitants having no representatives of their own, even
down to the tribal level. More than that, they were not even repre
sented by a European. The Legislative Council was composed of ten
official members appointed by the Administration and of other
members elected exclusively by European residents. It was essential
to draw particular attention to that point."
It hardly seems necessary to say that in citing these views and questions
the Applicants are not posing an issue with respect to the validity, or
accuracy, or otherwise of the views then expressed, nor can the Appli
cants appropriately, or do they have the capacity of advising the Court
at this moment whether or not any of these policies referred to specifi
cally here are today in precisely the same form as they were then, for
lack of familiarity with precisely how they were then. But the point, of
course, of citing these statements is to show not only that the members
of the Trusteeship Council (a) considered that they were exercising a
supervisory authority over the Mandate; (b) that they were in a position
and competent to deal with the substantive obligations implicit in
Article 2, paragraph 2, but in addition (c) that the members of the
Trusteeship Council were operating on the premise, and proceeding from
the axiomatic point of departure, that discrimination on the basis of
race, the allotment of burdens and duties on such a basis, was not
permissible within the Mandate; they called attention to this factor
repéatedly.
The need for administration of the Territory on the basis of non-dis
crimination, on the basis of race, was repeatedly stressed, among others, REPLY OF MR. GROSS 2II
by the Philippine delegate. The delegate of the Philippines, for example,
stated at pages 413-414 of the reports already cited as follows:
"... he had noticed with great regret that a policy of racial dis
crimination still existed in the Territory of South West Africa,
despite the explicit stipulation of the Mandate that the Mandatory
Power should do its utmost to promote the well-being of the indige
nous population.
• • • • • • • • • • • ~ • • ...• • 1 • • ~ •
He was very sorry, indeed, to notice that trend in the administra
tion of South West Africa. He had thought that the Union of South
Africa being one of the most advanced countries of the African
continent, would have been in the vanguard of progress and would
have led the way towards the development of the African indigenous
population."
The axiomatic assumption that the policy of racial discrimination which
still existed in the Territory I have just quoted, "despite the explicit
stipulation of the Mandate that the Mandatory Power should do its
utmost to promote the well-being of the indigenous population"-an
implicit, nay, an explicit, assumption that this policy at that time was
not consistent with the promotion of the well-being of the indigenous
population. Similarly, in similar terms, the representative of France,
M. Garreau, in the same proceedings at pages 415-416 made the following
statement, in which he said, inter alia:
"(1) education should remain the primary concern of the mandatory
Power; (2) the restrictions imposed on varions aspects of the life of
the indigenous population should be progressively removed so far
as the situation pennitted. 1t was in the interest of the South
African Government itself to pay the greatest attention to the lot
of the indigenous populations and to promote their development,
first from the intellectual, and then from the political point of view.
It was the duty of the Government to ensure the representation of
natives in the administrative bodies of the Territory.
Lastly, the Trusteesh.ip Council should express the wish that
every sign of racial segregation should disappear as rapidly as
possible.''
There was of course no dissent from any of these views expressed by
members of the Trusteeship Council. The Council members-the calibre,
competence, expertise of whom I have already made reference to-the
Council was expressing criticism of Respondent's then administration of
the Territory in so far as the political advancement of the inhabitants
was concerned on the basis of an axiomatic acceptance of the imper
missibility of a policy of allotting rights and burdens and duties to
individual inhabitants, on the basis of separation of groups or dis
crimination among individuals on the basis of race. At no time did any
member of the Council purport in any way, or venture in any way, to
defend Respondent's policies in this respect, either on their merits or
on the basis of administrative or legislative discretion vested in the
Respondent by Article 2, paragraph r, or otherwise, and we will have
more to say about this question in response in due course, inter alia,
to the questions propounded by Judge Sir Gerald Fitzmaurice.
There was manifest agreement among members of the Trusteeship
Council that nothing in Article 2, paragraph 1, of the Mandate inter-212 SOUTH WEST AFRICA
fered with its exercise of supervisory authority with respect to the
policies pursued by the Respondent in connection with the sacred trust,
including that basic core of the sacred trust which is embodied in the
second paragraph of Article 2 of the Mandate. There was, on the con
trary, manifest and explicit assumption taken by members of the
Trusteeship Council that the over-riding obligation, to use the word of
this honourable Court in the 1962 Judgment, was contained in Article 2,
paragraph 2, of the Mandate.
The members of the Trusteeship Council were aise highly critical of
Respondent's economic and social policy in the Territory. Again-and
this is asserted now simply to indicate the manner in which they exercised
their supervisory authority, the task which they conceived they had,
ail this, Mr. President, in the context of Respondent's contention on
rebuttal that these members of the Trusteeship Council were not then
asserting or exercising a supervisory authority-the members of the
Trusteeship Council, as I have said, were also highly critical of Respon
dent's economic and social policy in the mandated Territory, and, again,
the pattern was to seek furthcr information in 1947 because of the
inadequate and incomplete nature of Respondent's report in the con
ception of the members of the Council, and to criticize the policies during
the 1948 Session of the Council, after they had had the benefit of the
supplementary information submitted by Respondent, pursuant to the
Council's request.
The Council's observations and criticisms in these areas of economic
and social policies, just as in the case of its views expressed with regard
to political obligations, were frequently made within the context of what
the Applicants now describe as the international norm and international
standards of non-discrimination and non-separation. The premises upon
which the Trusteeship Council members proceeded at that time are
consistent with no other interpretation-for example, the Chinese rep
resentative on the Trusteeship Council was one of those who sought
further information with respect to Respondent's basic reserve policy
the policy with regard to the Native Reserves. The Chinese delegate
stated, in part, as follows:
"... on page 13, paragraph 54 [that is, of Respondent's report
for 1946] it is stated: 'By 1924 the framework of a territorial Native
policy had been laid. l\Iuch, however, remained to be accomplished
within the Police Zone. The Natives were still scattered over the
country outside the reserves and they had to be gradually sorted
out and sent to the reserves selected for them.' (That is quoted from
the report of Respondent, to which the Chinese delegate was addres
sing himself. Now the Chinese delegate proceeds, having specific
reference to this sorting out proposition:] That is a point on which I
definitely want more information. Why ,vere these Natives sorted
out and sent to different reserves? Is this a natural evolution or an
arbitrary segregation?
Itseems tome that in a Trust Territory, as far as the indigenous
inhabitants are concerned, this type of arbitrary sorting out into
reserves is not conducive to the development of their capacity for
self-government." (United Nations, Trusteeship Council Official
Records, 2nd Sessi.on, First Part, pp. 486-487.)
The Chinese representative had several questions also with regard to REPLY OF MR. GROSS
213
Respondent's policy of restricting freedom of residence in the Territory,
in so far as the so-called non-white population is concerned, thus, at the
same meeting of the Trusteeship Council the Chinese delegate said:
"... on page 15, in paragraph 67 [that refers to the Respondent's
1946 report] it says: 'In rural areas outside the reserves, there is a
considerable population working on farms and in mines. Their
residence and movements are governed by proclamation in terms of
which employment on farms and labour in mines are also controlled.'
That seems to indicate [says the Chinese delegate] that there is a
very rigid control of movements and residence of the Natives. It
seems to me that that also calls for explanation.
In paragraph 68 [of the 1946 report] again the same question
arises. This paragraph states: 'In urban areas Natives reside in
locations controlled by local authorities.' 1t seems to me that in
certain rural areas there are reserves, and in urban areas there is
control of the locations for Natives. Again there seems to be a ve':"Y
deliberate segregation." (United Nations, Trusteeship Councit Offi
cial Records, 2nd Session, First Part, p. 487.)
I will referindue course. Mr. President, to the use in the Applicants'
pJeadings of words such as these whkh appear in the Trusteeship Council
reports; "deliberate segregation", "arbitrary segregation", these judg
mental attitudes with respect to the policy.
Here, of course, we are dealing with the question of the scope of
authority being exercised by the Trusteeship Council, the areas of the
administration of the Territory with which the Council members were
concerning themselves, and the axiomatic assumptions they made with
respect to segregation and which, in their concept, justified adjectives
such as "deliberate" and "arbitrary" as conclusions drawn by them
from the policy.
Finally, the Chinese representative sought clarification with regard
to stillanother of Respondent's manifold and various classifications and
sorting-out procedures which were reflected in the supplemental report.
Quoting fr,om page 25 of Respondent's report, the Chinese delegate
stated as follows:
"... there is set out the system of passes for labour recruits. The
classifications are, 'A Boys', 'B Boys' and 'C Boys'. I should like to
have some clarification of these classifications.'' (United Nations,
Trusteeship Council Official Records, 2nd Session, First Part, p. 488.)
This is cited at this point of the record, Mr. President, to demonstrate
the area of concern and the obviously implicit assumptions upon which
that concern was based.
The representative of Belgium, Mr. Ryckmans, Honorary Governor
General of the Belgian Congo, was particularly interested in Respon
dent's land policy and how it affected the well being of the indigenous
inhabitants of the mandated Territory. On 12 December 1947 Mr.
Ryckmans asks the following question:
"ln connection with the land question, which is of obvious
importance to the indigenous inhabüants, paragraph 237 [of the
Respondent's report] states that the 'system of allotment of land
to settlers in South West Africa is similar to that obtaining .. .'.
I should like to know whether the land lcgislation of South Africa SOUTH WEST AFRICA
which is applicable to South West Africa is consistent with the
mandate system and the principle that the interests of the popula
tion should be the foremost consideration?" (United Nations,
Trusteeship Council Official Records, wd Session, First Part, p. 489.)
The "allotment of land to settlers", to which he was referring of
course included, but was not limited to, the aspect of not permitting
-non-white settlers.
[Public hearingof I2 May I965]
Mr. President and honourable Members of the Court, at the conclusion
of the Oral Proceedings yesterday I was referring to the statement of
l\Ir. Ryckmans, the Belgian representative, in the Trusteeship Council
in December of 1947, when the Council was considering the report sub
mitted by Respondent with regard toits administration of the Territory
of South West Africa. Mr. Ryckmans had referred in his question to the
reference in paragraph 237 of the report relating to the system of allot
ment of land to settlers in South West Africa, and I had concluded yester
day by painting out that the system was apparently then based upon the
race or etlmic groupings of the population, or involved that element.
The significance of the question and, indeed, of the entire range of
questions to which the Applicants are addressing themselves in this con
text does not in any sense involve the merits or otherwise of the policies
which may then have been in existence in the Territory. On the contrary,
without opening up that question at al!, which is quite irrelevant in this
context, the purpose of these references, as I have respectfully sought to
indicate to the Court yesterday, is to demonstrate three factors-(!) that
the Trusteeship Council was indeed asserting and exercising a supervisory
authority over the Mandate; secondly, that it was in pursuance of that
task, considering the sacred trust obligations, notably those within Arti
cle z, paragraph z; and thirdly, that in so doing it was manifesting the
clear axiomatic assumption, never questioned, that a policy of discrimi
nation on the basis of membership in a race or other group was not per
missible or, at the very least, to understate it, was highly questionable,
and that is an understatement. The context of Mr. Ryckmans' question
demonstrates also, in the Applicants' respectful submission, that even
where, as in that case, the legislation of the mandatory power itself is
applied in the Territory, pursuant to Article 2, paragraph I, the over
riding obligations of the second paragraph of Article z remain dominant.
In that case the legislation of South Africa itself was apparently applied
in and to the Territory.
To revert to the main line of the discussion, however, the supervisory
powers exercised by the Trusteeship Council in the years 1947 and 1948
were similar, closely analogons in all major respects, to the methods of
enquiry, the range of enquiry, which were within the normal course of
activity of the Permanent Mandates Commission itself during the League
of Nations period. The only distinction, and an important one, as was
pointed out by several members of the Trusteeship Council, as I indicated
inan earlier stage of these remarks, was the absence of a representative
of Respondent, and that of course was regrettable. Mr. Gerig, the deputy
representative of-the United States, as has been noted earlier, presented
a list of several questions in which the United States delegate to the
Trusteeship Council also sought further information from the Respon- REPL Y OF MR. GROSS
215
dent in pursuit of the exercise of this supervisory function, and it will
be recalled that Respondent itself was complaining at that tirne of the
fact that the Trusteeship Council was purporting to exercise a super
visory fonction. Among the questions which were asked by Mr. Gerig were
the following, inter alia:
"What is the effect of the reserve system as outlined in paragraph
59 [of the Respondent's Report for 1946, that is] on freedom of
movement? Specifically, have Natives the right to move freely into
or out of the reserves? What is the nature of the pass laws? What
regulations govern the recruitment of labourers for the mines and
fanns of South West Africa, the wages of workers, and the conditions
of employment? To what extent does the Native population of
South West Africa seek employment in the Union and what regula
tions are now in effect for the protection of such labourers? What
conventions of the International Labour Organisation have been
ratified by the Union Government with respect to the territory?"
This is from page 491 of the report which I have cited yesterday.
It will be clear from the very range of this enquiry that the heart of
the Mandate-Article 2,paragraph 2-was being subjected at that time
,to scrutiny, and the range of questions being addressed to Respondent
by members of the Trusteeship Council did indeed go to the very heart
of the Mandate. Article 2, paragraph 2.
In 1948, after receipt of the Respondent's supplementary report, the
members of the Trusteeship Council continued their critical observations
on and supervision of Respondent's administration of the Territory. Thus
the response given by the South African Government to Mr. Gerig's
question, which I have just quoted in part, regarding the applicability of
international labour conventions in the Territory clearly was not at all
satisfactory to the representative of China, Mr. Liu Chieh. On 23July 1948
the delegate of China stated as follows-this is from page 412 of the
records of the Third Session of the Trusteeship Council; he-
"was surprised that the Government of the Union of South Africa
had not offered any explanation of the fact that nota single interna
tional labour convention had been applied in the Territory of South
West Africa. He also pointed out that native labour was recruited
in South West Africa to work in gold mines in the Union of South
Africa, and expressed the opinion that the Trusteeship Council
should be informed with respect to working conditions in the mines
[in South Africa, that is], inasmuch as the Union of South Africa
had not ratified the International Labour Officeconventions on the
recruitment of native labour."
Again, this is cited to indicate the range and penetration of enquiry into
the affairs of administration and administration in the Territory.
Throughout, of course, the observations made by members of the
Trusteeship Council at that time were grounded on the basic idea that
the Mandatory was obliged, and this was assumed apparently as axio
matic-it was never questioned or discussed-to apply a standard of
non-discrimination on the basis of membership in a group or class or race;
the questions could have been relevant to no other fondamental assump
tion. Later in the course of these arguments the Applicants, particularly
in the context of the questions addressed by Judge Sir Gerald Fitzmau
rice, will address themselves further to the processes by wlùch the in-2r6 SOUTH WEST AFRICA
temational standards and the international legal norm have evolved, as
well as the content and applicability of such a norm and such standards
to the Mandatory. At this point we find, however, a clear manifestation of
the responsible United Nations organ, the Trusteeship Council, operatfog
under a resolution of the General Assembly, asserting and exercising a
fonction of supervision over the Mandate which was conceded, now, by
the Respondent to have survived the dissolution of the League in the
view of the then Government of the Respondent, and in the course of its
examination of the report expressing views and asking questions, positing
the assumption that the Mandate obligations were to be read in the light
of a standard which did involve the question of allocating burdens,
status, privileges, duties upon the basis of membership in a group, par
ticularly here on a racial basis.
l\Ir. Liu Chieh, the Chinese delegate, speaking immediately after the
remarks of the Philippine representative which 1 have already cited,
stated that-this is from page 414 of the same procecdings:
"He had not dealt with that aspect of the question [that is, racial
aspects of the Respondent's policy) because hc thought that the
Second Session of the Council had duly stressed the instances of
remaining injustices. They included the prohibition for natives to,
own cattle, which was the main source of income of a country, their
segregation in reserves, the restrictions on their freedom of move
ment, the restrictions concerning land ownership by natives, etc.
Those were fondamental rights,and the Council would fail in its
duty if its report to the General Assembly did not clearly draw the
attention of the Union of South Africa to the need for granting such
elementary rights to the indigenous population of the territory it
administered."
That is from page 414 of the proceedings.
Finally, on this aspect of the matter, Mr. President, the Trusteeship
Council was critical of the Respondent's educational policies in the
Territory. Again, tlùs reference is made not to place these policies before
the Court-dearly not at this stage-but to indicate the basis upon
which the members of the Council viewed the Respondent's obligations
and proper performance of its responsibilities.
The representative of the United States of America, Mr. Francis Sayre,
said that-and I quote now from the same record at page 4rr-
"As to education, it [that is, the Cormeil] might also call attention
to the disparity between the amount spent per child in European
schools and the amount respectively per native and coloured child,
and point out that a sizeable incrcase in the amount earmarked for
the education of African childrcn would seem to be indicated.
\Vith respect to question 41 on page 210 [that is, of the report],
to which the Union of South Africa had replied that the reason why
there were no secondary schools for Africans was because they were
not able to qualify for the courses, the Council might state that it
appeared desirable to raise the standard and increase the number of
primary schools.''
Again, this is a penetration into the substance of the obligations im
plicit in Article 2, paragraph 2.
In sum then, l\Ir. President, these observations to which I have referred,
as well as the official observations submitted by the Trusteeship Council REPLY OF MR. GROSS 217
to the General Assembly in its report, in pursuance of the supervisory
powers authorized by the General Assembly's resolution, marked the
"first step"-as the French representative on the Council put it-in the
direction of international supervision over the Territory of South West
Africa. That is from the French delegate's remarks at the Second Ses
sion, First Part, of the Trusteeship Council, page 480 of the official record.
It was, as I have said, a supervision analogous in ail material respects
to that exercised by the Permanent Mandates Commission, and close
attention was directed to Respondent's political, economic, social and
educational policies, aU within the context and on the basis of the axio
matic assumption of the application of a standard of non-discrimination
and non-separation. There was no defcnce of Respondent's thcn policies
in the Trusteeship Council, either on their merits or on the basis of the
discretionary powers vested in Respondent pursuant to Article 2, para
graph r, of the Mandate. There was no reference, parenthetically~and
I shall have more to say about this in rcsponse to one of Judgc Sir Gerald
Fitzmaurice's questions-to the phraseology of Article 2, paragraph I,
referring to the administration of the Territory as an integral portion of
the Republic; nor to the phraseology in Article 2, paragraph 1, that the
mandatory power was given full power of administration and legislation
over the Territory.
The questions were never posed or raised in the Trusteeship Council in
that form in the course of their penetrating examination of the entire
life and administration of the Territory. This will be dealt with in more
detail subsequently.
The clear emphasis was on Respondent's obligations under Article 2,
paragraph 2, of the Mandate, and, none of the Trusteeship Council mem
bers, Mr. President, undertook or referred ta an inquiry concerning Re
spondent's intentions or good faith. The one theme that ran throughout
the Council was the obligation, and this was the one central theme, to
apply a non-discriminatory policy, a policy which did not discriminate
and which did not separate on the basis of membership in a group. This
was the thrust of the Trusteeship Council's supervisory observations and
it has been the thrust of United Nations supervision over the Territory
ever since.
As noted previously, Mr. President, the issue at the United Nations
during the crucial years relevant here, that is to say 1947 and 1948, was
not whether South West Africa should be subject to international super
vision, but was related to the question of the appropriate form of that
supervision. Most States wanted, hoped, expected, despite disclaimers
by Respondent, that South \Vest Africa would be placed under trustee
ship. It was a forlorn hope but one which was clung to, and is manifest
throughout the debates of the period, and marked many of the diplomatie
attempts at persuasion which Respondent now would sometimes seek
to interpret against the spirit of the proponents.
When trusteeship seemed to be out of the question, then the United
Nations insisted upon exercising supervision over the Mandate. The
only other alternative available ta it would have been, or might have
becn, the application of reporting requirements pursuant to Article 73 (e)
of the Charter. As has been pointed out, however, at an earlier stage, in
response to the question propounded by Judge Jessup, no attention was
paid, no consideration was given, to this possibility, so far as the Appli
cants have been able to determine from the record.2r8 SOUTH WEST AFRICA
The confirmatory of this statement, which the Applicants have just
respectfully presented to the Court, is that it is to be noted that the
South \Vest Africa question always has been treated as a separate item
on the agenda of the General Assembly, and has never been discussed,
so far as the Applicants have discovered from a careful reading of the
records, within the context of non-self-governing territories under Chap
ter XI of the United Nations Charter. And, as I have said earlier, the
reports submitted by South Africa were sent by the General Assembly
to the Trusteeship Council, as explained by the representative of
France-this was at the meeting of the Second Session, First Part, of the
TrusteeshipCouncil, reported at page 480 of the official records-the pro
cedure had originally been proposed by the French representative M.
René Mayer because, he said-
"... he feared that to entrust the examination of the report to the
Fourth Committee would convey the impression that the General
Assembly regarded the Territory, which was formerly under South
African mandate, as a non-self-goveming terri tory and notas a trust
territory, or as a territory that should be placed under the trustee
ship system".
I have made parenthetical reference at an earlier stage to the phrase
"formerly under South African mandate", a phrase used on several oc
casions, which can only be mystifying under the circumstances but which
is irrelevant, in any event, by reason of Respondent's concession that its
Government regarded the Mandate as having survived the dissolution
of the League.
The third confirmatory indication of the accuracy of the Applicants'
statement to the effect that the question had never been raised concern
ing applicability of Article 73 to the Territory, in debates in question,
is that the Fourth Committee itself seemed to be anxious toavoidcreating
any basis for an impression that the Territory should be reduced to the
status of a non-self-governing terri tory within the meaning of Chapter XI
of the Charter. This was seen most clearly perhaps in the Fourth Com
mittee in 1949, when draft resolutions were circulated proposing that
the Court be asked for an advisory opinion on the status of the Territory
of South \Vest Africa. One such draft resolution proposed the following
question-"Is South \Vest Africa a territory to which the provisions of
Chapter XI of the Charter apply?" This is in the General Assembly Official
Records, the Fourth Session, Plenary, Annex, at page rng.
The question would f!_avebeen asked in that form-it was never sub
mitted, of course-in case of a negative reply to the question whether
the Union of South Africa, as it was then known, was 1egally obligated to
place South West Africa under the trusteeship system. Opposition
to the presentation of this question, regarding the application of Chapter
XI to the Territory, came almost at once. Thus, the representative of
the Dominican Rebublic said:
"... the Charter visualized the possibility of placing former colonies
underthe Trusteeship System but it did not provide that former man
dated territories should be turned into colonies. The mandate system
had been instituted precisely to avoid such a possible occurrence.
For that reason, he considered that the provisions of Chapter XI
of the Charter were not applicable." (C.A., 0.R., Fourth Session,
Fourth Committee, p. 276.) REPL Y OF MR. GROSS
Similarly, the representative of Brazil stated that he would vote against
this clause in the proposed resolution-that is, the question I have re
ferred to--because the acceptance of such a clause, he said, "would be
tantamount to transfonning a mandated territory into a non-self-govern
ing territory and handing it over to the Union of South Africa". That is
from page 278 of the same proceedings.
And in the plenary debate, the representative of Brazil stated that his
delegation-
"... had thought sub-paragraph (c) [this was the Chapter XI ques
tion] was extremely dangerous, as by referring to Chapter XI of
the Charter the General Assembly would practically rccognize that
the Union of South Africa had a right of sovereignty which in point
of fact it had never possessed over the manda,ted terri tory of South
West Africa". (G.A., O.R., Fourth Session, Plenary, p. 530.)
And in the Fourth Committee the proposal to submit the question
regarding Chapter XI to the Court was defeated by a substantial majority
as will be seen from the Annex to the Fourth Session of the Plenary
Session of the General Assembly, Official Records,at page ro9.
Of course, Mr. President, the Applicants would not venture to express
a view as to the wisdom or otherwise of the decision to refrain from sub
mitting this question to this honourable Court. The views just quoted
do, however, evidence feeling which was widespread among States that
the supervision of the mandated territory should not be reduced to the
minimal level applicable to the general run of non-self-governing terri
tories under Article 73 (e). These views r:eflected the conviction that the
United Nations had a special supervisory responsibility with respect to
the Territory, different and distinct from the responsibilities exercised
in regard to non-self-governing territories in general, onhe one hand, and
trusteeship areas, on the other.
The Trusteeship Council in its discussion of the South West Africa
question in 1947 and 1948 likewise avoided giving the impression that
the mandated territory was to be treated as a non-self-governing terri
tory within the meaning of Article 73 (e) of the Charter. In the same
proceedings, the delegate of China in 1947, Mr. Liu Chieh, askcd, in the
course of a discussion of the standard by which South Africa's report
should be judged:
"What is the yardstick in this case? \Ve are not examining it as a
report on a Trust Territory, because from that point of view we
might say that the report does not confonn to the Questionnaire
we sent out. We are not examining it as a report on a Non-Self
Governing Territory under Article 73e of the Charter, because we
agreed that over those Non-Self-Goveming Territories the metro
politan Powers exercise more sovereignty than the Union of South
Africa has over this mandated Territory. The Government of the
Union of South Africa itself states that it will continue to administer
the territory 'in the spirit of the mandate' so the proper criterion
in this case is whether it measures up to that mandate; otherwise
we would have no criterion by which to measure it." (Trusteeship
Council, Official Records, 2nd Session: First Part, p. 502.)
There was no dispute, manifest in the record at least, concerning the
view of the Chinese delegate that the report should not be examined as
ifit were a report from a non-self-governing territory within the meaning220 SOUTH WEST AFRICA
of Article 73 (e) of the Charter. There was, likewise, no dispute on this
point in the Trusteeship Council Sessions the following year-1948.
The representative of France said:
"Article 73e could not be invoked in support of the Council's com
petence as regards South West Africa because that Article referred
exclusively to non-self-governing territories." (Trusteeship Council,
Official Records, Third Session, p. 409.)
The Soviet representative, on the same day, at the same page of the
record said that:
"Paragraph e of Article 73 dealt with information conceming
territoriesother than those mentioned in Chapters XII and XIII of
the Charter, that is, non-self-governing territories and South West
Africa did not fall within this category."
Now, it has been noted, Mr'.President, that no question ever arose of
the General Assembly explicitly rejecting or explic1tly passing upon the
application of Article 73 (e) to the territory for South West Africa.
Careful study of the records seems to indicate the correctness of that
statement. Respondent never itself took the step of initiating the inclu
sion of the Territory in any list of territories to be considered as falling
within the scope of Article 73 (e). Accordingly, there was no request from
the side of the Respondent to be passed upon by the Assembly, to be dis
cussed or to be accepted or rejected.
Respondent's behaviour, in this respect at least, was consistent with
that of other States administering mandates. No mandated territory has
ever been included in the official enumeration of non-self-governing terri
tories for purposes of the reporting system under Article 73 (e) of the
Charter. At most, as has been indicated, earlier in these proceedings,
the Respondent undertook to supply information like that required under
this provision of Chapter XI but refraincd from adding the Territory of
South West Africa to the list of non-self-governing territories.
It istrue that the preponderance of opinion in the General Assembly
coincided with that expressed by the Respondent, that the Territory does
not fall within the category of non-self-'î.overning territories for purposes
of accoun tability under Article 73 (e). fha t view has been expressed in
these Oral Proceedings and may, no doubt, be further elaborated, per
haps, in response to Judge Jessup's question.
In any event, it is equally truc that in the years up to 1950, as there
after, there was no intimation by a significant number of United Nations
Members that South Africa should be free from the obligation of inter
national accountability for its administration of the Territory.
The history of this period, to the contrary, yields decisive evidence
that, even though South West Africa had not been included either in
the trusteeship system or in the scheme or lists of more restricted report
ing for information purposes under Chapter XI, reports from Respondent
concerning its administration of the mandated territory were considered
requisite by the United Nations for the purpose of examination, pursuant
to a supervisory fonction. And, nevertheless (and now we turn to an
examination of a matter to which Respondent devoted much time and
attention in the course of its rebuttal), in the face of the evidence Re
spondent still insists that between 1947 and 1949 (and in those years)
25 States expressed the view, clearly or by implication, as Respondent
puts it, that in the absence of a trusteeship agreement there was no obli- REPLY OF MR. GROSS 22I
gation, on the part of a mandatory power, to report to and accept the
supervision of the United Nations. It becomes necessary, therefore, in
view of the decisive importance of the question of administrative super
vision, to examine Respondent's technique and procedure with regard to
this matter. Respondent has employed a singular technique in building
up this list of 25 States. Six of the 25 were induded mereiy on the basis
of their signature of the report of the United Nations Commission on
Palestine. That is the source of their qualification for listing. Inasmuch
as that report, if anything, points in precisely the opposite direction-or
at least the Applicants have submitted considerations to the Court which,
in their view, justify such astatement-the inclusion of these six States,
on the basis, really means nothing whatever. The Applicants would be
more justified, indeed, in listing on their side of the case the 25 States
which voted against asking the Court for an advisory opinion conceming
the competence of the General Assembly with respect to the mandated
Territory for Palestine. But the Applicants, respectfully, do not see
validity in such a statistical technique.
Respondent's remaining 19 States require consideration as to their
eligibility for retention on the list. Three of these, Cuba, India and
Uruguay, were not consistent one way or another. Inasmuch as they
occasionally expressed views clearly contrary to the position now held
by the Respondent, they must be deleted. The Applicants should, perhaps
add them to its own list of 25, which would raise the Applicants' list to
28, on Respondent's statistical approach.
Respondent also insists upon including the United States on its list,
now reduced to 16 States, but justifies this on the basis of an incomplete
rendition of a statement by Mr. Gerig before the Trusteeship Council,
taken out of context, and this matter has been examined in an earlier
stage of this argument.
Mr. Gerig, as has been pointed out, stated that he was unclear in his
mind on the issue, he wished to have the views of other members, and
when the United States Government expressed its considered and
definitive position on the issue, in a written statement submitted to this
honourable Court in 1950, it was a position strongly supporting the
view that Respondent is obligated to render accountability to the
United Nations.
Respondent dismisses the United States' view submitted to this Court
on the following basis, in the verbatim record, VIIl, at page 501-the
Respondent characterizes the written statement of the United States
submitted to this Court as-
"... pure, special pleading, of the very same kind that we find in
the arguments of the Applicants now being addressed to the Court.
It was an ex post factoeffort to achieve a desired result ... "
Mr. President, it is not clear, from the terms of Respondent's charge,
who is intended to be the culprit and who is the victim of guilt by
association between the Applicants and the United States position. But,
barring the United States from the list, the list is now reduced to 15.
Respondent concedes that two of the States left on its list, namely
China and the Philippines, were, as it says, "somewhat inconsistent". As
has been shown, bath these States actually considered that the Trustee
ship Council should examine the report submitted by Respondent as if
it were a report from a trust territory, and the Philippines Government222 SOUTH WEST AFRICA
thought that petitions should be accepted by the Council. It is obvious,
therefore, that, within the most relevant context, they expressed or
indicated the view that the United Nations had, indeed, supervisory
powers over South West Africa, and that the Trusteeship Council was,
and should be, exercising them, and this, may the Court be reminded,
was precisely the basis of the objection then made by Respondent's
Govemment for the operations of the Trusteeship Council in this sphere
at all.
If China and the Philippines are deleted from the list of 25, the list is
down to 13 allegedly "consistent" States, in the word of the Respondent.
Respondent has devoted considerable time during its rebuttal to an
examination of this matter. Even the "consistent States", so called,
were hardly consistent, if one examines the record.
Respondent lists New Zealand, for example. Yet, as already noted,
in the 1948 Trusteeship Council debate, New Zealand states as fol
Iows:
"It was the Council's duty to comply with the General Assembly's
request and to supervise the treatment of the inhabitants of the
Territory to the best of its ability, within the limited means at its
disposai." (Trusteeship Commission, Official Records, Third Session,
p. 409.)
The Soviet Union bas won its place on Respondent's list. The list,
as will be recalled, is compiled both with reference to South West Africa
and to other mandates. Yet, the Soviet Union asserted that the General
Assembly had legal authority under Article 10 of the Charter to exercise
supervisory powers over the Palestinian Mandate and, of course, the
Assembly did so. This we have discussed fully. IfNew Zealand and the
Soviet Union are de-listed, II States remain. Respondent lists Pakistan
among the remaining II.
In the Fourth Committee in 1948, the representative of Pakistan,
Mr. Chaudhury, spoke as follows according to the summary record:
"The Mandates Commission of the League of Nations had had
supervisory powers for twenty years. Reports had been submitted
annually by mandatory powers and scrutinized with jealous care
by the Mandates Commission. The League of Nations had been
replaced by the United Nations which had taken over the functions
formerly exercised by the League; several provisions of the Covenant
of the League of Nations relating to mandated territories had been
included in the Charter ... The Union Govemment could not daim
its rights and reject its obligations."
Parenthetically, the language employed then by the Pakistan delegate
is remarkably similar to the language employed by this honourable
Court in the 1950 Advisory Opinion, with respect to the matter of
claiming rights and rejecting or denying obligations. The Pakistan
delegate went on to say:
"When the League of Nations had gone out of existence had there
been any provision that the Territory would revert to the Union of
South Africa."
And then a short while later, in conclusion, Mr. Chaudhury stated that
"The United Nations should retain the responsibility of con
trollingthe mandated territories and that the Union of South Africa REPLY OF MR. GROSS 223
was in no way justified in defying the repeated recommendations
made toit to submit a trusteeship agreement."
This was the context, of course, of the discussions of the times-this was
from the Fourth Committee, Third Session, pages 315-316, in the General
Assembly Official Records.
In fairness to Pakistan's position perhaps Respondent will itself agree
to de-list Pakistan. The list, however, on this basis is now reduced to
ten-one of these is Respondent itself. This however, is a tenable listing
only if the delegate of Respondent to the Preparatory Commission,
Mr. Nicholls, is ignored, as well as the terms of its April 1946 Pledge,
but we will permit Respondent to list itself if it wishes. Of the nine
remaining on the list, excluding the Respondent, France is listed as a
consistent State, but France, even in the absence of a trusteeship agree
ment, urged the submission of reports by Respondent. Thus, the French
delegate to the Fourth Committee, M. Garreau, stated that the Respon
dent's representative, and I quote from the Fourth Session, Fourth
Committee, at page 16, of the General Assembly Official Records, that
Respondent's representative-
"... had stated that his Govemment would continue to administer
South West Africa 'in the spirit of the Mandate'. [M. Garreau]
would have preferred it ifhe had also said 'and in accordance with
the letter of the Mandate', for it was regrettable that the Union
Government no longer deemed it necessary to transmit regular
information as provided in the mandate system. He hoped that the
Government of the Union of South Africa would review its position
and start transmitting information again."
This was the summary record of the French delegate's statement in the
Fourth Committee.
Furthermore, the statement made by M. Garreau in the Trusteeship
Council upon which Respondent placed reliance in its rebuttal argument
in no way supports Respondent's position or confirms the validity of
listing France among the 25, as has already been demonstrated by
specific reference to the remarks made by the French representative on
the Trusteeship Council, which we have put into the record at a somewhat
earlier stage.
The French delegation was merely insisting upon strict compliance
with the terms of the General Assembly resolution, pursuant to which
the Trusteeship Council was exercising a supervisory function and
examining the reports submitted by Respondent at that time. The
remarks of the French representative, M. Garreau, in that context
cannot, it is submitted, be taken as evidence that France denied the
competence of the Council or of the United Nations to exercise any form
of supervision over mandated territories or that the Mandatory was not
subject to the supervision, thus asserted and thus exercised, in which
the Frènch delegation on the Trusteeship Council took part and played
an important role.
This far, Mr. President, the Applicants consider that the list may
fairly be reduced to eight allegedly consistent States. As already noted,
it was proposed in 1947 that the issue of the General Assembly's legal
competence over the mandated Territory of Palestine be putto the Court
for an advisory opinion. This proposai was rejected in view of the con
viction expressed in the ad hoc Committee by a large majority of the224 SOUTH WEST AFRICA
members, that there·was no room to doubt the power of the Committee
and of the General Assembly in this regard. Significantly, the Applicants
submit, among the States which voted "not to ask the Court for an
opinion on the issue" were Australia, Canada and Costa Rka-three of
the remaining States on Respondent's list of eight. If these States had
wished to challenge the Assembly's competence in the Palestine case,
they might have been expected to support the request for an advisory
opinion. However, I cite this merely to indicate the speculative nature of
the enterprise upon which the Respondent has embarked in devising by
this method a list of25 States. Mr. President, I believe the matter can be
dropped there.
In sum, ail that Respondent's list demonstrates is that confusion and
inconsistency, of course, attended the anomalous situation created by the
single, residual Mandate other than Palestine itself, which confronted
the United Nations with the necessity for making a decision which it
hoped it would never have to make but which it possessed power to make
if necessary, and which it did exercise, when it became necessary. And
this situation of doubt, confusion and ambiguity, of course, led to the
submission by the General Assembly of its request for an Advisory
Opinion in 1950, and, as the Applicants took the liberty of remarking at
an earlier stage of these proceedings, it must be unique in the annals of
judicial procedure that confusion, which explained why recourse was
had to judicial process, is itself asserted as an argument against the
conclusion of the Court reached in 1950, upon the basis of the sub
mission of the General Assembly.
Respondent disputes the contention that the General Assembly
resolutions 141 (II), 227 (III) and 337 (IV), calling for reports from the
Respondent, were designed to establish international supervision over
the mandated territory.
This dispute is created by a process which, the Applicants believe, may
fairly be described as parsing the words of the resolutions so as to squeeze
out any obligation to submit to international supervision. The acid test
of Respondent's analysis of the resolutions in question, it is submitted,
would be to examine the reaction of the United Nations in so far as
supervision is concerned. \Vhen Respondent made its decision in 1949 to
send no further reports on its administration of the Territory, the
reaction was swift and its direction was clear. The United Nations
decided to hear in the Fourth Committee a petitioner from the Terri
tory-this was the response. Having had information in the form of
reports eut off, the Fourth Committee assumed even greater supervisory
authority than had previously been exercised in the Territory-greater
in the sense of forrn and procedure.
Several statements made by representatives in the Fourth Committee
debates reveal the importance attached to hearing a representative of
the inhabitants of the Territory. For example, the delegate of Cuba at
that time stated-this was in the Fourth Session of the Fourth Com
mittee, page 222 of the General Assembly Official Records:
"He agreed with the French representative that the point was
not expressly provided for in the Charter, but he did not think that
the Committee would be creating a dangerous precedent. What did
constitute a dangerous precedent in the Cuban view at that time
was the fact that the General Assembly had not received any
further information on the territory of South West Africa, and that REPL Y OF MR. GROSS 225
the Mandate was to be set aside through unilateral action-not
only did the right of petition exist in trust territories but also under
the mandate system."
This, of course, assumed the positive existence of the Mandate to say
nothing of the right of the United Nations to exert a supervisory author
ity over it.
In the same vein the delegate of Brazil, explaining why his Govern
ment supported the grant of a hearing to the petitioner of the Territory,
said:
"South West Africa was not a sovereign state but a territory
placed under the mandate system of the League of Nations, and
consequently, was under the supervision of the community of
nations, namely, the General Assembly."
This is from pages 223-224 of the same proceedings.
The issue of setting a precedent was before the Fourth Committee,
but it was not viewed by the majority of States as an issue of 1$reat
concem from a constitutional or Charter point of view-that is the issue
of hearing petitioners as a form of exercising a supervisory authority
which the members asswned they had asserted and exercised. Thus, the
then Foreign Minister of Thailand, Prince Wan, stated in the same
proceedings, at page 232, as follows, in the Summary:
"The Fourth Committee was entirely free to grant a hearing to
the representative in question if it felt that there were good reasons
for doing so. He did not think there was any occasion to worry over
the fact that such a decision might establish a precedent. Such a
decision would in fact be a precedent, but it concerned a very
special problem, which had been before the General Assembly since
its first session, and would continue to be considered by that body
until a satisfactory solution could be found. The representatives
were spokesmen of groups of inhabitants of a mandated territory
and the precedent established by hearing them could only be fairly
invoked in analagous cases, namely, only in cases conceming the
peoples of mandated territories, but that was not likely to happen."
Of course not, it was not likely to happen, as the Foreign Minister of
Thailand said. This was the single, residual Mandate and the third
system-a special system for supervision-was then in the process of
being formed. The greater need for information now that South Africa
had ceased sending reports to the United Nations impressed many
deleg-ates as is clear from their statement. Thus, a representative of
Mexico, Sefior Noriega, said, and I quote from page 236 of the Sum
mary Record:
"He considered that in order to attain a clear picture of the
situation in South West Africa the Committee should hear the
views of the representatives of the minority and the majority. That
need was all the more important since the Government of the Union
of South Africa had notified the Secretary-General that it would
discontinue to transmit information on the territory in question."
The Fourth Committee decided by a vote of 25 to 15, with 6 absten
tions, that hearings should be granted to petitioners, and of course the
Court in the 1956 Advisory Opinion con:firmed the authority of the
United Nations to do so, in terms of the 1950 Opinion.226 SOUTH WEST AFRICA
The system of supervision, accordingly, was actually extended by the
United Nations over the Territory in the face of Respondent's decision
to cease submission of its reports. This, in turn, sheds light on the
original purpose of the resolutions of the Assembly, calling for the
submission of reports, and in the Applicants' view demonstrates that
the General Assembly did indeed attempt through those resolutions to
establish a system whereby Respondent's accountability to the United
Nations would be made effective.
Of primary importance here is the relationship by the-in this respect,
an interpretation of the General Assembly's resolution-the relationship,
as I have pointed out, between the cessation of reporting and the decision
to hear petitioners. The General Assembly must have viewed the examina
tion and judging of reports as an exercise of supervisory powers for the
Assembly, and its Committee dealing with this subject, the Fourth
Committee, could hardly be said to have suddenly seized supervisory
powers, upon being deprived of reports. The discussion in the Fourth
Committee, of course, does make it dear that the system of super
vision was being adapted to the changing requirements of supervision
by reason of the refusai of the Respondent to submit reports. Thus,
the international supervision of South West Africa, which had begun
with the refusai of the General Assembly to accede to the termination of
the Mandate in 1946, which continued through the examination and
judgment by the Trusteeship Council of the reports submitted by the
Respondent, developed still further in 1949 to the point at which the
Fourth Committee of the General Assembly granted hearings to a
petitioner from the mandated Territory.
This process of development was begun with the consent of the
Respondent manifested in 1947 and was continued in the face of strong
opposition by Respondent after that date. Of course, Respondent today
denies this version of its actions in 1947. This is an issue in dispute
between the Parties. The Applicants rely with conviction upon their
record of those proceedings, particularly in the light of the Advisory
Opinion of 1950 of findings with respect to them, and no new facts or
any other kind of facts have been submitted to the Court whlch would
justify the expunging or the obliteration of the 1950 Opinion from its
status as judicial authority.
Respondent's position in the cases at bar is counter to the historical
development of the international supervision of dependent areas. It is an
evolution of historie proportions which began with the establishment of
the mandates system of the League itself. Respondent's present position
reverses its earlier position,o wit, that the Mandate was, according to
the view of its Govemment of the day, from the legal point of view, in
full force and effect notwithstanding the dissolution of the League.
Respondent's position reverses this acknowledgment, and indeed the
explicit insistence during the meetings of the Preparatory Commission
itself,hat, in the absence of the Permanent Mandates Commission, and
until other agreed arrangements were concluded-and I quote once
more and finally from the words of Respondent's representative to the
Preparatory Commission, Mr. Nicholls-"countries holding Mandates
should have a body to which they could report". Such a proposai more
over, as has been noted, was made by Respondent's representative in
the Preparatory Commission in the context of a debate concerning a
constitutional question involving the proper interpretation of the United REPL Y OF MR. GROSS 227
Nations Charter-a debate in which great anxiety was being voiced by
members of the Preparatory Commission that the trusteeship system
should be accelerated, and that the Trusteeslùp Council should be
established as soon as possible.It was in this context that the Respondent
along with other mandatory powers-two others expressly-urged the
creation of a temporary commission and interim machinery, to which
the Respondent, as also the other mandatories holding mandates, would
have a body to which they could report.
Mr. President, the Applicants with respect have pointed to the risk
that the central issue here involved may be lost to sight in the haze of
events which occurred 15 to 20 years ago, and in the maze of argument
which developed, necessarily so, conceming the interpretation of words
and phrases quoted or passed without due regard to the context in
which they were spoken, or the purposes for which they wer~ uttered.
The central issue pivots upon an elementary proposition which marks
the very jurisprudence of this Mandate, to wit that international account
ability is, inthe words of this honourable Court in the 1962 Judgment,
of the very essence of the Mandate.
Itmay be convenient at this point of the record and with the hon
ourable President's permission, to set forth.here, as a preliminary to the
next series of the legal argument to follow, to set forth here what I have
taken the liberty of referring to as the jurisprudence of the Mandate;
to set forth certain basic propositions which are comprised within the
law of the case, and which are the very foundation stones of the Appli
cants' position, with regard to the Respondent's obligation to submit to
international administrative supervision, and to judicial protection for
the sacred trust.
The following excerpts from the Advisory Opinion of 1950 may be
of particular relevance in this connection and, with the Court's permis
sion, I would like to set them forth:
"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 of the legal situation
created by Article 22 of the Covenant and by the Mandate itself.
The League was not, as alleged by that Government, a 'mandator'
in the sense in which this term is used in the national law of certain
States. It had only assumed an international fonction of super
vision and control ... The object of the Mandate regulated by
international rules far exceeded that of contractual relations
regulated by national 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." (l.C.J. Reports I950, p. 132.}
Again on page 133 of the same Opinion there is a brief statement:
"The authority which the Union Govemment 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 justified.
These international obligations, assumed by the Union of South
Africa, were of two kinds. One kind was directly related to the
administration of the Territory, and corresponded to the sacred228 SOUTH WEST AFRICA
trust of civilization referred to in Article22 of the Covenant. The
other related to the machinery for implementation, and was closely
linked to the supervision and control of the League. lt corresponded
to the 'securities for the performance of tlus trust' referred to in
the same article." (Ibid., p. 133.)
One more quote from the Opinion to set and pour into the mould of
the jurisprudence of the Mandate, the history and antecedents of the
present phase of these proceedings:
"These obligations represent the very essence of the sacred trust
of civilization. Their raison d'êtreand 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 popula
tion ïo have the Territory administered in accordance with these
. rules depend thereon." (Ibid.)
FinalJy, from the 1950 Opinion, I quote tram page 136:
"The obligation incumbent upon a mandatory State to accept
international supervision and to submit reports is an important part
of the Mandates System. When the 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 [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. Itcannot 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 iden
tical, supervisory fonctions." (Ibid., p. r36.)
Mr. President and Members of the honourable Court, these are the
words and the findings of this Court; they are not contentions submitted
by the Applicants, although the Applicants could hardly find better words
in which to submit their contentions.
ln the 1956 Advisory Opinion, the Court set forth as follows, at page
28, as part of the jurisprudence of international supervision, a basic ob
ligation:
"The general purport and meaning of the Opinion of the Court of
11 July r950 is that the paramount purpose underlying the taking
over by the General Assembly of the United Nations of the super
visory fonctions in respect of the Mandate for South West Africa
formerly exercised by the Council of the League of Nations was to
safeguard the sacred trust of civilization through the maintenance
of effective international supervision of the administration of the
i\fandated Territory." (l.C.]. Reports r956, p. 28.)
And then we corne to 1962 and to references which would appear to
suffice to consolidate the record of the mandate jurisprudence in this
context:
'The essential principles of the Mandates System consist chiefly
in the recognition of certain rights of the peoples of the underdevel- REPL Y OF MR. GROSS 229
oped territories; the establislunent of a regime of tutelage for each
of such peoples to be exercised by an advanced nation as a 'Manda
tory' 'on behaJf of the League of Nations'; and the recognition of
'a sacred trust of civilisation' laid upon the League as an organized
international community and upon its Member States. This system
is dedicated to the avowed object of promoting the well-being and
development of the peoples concemed and is fortified by setting up
safeguards for the protection of their rights.
These features are inherent in the Mandates System as conceived
by its authors and as entrusted to the respective organs of the
League and the Member States for application. The ri~hts of the
Mandatory in relation to the mandated territory and the mhabitants
have their foundation in the obligations of the Mandatory and they
are, so to speak, mere tools given to enable it to fulfil its obligations.
The fact is that each Mandate under the Mandates System constitutes
a new international institution, the primary, overriding purpose of
which is to promote the well-being and development of the people
of the territory under Mandate." (l.C.]. Reports r962, p. 329:)
Now from page 336, the final quote:
"The administrative supervision by the League constituted a
normal security to ensure full performance by the Mandatory
of the 'sacred trust' toward the inhabitants of the mandated
territory, but the specially assigned role of the Court was even more
essential, since it wasto serve as the final bulwarkof protection by
recourse to the Court against possible abuse or breaches of the
Mandate."
Mr. President, in contrast to the foregoing judicial interpretations
and holdings of this honourable Court, with regard to the significance
and scope of the role of international supervision in the mandate scheme,
stand the following contentions of the Respondent, which are cited
illustratively as several among many similar contentions.
Mr. President, in the context of the lapse of the Mandate as a whole
argument in the Rejoinder, Respondent cornes to grips with the real
issue of the survivaJ or not of international supervision, but the Respon
dent does soin an extraordinarily tentative and diffident manner in the
light of the jurisprudence of the Mandate to which I have referred. In
the Rejoinder, V, at page 59, the Respondent states:
"It cannot be said, and Respondent has not contended, that the
element of League supervision possessed a quality of such absolute
essentiality that the whole Mandate became objectively or mechani
cally inoperable upon the dissolution of the League. Indeed, most of
the obligations under the Mandate are quite capable of existence
and performance without any supervision."
And then, later on the same page, Respondent states as follows:
"Here again it must be conceded that the substantive purposes
forwhich the mandate institution was created can still be advanced,
even in the absence of supervision. But be that as it may, the ques
tion whether the Mandate as such is to be regarded as still being in
force, in such a reduced form, is one the answer to which must de
pend on the intentions of the authors of the Mandate."
And then Respondent continues:230 SOUTH WEST AFRICA.
"However, inasmuch as the future dissolution of the League was
in fact not contemplated at the stage of its foundation, it follows
that the authors of the Mandate could not have had any actual
intention regarding the continued existence or othenvise of the
Mandate in the event of such dissolution. The present enquiry
must, therefore, relate to their presumed rather than their actual
intentions. And the main guide to the presumed intentions of the
authors of the Mandate in the respect under consideration is afforded
by an appraisal of the role intended to be played by, and degree
of importance attached to, League supervision as an element in the
Mandate System."
This is quite correct, in the Applicants' view. The importance of the inter
national supervision obligation, does indeed shed light upon, and in fact
is the basis for, the interpretation of Articl22 of the Covenant in this re
gard. At page 60 of the Rejoinder, V, Respondent goes on to say:
"Respondent must concede that the question thus placed before
·the Courtis not an easy one. That the duty to account to, and sub
mit to the supervision of, the League, fonned an important element
of the Mandate System, is not open to doubt. On the other hand,
whether it was regarded by the authors of the System to be of such
importance as to constitute a sine qua non of the whole system, must
necessarily to a certain extent remain a matter of speculation, eval
uation, or judgment, on which no definite proof either way can be
produced."
And then finally, in the same volume of the Rejoinder at page 69, the
following contention appears-or submission perhaps would be the more
appropriate way to describe it; apropos of the respective contentions of
the Parties, the Respondent refers to a statement in the Reply which re
flected the Applicants' understanding that there was common cause be
tween the Parties as to the essentiality of international supervision.
Now the Respondent, as of course is its perfect right, refers to the matter
in the following way:
"In the passage cited from the Reply in paragraph II above
[paragraph II is to be found in the Rejoinder at p. 73], the 'com
mon cause' suggestion in the first sentence paves the way for Appli
cants to represent the rival contentions of the Parties as if they
mutually invite the Court to make a choice between two extreme
findings only, viz., that the Mandate has lapsed in toto or that it
survives in toto.In truth, although Applicants' argument does in
volve such an invitation, the representation is wrong of Respondent's
argument, which specifically invites consideration by the Court of a
third possible finding, lying between the extremes, viz., that the
Mandate survives in part. i.e., as regards its substantive provisions
but without procedural obligations of report and accountability to a
supervisory body. Indeed Respondcnt respectfully submits that
that is the only form in which it can possibly be found that the
Mandate still exists."
In the light of the mandate jurisprudence, and of the findings and
holdings of this honourable Court, this statement is a difficult one to as
similate. The Court's holdings appear without any possibility of doubt
to have settled the legal proposition that international supervision in- REPLY OF MR. GROSS 231
deed is the sine qua non of the whole system, and there is no room for
spcculation, so far as the Applicants are aware, and the Applicants con
sider this to be such an essential and fondamental proposition that, in
the Applicants' view, as the Respondent correctly points out, the Court
is confronted with the choice between the two extremes as the Respon
dent characterizes them; they are extremes in a debative sense;but from
a juridical point of view it is the Applicants' respectful submission that
the Court was quite correct in referring to the international supervision,
accountability, as of the very essence of the Mandate, and that to hold
in the third way suggested by Respondent would strip the Mandate of its
very essence, and this the Applicants do not conceive as a realistic juri
dical alternative.
Mr. President, there is no room to doubt that the scope of judicial
protection, the final bulwark against asserted breaches or abuse of the
Mandate, is less broad than administrative supervision itself in scope.
Supervision is the very essence of the Mandate precisely because it is
essential to protect the sacred trust, and the sacred trust is embedded
in Article 22 of the Covenant and Article 2 of the Mandate in its very
essence. Such a scope of judicial protection, commensurate with the
se.ope of administrative supervision, is a logical imperative. It fl.ows
from the fact that, as was explained in the Hymans report to the League
of Nations Council-I regret I do not at the moment have the citation
to the Hyman's report, but will supply it during the course of the day;
I have referred toit and quoted from it at an earlier phase of these pro
ceedings-the Council was, empowered and required to consider "the
whole performance of the Mandate".
Unless the judicial protection encompasses the same broad ambit, the
Court would Jack competence to serve as a bulwark of protection against
asserted breaches or abuse of the Mandatory which the administrative
organ might consider it essential to prevent or to remedy. There would
otherwise be a hole in the Mandate as wide as the sacred trust itself, so far
as judicial protection is concerned.
The Advisory Opinion of 1956, relating to the right of petition, is
doubly illuminating in this respect. It confirms the authority of the admin
istrative organ to excrcise fonctions relative to the protection of Article 2,
paragraph 2, of the Mandate, and demonstrates the judicial acceptance
of the Court's power to pass upon the interpretation and application of
the provisions of the Mandate, designed to authorize administrative su
pervision with regard to the sacred trust, the essence of which is embodied
in Article 2, paragraph 2.
The inter-relationship between the administrative and judicial fonc
tions, which is the point to which the Applicants are now addressing
themselves, with regard to the proper working of the normal securities
for the performance of the sacred trust, has been adverted to at an earlier
stage of these proceedings. The Court, on the one hand, may not be prop
erly asked, or expected, to serve as the first and normal security, in the
words of the Court itself, rather than as the final bulwark of protection.
By the same process of reasoning, the normal security must exist and
be vested with powers of supervision adequate toits purpose, in order that
the Court may have the benefit of the processes and the conclusions of a
competent international supervisory organ. .
The Respondent itself has shown full awareness of the nature and role
of administrative supervision in the scheme of the Mandate, and Re-232 SOUTH WEST AFRICA
spondent has done so in the context of its effort to persuade the Court
not to embark upon this area of activity. In the oral presentation on 14
April 1965, Respondent stated at page 624 of the verbatim record, VIII,
that there was a-
"... positive contemplation of the authors of the mandates system
that in the functioning of this system mandatories would have the
assistance and the collaboration of the Permanent Mandates Com
mission and the Council of the League-in other words, the assistance
of those processes of administrative supervision, as well as the
technical assistance and expert assistance involved therein, which
would really constitute a process of continuai consultation between
the mandatory and those administrative supervisory bodies-a pro
cess of consultation which would lead it from step to step in the ap
plication of certain policies."
It is difficulf to describe the concept of the authors of the mandates
system and the requirements and scope of the administrative super
visory body in terms more clear and more neat than Respondent has it
self described them in this quoted passage. The same considerations, of
course, apply to the problems involved in the complex task of ordei:ly
remedies and procedures to resolve problems which have arisen, largely
by reason of Respondent's failure to accept and to co-operate and to con
suit with such supervisory bodies.
These considerations, Mr. President, make relevant a discussion at
this point-before Ieaving the argument on legal issues relating to ad
ministrative supervision-of the respective roles of administrative su
pervision and judicial protection, with specific reference to several de
cisively important issues presented in the cases at bar. Perhaps the most
important of these relates to the question of the relief for which the
Applicants pray, particularly in terms of Submissions 3 and 4 of the
Memorials at I, page r97.
The Applicants refer in this regard to the prayer in Submission 3, that
the Court adjudge and declare that Respondent "has the duty forthwith
to cease the practice of apartheid in the Territory".
The Applicants likewise refer to the prayer in Submission 4, that the
Court adjudge and declare that Respondent "has the duty forthwith to
cease its violations as aforesaid, and to take ail practicable action to fulfil
its duties under such articles", to wit, Article 2 of the Mandate and
Article 22 of the Covenant.
Mr. President, effectuation and implementation of such an adjudica
tion and declaration, if it should please the honourable Court so to de
cide, evidently would necessitate the effective functioning of a competent
international administrative organ, vested with powers adequate to the
purposes. Indeed, it is the very failure and refusai of Respondent to
submit to such supervision in the performance of its trust, and its in
sistence upon unilaterally decreed and unilaterally imposed policies with
regard to the Territory, which has necessitated recourse by the Applicants
to judicial protection.
Respondent's course in this regard, moreover, has brought about a
situation in the Territory which occasions the competent international
organs deep concern for the present welfare ·Ofthe inhabitants of the
Territory and grave anxiety for their future. And this is manifest from
the information now in the pleadings. Even more, Respondent has an- REPL Y OF MR. GROSS 233
nounced its support, in principle, of certain recommendations by the
so-called Odendaal Commission which, if carried out, in whole or in part,
in accordance with their intended purposes, would alter in fondamental
respects the basic structure of the Territory by means of territorial
partition.
Respondent has indicated its design so to do on the basis of a unilateral
and unsupervised discretion. Respondent's Supplement to the Counter
Memorial sets out its views in this respect-they may be found, inter alia,
at IV, pages 213 and following. Although action upon certain recom
mendations of the Odendaal Commission report has been held in abey
ance pending outcome of these proceedings, Respondent has publicly
proclaimed its acceptance of such recommendations "in principle" (p. 203
of the special Supplement).
Mr. President, whatever course may be followed by Respondent in
future, the intimations of Respondent's policy in this regard underscore
the imperative requirement for administrative supervision over the Man
date. This honourable Court, as has been said, may not appropriately be
requested or expected to serve a function which the Mandate so clearly
envisages for administrative supervision as the normal security.
The recommendations of the Odendaal Commission, as appears from
the record, are not of official status. Apart from this, they are, as at
present, hypothetical, contingent and concededly indeterminate as to
their implementation. There is no realistic or sound basis upon which
they could be considered by the Court. The reason for their addition
to the documentation in these proceedings is obscure. The recommenda
tions, however, on their face, would involve partition of the Territory,
and this indeed is the avowed aim of the Respondent.
\Vhat Respondent has described as its "general attitude" is set out in
the Supplement to the Counter-Memorial at IV, page 213, and reads as
follows:
"... it should be the aim, as far as practicable, to develop for each
population group its own Homeland, in which it can attain self
determination and self-realization".
As has been said, judicial evaluation, or indeed any other evaluation,
of so vagueiy formulated and hypothetical an ultimate goal, would be
inappropriate for judicial consideration, apart from its prematurity and
unofficial status. The point at issue here, however, is that unilateral and
unsupervised implementation of any plan of such a quality or character,
embodying such an objective, would do far more than violate Respon
dent's obligations to submit to international supervision, in terms of
Article 6 of the Mandate. Itwould also violate Respondent's obligations
under Article 7, paragraph r: it would involvc a modification of a sub·
stantial nature of the terms of the Mandate without the consent of the
United Nations thereto. And, Mr. President, as has also been pointed
out, that consent, if sought, must be an infonned consent, and that in
turn presupposes a continuing supervisory authority.
Respondent's version of the avowed plan, the recommendation of the
Ddendaal Commission, was set forth in the verbatim record of 26 April,
VIII, at page 697, in the following terms:
''... there can be no objecbon to differentiation between different
groups inhabiting a given territorial area, which is, fore time being,
administered as a unit but which is destined to be split up into sepa-234 SOUTH WEST AFRlCA
rate political areas, each with its own nationality and each capable
of achieving autonomy".
This is proposed to be done, in Respondent's avowal, in the absence of
international supervision of any type. And the Rejoinder contains an
avowal in the following form:
"Eventually the Homelands will become independent, and in the
interim it is proposed that ultimate control should continue to vest
in Respondent's Government, not in the European population of
the Territory.
Respondent concedes that the transitional stage to complete terri
torial separation is indeterminate, but it is absurd to call it perma
nent." (V, pp. 309-3ro.)
The Applicants conceive that in this context the distinction between
"indeterminate" and "permanent" is hardly a substantive or serious
distinction.
It would not be easy to imagine a more drastic modification of the
basic nature of this Territory than to partition it in the precise form, or
in any similar manner to that which Respondent avows as its ultimate
aim.
The Territory was conferred upon the Mandatory, on behalf of the or
ganized international community, as a trust to be administered as a single
and unified territory.
On the other hand, if, as hypothetically, at least as likely, the avowed
ultimate aim is not really the achievement of independence or separate
nationality, in any sense of the word which corresponds to political,
social or economic realities; if that should be the case rather than actual
partition, then, this, of course, would represent an extreme form of apart
heid, with an indefinitely continuing multiracially composed Police Zone.
The Odendaal Commission report itself does not express or intimate any
intention that the Police Zone, half the Territory, the advanced and
modern sector, would be denuded of non-white inhabitants, as defined
in the census categories. If, hypothetically, the Respondent was not
actually intent upon-according to its avowal of intent~pursuing the
plan of partition: then, as I say, this would be an extreme form of the
application of apartheid territoriallyimposed by group separation in
fragments of the Territory, and that would, on its face, confirm the viola
tion of Article 2, paragraph 2,of the Mandate.
In the Applicants' respectful submission, if the plan avowed by the
Respondent shotùd be carried out unilaterally in accordance with its
description, in Respondent's own formulation, it would violate Article 7,
paragraph r, with respect to consent of a competent international organ
as a precondition to modification of the terms of the Mandate.
If,on the contrary, and hypothetically, it were not partitioned, as
the Respondent insists, but were territorial apartheid in its extreme
form, it would, in the submission of the Applicants, constitute an even
clearcr violation, if possible, ofthe l\Iandatory's duties under Article 2,
paragraph 2.
Ithas got to be a violation under one or the other, on this analysis.
Reference has been made to the essentiality of administrative super
vision in respect of the orderly effectuation of remedies which the Court
might see fit to adjudge and declare, pursuant to the Applicants' Sub- REPL Y OF MR. GROSS 235
missions 3 and 4. It is, in the Applicants' respectful view, unreasonable
and inappropriate to assume that, should the Court be pleased to adjudge
and declare on the basis prayed for in Submissions 3 and 4, it would be
possible for the Court to serve as the supervisory organ-the first and
normal recourse to assure the effectuation in an orderly, evolutionary,
constructive and realistic manner of the social, political, economic life of
the Territory. This is the objective of the organized international com
munity, as the Applicants view it. This imposes upon the organized in
ternational community a most solemn obligation of international respon
sibility,and, without the administrative supervisory organ in existence,
it would seem to the Applicants, most respectfully, that the relief prayed
for, which the Applicants believe is justified, would not be capable of
implcmentation.
The Applicants consider, therefore, that there is an alternative with
respect to Respondent's contention, and, that is, either the Mandate has
survived with its essence or it has lapsed in toto.
Mr. President, identical considerations with respect to the scope and
importance of administrative supervision underlie the Applicants 5th
and 6th Submissions which relate, respectively, to the Respondent's
asserted violation of the international status of the Territory and to the
establishment of military bases therein. I refer the Court to the submis
sions set forth in the Memorials, 1,at page 198.
It is rcgarded, respectfully, by the Applicants, as appropriate to con
sider and dispose of these submissions at this stage in the context of the
requirement of administrative supervision which the Applicants contend
as a matter of law must exist so long as the Mandate itself endures,
because, Mr. President, the necessity for continuing administrative
supervision is highlighted by considerations which relate to these Sub
missions 5 and 6.
ln the first place, the facts with respect both to militarization and
annexation, as disputed by the Respondent, and as subsequently accepted
by the Applicants for purposes of these proceedings, demonstrate the
need for continuing supervision and acccss to relevant information. The
techniques and logistics of military science in 1965 are such that the
Terri tory could effectively be militarized in two or three days, or a shorter
time than that. Respondent has drawn into issue, as a decisive element
with regard to the question of militarization raised in the pleadings, the
purpose of the installations which concededly exist in the Territory. The
assurance with regard to militarization, present or future, to which the
international community is entitled, would appear to be clearly reflected
in the following citations, which I shall not elaborate but to which I
refer the Court respectfully: Memorials, I, pages 181-183, Counter
Memorial, IV, pages 47-66, Reply, IV, pages 553-571 and Rejoinder, VI,
pages 351-389.
Mr. President, the Respondent makes a large point of imputing error
to the Applicants' statement of facts which, under the circumstances,
obviously are set forth on information and belief-to the best of the
Applicants' knowledge and belief. Respondent, as often appears from the
record, denies access, withholds information, and then criticizes the
information which is necessarily derived from other and secondary
sources as inaccurate, a course of conduct which hardly requires charac
terization. There is no reason why Respondent's obduracy in respect of
refusal to submit to the processes of international supervision should236 SOUTH WEST AFRICA
require this honourable Court to serve as the first and normal security.
rather than as the final bulwark of protection. Why is thls question raised
before the Court at this time? lt is clearly because of the failure of ad
ministrative supervision that the absence of effective consultation and
information has created these doubts, these anxieties, and these recrimi
nations, which should not be necessary to be laid before this Court and
which transcend, although they include, the Applicants' request for a
favourable determination on their 6th Submission, which, the Applicants
believe, is warranted by the undisputed facts and the arguments of law
which emerge from the written pleadings in this respect.
The facts, moreover, indicate, in the context of the militarization
clause of the Mandate, the essentiality of such administrative super
vision in the context of modern military technique, logistics and devel
opment, as I have mentioned.
First, with regard to Respondent's concessions-at least with regard
toits rights-under Article 4 of the Mandate, in this regard, contempo
rary rather than 1920 standards are applicable. Respondent states in the
Re1oinder, VI, page 371:
"Finally, as regards the equipment used for training, Applicants
surely cannot seriously suggest that such equipment as may be
necessary for local defence and internai police purposes at the present
time, is prohibited, and that only such equipment as was in fact
used during the pre-World \Var II period is permitted."
Here in this context, when it serves the purpose of Respondent, contem
porary standards are applicable without question. In regard to the sacred
trust the emphasis is on the understandings as of 1920, the principle of
contemporaneity is invoked-in that context, but not in this.
With regard, and more specifically, to this matter, the Respondent
expresses surprise, in the Rejoinder, VI, at page 356, that the Applicants
were not aware of certain facts in the Territory brought out by the Count
er-Memoria], and Respondent says:
"In the circumstances it is, to say the least, surprising that
Applicants, who profess to have such a keen interest in what takes
place in the Territory, wcre unaware until the filing of the Counter
Memorial that there is no military training of Natives in the Terri
tory."
The Applicants were unaware-why? This manner of reply has a stran
gely counterfeit ring in view of the Respondent's long-standing refusal
to co-operate with the competent administrative supervisory organ, or
to comply with the opinions of this honourable Court in regard to the
administrative supervision of the Mandate. In contrast to its refusai to
submit to supervision, it is noteworthy, in the context of administrative
supervision over the possible militarization of the Territory, that Res
pondent relies upon certain conclusions of the Permanent Mandates
Commission, or to knowledge possessed thereby, which Respondent
considers favourable to its position in these proceedings and reference
need merely be made to the Counter-Memorial, IV, at pages 51 and
55-56 and to statements in the Rejoinder, VI, at seriatim, pages 355-
385.
In contrast to the foregoing, Respondent disputes the Applicants'
contention to the effect that the absence of administrative supervision in
the case of doubt conceming the nature of an installation resolves such REPL Y OF MR. GROSS 237
doubt against the Mandatory. See the Rejoinder, VI, pages 371, 375 and
379.
Finally, in regard ta the Regiment Windhoek, in the capital of the
Territory, Respondent states:
"The issue turns on the question whether the complex of what has
been established and what is being done at the establishment con
stitutes a military base." (VI, p. 370.}
Mr. President, it is not the purpose of these refercnces to enquire into
the accuracy of the information, to weigh and evaluate its significance,
to consider its merits in any respect; the question is why do these prob
lems arise before this honourable Court at thls stage? Why is there an
issue in dispute between the Applicants and the Respondent, and why
is that issue-that identical issue-similarly in dispute between the
United Nations and the Respondent, although not, of course, as involved
in these proceedings? It is precisely for the purposc of ascertaining what
is being done at the establishment, in Respondent's phrase, that Ap
plicants submit that administrative supervision is required for the future
security and integrity of the mandated Territory. There should not be the
necessity for a recurrence of doubt or dispute concerning this matter,
and this, it appears to the Applicants, is a significant confirmation for
the necessity for the continuance of administrative supervision as part
of the very essence of the Mandate.
On the same basis of analysis and consideration, turning to the question
of annexation, administrative supervision is here again seen to be of the
essence. Respondent's refusa! to submit to administrative supervision,
indeed, is an underlying element of the Applicants' complaint in this
regard. (SeeMemorials,I,pp. 187 and 189; the Reply, IV,pp. 573,575and
576; the Rejoinder, VI, pp. 401-403 and 444 and 415.) Respondent rejects
the contention of the Applicants that such submission, though known
to the authorized international supervisory authority, is an essential
element entering into the consideration of respect for the separate inter
national status of the Territory. Denial of submission-the duty to sub
mit-to international accountability is a denial of the separate interna
tional status of the Territory. Indeed, atone juncture, Respondent states
that if its acts of administration in the Territory "are in themselves
unquestionable, the fact that there is no supervision cannot render them
questionable". (Rejoinder, VI, p. 4r5.) This appears to the Applicants to
be a classical form of petitio principii. The question, of course, is whether
they are questionable or not. It is a question whlch must be resolved in
the light of information available to the international organ-informa
tion on the basis on whlch it can supervise the trust, and ifit is unable to
supervise the sacred trust for lack of that information, then, in the
Applicants' submission, the Mandate itself is being altered in a fonda
mental respect, and thls îs the theory underlying this submission.
The Respondent's analysis presupposes the possibility of a judgment
of this honourable Court to the effect that such acts of administration
are "unquestionable", and, as I have said and as the Applicants respect
fully submit, all acts of administration, in the absence of supervision,
must be "questionable". That does not reflect upon their merits; they
are questionable because they are open to question because there is no
information available upon which their merits, or otherwise, can be
supervised and examined. This is why, in our submission, this formula
tion begs the question.238 SOUTH WEST AFRICA
As Applicants state in the verbatim record of 22 March 1965, VIII,
at page 195: "In the absence of such accountability, Respondent's fonc
tion of administration would cease to be international." That is the
essence of our contention in this regard.
As this honourable Court stated in 1962; and I quote from the I.C.].
Reports r962, at pages 331 and 332, as follows: "The essentially interna
tional character of the function which had been entrusted to the Union of
South Africa" (that is from p. 331) "is an international instrument of an
international character" (p. 332), "a special type of instrument com
posite in nature and instituting a novel international regime" (p. 331). The
Mandatory, therefore, exercises, in the words of the 1950 Opinion, "an
international fonction of administration, in accordance with the inter
national rules regulating the Mandate which constituted an international
status for the Territory". That is from the I.C.J. Reportsr950, at page 132.
The absence, the denial, or the rejection of international supervision,
alters the international status of the Territory; it deprives it of that
character. This is the basis of our submission in this regard.
It is against the background of these considerations, of the determina
tions of the highest judicial authority-this honourable Court-that
Respondent states in its Rejoinder:
"If Respondent is correct in its contention-Le., that its obliga
tions to report and account to, and to subrnit to the supervision of,
the Council of the League, lapsed upon dissolution of the League,
and have not bcen replaced by any similar obligations relative to
supervision-then, surely, its rejection of so-called 'international
accountability' cannot constitute a violation of any obligation. If,
on the other hand, it should be held that Respondent's aforemen
tioned obligations did not lapse upon dissolution of the League, then
that would signify that Respondent has erred in its aforestated
rejection, and that Applicants' charge of a breach of Article 6 of the
Mandate has been established, but not that the 'separate interna
tional status of the Territory' has in any way been affected. The
substantive nature of the discretion conferred upon Respondent
regarding the administration of the Territory can in no way be
affected by the presence or absence of supervision." (VI, p. 402.)
If the Applicants conccive and appreciate properly the sense or pur
port of this argument, it rests upon alternative assumptions which ignore
the basic principle, as perceived by the Applicants in any event, that the
refusal of international supervision constitutes a violation of the Man
date, not only by reason of violations of Article 6, but also by reason
of the fact that it alters and fundamentally impairs the international
status of the Territory, on the basis of considerations which have been
advanced in the written pleadings and summarized here. It is no answer
for the Respondent to say, in commenting upon the need or otherwise
for internationaJ_ supervision, that it has "de facto been acting as if ail
obligations relevant for present purposes were still in force, including
abstention from unilateral incorporation". That statement is made in
the Rejoinder, VI, page 397.
The Court's attention has respectfully been drawn already to the
phrase "abstention from unilateral incorporation". lt is a position which
could be changed at any week, day, or moment, with or without notice.
Equally irrelevant is Respondent's reliance upon findings of the Per- REPLY OF MR. GROSS 239
manent Mandates Commission in this respect, when such fi.ndings, with
regard to the question of possible annexation, appear to the Respondent
to be favourable to its contentions herein. The Court's attention is
drawn to many citations in the Counter-Memorial, IV, pp. 78, 94, 96;
the Rejoinder at VI, pages 398-400 and through to 412, passim.
The Applicants submit that the facts conceded by the Respondent
in the written pleadings, taken together with the statements of law con
tained in the Memorials in this respect, as well as in the Reply at IV,
pages 573 and 586, demonstrate that Submission 5 is well-founded in
law. Indeed, apart from the legal argument already addressed to this
proposition in the verbatim record of 23 March, VIII,at pages 220-222,
the Applicants respectfully submit that there is no further argument
required on their part, other than the treatment, as aforesaid, in their
written pleadings and in these Oral Proceedings, and that the facts, as they
have become crystallized in the written pleadings of both Parties, support
beyond doubt the legal conclusion that Respondent has treatcd the Ter
ritory in a manner inconsistent with its international status. In respect
of militarization, that question is one which demands for resolution the
access to information presently denied, and which only administrative
supervision can fmd and resolve. With respect to the Submission 6, re
lating to annexation, the refusal and denial of submission to international
administrative supervision impairs the international status of the Terri
tory. It might be desirable at this point to say that the Applicants have
submitted, and will continue to submit, that Respondent's subjective
intent, motive, or purpose, with regard toits performance of its obliga
tions under the Mandate, are wholly irrelevant factors, particularly so
with regard to Article 2 (2), inasmuch as a perse violation of the inter
national legal norm and applicable international standards is contended
for by the Applicants.
With respect to the question of design or plan for use of military in
stallations,or of methods of association between the Territory and the
Respondent, here, as in the case of the sacred trust itself, in Article 2,
intention, purpose, or p1an, is to be inferred on a basis of the Respon
dent's conduct.
Finally, on the basis of the considerations of fact and law set forth in
the Memorials at I, page 196, and the Reply, IV, page 587, the Appli
cants respectfully contend that their Submission 9.is well-founded; this
is set forth in the Memorials at I, page 198. The necessity of administra
tive supervision, as has been said, is underscored by the avowed and
declared design of Respondent to partition the Territory, as a so-called
ultimate aim, on the basis of a unilateral and unsupcrvised plan. Such
avowals and declarations with regard to the future of the Territory,
taken at face value, which the Applicants do for the purposes of these
proceedings only, manifest an admitted plan or purpose, one which need
not be merely presumed as a reasonable inference from conduct.
It was on this basis and for this reason. in the light of these avowals,
that Submission No. 9 is the only submission, which incorporates or is
intended to incorporate reference to or relies upon Respondent's "in
tent". In respect of Submission No. 9, Respondent has explicitly avowed
an intcnt to partition the Territory without the consent of the super
visory organs. In this respect, the intention so stated has no meaning
other than the normal usage of governments when they, in formal or
informai communications, announce a plan or an intent-it is a state-240 SOUTH WEST AFRICA
ment, it is not a state of mind-it is a declaration of action, intended
action. The Applicants accordingly have requeste<l the Court to adjudge
and declare that consent on the part of the United Nations is a condition
precedent to the effectuation of such an avowed intention or plan.
Several points relating to the question of international supervision
arise from Respondent's rebuttal which may be cleared up at this point
with your permission, Mr. President. The Applicants would like to clear
up any possible lingering doubts, by reason of statements in rebuttal by
Respondent, wlùch may exist regarding their position relating to the
administrative supervision of the Mandate and the basis upon which it
has survived and continues to survive as an obligation of the llfandatory.
In the fust place, administrative supervision as an obligation is an
essential part of the mandates system, inescapably linked to the due
performance of the obligations of the Mandatory towards the inhabitants
and the organized international community; again, in the mandate
jurisprudence of tlùs honourable Court, to exclude the administrative
accountability of the Respondent would be "to exclude the very essence
of the Mandate", at page 334, I.C.]. Reports r962.
Secondly, the United Nations has replaced the League of Nations in
the capacity as embodying or representative of-it matters not which
way it is put-the organized international community upon which the
"sacred trust was laid as a responsibility" in the words of the 1962 Judg,
ment. The United Nations is endowed by Article ro, it is invested, by
the Charter, with competence to supervise the Mandate.
Thirdly, Respondent has acknowledged-at the period when it was of
decisive relevance whether it did or not-Respondent acknowledged and
manifested its consent to the assumption by the United Nations of
supervisory authority over the Mandate; Respondent manifested its
consent, and acknowledged its submission according to the fmdings of
the Court in 1950, on the basis, inter aliaof the statements made before
the League of Nations in April 1946, its pledge to the League Assembly,
its adherence to and support of vote for the League resolution of 18 April
1946, and as has been referred to often now, the position it took in the
Preparatory Commission with respect to the temporary trusteeship
machinery, and the reason assigned therefore by Mr. Nicholls.
Respondent has suggested that the Applicants' views, as set out, inter
alia, in the verbatim record, VIII, at pages r32 and 133, represent a
change of position on the part of the Applicants with regard to the
relevance of Respondent's consent during the period 1945-1946, and in
particular, that this is asserted to confüct for various reasons with pre
vious interpretations placed by the Applicants upon the 1950 Advisory
Opinion. Reference is made in this respect to the verbatim record, Vill,
at pages 313-3r9. Respondent contends there that this position, as it is
attributed to the Applicants, !ends support to the proposition that the
1950 Opinion should, in the Respondent's words "be thoroughly reconsid
ered de nova"; that is at page 320 of that verbatim record. It came as
something of a surprise to the Applicants to learn that any proposition
wlùch they could seriously advance could furnish the basis for a recon
sideration de nova or otherwise of the 1950 Advisory Opinion-we are
still at a loss to understand what such a motivation would be grounded
upon. It is, of course, precisely to the contrary; the Applicants rely
upon the 1950 Opinion and consider that it should be followed and if it
is possible to make that contention any more clearly than the Applicants REPL Y OF MR. GROSS
have made it, the Applicants welcome thls opportunity to assure the
honourable Court to that effect. What has happened here is that the
new facts contention which was first raised in 1950, and now again in
1962, has in the Applicants' respectful view, been utterly demolished by
reference to the proceedings of the Preparatory Commission, by reference
to an analysis of the alternative techniques discussed and resolved as
between a temporary trusteeship machinery on the one hand and a pledg·
jng system on the other; had these facts been known to the Court in
1950, in the Applicants' view, they would have had to confirm the Court
in utter assurance. with respect to the conclusions they there reached. If
anything, these proceedings have confinned the desirability and necessity
of accepting the Court's findings in 1950; they have, if vindication were
necessary, completely vindicated those findings.
The Applicants have on another matter stated their basic premise as
being that, "the obligation of international accountability is an essential
and integral element of the Mandate" (VIII, p. 132) and this is, of course,
in the Applicants' view, consistent with the Court's holding in 1962 that
"to exclude the obligations connected with the Mandate would be
to exclude the very essence of the Mandate", at page 334. Likewise,
as has been pointed out at an earlier stage, in fact, at that same stage of
the proceedings, the honourable President and Judge Sir Gerald Fitz.
maurice have defined and I quote from page 522, of the I.C.J. Reports
r962: "An obligation to report was regarded as being of the essence as
a necessary part of any mandate system that was to fulfil the abjects
stated in Article 22." Respondent, on the other hand, has characterized
the so-called "issue" drawn in this regard as being "the issue of a specific
supervisory authority versus the contention of a general obligation of
international accountability or to submit to international supervision"
that is the way Respondent characterizes the issue in the verbatim
record, VIII, page 332. At best that is a pallid form of description of the
issue, it has somewhat misleading implications, unintentional no doubt,
in view of the fact that the Applicants' contention, of course, is that
international accountability is of the essence of the Mandate and the
contention of the general obligation of international accountability is
really a contention that the Mandate cannot survive without it.
Further, Respondent contends that there never was an obligation
"to submit to international supervision", since "the actual terrns of
Article 22 of the Covenant and of Article 6 of the Mandate, providing
for supervision by League organs, were entirely clear and explicit". This,
of course, obviously refers (I did not mean to quote it out of context or
distort it) to a basic general obligation rather than an obligation to sub.
mit to a specifi.corgan-1 was referringto page 332 of the verbatim record
which I have cited. This interpreted, which of course was the context,
the reference was to a basic obligation, continuing obligation, rather
than an obligation merely to report to a specific organ. To the contrary,
in the Applicants' respectful submission, the terms of the Covenant cstab
lish the essential principle of a basic obligation of international account
ability, which inheres in a mandate institution and which must survive
so long as the mandate survives. Now the significance attached by Re
spondent to the presence of what Respondent calls ''more clear and
explicit provisions" referring to Article 22, paragraph 7, and Article 22,
paragraph 9, demonstrates that the specific implementation of the essen
tial principle was not left to chance, in the Applicants' submission.242 SOUTH WEST AFRICA
Finally, in the verbatim record of 18 1\farch 1965, the Applicants
have described the logical effect of Respondent's first alternative con
tention with respect to administrative supervision. The first alternative
contention was that the supervisory functions under Article 6 had lapsed
without, however, collapsing the Mandate as a whole. Itis I think clear,
perhaps frorn what has been said, that this poses a square issue between
the Parties and that there is no interrnediate third ground for a decision,
in the Applicants' respectful subrnission. At VIII, page 123 of the ver
batim record, the Applicants noted that it would follow from the first
alternative contention of the Applicants, according to which Article 6
had lapsed but the Mandate otherwise was in existence-this was the
Applicants' formulation of the problem at that time, which perhaps
bears repetition now in the light of comments made in rebuttal:
"Judicial protection, which the mandate institution envisages as
the final bulwark, in the Court's words, would thus become the
first and only bulwark, inasmuch as judicial supervision, by reason
of default of administrative supervision, would perforce take the
place of the normal security."
This, of course, is a matter of inescapable logic unless it is assumed that
the judicial protection sustained by the Court in 1962 is not to be rec
ognized as legally effective.
[Public hearing of I3 May r965]
Mr. President and Members of the honourable Court, the Applicants
turn now to a consideration of the Iegal issues joined in respect of the
asserted breaches of the sacred trust; in particular, the violations alleged
with regard to Article 22 of the Covenant and Article 2, paragraph 2,
of the Mandate. The considerations which the Applicants propose to
place before this honourable Court will include an illustrative enumera
tion of Respondent's practices and policies germane to a consideration
of the legal issues and, indeed, inseparably related therewith.
The Applicants, with great respect, conceive that these Oral Proceed
ings have served an unusually helpful and clarifying purpose. The pro
cedures which have been followed pursuant to the intimation and
guidance of the honourable President and the Court have, in the Appli
cants' view, facilitated the singling out and definition of central issues.
Questions propounded from the bench have i!lurninated the way. In the
course of the remarks to follow, the Applicants will endeavour also to
respond to the important series of questions proposed by Judge Sir
Gerald Fitzmaurice. For the convenience of the Court the Applicants
think it may be helpful to indicate the scheme of the argument to
follow.
ln the first place, the Applicants will submit considerations of an intro
ductory character. These willbedesigned to lead into aresponsc toJudge Sir
Gerald Fitzmaurice's questions 1, 2,3, 9 and related aspects of questions
4, 5, 6 and 7. In the course of their introductory remarks the Applicants
will endeavour to indicate their approach to the central legal issues con
cerning the existence, content and applicability of the international
legal norrn and the international standards which are described by the
designation "norm of non-discrimination or non-separation", as set out
in the Reply, IV, at page 493 and discussed in the following pages. REPL Y OF MR. GROSS 243
These introductory remarks, Mr. President, also will attempt to clear
away certain misconceptions and distortions of the Applicants' true
theories and contentions which may be engendered by Respondent's
characterizations and formulations of certain of them, both in its ,vritten
pleadings and in the Oral Proceedings.
Secondly, following the introductory remarks just described, the Ap
plicants consider that it may be convenient and appropriate to respond
to Judge Sir Gerald Fitzmaurice's questions Nos. 8 and ro.
Thirdly, thereafter, the Applicants, in an economical manner, will
place before the Court, without elaboration or argument, a summary and
illustrative catalogue of the laws and administrative regulations, as well
as official methods and measures, the existence of which is undisputed by
Respondent, and which are comprised within the policy and practice
ofapartheid in the Territory. As the Court will observe during the course
of that presentation, concise as it will be, many-indeed, most-of the
relevant laws, regulations, official measures and methods are derived
from Respondent's own pleadings, and are normally cited thereto. These
are included, as I have said, within the body of policies and practices
upon which the Applicants ground their submission of Respondent's
per se violation of Article 22 of the Covenant and of Article 2, para
graph 2, of the Mandate.
Fourth, the Applicants will then conclude with a description of the
legal premises and considerations which demonstrate the existence,
content and applicability to the mandate institution of an international
legal norm and of international standards designated by the Applicants
by the label or caption "non-discrimination" or "non-separation". This
demonstration will be of particular relevance, we believe, to Judge Sir
Gerald Fitzmaurice's questions Nos. 1, 2, 3 and 9, as well as to related
aspects of questions Nos. 5, 6 and 7.
Mr. President, the Applicants will endeavour to show that the inter
national standards established by the competent international organs
charged with the duty of supervising and safeguarding the sacred trust
govern the interpretation of the international rules regulating the Man
date as an international institution, including, and more particularly
in this context, Article 2 thereof. As a cumulative and alternative pro
position the Applicants will endeavour to show that an international legal
norm of non-discrimination or non-separation exists, and that it should
be found, declared and applied by this honourable Court to the Respon
dent, in terms of Article 38 of the Statute.
Five, upon the conclusion of the foregoing arguments the Applicants
will formally place their submissions before the Court and rest their case,
subject of course to the convenience and wishes of the honourable Presi
dent and Judges, with reservation of their rights under the Rules of Court
to comment upon any evidence adduced by Respondent and to make such
further or other arguments or responses as it may please the honourable
Court to allow.
The Applicants respectfully turn now to considerations of an introduc
tory character. As has been said, these introductory remarks will, among
other things, be designed to lead into a legal analysis of considerations
pertinent to certain of Judge Sir Gerald Fitzmaurice's series of questions,
which are the very climax in certain respects of the Applicants' case, and
may indeed in a sense be a climactic phase of the litigation itself.
Mr. President, needless to say, those who have been entrusted with SOUTH WEST AFRICA
the duty of presenting to this honourable Court arguments in support of
interests of a legal nature which concern the performance of legal obliga
tions, based upon an international institution of a fiduciary character;
needless to say, those who appear before this honourable Court in such
a capacity must endeavour to keep constantly in mind the fact that the
legal issues joined in these proceedings have been remitted to the highest
judicial body for adjudication on the basis of juridical principles. This
is indeed the underlying premise upon which the Applicants have
sought judicial protection envisaged by the Mandate as the final bulwark
of protection against alleged abuse and brcaches of the Mandate. At
the same time it is evident that the very nature of the asserted abuse
and breaches of the Mandate involve humane, moral, political, social
and economic considerations of profound consequence to the lives
and welfare of the inhabitants of the Territory, who are the bene
ficiaries of this international trust. l\foreover, the very nature of the
asserted abuse and breaches of the Mandate in the aspect now to be
considered has engendered a universal condemnation often expressed by
governments and others in terms which fairly may be said to reflect a
degree of revulsion and of anxiety, the very discussion of which before a
court of law may well import a colour of emotion or moral judgment
which in and by themselves are extraneous to the judicial process. Such
a danger, moreover, is compounded when unjust charges attributing im
proper motivation are levelled in respect of the very recourse to the judi
cial process itself.It has been, and remains, the firm purposes of the
Applicants to focus upon the legal and juridical considerations per
tairung both to fact and law which are relevant and decisive to adjudi
cation of the dispute in issue here. The Applicants believe, and respect
fully submit, that one of the major and perhaps unusual aspects of this
litigation is the profusion, rather than the paucity, of legal roads to a
judicial solution. Such legal roads, moreover, are marked by legal prin
ciples embodying traditional rather than innovative juridical premises.
The Mandate may be viewed in the present context as a convention, as an
institution, or as a combination of both; in the words of Lord McNair jn
his separate opinion appended to the 1950 Advisory Opinion, an in
strument which creates obligations "in part contractual ... in part
'dispositive"', at page 156 of the I.C.J. Reports I950. The Mandate cre
ated an international status for the Territory, the obligations, the inter
pretation and application of which are regulated by international rules
embodied in the Mandate, as this honourable Court has held. Mr. President,
the Court moreover has developed a jurisprudence for the Mandate
reflected in the three Advisory Opinions of 1950, 1955 and 1956, as well
as the Judgment of 1962. Certain major aspects of this jurisprudence of
the Mandate have been collated for the Court's convenience and incor
porated into the record of these proceedings on 12 May in the verbatim
record.
One route to a judicial resolution is via interpretation and application
of the obligations and rights undcr the Mandate, including those embodied
in Article 2, the essence of the sacred trust. The judgments of the com
petent international organs "upon which the sacred trust was laid as an
organized international community", in the language of the Court,
are unambiguous and categorical judgments.
They establish, in the Applicants' respectful submission, international
standards of a clear and compelling character which should be accepted REPL Y OF MR. GROSS 245
and applied by the Court in the jud.icial interpretation of the nature and
scope of the admittedly legal obligations and rights embodied in Article 2
of the Mandate and Article 22 of the Covenant.
Another route to judicial resolution of the legal dispute now before
the Court, a route which is both cumulative and alternative to the first,
isthat which is marked by the legal proposition that the standards of
non-discrimination or non-separation, on the basis of legal considerations
which will be elaborated, have achieved the status of an international
le~al nonn of the same content and scope. Such a legal norm, the Ap
phcants submit, is applicable and controlling to the dispute at bar in
terms of, and within the meaning of, Article 38 of the Statute of the
Court.
The Applicants contend that Respondent's policy of group separation,
labelled "apartheid", in South West Africa, is a per se violation of Ar
ticle 2 of the Mandate and Article 22 of the Covenant. Such a policy of
group separation or apartheid, manifest from the laws and regulations,
the measures and methods of implementation, which are to be found in
the pleadings, and the existence of which is conceded by Respondent,
have been characterized repeatedly in the judgments of the competent
international organs by the designation "apartheid".
The Applicants in these proceedings seek to demonstrate that apart
heid, described by whatever tenn may be used to designate Respondent's
policies and practices of separation, violates the governing international
legal norm and the international standards relevant thereto. This demon
stration has already been made in the Memorials and in the Reply but
it will now be elaborated in the light of the oral argument which has
taken place up to this time and in the light of the series of questions pro
pounded by Judge Sir Gerald Fitzmaurice.
In the light of Respondent's persistent denial of the existence and
applicability of the international legal norm and the international
standards for which the Applicants contend, as well as of the normative
processes and law-creating processes at work in the organized internation
al community, the Applicants will endeavour, as I have said, to present
to the Court several bases which confinn the existence and relevance of
the international legal normand the international standards which they
allege govern the obligations of the Mandatory in tenus of Article 22 of
the Covenant and of Article 2 of the Mandate.
At the outset it seems desirable to dispose of a possible semantic
hurdle. We describe for convenience the relevant international standards
and the international legal nonn by means of the designation, or label,
"non-discrimination" or "non-separation". In the Reply and in the oral
argument the Applicants have defined this nonn and these standards in
the following form:
"In the following analysis of the relevant legal norms the terms
'non-discrimination' or 'non-separation' are used in their prevalent
and customary sense: stated negatively, the terms refer to the ab
sense of governmental policies or actions which allot status, rights,
duties, privilegesor burdens on the basis of membership in a group,
class or racerather than on the basis of individual merit, capacity or
potential: stated affirmatively, the tenns refer to governmental
policiesand actions the objective of which is to protect equality of
opportunity and equal protection of the laws to individual persons as
such." (IV, p. 493.) SOUTH WEST AFRICA
However, the Applicants attach no particular significance either to the
designation or to the precise words used in the definition of the norm and
of the international standards having the same content and scope. What
is relevant, and what is essential to understanding of the Applicants' case,
ïs the submission that such international standards and such an inter
national legal norm exist; that they have been found and declared by
those responsible for its creation as being applicable to Respondent's
policies of group separation in the Territory. Respondent's policy of
apartheid, indeed, has outraged the organized international community
to an extent which has generated its unanimous-but for Respondent
itself-repeated and authoritative use of ail normative processes at its
disposai to bring the standards and the legal norm into being. In view of
so indisputable a reality, there is no reasonable basis for Respondent's
denial that such standards and norm are of uncertain application to the
Territory. Almost any standards or legal norms have instances of un
certain application, but that fact does not provide a basis of attack upon
their validity so long as they clearly cover the phenomena to which they
are addressed.
The Applicants have tried to exclude this extraneous issue by their
contention that the minimum content of the norm is the prohibition of
apartheid; that if a norm of non-discrimination or non-separation exists, it
applies, and clearly so, to the policies of group separation or apartheid
applied by Respondent in the Territory.
An analogous consideration likewise should be noted, lest it confuse
the. central legal issue under discussion. The Applicants do not rest their
case upon the degree to which the norm-creating process at work in
international society has been correct or fair in its appraisal of the in
compatibility between apartheid as practised by Respondent and the
material welfare of the inhabitants of the Territory.
Although the Applicants have no doubt that the norm-creating process
was fair and correct in its evaluation of the policy complained of, the
Applicants do not ask the Court to say so. Nor do they suggest that the
Court undertake the task of second-guessing the competent international
organs responsible for the development of the norm. There is no question
of the Court rubber-stamping the judgments of the competent inter
national organizations, in Respondent's phrase, any more than the Court
can properly be expected to veto such judgments, even though they are
explicitly directed at conduct complained of in these cases.
If the standards and the legal norm for which the Applicants contend
do exist, as a matter of law, then they should be applied by the Court
as part of its duty to decide this dispute in accordance with international
law, and in accordance with the international rule regulating the mandate
institution itself.
On the basis of this reasoning, the Applicants do not regard it to be
appropriate to this litigation to appraise the fact-finding procedures
underlying the standards which have been evolved by the competent
international organs, speaking for the organized international community.
For this reason alone, the Applicants think irrelevant Respondent's
proffer of evidence which, in Respondent's words "will be directed to
wards showing that that assumption of the universal acceptance of the
type of standards" for which Applicants contend "is totally wrong, and
totally unfounded" (p. rn2, supra).
It is relevant perhaps to note at this point certain potentially mis- REPL Y OF MR. GROSS 247
leading aspects of Respondent's repeated imputations to the Applicants
of positions which do not in factor in law reflect the Applicants' conten
tionsor theories.
A cardinal, though by no means exclusive, misinterpretation of the
Applicants' theory of the case is implicit in Respondent's repeated
references to the norm and standards under the designation of "norm
of non-differentiation". This is, of course, more than a mere matter
of semantic distinction. On the contrary, it strikes at the very heart of
the true significance of the Applicants' designation of the norm and
standards.
Although during the Oral Proceedings Respondent referred to its
designation or caption of "non-differentiation" as one employed for so
called "convenience", it is, of course, in the Applicants' view, a misleading
and distorted version of the basic concept underlying the standards and
the norm for which the Applicants contend. Respondent's manner of
description, in itself, for example, reveals the basic divergence between
the Parties concerning the significance of the minorities treaties, as one
example, in respects relevant to these proceedings.
As the Applicants stated in their response to the first question earlier
propounded by Judge Sir Gerald Fitzmaurice, prudent and fair govern
ments, as well as international institutions, often recognize the need for
protection of individual persons in their quality as members of a class or
group. Civilized social orders obviously and necessarily differentiate
minors or incompetents from adults or competents, and accord them
protection as individuals on that basis.
The question at issue is much more fundamental than so axiomatic
a premise of the social order itself. The legal issue is whether the differen
tiation in question is based upon, or determined by, an official policy
which allots burdens, privileges or status on the basis of membership
in a group, class or race, rather than on the basis of individual quality
or capacity. This type of differentiation is impermissible.
The fact that failure to perceive or avow the basic distinction-sought
to be drawn by the Applicants-between the concepts is not a merely
verbal one but that, on the contrary, it underlies Respondent's treat
ment of the subject on the merits, is demon~trated by the following
conclusion, set out in the Rejoinder, V, at page 141:
"For the reasons set out herein, it is submittcd that Applicants
have failed to establish that thcir alleged norm satisfies either of the
two requirements which are essential for present purposes: i.e., they
have not shown-
(a) that any norm prohibiting a policy of differentiation exists in
International Law, either generally, or as legally binding on
Respondent; or, in any event,
(b) that any such norm is embodied in Article 2 of the Mandate."
Mr. President, this formulation is a parody of the standards and norm
for which the Applicants actually contend. The minorities treaties, for
example, of course involve permissible differentiation on the basis of
ethnie, linguistic, nationalr reli$'iousgroupings. The minorities treaties
do so, however, not upon the bas1sof allotting rights, privileges, burdens
on the basis of group classification but for the reason-the essential
reason--of protecting the individual member of a group, which normally
he chooses to adherc to, from suffering adverse consequences by reason SOUTH WEST AFRICA•
of his membership in the group, which, as I say, he is normally free to
quit. He can leam a new language if he wishes, he can join another Church
if he wishes, he can assume another nationality if he wishes, normally.
The foregoing is but one example of many mis-statements or misinter
pretations of the Applicants' true legal theory and position. Moreover,
throughout Respondent's pleadings the Court will note numerous il
lustrations of Respondent's lapses into misconstructions of the Appli
cants' contentions in certain other respects. With regard to the matter
of"differentiation", a striking example may be found in the Rejoinder, V,
at page I04 in which the Respondent mis-states the Applicants' con
tention in the following manner:
"Applicants introduce a far-reaching innovation in their Reply.
This consists of a contention which is apparently to be understood
as meaning that a mere differentiation between ethnie groups,
without any intention to benefit one group at the expense of another
would constitute a violation of Article 2, paragraph 2, of the Man
date."
It would be difficult to formulate the Applicants' actual contention in
a more misleading manner.
Another illustration of Respondent's attribution of extreme and,
-ïndeed, unintelligible contentions to the Applicants appears from the
Rejoinder, V, at page 243. Here, the Applicants are said to-
"... urge, without any qualification, abolition of all differentiation
between groups, treatment of the whole population as a unit, and
universal adult suffrage-daims which have also been pressed by
majority groups at the United Nations in recent years".
In fact, the Applicants have referred to judgments of United Nations
organs with respect to standards for achievement and accomplishment
included within such judgments-the judgments of the competent organs,
not the judgments of the Applicants, and presented as such in these
proceedings as judgments of international organs. "Universal adult
suffrage" is a target for achievernent-but obviously those words have a
content with which the Court will be familiar and of which it may take
judicial notice-subject to the normal restrictions and safeguards which
attend ail democratic principles of suffrage in ail civilized societies; age,
literacy and other factors are of course implicit in such a standard of
achievement.
The Rejoinder is replete with similar instances of attribution to the
Applicants of extrerne or unintelligible views. An extraordinary example
may be found at page 48 of the Rejoinder, VI, as follows:
"For Applicants the [unacceptable] 'intention' [of Respondent's
educational apartheid policy which is in issue] lies in the fact that
the policy does not contemplate an attempt at the creation of one
single and integrated society in which all individuals have identical
rights. This they regard as basically wrong, and it is for this very
reason that they seek to establish improper motives on Respondent's
part."
That statement is, again, a parody of the Applicants' true contention and
theory. There is no society this side of Utopia in which ail individuals
have "identical rights" and, of course, as the Applicants have sought to
make clear repeatedly, they do not seek to establish improper motives REPLY OF MR. GROSS 249
on Respondent's part; they regard the subjective intentions of Respon
dent's officiais who may be in officefrom time to time as irrelevant to the
basic legal proposition presented to this Court by the Applicants. Apart
from the fact that the Applicants in these proceedings are not at ail
concerned with the subjective motivations of Respondent's officiais, the
Applicants are not aware of any society which could fairly or reasonably
be described as one which is "single and integrated", whatever those
words may mean. On the contrary, this appears to be one example of
many in which Respondent attributes to the Applicants extreme views
which, perhaps, may be designed to serve as off-setting the extreme racial
policiesby which Respondent administers the Territory and which are
comprised within the concept of apartheid.
Again, in the Rejoinder, Respondent expresses its conviction that-
"... it will be inadvisable to attempt to establish an integrated, or
single, society in which group considerations will be absent, or count
for nothing: a society, in other words, which will know only 'individ
uals', and not 'groups', or 'members of groups'" (VI, p. 54).
Mr. President, no such society has ever existed in the history of man.
Another even more extraordinary imputation of extreme and unintel
ligible views to Applicants is the following, which is read from the same
volume of the Rejoinder, VI, at page I03:
"Basic to Applicants' complaint, as has been indicated, is the
philosophy that all group differences should be wiped out, no matter
what the wishes of those directly concerned may be, and that aI1
groups and their members should be transformed into one homo
geneous English- or Afrikaans- (but preferably English-) speaking
mass.''
Again, comment is unnecessary. The Applicants would regard any such
contention as absurd and unintelligible.
Stillanother illustration of the imputation to the Applicants of un
intelligible contentions appears on page 240 of the Rejoinder (VI). Here,
Respondent suggests that the Applicants intend to convey:
"... that inasmuch as they advocate the attempted creation of
one integrated nation in South West Africa, as being in fact the
best method to promote well-being and progress to the utmost,
distinctions between tribes and ethnie groups are for that reason
to be eradicated".
How one would go about ''eradicating" distinctions between tribes and
ethnie groups is, of course, again, unintelligible to the Applicants. They
have made no such contention. lt all depends on what is meant by
"distinctions".
One more illustration, of many, may be chosen, and this in many
respects is the most revealing of all. By way of comment upon the Ap
plicants' contention that the true wishes of the inhabitants are not con
sulted by Respondent in matters affecting their lives and welfare, Re
spondent states in the Rejoinder, V, at page 269:
"Applicants' insistence that the consent of all groups in South
West Africa must be obtained as a prerequisite to partition is
unrealistic, and proceeds from fallacious premises ... Indeed, Ap
plicants' contention, taken toits logical outcome, goes much further:
it is tantamount to a demand that a particular section of the inhab- SOUTH WEST AFRICA
250
itants must be afforded the opportunity, simply by virtue of their
superior numbers, of choosing not only emancipation and control
of their own affairs,but also control over the other smaller groups in
the Terri tory and their affairs and possessions-including control over
the most advanced group, which has been largely instrumental in
developing the larger groups to the stage where they are capable of
controlling their own affairs. With reference to the Republic, Ap
plicants' contention involves the daim that the wards must even
be able to demand control over the guardian's own affairs and posses
sions."
Reference has been made to the significance of the suggested plan to
"partition" the Territory-the word used here again in the passage
just quoted-in the context of the necessity for administrative super
vision, as well as in the context of unilateral modification of the terms
of the Mandate by way of fondamental alteration of the character and
status of the Territory by way of partition. In the present context,
however, the Court's attention is drawn to the obvious implications of the
quoted comment in respect of the deprivation of the majority of the
inhabitants of a voice in respect of the future fondamental organization
of the Territory itself.
The foregoing illustrative examples of Respondent's attribution of
extreme and unintelligible views and positions to the Applicants may
tend to submerge the Applicants' true position.
It may be appropriate, however, to endeavour at this point to clarify
another area of confusion, or possible confusion, which appears to have
been engendered, as to the Applicants' purpose in adducing in the Reply,
IV, at pages 302 ff., references to views of contemporary scientific author
ity. Such confusion as to the purpose of the Applicants in adducing
these views is reflected in Respondent's treatment of the matter in the
Rejoinder, V, at pages 400 fi.
The Applicants have referred in their Reply, inter alia, to (r) the judg
ments of qualified persons with first-hand knowledge of the Territory,
(2) official views of govemments, (3) the weight of authority in political
and social sciences, and (4) the history and character of the system of
territorialapartheid. ·
Respondent has treated the foregoing materials, as presented in the
Reply, out of the context in which they are intended to be adduced and
the purposes which they were designed to serve, and in a sense which is
wholly extraneous and irrelevant to Applicants' purpose in adducing
them.
Inclusion of the foregoing materials in the Reply does not, of course,
modify or qualify, in any respect, the Applicants' contention that the
policy of apartheid constitutes a perse violation of Respondent's obliga
tions under Article 22 of the Covcnant and of Article 2 of the Mandate.
Each of the four categories of materials, to which I have just referred,
is adduced in the Reply as directed at certain specific contentions, or
premises, or general propositions, expressed or avowed by the Respon
dent, as understood by the Applicants-as so avowed by Respondent
and as so understood by the Applicants, which are, in the Applicants'
view, clearly untenable, on their face.
Consistently with its course of attributing extreme or unintelligible
views to the Applicants, as I have just described, Respondent adduces
materials designed to refute assumptions or contentions never made or REPLY OF MR. GROSS 25I
advanced by the Applicants. This 1sclear from Respondent's conclusions
in the Rejoinder in respect of each of the propositions referred to.Thus,
at page 408 of the Rejoinder, V, the Respondent refers to "compelling
groups to surrender their identities, or forcing th~m into an unwanted
pattern of integration". Of course, the Applicants' references to views of
scientists or others had no connection whatever with any such proposi
tion.
Similarly, at the conclusion of page 419 of the Rejoinder, V, Respon
dent avers that "socio-cultural differences between racial and ethnie
groups may, in part at least, be the consequence of differences in genetic
potential". The phrase "genetic potential" is admittedly unintelligible
to the Applicants, and, in any event, it could, under no circumstances,
in the Applicants' theory, justify a policy of allotting burdens or denying
rights, on the basis of membership in a group rather than on the basis
of individual merit, quality or capacity, in the case of individuals whose
so-called "genetic potential" (whatever that may mean) endows them
as individuals with qualities or capacities, the fulfilment of which is
denied or inhibited by governmental policy or action.
It appears, on the basis of this contention, explicitly set out in the
Reply and reaffirmed in the Oral Proceedings that apartheid is per se
repugnant to the Respondent's obligation under the relevant articles of
the Covenant and Charter.
The propositions summarized in the Respondent's conclusions, which
have just been referred to, are manifestly and clearly untenable and im
permissible premises of govemmental policy and would be so in all places
and under any circumstances. The views of govemments and of scientific
authority confirm the self-evident and axiomatic nature of this proposi
tion-the "genetic potential" proposition; it ignores the indiv1dual
whose "genetic potential" may or may not correspond to that of the
group to which he is assigned, whatever the quoted phrase may mean.
Finally, the Applicants addressed themselves to Respondent's avowed
general proposition and again in the phrases used by the Respondent,
that as a so-called "realistic" fonction, leaving aside "idealism", govem
ments should refrain, in the Applicants' view, from adopting laws, regu
lations or official practices, designed to encourage or to foster prejudice.
On the contrary, in the Applicants' view, governments must act in a
manner which "realistically" and "idealistically" seeks to protect and
further the equal protection of the laws and the fulfilrnent of the indi
vidual persans quality and capacity. The Respondent's contention, as
understood by the Applicants, was precisely to the contrary that, as
Respondent said, leaving "idealism" apart, a "realistic" govemment
must refrain from adopting laws, regulations or official measures or
methods, which are designed to modify or relax such prejudices, con
tentions and pressures within the society. Each of these three proposi
tions, as understood by the Applicants, are general propositions which,
as stated by Respondent, tend to confirmand support the perse nature
of Respondent's violation of the applicable legal norm and the standards
of non-discrimination and non-separation for which the Applicants con
tend.
As has been said, if and to the extent that Applicants have misunder
stood or incorrectly formulated Respondent's general propositions, as
set forth in their written pleadings, and if the Respondent denies that
was their intended meaning, then of course the matcrials adduced by the:252 SOUTH WEST AFRICA
Applicants in this regard become irrelevant. On the other hand, if the
Applicants have correctly understood the purport of the contentions,
then it would seem tome that there is no question, there is no room to
question the appropriateness of the materials which have been adduced
by the Applicants in refutation of these general propositions as so under
stood.
Again, the views set out in the wrüten p1eadings of the Applicants,
with respect to the views of persons of undoubted first-hand knowledge,
are addressed to Respondent's proposition that its policies and practices
can only be evaluated or appreciated by persons possessing first-hand
knowledge-the inference clearly being that anyone with such knowledge
must inevitably disagree or could disagree with the validity of the norm
and standards reflecting the judgment of the competent international
organizations. To put that more simply, that persons who lack first-hand
knowledge are simply not in a position to forma judgment with respect
to the inherent qualities of the policy of apartheid, from a legal point
of view. The Applicants show that such a contention regarding the
necessity for first-hand knowledge is unfounded and adduce the views
of persons who undoubtedly have first-hand knowledge, and who have
reached a conclusion different from that for which the Respondent
contends. So far as the Applicants are concerned, the views of persons
with first-hand knowledge may or may not be correct. They are views
of persans with first-hand knowledge, who express emphatic disagree
ment with the position of the Respondent, and the purpose in making
such demonstrations is not to pit the views of such persons against the
views of others; it is addressed to a much narrower point, and that is the
untenability of Respondent's implied premise that everyone with first
hand knowledge must agree with and approve of the policy and that
Jack of first-hand knowledge will lead to misunderstanding and rejec
tion.
Similarly, as Ihave said, the purpose for adducing the views of scien
tific authority is to demonstrate the untenability of certain general
propositions advanced by the Respondent, as understood by the
Applicants. Such general principles or propositions are understood
by the Applicants in the sense set out in the Reply, which does not
qualify, or modify in any sense the per se nature of the violations
complained of.
Now, Mr. President, Respondent does not merely hold the Applicants
theory and contentions against a cracked mirror; Respondent in its
second alternative contention posits the measure of its obligations under
Article 2,in the light of a good faith test. The essence of Respondent's
legal theory upon which it appears to rest its case with regard to the
asserted breach of Article 2, is stated in the Counter-Memorial, II,
page 391, as follows:
"The 'full power of administration and legislation' granted in
terms of the Article [that is Article 2] covers the whole field of
government, the only limitation (apart from Articles 3 to 5) being the
element of purpose. And both the power and the purpose are defined
in such amanner as to preclude any possibility of misunderstanding.
(Indeed as will be shown Iater, the Applicants do not allege or sug
gest any possibility of misunderstanding.) The question before the
Court can therefore in essence only be one of intentions, or purpose,
or good faith." REPL Y OF MR. GROSS 253
As the Applicants have sought to make clear, they do indeed suggest
a possibility of misunderstanding and in fact the Applicants suggest that
the intentions or purposes of Respondent's officials, who may be in office
from time to time, are irrelevant to the question of the legal quality of
the administration of the sacred trust. In the face of the misunderstand
ing or mis-statement of the Applicants' position in its pleadings, thus
reflected in the Counter-Memorial, the Applicants sought to enlighten
Respondent in the Reply. The Applicants refer for example, to-
"... the legally cognizable norms according to which Respondent's
obligations under Article 2,paragraph 2,can and should be judicially
determined" (IV, p. 476).
Again, in the Reply, in respense to this rnisconstruction of the Appli
cants' true theory evident from the Counter-Memorial, the Applicants
state:
"Given the basic and fundamental nature of the norm of non
discrimination on the basis of group or race, it would seem evident
that the violation of this rule by Respondent is ipso factoa violation
of Article 2, paragraph 2,of the Mandate." (IV, p. 5n.)
And on page 518, the Applicants made again explicitly clear-
"... that the norms, in accordance with which Respondent's obliga
tions as stated in Article 2, paragraph 2,of the Mandate are to be
judged, are the relcvan t norms currently and generally accepted".
And these of course, are described and defined in the Reply.
Respondent, in its Rejoinder, and again during these Oral Proceedings,
nevertheless insists upon the position or representation of the Applicants'
theory in this case as being that the Applicants are posing the issue of
good faith. Respondent tenaciously adheres to that construction of the
Applicants' view, at the same time insisting, that it is the only tenable
legal theory upon which the Applicants could hope to win their case in
any event-that it is the only basis upon which the Court could judge the
Respondent's conduct. Itis somewhat unusual to find a party insisting
upon attributing to another party a Iegal theory which Ïs the on1y one
upon which it could hope to win its case, when that other party vehe
mently insists that that is not the theory upon which it is proceeding; it
is an anomalous situation thus created.
The Applicants have declined to accept this theory and have, indeed,
insisted and do now re-affirm insistance that they reject the good faith
test, notwithstanding Respondent's warning that the Applicants cannot
hope to prevail in this litigation unless they follow the road indicated by
the passage I have quoted from Il, page 391, of the Counter-Memorial.
The chain of Respondent's mis-statements, and one must say "distor
tions" of the Applicants' standards and norms, the legal theory under
lying their case and the views, social and other, which they advance, all
form a setting for Respondent's analysis of the Court's proper judicial
fonction or Jack thereof under the sacred trust. Oscillating between the
purposes of the Mandatory and the purposes of the Mandate, Respondent
proceeds by positing: "... intentions, or purpose, or good faith", all in
juxtaposition (II, p. 391).
With respect to this matter, I should like to read from Counter-Memo
rial,Il, at page 391, a passage which begins with the conclusions stated
in the previous paragraph, and I pause parenthetically to point out that254 SOUTH WEST AFRICA
the paragraphs referred to are on pages 390 and 391, and that in these
paragraphs Respondent contends, inter alia:
"That no act or omission on Respondent's part would constitute
a violation of this Article2, unless such act or omission was actuated
by an intention or directed at a purpose, other than one to promote
the interests of the inhabitants of the territory."
That is in one of the previous paragraphs to which the quotation I
shall now read to the Court refers :
"The conclusion stated in the previous paragraphs, is supported
by a forther consideration. The Court is a judicial organ and can
accordingly not corne to decisions otherwise than in accordance with
legal norms. If the Court were to dccide whether in fact a particular
policy promoted the "well-being" of the inhabitants "to the utmost",
it would have to consider that policy and weigh it against other
policies which might be followed in an attempt to achieve such a
purpose. In order to arrive at a decision, the Court would thereupon
have to decide which policy it considers best. The Court's fonction
in so deciding would be one which is, in its very nature, nota judicial
one. No legal criteria can be used in such adjudication. The decision
can only be based on social, ethnological, economic and political
considerations." (Il, p. 39r.) .
If the Applicants understand this paragraph correctly it is certainly
correct to the extent that a court could not undertake to perform the
fonctions of a government in the Territory or any place else. This of
course has nothing in common with the Applicants' true contention, and
itis, in the Applicants' submïssion, a perversion ofthe issue truly presented
with respect to the Court's proper judicial fonction in respect of the
protection of the sacred trust.
Respondent's interpretation or analysis of the proper role and scope
of judicial protection of the Mandate is, in the Applicants' view, a wholly
false reading of the Mandate and of ail its essential and inter-related
component parts, including the compromissory clause itself, the super
visory fonctions explicitly provided for in Article 6, the consent require
ment of Article 7, paragraph I, and the essence of the sacred trust itself
embodied in Articles 2 through 5 of the Mandate. These are all inter
related, they inter-penetrate. The judicial fonction of protection of the
Mandate extends to all of them. The question of course is, as stated at the
outset, by what juridical principles, on the basis of what legal proposi
tions, is the Court to interpret and apply the obligations of the Mandate
and the rights of the inhabitants? And in this respect the Applicants also
submit that no legal distinction is properly drawn between Article 2 of
the Mandate and Articles 3 to 5 of the Mandate.
All are comprehended within the sacred trust. The requirement in
Article 5, for exarnple, that the Mandatory, "shall ensure freedom of
conscience", is no more-or-less specifi.c, no more-or-less subject to the
application of relevant legal norms and standards, than are the obliga
tions of Article2, paragraph 2.Compliance with both is judicially deter
minable by reference to objective criteria.
Respondent explicitly concedes this proposition with respect to its
obligations under Article 5, which includes the protection of freedom of
conscience. Respondent's concession in this respect may be found in the
Counter-Memorial, II, at page 387. Respondent at the sarne time denies REPLY OF MR. GROSS 255
the applicability of this proposition, in respect of Article 2, and instead
asserts the good faith test in respect of Article 2, and then squeezes
judicial protection out of the sacred trust, its essential component, by
1ts analysis of the judicial fonction. This interpretation of the judicial
fonction, contended for by the Applicants, I have just quoted from the
Counter-Memorial, II, at page 39r. The distinction is untenable.
The norm and standards for which the Applicants contend are not
based upon, nor do they refl.ect, abstract and undefinable concepts, such
as "integration" or "differentiation", so stated.
The norm and the standards, to the contrary, embody the results of
a universal assessment of the evils inherent in racial discrimination and
group separation, as such evils have been found determined, and ad
judged by the competent organs of the international community, vested
not only with the right but the duty of administrative supervision and
safe-guarding of the sacred trust.
Standards relevant to interpretation of legal instruments or institu
tions are not to be attacked as based upon faulty appraisal of the under
lying facts; once the standards are established by the competent organs,
then in the Applicants' view the Court should accept them as part of ·
"the legal given" and notas themselves subject to judicial redetermina
tion. The processes, the continuity of attention, the inter-action of rele
vant social and political forces-these factors are relevant and peculiar
to the competent political international organs which constitute the nor
mal security of the Mandate.
Judge Sir Gerald Fitzmaurice. in the course of lectures delivered in
1957, has discussed such considerations, pointing out that the ultimate
validity of law is always itself an extra-legal question not susceptible to
judicial review. The learned Judge quoted a celebrated passage from
Salmond's Jurisprudence, rnth Edition, page 155, an excerpt of which
reads as follows:
"But whence cornes the rule that the Acts of Parliament have the
force of law? This is legally ultimate; its source is historical only,
not legal. The historian of the constitution knows its origin, but
lawyers must accept it as self-existent. It is the law because it is
the law, and for no other reason that it is possible for the law to take
notice of."
As Sir Gerald went on to comment:
"This classic passage shows that even in the domestic field the law
is inthe last analysis binding simply because it is the law, and ifthis
is true even in that field, it is a fortiori true on the international
plane." (This is quoted from Vol. 92 of the Rectteils des Cours at
p.46.)
It is in this spirit that the Applicants respectfully submit the standards
should be regarded which have emanated from the competent institu
tions of the organized international community and which, moreover
exist today as a legal norm of non-discrimination or non-separation.
Respondent and the Applicants obviously differ as to the applicability
of the judicial fonction with respect tointernational legal norms. Respon
dent contends, for example, from the verbatim record, VIII, at pages
694-695 "that condemnation in expressis verbis of apartheid" by the
norm-creating organs has no relevance for the Court. Thus Respondent
argues at page 695 of the verbatim record I have just cited: SOUTH WEST AFRICA
"This Court is not a.ssisted in any way by such a condemnation as
far asthe standards involved are concerned, because the Court must
make its own detennination and will, in my submission, make its
own determination, on the evidence presented to it, whether that
evaluation, that judgment, that the policy is ba.sed on a concept of
racial superiorityor racial hatred, is correct or not."
The Applicants respectfully disagree; the competent organs have per
ceived and characterized Respondent's policies of group separation as
based upon a concept of racial superiority or racial hatred, and have done
everything within their competence to indicate the incompatibility of
apartheid with international standards governing the Mandate and with
international law itself.
What more could the organîzed international community do by way of
characterizing Respondent's policies and practices as impermissible under
the mandate and as illegal under international law? What more could they
have done or said?
The issue before the Court, accordingly, is whether the processes of
the organized international community have or have not eventuated in
international standards or an international legal norm, or both. It
may be helpful at this point to emphasize that the Applicants will en
deavour to establish by means of a series of cumulative theories that
apartheid is a Perse violation of Article22 of the Covenant and of Article
2 of the Mandate, as well as of the applicable international legal norm.
The Applicants will endeavour to show that the international rule em
bodied in Article 2 of the Mandate, an international institution with an
international status, must be interpreted as prohibiting the policy and
practice of apartheid. Such policy and practice are set forth in the writ
ten pleadings, largely in Respondent's pleadings, and comprise laws and
regulations and the official methods and measures, the existence of which
is conceded by Respondent. Such a policy and practice are contended by
the Applicants to constitute a perse violation of the Mandate rule itself,
of the Mandate norm itself, and of the general international legal norm
which exists in terms of Article 38 of the Statute as well.
Secondly, as an additional and cumulative proposition, the Applicants
contend that Respondent's adherence to the United Nations Charter
and membership of that organization constitute consent to the norm
of non-discrimination and non-separation, as defi.ned in the Reply, IV,
at page 493.
Thirdly, the Applicants contend that an international legal norm of
non-separation and non-discrimination so defi.nedexists and is applicable
as an international legal norm, irrespective of Respondent's opposition
thereto, or otherwise.
Note may be taken at this point of the juridical significance properly
to be attached to the legal consequences arising from Respondent's failure
and refusal to submit to international accountability in respect of the
very development of the norm and standards at issue here. Apropos of
such failure and refusai to submit to international accountability, it was
said in the 1950 Advisory Opinion:
"When the authors of the Covenant created this system, they
considered that the effective performance of the sacred trust of
civilizationby the mandatory Powers required that the admini
stration of mandated territories should be subject to international
supervision." (I.f.C. Reports I950, p. 136.) REPLY OF MR. GROSS 257
The aspect of the present litigation, in the context of the point immedi
ately under discussion, is foreshadowed by this honourable Court in its
Advisory Opinion of 1956 on the Hearing Petitioners by the Committee on
South West A/rica. The Opinion bears directly upon the "effective per
formance of the sacred trust'', in the words of the 1950 Opinion. The point
at issue concerns the effect upon the normative processes of Respondent's
refusal as Mandatory, to co-operate with the institutions of the organized
international community, "upon whom the sacred trust was laid", in
the words of the 1962 Judgment.
Inconsideringwhether it was consistent with the 1950Advisory Opinion
for the United Nations to grant petitioners a right of hearing, the Court
said in 1956:
"It appears from Resolution 749 A (VIII) that the Mandatory was
refusing to assist in the implementation of the Advisory Opinion of
the Court and to co-operate with the United Nations concerning the
submission of reports and the transmission of petitions in accordance
with the procedure of the Mandates System. As the Mandatory con
tinued in its refusaio co-operate, the Committee found itself handi
capped in the examination of petitions. lt lacked bath the Manda
tory's comments on the petitions and the supplementary informa-,
tion which the Mandatory might have been expected ta supply to
the Committee directly or through its accredited representative.
These were the circumstances prevailing at the time that the Commit
tee requested the General Assembly to decide whether or not the
oral hearing of petitions by the Committee would be admissible."
(l.C.]. Reports I956, p. 26.)
At page 30,the Court went on ta say:
"It is in the interest of the Mandatory, as well as of the proper
working of the Mandates System, that the exercise of supervision by
the General Assembly should be based upon material which has
been tested as far as possible, rather than upon material which has
not been subjected to proper scrutiny either by or on behalf of the
Mandatory, or by the Committee itself." (I.C.j. Reports I956, p. 30.)
"The Court notes that, under the compulsion of practical con
siderations arisingout of the lack of co-operation by the Mandatory,
the Committee on South West Africa provided by Rule XXVI of
its Rules of Procedure an alternative procedure for the receipt and
treatment of petitions. This J{ulebecame necessary because the Ilfan
datory had refused to transmit to the General Assembly petitions
by the inhabitants of the Territory, thus rendering inoperative pro
visions inthe Rules concerning petitions and directly affecting the
ability of the General Assembly to exercise an effective supervision."
(Ibid.p. 31.)
In 1956 the Court concluded by Saying:
"The particular question which bas been submitted to the Court
arose out of a situation in which the Mandatory has maintained its
refusai ta assist in giving effect to the Opinion ofII July 1950, and
to co-operate with the United Nations by the submission of reports,
and the transmission of petitions in conformity with the procedure of
the Mandates System." (Ibid, pp. 31-32.)
The Applicants contend that this judicial cognizance of the legal con- SOUTH WEST AFRICA
sequences of Respondent's non-co-operation is also relevant ta an ap
praisal of the contention that apartheid is a perse violation of Article 2
on the basis of international standards and a legal norm developed by
the supervisory organ. Within the organized international community
speaking through its competent organs, there has evolved an authorita
tive criterion, whether called norm or standards, as to the content of
moral and social well-beingwith respect to race relations in the Territory.
This criterion has emerged as part of the condemnation of Respondent's
admitted practices and policies, but the legal interests of the organized
international community in the protection of the well-being of the inha
bitants have not been realized as a consequence of Respondent's persis
tent defiance of supervision and non-co-operation with the competent
organs.
It is in the face of this frustration of the will of the competent organs
that the Applicants have had no alternative but to seek recourse to this
honourable Court to obtain a judicial interpretation of the obligations
of the sacred trust, including Article 2, thereby making use of the judicial
remedies contemplated in Article 7, and by this means to re-establish the
basis foreffective international supervision. Recourse ta judicial remedies
to uphold the sacred trust in the past was rendered unnecessary by the
collaborative relationship which existed atone time between the Manda
tory and the organized international community, and it is hoped by the
Applicants, at any rate, that the Respondent will relent in its continuing
refusai and failure to submit to such processes and to withhold its co-op
eration. It is, in part, in response to the failure and refusai of collabora
tion that the competent supervisory organs in the international society
have evolved a clear view of the incompatibility of the obligations of
Article 2 (2) and of apartheid itself.
The clear view concerning apartheid, which is held by a prevailing
consensus in the organized international community, in the Applicants'
submission, also constitutes an overwhelming demonstration of its perse
character. The non-co-operation of Respondent, together with the mani
fest incompatibility between Respondent's conduct and the international
standards goveming Article 2, underly the Applicants' contention that
this Court should hold that apartheid is a perse violation of the Mandate
and of international law, as a cumulative and alternative argument.
Mr. President, it is in part in response ta the failure and refusai of
collaboration by Respondent that the competent supervisory organs have
evolved a clear view of the incompatibility of the obligations of Article 2,
paragraph 2, in relation to apartheid. The essence of the point under dis
cussion here, l\IrPresident, is that the Respondent contends, on the one
hand, that a good faith test is applicable by which its performance of
the sacred trust should be judged, while on the other hand it denies its
co-operation to the normal security, ta the supervisory organ responsible
for the safeguarding of the sacred trust-a position of inconsistency which
the Applicants are now endeavouring to bring ta the Court's attention.
Respondent's thesis is that its performance must be judged on the
basis of its purpose, intent, motive and a good or bad faith inference be
drawn. On the other hand, the Respondent refuses ta co-operate with
the normal processes by which such a judgment, if it were relevant,
could be reached. Of course, the Applicants do not believe it relevant in
any event, but it is an untenable position for the Respondent to present
to the Court. The clear view of the international community regarding REPL Y OF MR. GROSS 259
apartheid which is held by a prevailing consensus constitutes an over
whelming demonstration of a per se violation. The non-co-operation of
Respondent, together with the manifest incompatibility between its con
duct and the international standards governing Article 2, underlie the
Applicants' contention that apartheid could not by its nature possibly
have a beneficial effect in any meaningful sense of the term, but that, to
the contrary, as found by the competent organs, it is inherently and per
seincompatible with moral well-being and social progress. The legal sig
nificance of Respondent's denial of co-operation or consultation with the
supervisory organs, notwithstanding its special responsibilities as Trustee,
is confirmed and illuminated in the separate opinions of Lord McNair
in 1950 and of Sir Hersch Lauterpacht in 1956-I refer specifically to the
I.C.J. Reports I950, at pages 149-150, and the I.C.J. Reports I956, at
pages 55 and following of the late Judge Sir Hersch Lauterpacht's opinion.
Both opinions relate to the flexible canons of interpretation appropriate
to give maximum effect to the trust characteristics of the mandate instru
ment, whether the instrument be viewed as a treaty, or as a convention,
or both. Article 2, paragraph 2, of the Mandate and Article 22 of the
Covenant embody the essence of the sacred trust, and their effectuation
demands the combination of techniques, in juxtaposition, of the appro
priate functioning of the administrative organ and the protection of the
judicial organ, both of which are vested with complementary and mutually
reinforcing responsibilities with regardto the safeguarding and protection
of the sacred trust.
The duties of the Mandatory have been described by an authority
recognized as such and cited by Respondent in another context, who has
written-1 refer to Georg Schwarzenberger, International Law, Volume I,
third edition, at page roo, 1957-that among the three major duties of a
mandatory-
"The first is the general international responsibility for any breach
of the terms of the mandate treaty or trusteeship agreement in ques
tion and for all other infringements of international law which are
imputable to the authorities of any such territory."
The Applicants contend that both Article 22 of the Covenant and Article
2 of the Mandate are to be interpreted as imposing a minimum obligation
to administer the Territory without violation of the standards established
by the organized international community, which standards prohibit
discrimination and separation as a matter of official government policy.
Moreover, as a cumulative and alternative contention, the Applicants
argue that Respondent is under a duty to administer the Territory in ac
cordance with international law, in accordance with an international legal
norm of the same scope and content as the standards in question, which
likewise prohibits official separation or discrimination. In either or both
respects, cumulatively and alternatively, in the Applicants' respectful
submission, Respondent is violating either or both the international
rule of the Mandate itself or the applicable international legal norm;
under either or both legal premises, cumulatively and altematively,
the undisputed facts of record constitute a perse violation of the Covenant
and Mandate, and it may be unnecessary to remind the Court that by the
phrase "undisputed facts of record" the Applicants refer to legislation,
administrative regulations and methods and measures adopted officially
in implementation thereof, the existence of which is conceded by Respon- SOUTH.WEST AFRICA
dent. In respect of the international legal normand standards for which
the Applicants contend, the foregoing cumulative and alternative sub
missions appear to be self-evident.
Respondent in its written pleadings concedes-this is from the Counter
Memorial, IV, page 68-that-
"Respondent admits that it was a basic principle of the Mandate
System that the territories placed therennder would each, during
the existence of the particular Mandate, have a distinct international
status or indentity."
Even a sovereign State is obliged to govern its territory and people in
accordance with international law. Certainly something more is to be
expected of a mandatory, which is performing the duties of a trust on
behalf of the organized international commnnity upon which that trust
was laid, and which the mandatory is exercising without an independent
legal title. Respondent cannot be heard to say that its obligations as
Mandatory are not affected by the international legal normand interna
tional standards evolving "outside the Mandate", to use its phrase. Such
a contention would be equivalent to arguing that if the Mandatory were
engaging, let us say, in genocide in the Territory, it would not be a perse
violation of Article 2and Article 22 of the Covenant. lt would be equiva
lent from legal point of view to arguing, as does Respondent, that it would
be necessary to demonstrate its bad faith, or that the method, in its word,
it was employing in the exercise of its discretion could only be appraised
by an independent inquiry into whether genocide, as practised in the
entire context of the Territory, was good or bad, or whether it was not
promoting to the utmost the welfare of the inhabitants. To state the mat
ter another way, it might be viewed by some-indeed, by many-that
the denial of rights and status on the basis of indivual quality or capa
city is a mutilation of the personality and potential of the individual
persan, a mutilation of talents, which the organized international com
munity perceives to be equivalent in a legal as well as a moral sense to
physical mutilation. However that may be, what is at issue here is the
Respondent's concept of the wide ambit of its discretion, a concept which
indeed seems to be a strange sacred trust of civilization for the interna
tional community to have bestowed. A good faith test is inherently an
incredible test. If, and hypothetically, a mandatory should corne under
the contrai of a person or leaders obsessed, then what would be the rele
vant standard under the good faith test? There is a basic difference be
tween the Parties as to the character of international standards, as they
bear upon this phase of the legal argument. Respondent attributes to
Applicants the following conception of international standards, and I
quote from the verbatim record:
"And they [the Applicants, that is] made clear-so we understood
them in their pleadings, and, indeed, in my learned friend's oral
argument-that, when they speak of standards in that regard, they
derive those standards from the spheres of the political and social
sciences-from the weight ofscienti:ficauthority in that regard as well
as from the practices of governments, from the standards which
are currently operative in modem society, standards pertaining to
methods of government, to considerations of fairness, equity and so
forth ... " (Supra, p. ro2.)
Such a misunderstanding of the Applicants' position arises from a REPL Y OF MR. GROSS 261
confusion between the evidence used to demonstrate the existence of stan
dards and the content of the standards themselves. When the Applicants
speak of standards governing Article 2they refer to rulcs ofconduct having
a content similar to, but not an equivalent degree of Jegal author
itativeness of a legal norm. Such standards may be fonnulated in tenns
of generality which correspond to the norm of non-discrimination and
non-separation which the Applicants contend exists, or such standards
may be fonnulated with respect to a component element of the subject,
for example, educational policies, and hence be stated in more specific
terms than the general standards or the Jegal nonn possessing the same
content but of different legal qualities.
The theories of experts have been brought into these proceedings for
the purpose and in the context which I have sought to explain to the
Court. Theories of experts and views of governments are indicative of the
social facts which give rise to the standards but they do not constitute
the standards themselves.
The Applicants regard standards, as I have said, as rules of conduct
which in this case govern the interpretation of the Mandate, and are
differentiated from a legal norm only in the respect that adherence to
them may not itself be a matter of independent legal duty pursuant to
an international legal nonn which would govern even in the absence of
the sacred trust obligation of the Mandate, and the Applicants contend
as a cumulative and alternative argument that Article 2 is govemed
by an international legal norm itself, that this legal norm is to be applied
on the basis of the relevant norm of non-discrimination and non-separa
tion, which has been created independently of the Mandate, and which
is of universal application. Pursuant to this alternative and cumulative
theory, the existence of an international legal norm prohibiting separa
tion and discrimination, or either of them, would indeed be of nniversal
application.
In the case presented here which, of course, is the only issue of coverage
of the norm, that is with respect to the Territory itself, the Applicants
submit that the application of the international legal norm to the sacred
trust isa fortioriIn the Applicants' submission the principal link between
an evolving international society and the regime created by the mandate
instrument consists of such evolving international legal norms and inter
national standards. Indeed a .major restriction upon the discretion of
the Mandatory flows from the possibility of comparing its policies with
applicable international legal standards relevant to the well-being of the
inhabitants, and it is a restriction which courts are peculiarly competent
to supervise and protect. Such a judicial function allows the compromis
sory clause to serve as an important means by which the organized inter
national community, of which this Courtis the judicial arm, may uphold
the welfare, the progress, the moral well-being of the inhabitants of the
Terri tory.
Upon this analysis it is obvious to the Applicants that the allotment of
rights, burdens and status upon the basis of membership in a group rather
than on the basis of individual quality or capacity, wherever and when
ever officially practised in the territory under mandate, constitutes an
a fortioriapplication of the international legal norm.
Respondent, in the Rejoinder and again in the oral argument-I refer
at this point to the Rejoinder, V, pages i30-r33-stresses its contention
that the norm of non-discrimination as the Applicants describe it does262 SOUTH WEST AFRICA
not exist as an international legal norm. The Respondent's argument in
this regard is that the norm contended for by the Applicants has not
arisen by any of the accepted processes by which international legal
nonns are formed. Respondent expressed its view in explicit terms in
the proceedings of 23 April where Respondent said:
"... that the large number of ·the conventions, resolutions, and so
on, referred toby the Applicants were matters to which the Respon
dent was never said to be a party, and to which, in fact, the Respon
dent never was a party. Only two instruments fell to which the
Respondent had been a party, to be specially considered jn this
regard. One was the United Nations Charter, and the other was the
Constitution of the International Labour Organisation ... we indi
cated that the provisions of those instruments were not such that
it could be said that Respondent had ever consented to a norm ... "
(VIII,p. 675.)
This contention is emphasized inasmuch as it reveals in striking
fashion the wide divergence of the Parties regarding the functions
served by the organized international community in the creation and
development of international legal nonns. This divergence between the
Parties is manifested in at least three respects. First, the Applicants
contend, and will elaborate shortly, that forma! acts on the part of inter
national institutions are significant evidence of the character and exis
tence of international standards and of international legal norms.
Secondly, that the will of the organized international community, expres
sed particularly by virtue of unanimity, may serve as a quasi-legislative
substitute for the consent of each and every State. Applicants advanced
this as an alternative and cumulative argument apart from the mandate
nonn itself as an international ruling and, in doing so, proceed from the
premise advanced by Judge Azevedo in his dissent in the Asylum case
(I.C.J. Reports I950, p. 337). Quoting from the learned Judge's dissen
ting opinion:
"It is then very dangerous for a State to proclaim that it is bound
only by the treaties which it has signed and ratified. This purely
gratuitous declaration is rather daring, particularly at a time when
the contractual element is undergoing an obvious and deep change
by virtue of the para-legislative action of an international character
which is being developed even at the cost of substituting the ma
jority principle for the principle of unanimity."
Thirdly, the Applicants contend that Respondent's consent to the
organic law of the United Nations and the International Labour Orga
nisation Constitution likewise entai! consent to the processes of such
institutions for giving authoritative, evolving and dynamic content to
the provisions of a constituent charter, or ordinance, of such institutions.
In so far as the Applicants rely on the existence of an international
legal norm created through the processes of the international organized
community, they perhaps rest upon a law-creating process which has
not heretofore been considered or passed upon by this honourable Court.
ln so far as they rest upon the legal norm created by the mandate
institution itself, the rule regulating the mandate, the Applicants rely
upon traditional canons of interpretation and of application which in
their vîew are unassailable. REPL Y OF MR. GROSS
The jurisprudence of the trust instrument, the Mandate itself, Jom
with the categorical, universally accepted-but for the Respondent-and
explicit judgments of the competent international organs, to compel the
interpretation and application of Article 2, paragraph 2,in a sense and
on a basis wlùch proscribe, perse, the policy and practice of apartheid.
The standards thus prescribed by the organized international com
munity, which is vested with the responsibility and which bears the
burden of supervision and safeguarding the sacred trust, are so clear and
so firmly rooted as to obviate any basis for a rcasonable doubt con
cerning the proper interpretation of the Mandate in the sense contended
forby the Applicants.
As the l\femorials, I, pages rn4 and foUowing, make clear, the mandate
obligations are to be read in the light of the Charter undertakings-1
refer of course to the United Nations Charter.
With respect to the existence of an international legal norm, as well
as of the international standards governing the interpretation of the
Mandate, the three points already enumerated may be referred to again.
These are: the status properly to be accorded to judgments of the com
petent, supervisory, international institutions; secondly, the rote of
consensus, as distinguished from unanimous consent, in the norm-cre
ating process and, thirdly, the legal consequences of Respondent's con
sent to the obligations of the United Nations Charter, of the Inter
national Labour Organisation Constitution, and similar competent inter
national institutions.
The Applicants will attempt to deal with these considerations in more
detail shortly in this stage of the Oral Proceedings. Their arguments will
be based on, and will reflect, the demonstrations previously made in the
written pleadings and in these Oral Proceedings of the undoubted
existence of international standards as well as of an international legal
norm of non-discrimination or non-separation.
The decisive relevance of the issue thus posed to the Court is manifest
from Respondent's contention that the judgment of the competent
supervisory organ, and I quote from the Counter-Memorial, Il, page 3,
"are of no relevance whatsoever to this Court's judicial functions".
The crucial relevance of these considerations likewise is manifest from
the Respondent's contention that it is not bound by the norm of non
discrimination or non-separation-
"... inasmuch as the basic principles of international law involve
that legal rules are not enforceable against States which, during the
period of the coming into general acceptance of the rules in question,
openly and consistently made known their dissent therefrom".
(VIII, p. 676.)
Accordingly, the Applicants shortly will endeavour to address them
selves to an elaboration of the legal considerations which, in their res
pectful submission, support their contention that neither Respondent,
nor any other State, possesses a veto over the normative processes at
work in the organized international community, either as to standards
for interpretation of its undertakings in the trust instrument of the
Mandate, or as to the creation of legal norms applicable to conduct which
is generally condemned as a fondamental invasion of the rights and
status of the individual persan, in this case the inhabitants of the
mandated territory, entitled both to the protection of the sacred trust SOUTH WEST AFRICA
and to administrative supervision thereover and to judicial protection
thereof.
Mr. President, it may now be convenient, having concluded these
somewhat discursive introductory remarks, to address responses to
Judge Sir Gerald Fitzmaurice's questions 8 and ro.
First, with respect to question 8, propounded by the learned Judge.
In the Oral Proceedings of 7 May 1965 1,question 8 was propounded by
Sir Gerald in the following terms:
"There are certain differences behveen the English and French
texts of Article 2 of the Mandate. Instead of 'shall promote' ('pro
mouvoir', 'favoriser'), the French text says 'accroîtra' (shall increase
well-being, etc.). Instead of shall promote 'to the utmost' ('au plus
haut point'), the French text says 'par tous les moyens en son
pouvoir' ('by ail the means in its power' or 'by ail available means').
What significance do the Parties respectively attach to these dif
ferences? What is the resultant of the combined texts, as a matter
of legal interpretation ?"
The Applicants have ascertained that the English text of the Mandate
agreement is, and always has been, the authentic text for purposes of
interpretation and application. The text of the Mandate for South West
Africa was originally drawn up and discussed in English, while the French
version of the text was the result of translation by the League of Nations
Secretaria t.
Thus, in a Ietter from the Secretary-GeneraI of the League to the
Members of the League, conceming the terms of C mandates, the
Secretary-General made a statement on this subject, which is found in
the League of Nations OfficialJournal, January-February 1921, at page 84,
and reads as follows:
"As the text of the Mandates has been discussed and drawn up
only in English, the English text alone can be considered as authen
tic. The French version has been done by the Secretariat."
Further, Mr. President, at the Eleventh Session of the League Council
on 18 December 1920, the Secretary-General of the League suggested
that the word "translation" be put at the head of the French text in
order to demonstrate that the English text was the original and authentic
text. This citation is to the Leagite Council, Eleventh Session, Procès
Verbal, 18 December 1920, page 39.
Accordingly, since the inception of the League of Nations, so far as the
Applicants have been able to ascertain, there has never been any question
about the authenticity of the English text, or a discussion, of which we
are aware, as to the relationship of the two texts. The English text
appears always to have been taken as authoritative and authentic, and
the French text, as I have said, is a Secretariat translation of the original
and authentic English text.
Neither the Permanent Mandates Commission nor the League Council
itself, and indeed, so far as we have bcen able to ascertain, any Members
of the League of Nations, have expressed doubts conceming differences
in wording or meaning, if any, between the English and French texts,
nor have they questioned the legal authenticity of the text in English.
So far as the Applicants are aware, there has never been a so-called
1See Minutes, VIII, p. 32. REPL Y OF MR, GROSS 265
French interpretation of the obligations under the Mandate as dis
tinguished from an English interpretation thereof.
Applicants conclude, in response to Judge Sir Gerald Fitzmaurice's
question No. 8, that there presumably are no differences of substance or
meaning intended between the English and the French texts of the
mandate agreement; although, of course, the Applicants profess no
expertise on the matter, they have sought the advice of persons fluent
in both languages. But on the question whether the French translation
is a faithful rendition of the authoritative English text, the Applicants
defer on this point ta those better qualified ta express a judgment in
that regard.
I think it remains only to be said that the Applicants respectfully
submit that even if the English text were not authentic, and even if
there were differences in wording, it would be difficult, as the Applicants
understand bath texts, to detect a significance relevant in these pro
ceedings. But this, as I say, is a matter which requires a degree of
expertise on the faithfulness of the French rendition or interpretation
of the English text, which the Applicants cannot profess ta have accom
plished.
ln response, then, specifically to Judge Sir Gerald Fitzmaurice's
question No. 8 in the series propounded by the learned Judge, the
English text being the authentic one, differences of meaning, if any,
between that text and the French translation thereof by the Secretariat
would not be relevant to, or govern in respect of, the Applicants' sub
missions or theories of the case.
It may be convenient now, Mr. President, if the Applicants would
endeavour respectfully to submit their response to Judge Sir Gerald 1
Fitzmaurice's question ro. In the Oral Proceedings of 7 May r965 ,the
honourable Judge Sir Gerald Fitzmaurice addressed the following question
ta the Parties :
"Article 2 of the Mandate provides not only (by its second para
graph) for the promotion (or increase) of the well-being and social
progress of the inhabitants, but also (by its first paragraph) that
the Mandatory is to have 'full power of administration and legis
lation over the mandated territory' as an 'integral portion' of its
own territory, and may apply its own laws 'subject ta such local
modifications as circumstances may require'. What do the Parties re
spectively consider to be the exact relationship between these two
sets of provisions? Neither is specifically subordinated to the other.
Should either nevertheless be read as being sa subordinated, and if
soin what sense and to what extent? If not, and if the two clauses
are independent of one another, what is the resulting legal situation?"
The Applicants will endeavour to answer question No. 10 by stating
their conclusion first, respectfully, and then the considerations upon
which their conclusion is based.
The Applicants respectfully submit by way of response to Judge Sir
Gerald Fitzmaurice's question No. IO that Article 2,paragraph r, of the
Mandate should properly be read as subordinated ta Article 2, paragraph 2.
The subordination ofthe first paragraph ta the second isof importance only
when the application of the Mandatory's own legislation and adminis-
1 See Minutes, VIII, pp. 32 and 34.266 SOUTH WEST AFRICA
trative policies in the mandated territory are in conflict with the objec
tive legal criteria which measure the Mandatory's obligations under
Article 2,paragraph 2.
Thus, Article 2, paragraph 1, is subordinated, or should be read as
subordinated to Article 2, paragraph 2, of the Mandate, in the sense and
to the extent that the application of legislative or administrative policies
of the Mandatory, or the exercise of its powers in the Territory, in terms
of Article 2, paragraph 1, are in conflict with objective legal criteria
which the Mandatory is obliged to apply in carrying out its respon
sibilitiesunder Article 2,paragraph 2, of the Mandate. And one may add,
similarly, and for the same reasons, Articles 3-5 of the Mandate.
It would appear to the Applicants that Article 2, paragraph r, of the
Mandate, although textually set forth as the first paragraph of a two
paragraph article, that is to say, Article 2 as a whole, nonetheless applies
to Articles 3, 4 and 5, and the placement textually of Article 2, para
graph I, within the framework of Article 2 does not limit its appli
cability to that Article. This, of course, is a question separate from the
content, or substance, or meaning, or legal effect to be attributed to the
first paragraph of Article 2.
The considerations upon which the Applicants' conclusions just stated
are based may be set out as follows.
The Advisory Opinion of this honourable Court in 1950 on the Inter
national Status of South West A/rica, as well as the Judgment of the Court
on the Preliminary Objections in 1962, state that the principles of
Article 2, paragraph 2, of the Mandate are fundamental and of essential
importance in the mandates system. Thus the Court, in the 1950 Ad
visory Opinion, stated that when a decision was to be taken with regard
to the establishment of the mandates system itself-
"... two principles were considered to be of paramount impor
tance: the principle of non-annexation and the principle that the
well-being and development of such peoples form 'a sacred trust of
civilization'.
With a view to giving practical effect to these principles, an
international régime, the Mandates System, was c.reated by Ar
ticle 22 of the Covenant of the League of Nations. A 'tutelage' was
to be established for these peoples. and this tutelage was to be
entrusted to certain advanced nations and exercised by them 'as
mandatories on behalf of the League'." (I.C.]. Reports I950, p. 131.)
Further, in its 1950 Advisory Opinion at page 132 the Court stated:
"The terms of this Mandate [that is the Mandate in question in
these proceedings}, as well as the provisions of Article 22 of the
Covenant and the principles embodied therein, show that the crea
tion 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 international function of
administration on behalf of the League, with the object of pro
moting the well-being and development of the inhabitants." (Ibid.,
p. 132.)
The theme running throughout the mandate jurisprudence, as evi
denced by the statements of the honourable Court in 1950, is that
although not explicitly referred to in these terms-the nghts given to
the Mandatory, the powers vested in the Mandatory, pursuant to REPLY OF MR. GROSS
Article 2,paragraph 1, are basically and essentially of an administrative
nature and are given and vested for the purpose of facilitating adminis
tratively its accomplishment of the substantive obligations embodied in
the sacred trust including, of course, the core of those obligations,
Article 2,paragraph 2.
The tutelage established by the mandates system was for the purpose
of giving what the Court called "practical effect" to principles which
were of "paramount importance", and the Union Government, the
Respondent, had no sovereignty, but was merely exercising what the
Court described as an "international fonction of administration" for
purposes of promoting .to the utmost the welfare of the inhabitants of
the Territory. The objectives were the promotion of the welfare of the
inhabitants-I am referring to the purposes of the Mandate, not the
purposes of the M andatory.
These citations from the 1950 Opinion in themselves are persuasive,
in our submission, as demonstrating the necessity of the propriety of
subordinating Article z (r) of the Mandate to Article z (2).But there is
much more to be said.
The Court, in the 1950 Advisory Opinion, was even more explicit,
and stated:
"In accordance with these terms [the Mandate], the Union of
South Africa (the '.Mandatory') was to have full power of administra
tion and legislation over the Territory as an integral portion of the
Union and could apply the laws of the Union to the Territory subject
to such local modifications as circumstances might require. On the
other hand, [said the Court] the Manda tory was to observe a number
of obligations, and the Council of the League was to supervise the
administration and see to it that these obligations were fulfilled."
(Ibid.)
This quoted statement appears to the Applicants to be rcasonably
susceptible only to one construction-given the application of the
Mandatory's own legislative or administrative measures in violation of
substantive obligations under Articles z to 5 of the Mandate: the dis
cretionary powers of the Mandatory must be viewed as subordinated to
the obligations found in the Mandate provisions. Notwithstanding the
rights of the Mandatory vested in it for administrative convenience, as
will be demonstrated shortly, such rights must be subordinated to the
obligations specifically found in Article 2 (2),which are those in issue in
these proceedings.
The analysis is confirmed, it appears to the Applicants, by the judg
ment of this honourable Court in 1962 on the Preliminary Objections.
The Court stated as follows:
"The essential principles of the Mandates System consist chiefly
in the recognition of certain rights of the peoples of the under
developed territories; the establishment of a régime of tutelage for
each of such peoples to be exercised by an advanced nation as a
'Mandatory' 'on behalf of the League of Nations'; and the recogni
tion of 'a sacred trust of civilisation' laid upon the Lcague as an
organized international community and upon its Member States.
This system [said the Court] is dcdicated to the avowed object of pro
moting the well-being and development of the peoples concemed and
is fortified by setting up safeguards for the protection of thcir rights.268 SOUTH WEST AFRICA
These features are inherent in the Mandates System as conceived
by its authors and as entrusted to the respective or~ans of the
League and the Member States for application. The nghts of the
Mandatory in relation to the mandated territory and the inhabitants
have their foundation in the obligations of the Mandatory and they
are, so to speak, mere tools given to enable it to fulfil its obligations.
The fact is that each Mandate under the Mandates System con
stitutes a new international institution, the primary, overriding
purpose of which [and I stress the words 'overriding purpose of
which'] is to promote 'the well-being and development' of the people
of the territory under Mandate." (/.C.]. Reports I962, p. 329.)
The tool is seen most definitely in Article 2 (r) and it is a tool which,
as the Court pointed out, is entrusted to the hands of the Mandatory for
the sole purpose of enabling it to fulfil its obligations. lt would seem
difficultto find a more persuasive indication of the relative roles of sub
ordination of the first paragraph to the second paragraph than the clear
meaning, to the Applicants at least, of this metaphor employed by the
Court.
The ·samepoint, it is submitted, is to be found in the separate opinion
of Judge Bustamante, appended to the 1962 Judgment. Thus, the
learned Judge states:
"The Territory is handed over to the Mandatory only tempo
rarily for administrative purposes, and in no category of mandate
can this be taken to signify a transfer of sovereignty." (Ibid., p. 352.)
Again we have explicit reference to administrative convenience for
"administrative purposes", in the words of the learned Judge, a con
venience or purpose which, as a tool given to the Mandatory to discharge
its obligations, must be subordinated to the primary and overriding sub
stantive obligations found in Article 2 (2) of the Mandate. And, again,
the Court's attention is respectfully called to the use of the word "over
riding" in the 1962 Judgment in respect of Article 2 (2) obligations.
[Public hearing of I4 May I965]
l\Ir. President and Members of the honourable Court, at the conclusion
of the Oral Proceedings yesterday I was referring to the considerations
underlying the Applicants' response to the tenth question propounded
by Judge Sir Gerald Fitzmaurice in his important series of questions,
and this of course related to the question whether the first paragraph
of Article 2 of the Mandate is subordinate to, or if not, what is its
relationship with the substantive obligations under the Mandate, speci
fically Article 2, paragraph 2. This is a rough paraphrase, I believe an
accurate one, with al! respect, of the intent of the question to wlùch
I will continue, with the Court's permission, to address myself.
In addition to the considerations adduced at the Oral Proceedings yes
terday, the Applicants submit that another indication of the subordination
of the first paragraph of Article 2 to the second paragraph thereof, as
well as to the substantive obligations embodied in Articles 3, 4 and 5
of the Mandate, is to be found in the wording of paragraph 6 of Article 22
of the Covenant of the League of Nations itself.
Article 22, paragraph 6, of the Covenant may perhaps, for the con
venience of the Court, be inserted into the record and I shall read it: REPL Y OF MR. GROSS
"There are territories, such as South West Africa, and certain of
the South Pacifie Islands, which owing to the sparseness of their
population, or their small size, or their remoteness from the centres
of civilization, or their geographical continuity to the territory of
the mandatory, and other circumstances, can best be administered
under the laws of the mandatory as integral portions of its territory,
subject to the safeguards above-mentioned in the interests of the
ind1genous population.''
Paragraph 6 of Article 22 of the Covenant, which I have just read, in
dicates quite clearly, in the Applicants' submission, that the rights given
to the Mandatory are a matter of administrative convenience and subor
dinate to "the safeguards above-mentioned in the interests of the indige
nous population" in the final clause of paragraph 6 of Article 22.
The purpose underlying the clause's integral portions wording, as used in
the text, is made clear by the text of Article 22, paragraphs r and 2,
particularly, and also, as a corollary thereof, paragraphs 6, 7, 8 and 9,
with the specific safeguards provisions.
The explicit references in paragraph 6 of Article 22 to the remoteness,
smallness of size and so forth of the territories destined to become C
mandates would seem to indicate that what the phrase refers to are mat
ters of administrative convenience, which arise out of the enumerated
factors. These enumerated factors of sparseness, remoteness. etc., are
qualities which peculiarly pertain to administrative considerations. They
do not in themselves bear upon, nor indeed do they seem relevant to,
considerations of substantive nature, of obligational nature. The fact
that a territory is remote, or the fact that it is sparsely settled, poses
problems of a classically administrative nature, and has nothing to do
with the content of an obligation in respect of policies which are or are
not conducive to the promotion of the welfare of the inhabitants of such
sparsely populated or remote areas. Quite the contrary-such sparseness
of population, such remoteness, such other factors impose a greater
burden and a greater duty upon the Mandatory to exert greater efforts
to achieve the desired result.
This is a reason for giving administrative tools, procedures of an
administrative and legislative nature, which facilitate the accomplish
ment of the sacred trust. I shall have more to say about that in a few
moments, in terms of the mandate jurisprudence as it has developed
since 1950 onwards.
Perhaps the most significant indication that the authors of the Cove
nant intended to refer to matters of administrative convenience is the
wording of the last clause of the paragraph to which I have referred,
namely "subject to the safeguards above-mentioned in the interests of
the indigenous population". This is a proviso of decisive consequence in
the context. The stress here, of course, is on the phrase "subject to",
and these are words of subordination, in the Applicants' view.
Now the safeguards referred to are those set out in Article 22, para
graph r, and Article 22, paragraph 2, of the Covenant. Article 22,
paragra ph r, provides:
"That the well-being and development of such [that is, dependent]
peoples form a sacred trust of civilization and that securities for
the performance of this trust should be embodied in this Cove
nant."270 SOUTH WEST AFRICA
And then Article 22, paragraph 2, in words which have become so
familiar, ordains and establishes as "the first method of giving practical
effect to this principle", the device and the processes of a fiduciary
institution, one in which the Mandatory exercises tutelage "on behalf of
the League", that is to say, on behalf of the organized international
community, and this is described in the Covenant by the simple, single
but profoundly significant word in this context, "civilization".
Paragraphs 7, 8 and 9 of Article 22,of course, specify the safeguards
for implementabon of the securities for the performance of dus trust as
a decisive element of the principle-1 stress the word "principle"
promulgated in Article 22, paragraph r. This is the scheme of the man
dates system, and the heart. The mandate instrument, of course, as the
very word implies, is an instrumentality, an institutional device, for
carrying out the trust laid upon the League as an organized international
community.
The Council itself had the right and duty to define the conditions of
the mandate. lt did so, in the words of the Court, in 1962, by giving the
mandatory "tools with which to fulfil its obligations"-that is from
page 329 of the r962 Judgment. Lord McNair dealt with the matter in
his separate opinion, appended to the 1950 Opinion, at page 150, and
this seems highly relevant indeed to the question of subordination of
paragraph r to paragraph 2, because the basic question of sovereignty
is involved here. The Mandatory, the Respondent, has referred to
Article2, paragraph r, as giving the Mandatory a de facto sovereignty
that phrase is used in the pleadings. The concept of sovereignty is related
to this question, raised in Judge Fitzmaurice's question, by the very
terms of the pleadings of Respondent itself, and inevitably so. This raises
the question of de facto sovereignty versus the concept of the tools given
to the mandatory to carry out its obligations. This is the juxtaposition
which reflects the question of where the spirit of the mandate reaily lies.
Lord McNair said:
"Upon sovereignty a very few words will suffi.ce. The Mandates
System. (and the 'corresponding principles' of the International
Trusteeship System) is a new institution-a new relationship
between territory and its inhabitants on the one hand and the
govemment which represents them internationaliy on the other-a
new species of international govemment which does not fit into the
old conception of sovereignty and which is alien toit. The doctrine of
sovereignty has no application to tlùs new system. Sovereignty over
a Mandated Territory is in abeyance; if and when the inhabitants
of the Territory obtain recognition as an independent State, as has
already happened in the case of some of the Mandates, sovereignty
will revive and vest in the new State. \Vhat matters in considering
this new institution is not where sovereignty lies, but what are the
rights and duties of the Mandatory in regard to the area of territory
being administered by it. The answer to that question depends on
the international agreements creating the system and the rules of
law which thcy attract. Its essence is that the Mandatory acquires
only a limited title to the tcrritory entrusted to it, and that the
measure of its powers is what is necessary for the purpose of carrying
out the Mandate. [And then Lord McNair quotes from Brierly] 'The
Mandatory's rights, like the trustee's, have their foundation in his
obligations; they are tools given to him in order to achicve the work REPLY OF MR. GROSS 271
assigned to him; he has all the tools necessary for such end, but only
those'." (I.C.J. Reports r950, p. 150.)
Now, the reference to Professor Brierly is to the article by Mr. Brierly
in the British Yearbook of International Law, r929, at pages 217-219, and
this is to the effect that the governing principle of the mandates system
is to be found in the trust itself.
The Court in 1962, as has been noted, adopted, and in a sense ratified,
the metaphor and reinforced its legal significance, and really made it
part of the mandate jurisprudence. Article 2, paragraph 1, was not
intended as a means whereby the tool might become a doublc-edged
device with which the Mandatory could further its own interests as well,
and here we turn to Judge Bustamante's opinion, appended to the
Judgment of 1962 in the I.C.]. Reports of that year at page 357, and the
words of the learned Judge seem to be of profound relevance in this
context from a variety of perspectives. Judge Bustamante pointed out:
"An international Mandate is, by its ve;y nature, temporary and
of indeterminate duration. Its duration is Jimited by the fulfilment
of the essential purpose of the Mandate, that is to say, by the
completion of the process of development of the people under
tutelage through their acquisition of fuJIhuman and political capac
ity. It follows that any Mandate agreement remains in force until
such time as the people concerned attain the desired degree of
structural organization as a nation."
And then Judge Bustamantc goes on to say:
"The fonction of the mandatory is a responsibility rather than
a right. It is for the mandatory to refuse the trust if it cannot bear
the burden."
And Judge Bustamante concludes, as a corollary to the foregoing pro
positions through which tutelage is exercised, that an international man
date through which tutelage is exercised "does not and can never imply
a transfer of sovereignty to the Mandatory or the annexation of the
mandated territory by the tutelary State". Unless Article 2,paragraph r,
is indeed subordinated to the obligations of the sacred trust it becomes
a tool, at least, for in the Respondent's phrase, "de facto anncxation".
Still quoting from Judge Bustamante, however, from page 358 of the
same opinion:
"It is true that C Mandates (Article 22, paragraph 6, of the
Covenant) brought the mandated territory into a doser relationship
with the Mandatory by the fact that the latter applied its own laws
to the territory in question; but this extension of the legislative
powers of the Mandatory does not imply an act of sovereignty on
itspart, but simply the application of a prior authorization with
regard to administration contained in the Mandate agreement, with
a view to adapting the territory to the legislation of a more advanced
country.''
Again, the administrative, the tools concept-the stress is on the word
"administration", in the Applicants' view.
And then to complete the circle of reasoning of Judge Bustamante,
and now I quote from page 358:
"The only way of safeguarding the rights of the people under
Mandate is to entrust the supervision of the Mandatory's acts to SOUTH WEST AFRICA
the Mandator or tutelary organization which, on the one hand,
represents the ward and, on the other, personifies the interest of the
States of the world assembled in an association. Absence of a super
visory organ would be tantamount to unilateral and arbitrary
exercise of the Mandate and would inevitably lead to annexation.
A Mandate so mutilated would be of an essentially different nature
from that provided for in Article 22 of the Covcnant."
This is a circle, a chain of reasoning, and it relates to Article 22,
paragraph r, in the context of the Mandate, to the question of sover
eignty, de facto or otherwise. It relates that issue to the question of the
essence of the Mandate in respect of supervisory administration-super
visory authority-the necessity of which is underscored in this context
by the fact that the tools given to the Mandatory in order to do its job
could be construed by the Respondent, as it now has donc, not permis
sibly but actually, as eq_uivalent to a grant of de factosovereignty. This
underscores the necessity for continuing supervisory authority and
reveals a conflict of basic nature between the organized international
community, the supervisory authority, and the Mandatory itself, a
conflict of view which is being resolved by the Mandatory on the basis
of a unilateral, unsupervised and self-appraising administration of con
trot of the Territory.
This is a chain of reasoning and this is the real spirit of the Mandate
which Judge Bustamante, which Lord McNair, which this honourable
Court has described from 1950 onwards, in the jurisprudence of the
Mandate; this is the spirit of the Mandate. It is not the spirit of the
Mandate in the mutilated sense in which it is pronounced by Respon
dent's highest officiais as self-enquiry, self-appraisal, asking oneself the
questions, and giving oneself the right answers. This is a travesty of the
spirit of the Mandate, as viewed by this honourable Court, for the past
15 years, and, above all, the Mandatory advises the Court, standing here
not merely as litigant but as trustee, that it is voluntarily abstaining
from annexing the Territory as part of the spirit of the Mandate-an
abstention which, at best, is of most uncertain duration.
The jurisprudence of the i\fandate, accordingly, combines with, and
illuminates the clear text of Article 22 of the Covenant to demonstrate
that Article 2, paragraph I, is subordinated to the obligations of the
sacred trust in the second paragraph of Article 2, as well as of Articles3,
4 and 5.
The organized international community, speaking through its com
petent organs-and this again is raised in the question of the relationship
between Article 2, paragraph 1, and the substantive obligations of the
Mandatory-the organized international community categorically has
stated its judgment in respect of the question of policy, official action,
governmental action, based upon the avowed premises of apartheid. No
clearer judgment probably has ever been expressed by any international
community on any question in the history of the international com
munity. It is no longer a matter, in the Applicants' view, upon which
reasonable men can differ, that a policy which allots rights, burdens and
privileges, on the basis of membership in a group rather than on the
basis of individual merit and capacity and quality, is permissible. It has
moved into the domain of genocide, in the Applicants' view, and, cer
tainly,the concept of mutilation of personality, of the individual poten
tial, is regarded widely, if not universally, as similar to the concept, or REPL Y OF MR. GROSS 273
the consequences, of mutilation of a more physical character. This is a
basic difference of philosophy between the Respondent and the rest of
the world, and, to state it even in these terms, implies a degree of moral
judgment and emotionalism which is implicit in the characterization by
the international community of the practice itself. It is a fact of inter
national life and not to present it thus to the Court would do less than
justice to the problem itself. But we are speaking in purely juridical
terms here-a trust, tutelage--called by whatever name of a fiduciary
institution-must be construed in the light of its major purposes and,
here again, as the Court brought out in the 1956 Opinion, Respondent
has refused to co-operate or to defer, in administrative supervisory
respects, to the judgments of the United Nations, the International
Labour Organisation, the other competent organizations of the inter
national community upon which this burden was resting.
This lack of co-operation, to understate it, in the very area of race
relations, it seems to the Applicants, bears heavily on the degree, the
method and the scope and importance of accountability, as well as on
the justiciability of this dispute. Where administrative remedies are
removed, judicial remedies must emerge in such an inter-related and
integrated scheme, and this is at the bottom, it seems to the Applicants,
of its interpretation in the Iight of the so-called paramount purpose.
To use the language of the Court in the 1956 Opinion, at page 28, the
Court said "It is clear that oral hearings were not granted to petitioners
by the Permanent Mandates Commission at any time during the regime
of the League of Nations" but that the Council was competent to do so
and the United Nations was competent to do so, to adapt the needs of
administrative supervision to the objective consequences of Respondent's
failure and refusai to submit to international accountability and this
bears, of course, essentially, inthis context, on Respondent's good faith
test contention.
As was said yesterday, the good faith test in any event is irrelevant
legally in the Applicants' view but it is obliterated from consideration
in this case by reason of the fact that Respondent has failed and refused
to submit to international accountability for 15 years following this
Court's Advisory Opinion in 1950, yet asserts now that it must be
evaluated and appraised on the basis of good faith.
The wording of the mandate text for South \Vest Africa is completely
consistent with, and indeed shows the same pattern as the Covenant
itself. Article2 in its entirety is in essence a repetition of Article 22,
paragraph 6, of the Covenant. First, the full powers of the Mandatory
are set out, that is to say, in tenns of Article 2, paragraph 1, and then
cornes the basic obligation of the sacred trust in the second paragraph of
the Article, as well as in the succeeding Articles 3, 4 and 5. Although the
phrase "subject to" is not textually employed in the Mandate, its omis
sion quite obviously was not intended to amend the Covenant in that
respect or in any other. Full powers are grantcd in the tenns of legis
lation and administration but subject to the obligations of the sacred
trust as surely, and as fully, as if the same phrase, which appears in
Article 22 of the Covenant, was incorporated in the Mandate-the only
reasonable inference is that the framers of the mandate instrument must
have assumed that the phrase in the Covenant was over-riding and was,
of course, part of the obligation. \Ve have always maintained that the
Mandate must be read in the light of the Covenant because this is what274 SOUTH WEST AFRICA
the Court has said. The "integral portion" language of Article 2, para
graph r, is a matter of administrative convenience and this is con
firmed by the history of the Permanent Mandates Commission itself;
instances are cited in the Memorials, and one in particular might be
called to the Court's attention, at I, page 38 of the Memorials, from
which perhaps excerpts should be read into the record here-it is a
brief quotation; it is from the Memorials, I, page 38, which cites the
Permanent Mandates Commission minutes on the point: "Because of
the fondamental importance of this question". "This question", paren
theticaily, relatedto the concem expressed by the Commission by reason
of the fact that in the preamble of one of a series of agreements con
cluded between Respondent and Portugal conceming the boundary
between Angola and South West Africa, a phrase was used which stated
that the Rcspondent had "full sovereignty over the territory of South
West Africa, lately under the sovereignty of Germany". Now addressing
itselfto that proposition, the Permanate Mandates Commission, at its
Eleventh Session, raised the question in this form, part of which is
quoted here-the Court's attention is directed to the full text from
which this is excerpted. The Commission, as I started to say before, said
as follows:
"Because of the fondamental importance of this question .the
Committee feels obliged to bring it to the attention of the Coun
cil... In the first place, the parallel drawn in the above mentioned
preamble between the sovereignty assumed by the Government of
the Union of South Africa over the territory in question and the
sovereignty over that territory previously held by Germany, seems
to imply a claim to legal relations between the mandatory Power
and the territory it administers under its mandate, which are not
in accordance with the fondamental principles of the mandates
system." (I, p. 38.)
This was without specific reference to Article 2, paragraph r, but it is
cited here as an illustration of the concem constantly and continuously
expressed by the Permanent Mandates Commission, with respect to the
question of sovereignty, de facto, de jureor just plain sovereignty.
Another pertinent consideration is the history surrounding the sub
mission of, and agreement upon, the several trusteeship agreements
entered into by the mandatory powers. This area of enquiry is extremely
illuminating in the Applicants' view because in the trusteeship agree
ments themselves identical or entirely similar language appears and, of
course, the Court will know that the trusteeship agreements were not
intended to vest sovereignty on the part of the trustee administrator in
the territory under trusteeship, that, of course, is a self-evident proposi
tion. Therefore, when one looks to the trusteeship agreements and the
circumstances of their authorship and formulation, the significance
attributed to the very same words or words so similar as to obviously
compel the same meaning would be significant in interpreting the use of
the words in the context of the Mandate; of course, that would be true
if, as is the case, no debate, no discussion ever indicated or intimated
that the words were being used in the trusteeship agreements in a sense
different fromthat in which they were used in the mandate agreements
there is an absence of any such intimation, and in the Applicants' view,
it is not a supportable hypothesis. REPL Y OF MR. GROSS 275
Therefore to look at the circumstances of the formulation of the
trusteeship agreements in the precise context of Judge Sir Gerald Fitz
maurice's question No. IO, one finds illuminating evidence of the signifi
cance attached to the phrases in question in Articl2, paragraph r, by the
former mandatory powers, by the new trusteeship administrators and by
the international community in the debates accompanying or attending
the creation of this system and its operation. In the fall of 1946, to be
more specific, the debates in the Fourth Committee of the General
Assembly shed considerable light upon the "integral portion" phrase in
the Mandate; the Governments of New Zealand, Australia, France,
Belgium, and Great Britain used nearly identical wording in the draft
trusteeship agreements which they submitted and in doing so, they
insisted, they did not merely aver, that such wording was intended
merely as a matter of administrative convenience because, as might have
been expected, the words were questioned-the formula was questioned.
Thus, for example, Article 3 of the trusteeship agreement proposed by
New Zealand for Western Samoa, provided that the territory should be
administered as "an integral part of New Zealand"-the word "part" is
used there instead of "portion". I have quoted here from the General
Assembly, Official Records, First Session, Second Part, Fourth Committee
of Sub-Committee r, at page n-this was in 1946.
The delegate of New Zealand, Sir Carl Berendsen, addressed the
Fourth Committee, and the following appears from the document just
cited, at page 46:
"New Zealand had never claimed that Western Samoa was an
integral part of New Zealand and disclaimed all intentions that it
ever should be. His Government merely desired to use the same
administrative mechanism as if it were an integral part of New
Zealand ... Although his Government wished to avoid the neces
sity of establishing a separate administration for Western Samoa,
Sir Carl agreedthat it would be wisc and proper to attempt to avoid
mis-apprehensions concerning the phrase 'as an integral part of
New Zealand'."
The statement, it would seem, makes quite clear that New Zealand
was primarily concerned, and understandably so, with problems of
administrative convcnience. The wish to avoid the necessity of establish
ing a separate bureaucratie structure or separate administration for
Western Samoa as administrative devices, would be understandable and
the significance attributed by Sir Carl to the "integral portion, integral
part" wording of the proposed trusteeship agreement went no higher
than that level of meaning, and he explicitly stated so.
The view was expressed in the Fourth Committee by some members
who desired to be re-assured lest the phraseology "integral part" or
"integral portion" might lay some sort of basis for a daim to the right
of annexation or de facto or de ;ure sovcreignty; but the mandatory
powers, that is those with the greatest knowledge and experience in
these very matters, themselves insisted that this was not the intended
meaning and gave explicit re-assurance that the use of such phraseology
would not bear such a signification. One example is the statement by
the Australian representative, Mr. Bailey, in the same proceedings
previously cited, at page 44, where according to the Summary, Mr.276 SOUTH WEST AFRJCA
Bailey said that such a view, that is to say the annexation concern,
would have to assume that:
"The original proponents of that language at the Conference of
Versailles and even the Permanent Mandates Commission had not
completely understood its significance. The entire history of this
concept eliminated the suggestion that 'as an integral part' con
veyed or intended to convey the power of annexation."
This was a demonstration of the continuity of meaning to be attached
to the phrase or similar phrases, and that there was no thought on
anyone's part that by using the same or similar language, the meaning
to be attributed to the phrase had been changed in some way during the
course of the years---quite the contrary, the continuity of meaning and
significance was explicitly declared in statements such as these and
particularly this one. However, again as confirming the validity of the
general statement I have just made, the French delegate, M. Naggiar,
made it quite clear that his understanding of the phrase "as an integral
part" was the same as that of the New Zealand representative. The
trusteeship agreement proposed for the territories under mandate pro
vided in the draft that the administering authority, France in this case-
"Shall have full powers of legislation, administrationand jurisdic
tion in the territory and shall administer it in accordance with
French law as an integral part of French territory, subject to the
provisions of the Charter and of this agreement." (Trusteeship
Agreement/5, IJ December I946, p. 4.)
This provision was designed to facilitate the administration by France
of its trust territories, in precisely the same manner, and precisely for
the same reasons and extent to which the mandatory powers had been
vested with similar legislative and administrative scope for purposes of
administrative convenience, and as a matter of tact, M. Naggiar, on
behalf of France, said:
"As for the sugt:îestion that there was a sinister significance in
that wording, [he] mquired why, if such were the case, his Govern
ment had offered to place the territories under trusteeship at ail.
The proposed wording was useful as a matter of legislative can
venience . . ."
Further in the Summary, the French representative declared that "he
would be willing to have inserted in the Rapporteur's report, the inter
pretation of bis Government that the words 'as an integral part' were
necessary as a matter of administrative convenience and were not con
sidered asgranting to France the power to diminish the political indivi
duality of the trust territories". (General Assembly, Official Records, First
Session, Second Part, Fourth Committee, Sub-Committee r, p. r1.)
And at page r6z of the same Sub-Committee proceedings M. Naggiar
commented further that the "integral part" language-
"had appeared in the mandate and was still necessary. There was
a real need for this provision which would facilitate administration.
The French Govemment did not consider itself authorized, by this
language, to diminish the personality or individuality of the Trust
Terri tories in any way."
Actually, 1 must correct myself, l\Ir.President-this was made in the
Fourth Committee itself; I had mis-stated and referred to the Sub- REPL Y OF MR. GROSS 277
Committee; the previous statement referred to Sub-Committee r of the
Fourth Committee; what I have just quoted at page 162 relates to the
proceedings in the Fourth Committee itself.
Likewise, in the Fourth Committee the General Assembly records for
the First Session, second part, page 1541, the representative of Australia
referred to "convenience of administration". The United Kingdom
delegate at page ng, General Assembly, Official Records, First Session,
Second Part, Fourth Committee, Sub-Committee 1, spoke of "the only
practical method of administration"; and Mr. Ryckmans made the same
point at page 120 of the document last cited, when he argued that
without the wording in question particular social legislation involved in
Belgium at that time "could not have been applied without special
enactments". This was an explicit description of a situation in which
administrative convenience, legislative convenience, was advanced in
explanation of the fact that this was a device for convenience and not a
device for de facto or other kind of annexation or extension of sover
eignty, or in any other way, in the language of the French delegate,
designed "to diminish the political individuality" or the personality
"of the Trust Territories".
Finally, the Chairman of the Sub-Committee, in the same document at
page 123, discussing the same problem, suggested that a vote be taken
on the proposal that-
"there should be included in the Rapporteur's report a statement
that the phrase [integral part, or integral portion] was included only
as a matter of administrative convenience without prejudice to the
sovereignty of the Trust Territories".
And the vote was taken, and the vote was 14 in favour and none against;
that is from the same page of the previously cited document, the record
of the vote; there were three abstentions, I should add.
The mandatory powers, with Respondent not participating inasmuch
as its Government had submitted no trusteeship agreement, of course,
felt that the "integral part" phraseology of their proposed draft was
necessary or desirable as a matter of administrative convenience; this
is the highest value and the only significance ever placed upon this
wording by any representative, by the very representatives of govern
ments which had had the most continuous experience and knowledge
of the mandates system as mandatories, and in at least one case they
were at pains to point out that the use of the phrase meant nothing
different, more or Iess, than it had as used in the mandate instrument;
this was asserted as a method of reassurance that the trusteeship agree
ments would move forward, and not backwards, and it also illuminated
the significance of the same or similar wording used in the mandate
instrument itsclf.
Therefore it is very relevant indecd to note that the scveral trusteeship
agreements followcd the same pattern as the Covenant of the League and
of the Mandate itself in making it clear that the rights of administration
were subject to, or subordinate to, obligations under the trusteeship
system. In the trusteeship agreements to which I have referred, the
phrase was included explicitly that the obligations were subject to the
Charter and the trusteeship provisions of the Charter.
In the case of the mandate instruments, Article 2,paragraph r, did
not contain so explicita proviso; none was necessary, because of the fact SOUTH WEST AFRICA
that the Covenant itself contained the proviso; ithad overriding legal
significance, and it was not necessary to include the same proviso in the
mandate instrument, although possibly, as a matter of draftsmanship,
conceivably it might have been preferable; it certainly was not necessary
from the point of view of legal analysis of the use of phrases in this
context; there only one legal conclusion could be drawn, in the Appli
cants' respectful submission.
The Belgian Trusteeship Agreement for Ruanda-Urundi, for example,
provided in Article 5 that the Administering Authority-
"shall have full powers of legislation, administration and juriscliction
in the Territory of Ruanda-Urundi and shall administer it in accor
dance with Belgian law as an integral part of Belgian territory,
subject to the provisions of the Charter and of this Agreement".
(Trusteeship Agreements, Series No. 3, 13 December r946 at p. 3.)
The stress here is laid on the phrase "subject to the provisions of the
Charter and of this Agreement", and again, as with the Covenant of the
League, and as with the mandate agreement, the administrative rights of
the administering authority are made subordinate to the substantive
obligations, in this case explicitly in the mandate agreement itself
implicitly, but in the Covenant, Article 22, explicitly.
In summary, then, by way of concluding the reply to question No. ro
propounded by Judge Sir Gerald Fitzmaurice which obviously, at least in
the Applicants' submission, raised fondamental questions pertaining to
the very jurisprudence of the Mandate itself and has been treated accord
ingly with all respect by the Applicants-in conclusion of the response,
it is to be sa.id, in our view, that the 1950 Advisory Opinion, the 1962
Judgment, the Covenant of the League of Nations, the mandate instru
ment itself, considerations of logic and necessity confirmed by League
history, the events surrounding the establishment of the trusteeship
system in 1946, to which reference has been made, ail combine to support
the conclusion which is reached by the Applicants in response to ques
tion IO put to the Parties by J udge Sir Gerald Fitzmaurice.
Applicants respectfully submit, in response to that question, that
Article 2, paragraph r, of the Mandate must be read as subordinated to
Article 2,paragraph 2, as well as to the other provisions and elements
of the sacred trust in the Mandate and in the Covenant. The rights given
to the Respondent under Article 2, paragraph r, are mere tools given it
to enable Respondent to carry out its obligations and to bear its burden,
and that burden includes accomplishment of the objectives of the sacred
trust set forth most centrally in Article 2,paragraph 2. This being so, the
first paragraph of Article 2 is to be read in subordination to the obliga
tions of the sacred trust, and is to be read as extending as a matter of
administrative and legislative convenience to the Mandatory the facility
of applying in the Territory its own legislation and administrative
practices which, however, under no circumstances may as a matter of
Iaw violate its substantive obligations under the Mandate, and it is not
a device by which such evasion, violation, breach or abuse can be
accomplished, because it is a tool and nota weapon.
This, Mr. President, concludes the response of the Applicants to
question No. 10 propounded by the learned judge, and I would now,
with the honourable President's permission, turn to a new subject.
The purpose of the Applicants now, in accordance with the scheme of REPLY OF MR. GROSS 279
argumènt outlined at the beginning of tlùs reply, and which is designed,
inter alia, to comprehend responses to questions asked by Judge Sir
Gerald Fitzmaurice at an earlier stage and, of course, now will alsoinclude
the questions more recently propounded by the honourable President and
by Judge Sir Gerald Fitzmaurice, and any other questions which may be
propounded in the future. It is the purpose of the Applicants now, en route
to resting their case at an appropriate moment, subject to the wishes of
the honourable Court, to indude within the plan of their argument the
brief enumeration of the legislative and administrative measures and
laws, and the official methods and measures by which these laws and
regulations are put into operation, which are comprised within the
concept or policy or label of apartheid, or separate development, and
in terms of the standards and the norm for which the Applicants contend,
placing before the Court at this point of the record a catalogue of an
enumerative and illustrative character, so that there can be no question
in the context of this litigation precisely what it is that the Applicants
mean when they refer to undisputed facts, what it is upon which they
rely to establish the perse doctrine for which they contend.
There has been considerable enlightenment in the course of these
proceedings, but there also have been some shadows cast, which is
inevitable in the course of such a proceeding; but it seems part of the
duty of the Applicants to Jay before the Court an enumeration of the
Iaws and measures, methods and practices, of an official character, by
which these laws and regulations are put into effect, ail of which-the
existence of all-is conceded by Respondent and, indeed, will be cited
to the Court largely in terms of Respondent's own written pleadings.
By way of preface to the enumeration-illustrative cataloguing, which
will consume something less than one hour of the Court's time, but which
will be concise, unelaborated, and presented without argument or char
acterization-it may be pertinent, by way of attempted clarification of
discussions preceding this morning's presentation, to refer to blatant
sources of confusion in the Respondent's characterization of certain
contentions, arguments, judgments, opinions expressed in the Appli
cants' written pleadings. Without reopening the question of clarification,
or requests for clarification, reference is made, respectfully, to use of
phrases which, from the standpoint of the App1icants' appreciation of
legal formulations-of formulations in a legal context-are difficult to.
assimilate and, therefore, easy to misconstrue on the part of the Appli
cants. For example, in the verbatim record, supra, page 54, a phrase is
used in ahyphenated form, as it appears in the verbatim, "policy-factual
allegations". On that page an averment is made that "policies ... are
inherently incapable [I stress the word 'inherently'J of promoting well
being and progress" and is, in the Respondent's phrase, "a submission
of fact"; a "submission of fact" that it is "inherently incapable" of
promoting well-being and progress.
ln the Applicants' conception of the legal significance of the word
"inherently", it is an argument, a judgment, an opinion; it is a con
clusion which is reached on the basis of fact, it is not a "submission of
fact"-it was never conceived of by the Applicants as a "submission
of fact".
Similar expression is used in the verbatim record, at page 67, supra,
where reference is made to "factual allegations ... implying a factual
condemnation". From a ]egal point of view, the Applicants have tried,280 SOUTH WEST AFRICA
but failed, to perceive what the significance is of "a factual condem
nation"-the phrase is meaningless to the Applicants and we have
endeavoured to comprehend it. "A factual condemnation" would seem
to be an ambivalent expression-"condemnation" is a judgment
"factual condemnation" could only mean the fact that a condemnation
has been made of a certain character-it is difficult to evaluate. However,
in order to avoid further proliferation of such an argument-and Appli
cants concede lack of comprehension, from a legal standpoint, of what
phrases such as these mean legally in a court of law, never having heard
them applied in these formulations or in this context-it may be useful
for clarificationto avoid the implication of a word game, in which the
Applicants do not wish to engage, to state to the Court what the Appli
cants think they are doing when they use certain words and phrases
in a legal context. We think that there are three different elements
involved here-we think there are averments of fact; we think there
are judgmental or opinion statements-aspects which may or may
not be related to averments of fact, but if they are stated in the same
context do not lose their character or quality as characterizations, as
judgmental or opinion statements. The parties to a proceeding, so far
as the Applicants are aware, have every right and justification to use
whatever characterization of a fact they please. The Court does not have
to do so. And then, of course, there is argument, and sometimes we fmd
or think we find-the Respondent confusing these three and treating
an argument as if it were a submission or an averment of fact. When the
Applicants say that a certain practice, or a certain undisputed policy,
measure, or law, is "inherently" whatever it is, the Applicants think
they are making a legal argument and nota submission of fact, and they
appreciate it to be part of their duty to convince the Court, if possible,
that on a basis of standards and norms applicable, whose content the
Applicants are responsible for presenting to the Court, the particular
undisputed fact in that sense-in the sense of a legislative measure, in
the sense of an administrative measure, in the sense of a practice or
policy or method which is nndisputed-the policy and practice are
"inherently" per se violative of the applicable norm and applicable
standards. If the Court should decide that there is no international legal
norm of the same content and character as the international standards
for which the Applicants contend, in that case it would be the sub
mission of the Applicants that the Court should interpret the mandate
instrument on an ipso facto, perse, "inherently" applicable basis. We use
these terms interchangeably so that the mandate instrument should be
interpreted in the light of and on the basis of its nature as a trust instru
ment, its character as a constitutional type document, its human rights
character, and the judgment, unanimous to an extraordinary degree,
that a particular undisputed body of practices and policies constitutes a
violation of that trust. These are the elements of the alternative form in
which the Applicants have respectfully submitted this matter and which,
will be elaborated before resting, in the context of the estab
of course,
lishment of an international legal norm, as well as of international
standards for interpretation-authoritative and clear beyond doubt
of the mandate instrument itself, in the light of the unanimous judgment
of the supervisory competent international organ.
Therefore, it will be the purpose in turning now to the cataloguing,
illustrative enumeration of the legislative and administrative laws and REPLY OF MR. GROSS
measures, the official practices and procedures, and techniques, by which
the Government applies these laws and measures, so that there will be
no room for doubt as to what it is, what pattern of conduct, what pattern
of policy and practice it is upon which the Applicants rely in urging upon
this Court the judicial conclusion that this pattern of pohcy and practice,
the existence of which is conceded by Respondent, is a violation of
Article 2 {2) of the Mandate, and is a violation of an international legal
norm applicable to the Respondent's duties or, and altematively, either,
is the legal conclusion to be reached.
[Public hearing of IJ May I965]
Mr. President and Members of the honourable Court, in their Memo
rials at I, page 107, after setting out relevant provisions of the United
Nations Charter, the Applicants have submitted that Article 2 of the
Mandate and Article 22 of the Covenant-
"read in the light of the terms and stated purposes of Chapters
XI, XII and XIII of the Charter, establish clear and meaningful
norms marking the duties of the Mandatory".
The Memorials then continue as follows:
"In accordance with these legal norms, the Mandatory's duties
to safeguard and promote the 'material and moral well-being', the
'social progress' and the 'development' of the people of the Terri
tory must reasonably be construed to include: ... "
And there follow, there are set forth at that point, eight generally
formulated duties of the Mandatory-Memorials, I, pages ro7-ro8. Each
of these generally formulated duties was conceived in the light of the
necessity of "respect for human rights and for fondamental freedoms
for ailwithout distinction as to race". That, as the Court will know, is
quoted from Article 76 of the United Nations Charter, and the phrase
I have just quoted is set forth in italics immediately preceding the
paragraph in which the reference is made to "meaningful norms", and
which in tum introduces the eight enumerated categories of duties.
The purport, the intention, as would seem clearly to be indicated by
the context, and particularly in the light of the introductory paragraphs
to which I have referred-the purport and intent of these eight enu
merated duties is to set forth for convenience sake in categories eight
general ranges of duties, each of which must be carried out in accordance
with the normand the standards for which the Applicants contend. The
eight categories of duties thus set forth, ail of which are to be read in
the context of and subject to the norm against discrimination and/or
separation, are as follows:
"(r) Economie advancement of the population of the Territory~
and notably of the 'Natives' who constitute the preponderant part
of the total population in agriculture and industry;
(2) Rights and opportunities of members of the population
employed as labourers in agriculture or industry;
(3) Political advancement of such persans through rights of suf
frage, progressively increasing participation in the processes of
govemment, development of self-government and free political
institutions;282 SOUTH WEST AFRICA
(4) Security of such persons and their protection against arbitrary
mistreatment and abuse;
(5) Equal rights and opportunities for such persons in respect of
home and residence, and their just and non-discriminatory treat
ment;
(6) Protection of basic human rights and fondamental freedoms
of such persons;
(7) Educational advancement of such persons;
(8) Social development of such persons, based upon self-respect
and civilized recognition of their worth and dignity as human
beings." (1,pp. 107-roS.)
Mr. President, if the Applicants correctly understand the purport of
Respondent's critique and comments in this regard~for example, in the
verbatim record of 23 April, VIII, at page 655 and following, Respondent
appears to interpret and to read these eight categories of duties as setting
forth standards of achievement in themselvcs, or, in Respondent's words
at page 657 of the verbatim record I have cited, "an aim ... a resu1t
to be achieved". Responden t apparen tly construes the eight categories
in themselves as constituting standards or norms for achievement. On
the basis of this apparent misconstruction the Respondent comments
at page 657 of the same verbatim record that such norms are "poles
apart from that of the alleged norm of non-differentiation", which of
course is the characterization which the Respondent fastens upon our
norm of non-discrimination and non-separation.
These eight categories of course are not set out as norms, and they
are not incorporated in the context here as standards of achievement;
they are read, and to be read, and can only be read subject to the intro
ductory paragraph which I have quoted. The enumeration is preceded
and introduced by a paragraph which, as has been said, begins with the
words "In accordance with these legal norms", and then the duties set
forth in a general range of eight convenient categories are the arcas of
social life,he complete existence of an individual in the social order, in
eight convenient categories which are of course the areas of the relation
ship of the individual to the State in which it is of decisive consequence
whether or not he is being treated in accordance with the norm of
non-discrimination and norm of non-separation. This is not a quanti
tative measure of achievement with respect to the various categories set
forth. There appears to have been a misunderstanding or a misconstruc
tion of the purport, intent and scope of these eight categories because
of the fact that they have not been related to the introductory para
graph which itself, of course, is the context, the prescription, of the legal
norm or, as used in the plural there, legal norms, against which or
within which these eight categories are to be measured and which are
set forth, as Isay, to comprehend the range of the individual life in the
society.
The reference to the Charter provision regarding racial discrimination
or, in the words of the Charter, "respect for human rights and for
fondamental freedoms for all without distinction as to race", immedi
ately precedes the introductory paragraph, the one which refers to the
norms-these norms refer to the Charter norms-the reference to "with
out distinction as to race" is, for emphasis, italicized on that page of
the Memorials.
An official policyand practice of allotting rights and burdens on the REPL Y OF MR. GROSS
basis of membership in a group rather than individual quality or capacity
has been adjudged by the competent organs of the international com
munity to be inherently incapable of promoting the moral well-being and
social progress of peoples anywhere. The Applicants' pleadings proceed
from this prernise-they always have-and the eight duties, as I have
said, are categorized as a matter of convenience in the Memorials; they
could have been set forth in many different, other classifications; these
are duties which, in the Applicants' submission, must be discharged in
the conduct of the Territory without violation of the norm of non-dis
crimination and non-separation.
That is the norrn referred to in the Memorials at 1,page 107, although
it was not there labelled in the same style and under the same title as
we came to clarify it and re-style and re-title it in the Reply, IV, at
page 493. And in conclusion on this point it is therefore essential to make
clear that the eight duties are not set out as standards of achievement
in a weights and measures sense. They categorize, for convenience and
analysis, areas of the social order which in their totality make up the
life of the persan in the society, in any civilized society, and in respect
of which racial discrimination or group se:paration are embodied or
embedded in Respondent's policy of apartheid.
It is that aspect of it, and only that aspect of the duties, which is in
question here.
Respondent starts from the premise of discrimination or separation
among individuals on the basis of membership in a group. Respondent
clearly assumes that this is not only a permissible premise but an imper
ative one: that seems to be their contention. Having sorted out and
classified all inhabitants in groups, on the rigid basis of the census
categories which I have referred to in an earlier phase of the proceedings,
and having allotted, substantially, individual rights and burdens on
that basis, the Respondent asks the Court to weigh and measure quan
titatively the extent to which the material welfare of the inhabitants
has been promoted-houses, road, irrigation projects and so forth, are
to be put in the scales alongside the handful of negative aspects, in
Respondent's phrase.
But the Applicants and the competent organs of the international
community say to that, no: promotion of moral well-being and of social
progress is part of the mandatory's burden, and moral well-being and
social progress are not functions or characteristics of an abstraction
known as a group. They are, in very essence, a quality of the individual
person as such or they do not exist at all as qualities. The elemental
truth of this proposition, interestingly enough from the Applicants'
analysis, is to be found in the treatment and perspective from which the
Respondent views Article 5 of the Mandate.
Article 5 of the Mandate includes within its scope the duty of ensuring
"freedom of conscience". Now, throughout its pleadings the Respondent
has sought to draw a legal distinction between its obligations under
Article 2 of the Mandate and those under Articles 3, 4 and 5. The Res
pondent in its written pleadings contends as follows:
"Sorne significant differences between Article 2 (2)of the Mandate,
on the one hand, and Articles 3 to 5, on the other, illustrate the
essentiaUy different origin and purpose of these provisions. Thus
the wording of Article 2 (2)is wide and gencral, which is in kceping
with its nature as an expression of an idealistic objective. The SOUTH WEST AFRICA
'safeguards' containcd in Articles 3 to 5, on the other hand, being
specific obligations, are couched in relatively clear and precise
Ianguage-they prohibit or enjoin particular acts or omissions and
provide objective criteria by which the Mandatory's administration
may be judged." (Il, p. 387.)
Now, Mr. President, Respondent nowhere seeks to explain, nor is it
really explicable, in what respect the duty to ensure freedom of con
science is more clear and precise or more susceptible to judgment on the
basis of objective criteria, in Respondent's phrase, than is the duty to
promote moral well-being of the inhabitants. Neither, of course, is
quantitatively measurable; both are qualitative concepts and both
apply to the individual person. The conscience is nota collective concept,
it is not a group quality; the conscience is an individual characteristic
and it is, of course, subject to, or susceptible to, precisely as much or as
little objective criteria as is the phrase "moral well-being". ln fact, the
Applicants perceive some difficulty in drawing any precise line between
moral well-being and freedom of conscience; it would seem that one is an
element of the other.
However that may be, the Respondent draws a distinction of a legal
nature between Article 2, paragraph 2,and Article 5, characterizing one,
as I say, as specific, clearnd precise, and the other as being too broadly
formulated to provide objective criteria of the sort, in any event, for
which the Applicants contend.
As stated at I, page roS of the Memorials-I will not read the text but
summarize it-the Respondent is alleged by the Applicants to have
followed and to be following, by law and practice, a course of action
which inevitably inherently inhibits the well-being and prevents the
social progress, and inherently thwarts the development, of the majority
of the people of South West Africa. And then the Memorials go on to
define apartheid on the basis with which the Court is now familiar-the
allotment of status, burdens, and so forth, on the basis of membership
in a group rather than on the basis of individual quality and capacity.
The norm of non-discrimination or non-separation, when broken down
into its component parts-and we shall have more to say about this
shortly-for example, in the economic field, in the economic life of the
community, could be, properly is to be, conceived and spoken of as the
norm of non-discrimination or non-separation in economic affairs. In the
area of education it is a norm against discrimination and separation on
racial grounds in the educational field. Similarly, in the political and
civil liberties fields, they become norms or sub-norms, whichever phrase
ology is preferable, rules which prohibit discrimination or separation in
respect of the particular area of human activity or human intercourse
which is involved.
Taken together, the norm of non-discrimination or non-separation, or
the international standards covering the same subject-matter, having
precisely the same content, would of course extend to the entire life
of the community in its total aspect. This is the theory of the Memorials
and it is explicitly set forth as such, although it had not at that phase of
our pleadings the name, the style; the title was not yet formulated or
incorporated in the pleadings. It was, however, precisely the same scope
and content and applicability of the international standards and the
legal norm, as described at IV, page 493 of the Reply for the first time
in those terms. REPL Y OF MR. GROSS
It is the Applicants' purpose now to present to the Court the corpus,
the pattern of laws and regulations, of official measures and methods,
the existence of which is conceded by the Respondent and which in
large part are derived from and cited tothe Respondent's own pleadings.
Tlùs corpus of fact, this body of laws and regulations and measures and
methods, upon the basis of which the Applicants contend the norm
and/or the standards (which will be explained shortly as to content,
source and coverage), the conduct complained of, which will now be
summarizcd without argument or elaboration, is to be judicially deter
mined, to be perse and inherently in violation of such international norm
and international standards, or either.
The Memorials, I, at page rrr, set out the Mandatory's duties with
respect to the economic aspect of the life of the inhabitants of the Terri
tory, all, as I have said before,to be carried out and in the context of the
international standards and the legal norm of non-discrimination or
non-separation:
"(r) Economie advancement of the population of the Territory
and notably of the 'Natives' who constitute by far the preponderant
part of the total population in agriculture and industry;
(2) Rights and opportunities of members of the population
employed as laborers in agriculture or industry; ...
(3) Social development of such persons, based upon self respect
and civilized recognition of their worth and dignity as human
beings." (1, p. III.)
At pages II2 through 131 of the Memorials (1) the Applicants have
set out a series of laws, regulations, measures and methods of an official
character by which these laws and regulations are implemented in the
economic lives of the inhabitants of the Territory. And the Applicants
have submitted in the Memorials, and now reaffirm their submission,
that these constitute perse violations of the international legal norm of
non-discrimination or non-separation and of the standards which govem
the interpretation and application of the Mandate itself.
The illustrative examples of the laws, the regulations and the official
measures and methods-the existence of all of which has been conceded
by Respondent-include the following, and they will be stated, if it
please the Court, without elaboration, without argument, without
characterization. This is the body of fact upon wlùch the Applicants
rest their case:
r. "Natives are not entitled to obtain permanent residential rights
or ownershipin the urban areas in the Police Zone." (Ill, p. 294, para. 205;
see also Memorials, 1, p. n3, para. 21 (a) and (b), and Counter-Memo
rial,III, p. 25.) This restriction also applies to "any association, corporate
or unincorporate, in wlùch a Native has any interest" and relates to
rural townships as well as urban areas.
2. Probationary leases contain conditions providing for their imme
diate cancellation in the event that a lessee should marry a Native or
Coloured person, and prohibiting any transfer of the lease to "natives,
Asiatics or coloured persons". (Memorials, I, p. n6, para. 27.) Respon
dent explains, for its part-
"... that White farmers should not, at any rate while ownership
in the farms remains vested in the Administration, be entitled to286 SOUTH WEST AFRICA
cede or assign their leases to non-Whites" (Ill,para. 30, p. 33).
Likewise, at page 33 of the Counter-Memorial, III, Respondent avers that:
"The condition regarding miscegenation in the probationary
lease cannot by itself be relevant to 'well-being, social progress and
development in agriculture', except to the extent that it indicates a
contemplation that such leases would, while the relevant regu
lations remain unamended, be granted to Europeans only. That
this has indeed been the contemplation, is admitted."
3. "Within the area of the Police Zone, excluding the Native reserves
and the Rehoboth Gebiet, licences to prospect for minerals may be issued
only to European companies." (III, p. 59, para. 40; see also 1, p. n9,
para. 40.) This includes approxirnately 50 per cent. of the Territory,
which is thus reserved for approximately 14 per cent. of the inhabi
tants (Odendaal Commission report, tables XI and XII, at p. 29).
4. In all mining enterprises owned by "Europeans", "Natives" may
not occupy the highest posts, in consequence of the provisions of the
Mining Regulations. (See I, p. 121, para. 46; III, pp. 55-57 and 62;
IV, pp. 405, 412 and 420; VI, pp. 230-235.)
To quote from the Rejoinder, VI, at page 231:
"The posts which Natives may not be appointed to in such enter
prises[that is, mining enterprises] are the following: Manager; Assis
tant, sectional, or underground manager; Mine overseer; Shift boss;
Ganger; Engineer; Person in charge of boilers, engines and machin
ery; Surveyor; Winding engine driver; Banksman or onsetter."
5. The posts and positions in the Railways and Harbour Administra
tion are classifiedand separated by race, and the "Native" inhabitants
are restricted to a specific series of work positions. The highest posts
contemplated by Respondent as avaiiabie for "Natives" are restricted
to the railways and harbours in what is termed by Respondent "their
own areas" (Ill,p. 67, para. 14), by which term Respondent appears to
refer either to "the existing Native areas" or the "Homelands for the
different population groups" recommended by the Odendaal Commis
sion, or both. See Rejoinder, VI, page 236, paragraph 85, and, to com
plete the citations, see I, page 122, paragraph 48; III, pages 64-69; IV,
pages 412 and 420, and VI, pages 235-238.
6. Legislation in South West Africa provides for differing amounts
and methods of payment with respect to workmen's compensation,
including burial expenses, as well as to social pensions, depending upon
the racial "group" classification of the individual worker concerned.
(Rejoinder, VI, pp. 270-273; Reply, IV, pp. 416-417.)
7. The legislation in the Territory relating to the registration of trade
unions and the settlement of industrial disputes defines a "trade union"
as "any number of employees in any particular trade'', but for the
purposes of the chapter applying its provisions concerning the registra
tion of trade unions, collective bargaining and conciliation, such legis
lation defines the terrn "employee" as meaning "any person employed
by, or working for any employer ... but does not include a Native".
The term "Native" is defined to mean "a member of any aboriginal race
or tribe of Africa". (Memorials, 1, pp. 129-130, para. 75.) Consequently,
"The provisions concerning labor disputes and conciliation do not apply REPLY OF MR. GROSS 287
to disputes among or between 'Native' laborers and others". (See Memo
rials,1, p. 130, para. 76.)
Thus, it is conceded that "there is no provision for the registration of
Native Trade unions and no provision for conciliation of disputes in
terms of the (relevant legislation] ... in so far as Native employees are
concemed". (Counter-Memorial, III, p. 92, para. 32; see also Memorials,
I, pp. 129-130, para. 75; Counter-Memonal, III, pp. 91-94; Reply, IV, pp.
423-424; and Rejoinder, VI, pp. 295-299.} "Native" workers in the
Territory are represented in labour disputes solely by government
officiais (Counter-Memorial, III, pp. 93-94). Respondent, in its Rejoinder
(VI, p. 298), concedes "the factual situation that a European inspector
represents the interests of Native employees in proceedings of Concilia
tion Boards, the members of which can be only European or Coloured
persans".
8. In conjunction with the foregoing are to be read the provisions of
the Master and Servants Legislation, conceded by Respondent ta apply
in the Territory. Such legislation is generally applicable to "White",
"Coloured", and "Native" persans, as well as specifically applicable, in
addition, ta "Natives" in the case of employees of the Administration of
South West Africa, of the Railways and Harbours Administration, of
any Local Authority, or of any contractor who constructs railway or
harbour works. (Counter-Memorial, Ill, pp. 81-82, paras. 5-7.)
The legislation in question renders it a criminal offence for an em
ployee to refuse to commence service under a contract of service at a
stipulated time, to absent himself from his master's premises "without
leave or other lawful cause", to refuse to obey any order of his master,
or to depart "without lawful cause ... from his master's service with
intent not to return thereto". An employee charged with desertion may
be arrested and sentenced to imprisonment, and, following his term of
imprisonment, he must, in Respondent's words-
"retum to his master on completion of his term of imprisonment,
unless the contract of service has been cancelled. Should he neglect
to do so, he may be sentenced to successive periods of further
imprisonment, provided that no servant may be imprisoned con
tinuously for longer than six months in all." (III, p. 85, para. 17.)
(See also Memorials, 1, pp. 124-126, paras. 60-63; Counter-Memorial,
III, pp. 81-85; Reply, IV, pp. 421-423; Rejoinder, VI, pp. 287-294.)
And, finally under this heading-
9. Only Europeans may enter into contracts of apprenticeship in the
Territory under the applicable legislation. (Reply, IV, pp. 419-420;
VI, pp. 279-282.)
Continuing with this factual cataloguing, the Memorials, I, at page 131,
set out the Mandatory's duties with respect to the political Iife of the
inhabitants of the Territory, all to be performed in accordance with, and
in the context of, the international standards and international legal
norm of non-discrimination and non-separation:
"(3) [that is paragraph 3 in the Memorials:J Political advancement
of such persans through rights of suffrage, progressively increasing
participation in the processes of govcmment, development of self
government and free political institutions ... "
At pages 13r through 143 of the 1\Jemorials {I), Applicants have set288 SOUTH WEST AFRICA
out a series of laws and regulations, and official measures and methods
by wlùch they are implemented in the political lives of the inhabitants
of the Territory. These, in the Applicants' submission, constitute a
per se violation of the international legal norm and international stan
dards of non-discrimination or non-separation. Illustrative examples of
the laws, regulations, official measures and methods, include the fol
lowing:
I. Respondent concedes that:
"... only \Vhite persans are allowed to vote at an election of
members of the Legislative Assembly ... that non-Whites are
excluded by law from serving as members of the Legislative As
sembly, the Executive Committee or of the South African Parlia
ment and excluded by practice from being appointed as Admin
istrator of the Territory." (III, p. r32, para. rro; see I, pp. 134-135,
paras. 86 and 87; IV, pp. 442-445; and VI, pp. II-13.)
Respondent states that these are "political institutions devised and
intended solely for the White population group". (III, p. 132.) The com
petence of the Territorial Legislative Assembly is set out by law, and
extends to certain specified matters in the Territory, including-
"... mines, minerais, minerai oils, precious stones, etc.; primary or
secondary education in schools supported or aided from the revenues
of the Territory; the establishment, management or control of any
land or agricultural bank in the Territory; and the allotment, sale
or disposai of Government lands in the Territory". (III, p. III.)
Tlùs is the competence of the Territorial Legislative Assembly.
Native affairs and other matters are reserved to Respondent's Govern
ment, whose legislative organ is the Parliament in wlùch, however, so
called "non-\Vhites" are excluded by law from serving. (See Counter
Memorial, III, p. 132.)
At page 188 of the Counter-Memorial, III, "the framework of Respon
dent's policy" is characterized as being "that political rights and power
are to be exercisable by the Native groups within their own respective
homelands and not within the area of the White group as such".
According to table XXV, at pages 39-43, of the Odendaal Commission
report, which has been added to the documentation in these proceedini;s,
as the Court will be aware, there is no Magisterial District in the enüre
Territory where Natives compose less than 42 per cent. of the popula
tion. Four-fifths of the Native Police Zone population live outside so
called "Reserves" or "home areas" in the Police Zone. Including contract
labourers, there are twice as many Natives in urban and rural areas in the
Police Zone, outside of "Reserves", than there are \Vhite persons in all of
South West Africa. Excluding contract labourers, therc are 40,000 more
Natives in the Police Zone outside "Reserves" than there are \Vhite
persons in all of South West Africa. This is derived, of course from the
Odendaal Commission report. Respondent refers to areas of the Police
Zone outside the "Reserves'' as constituting the "area of the White group
as such". (III, p. 188.)
2. Secondly, no person other than a European person may vote in any
municipal council elections, or qualify for election to a municipal council
(Counter-Memorial, III, p. 188-190; Rejoinder, VI, pp. 23-27; in the
Applicants' pleadings, Memorials, I, pp. 137-138 and Reply, IV, pp. 446-
447). REPL Y OF MR. GROSS 289
3. Thirdly, the only local govemment institutions for Natives in the
urban areas, in ail of which the number of Native inhabitants is almost
equal to the number of White inhabitants (see Odendaal Commission
report, table XIX, p. 41) are "Native Advisory Boards"-these are
the only local govemment institutions for Natives in the urban areas.
The Native Advisory Boards possess no legislative or executive powers
whatever (Counter-Memorial. III, pp. 181-185; Memorials, I, p. 139,
and Reply, IV, p. 446).
Respondent, in its Rejoinder, refers to a recommendation of the
Odendaal Commission: "which, when implemented, will ensure to the
Native inhabitants of urban areas wide legisiative and executive powers
in respect of their own areas"-Rejoinder, VI, page 26, paragraph 50,
referring to page 3, paragraph 3 (g) of the Odendaal Commission recom
mendations. The relevant sections of the Odendaal Commission report
are paragraphs 449 through 451 thereof, at pages n7-n9. The so-called
"wide legislative and executive powers" contemplated to be given to the
Natives, in the recommendation of the Odendaal Commission report
itself when implemented, are to be the following powers I am quoting
now from pages II7-n9 of the Odendaal Commission report-para
graphs 449 through 451:
"That before the White urban authority makes any by-laws or
regulations relating in any way to the non-\Vhite residents of the
township, such by-laws and regulations, as well as the part of its
estimates for non-Whites should first be referred to the constituted
council [that is to say, the urbaf! non-White councils recommended]
for its comments, these to be considered by the white urban author
ity (which, however, shall not be bound to their acceptance) before
its final decision on the matter.
450. That the White urban authority delegate such functions,
powers and authorities to the said Council as the Minister concemed
may approve.
451. That with the consent of the Minister of Justice, consid
eration be given to the delegation of the following fonctions to the
said Council:
(i) the settlement of civil disputes between its inhabitants accord
ing to their customs and traditions;
(ii) the hearing of criminal offences of a non-serious nature in its
area by non-Whites;
(iii) the appointment of community guards for-
(a) the preservation of the safety of the inhabitants of the area
concemed;
(b) the maintenance of law and order; and
(c) the prevention of crime."
These ail relateto urban areas.
Tuming now to the next catalogue of the laws and regulations and
official methods and measures-the Memorials, 1, at page 143, set out
the Mandatory's duties with respect to the civil liberties of the inhabitants
of the Territory, all of which are to be carried out in a manner consistent
with, and in the context of, international standards and the international
legal norm of non-discrimination and non-separation. These duties, thus
defined, which are to be carried out, to be discharged and subject to the290 SOUTH .WEST AFRICA
norm or standards for whlch the Applicantscontend, include the following
broadly categorized duties:
"(4) Security of such persons and their protection against arbi
trary mistreatment and abuse;
(5) Equal rights and opportunities for such persans in respect of
home and residence, and their just and non-discriminatory treatment;
(6) Protection of basic human rights and fundamental freedoms
of such persans;
*
* *
(8) Social development of such persans, based upon self-respect
and civilized recognition of their worth and dignity as human
beings." (1,p. r43.)
A reading of these duties will indicate that they are not scientific; they
are not systematic; they are categories for convenience of presentation
and analysis. No doubt the Applicants might have formulated these
categories in a more compelling and perhaps convincing manner. The
categorization itself, the method of categorization is really extraneous
to the point here which is the examination of the application or failure of
application of the norm and/or of the standards; such categorization
merely, is the framework within which that issue is being examined and
appraised.
At pages r44 through 152 of the Memorials (1), the Applicants have
set out a series of laws and regulations and official methods and measures
by which ther are carried out with regard to the civil lives of the
inhabitants o the Territory and which, the Applicants respectfully
submit, constitute per se violations of the international legal norm of
non-discrimination and of non-separation and the international standards
covering the same subject, having precisely the same content. Illustrative
examples of the laws, regulations and official measures and methods in
question, the existence of all of which has been conceded by Respondent,
include the following:
I. At page 222 of the Counter-Memorial (III) Respondent quotes, in
paragraph 97, from the regulations which allow a magistrate, with the
approval of the Administrator, to order any resident of certain Reserves
in the Police Zone who shall in his opinion be an "undesirable persan",
to leave such Reserve within a specified time. Respondent states that
this regulation is "designed to overcome a problem which would exist
only in certain Native areas, [and thus] obviously not ... appropria te for
White or Coloured persans". This is from Counter-Memorial, Ill,
page 223-see also the Rejoinder, VI, pages 347-349, and the Memorials,
I, page r45 and the Reply, IV, page 472.
2. The Superintendent of certain ''Native" Reserves within the Police
Zone may order "any male resident of a Reserve", who is believed by the
Superintendent to have "no regular and sufficient lawful means of
support" or to ''lead an idle existence", to take up "employment on
essential public works or services within or without the Reserve at a
sufficient wage to be determined by such Superintendent", under criminal
penalties for failure to obey. (Memorials, I, pp. r27-r28 and 144; Counter
Memorial, III, pp. 98 and 220-222; Reply, IV, pp. 466 and 472; Rejoinder,
VI, pp. 347-349.) REPL Y OF .MR. GROSS
In the Counter-Memorial, Ill, at page 220, paragraph 92,Respondent
states with regard to the foregoing Regulation that:
"92. Regulation 27 (bis) forms part of the regulations pertaining
to Native Reserves within the Police Zone, and thus inevitably applies
to Natives only. Idle White and Coloured persons are in a sense in
a worse position than idle Natives in such Reserves, since they can
only be dealt with as criminal offenders under the Vagrancy Procla
mation, 1920."
3. Under applicable legislation, and in Respondent's own words, this
is from the Counter-Memorial, III, page 214: ·
"... an authorized officer may, whenever he has reason to believe
that any Native within an urban or a proclaimed area is an idle
person within the meaning of paragraph (a) of sub-Section (r),
without warrant arrest that Native and cause him to be brought
before a Native commissioner or magistrate who shall require the
Native to give a good and satisfactory account of himself. Ifany
Native who has been so required to ?,ive a good and satisfactory
account of himself fails to do so, the Native commissioner or magi
strate enquiring into the matter shall declare him to bean idle person."
Furthermore, and again in Respondent's own words, quoted from the·
Counter-Memorial, m, page 215:
"If a Native commissioner or magistrate declares any Native to
be an idle person he shall:
(a) by warrant addressed to any police officerorder that such Native
be removed from the urban or proclaimed area and sent to his
home or to a place indicated by such Native commissioner or
magistrate, and that he be detained in custody pending his
removal; or
(b) ifsuch Native agrees to enter and enters into a contract of
employment with such an employer and for such a period as
that Native commissioner or magistrate may approve, order
that such Native enter into employment in accordance with the
terms of that contract.''
That is, as I say, cited from the Counter-Memorial, Ill,and see also
Memorials, I, pages 126-127 and 145; Counter-Memorial, m, pages 97
and 214-218; Reply, IV, pages 465-466, 468, 472 and the Rejoinder, VI,
pages 343-348.
4. At page 276 of the Counter-Memorial, III, paragraph 148, Rcspon
dent concedes that applicable law provides that "Natives recruited from
the northern areas for labour within the Police Zone may remain within
the Zone only for the period of employment provided for in the contract,
and in no case exceeding two-and-a-half years". (See also I, p. 147,
para. 140; IV, p. 465; VI,pp. 324-327.) No matter what the desires of an
individual Native from the northem areas may be, he will be retumed
to his tribal area "after a fixed period of employment in the Zone". (ID,
p. 276, para. 149.) To quote from the Rejoinder, VI, page 321:
"It is also true that Natives from the northem territories are not entitled
to take up permanent residence in the Police Zone."
5. At page 289 of the Counter-Memorial, III, Respondent relates that
a new section of relevant legislation "now provides that no unexempted SOUTH WEST AFRICA
Native may remain for more than 72 hours in an urban area unless
permission to remain has been granted to him by a designated person".
Respondent further continues, at paragraph 189, page 289 of the
Counter-Memorial:
"The effect of this section is that a Native who cornes from outside
an urban area, and who does not fall within one of the.exemptions,
has seventy-two hours within which to secure permission to visit
that area, or to look for employment therein .... he may then
obtain permission to seek work for a further period of fourteen
days, which does not, however, mean that he must actually assume
duty within that period."
On this point see also Memorials, I, page 148, the Reply, IV, page 465,
and the Rejoinder, VI, pages 332-333.
6. The next item. A similar provision, in Respondent's words, requires
that:
"... all unexempted male Natives entering a proclaimed area must
report within 72 hours ·and, if seelcing employment, they can be
issued with permits valid for not less than seven and not more
than fourteen days. If employment is not found within the period
of validity of the permit, an order to depart from the proclaimed
area within a period of not less than two days may be issued."
(Ill, p. 289, para. 190.)
Respondent further states, "If there is a reasonable prospect of the
Native concerned fmding employment, further pennits are granted as a
matter of course". (Rejoinder, VI, p. 331, para. 19.) (See also on this
whole matter I, p. 148; 111,p. 290; IV, p. 465 and VI, pp. 232-234.)
7. A pass or a certifi.cate of exemption is required to be produced on
demand by an adult male Native when he "travels outside his location
or Reserve or away from the farm or place where he resides, or is em
ployed' '. (VII, p. 315; and see also p. 148; IV, p.465; and VI, pp. 333-
337.)
The consequence of the foregoing is described by Respondent as being,
and I now quote-
"... an unexempted male Native over the age of fourteen years is
not permitted to travel beyond his place of residence or employment
in the Police Zone unless he is in possession of a pass issued by an
authorized persan". (III, p. 316.)
Likewise, Respondent refers to the power of summary arrest, men
tioned at page 145 of the Memorials, I, by stating as follows:
"In order to enforce the pass system properly, it was, and is,
necessary to confer on authorized persans the power to demand the
production of a pass and to arrest a Native who fails to comply
with such demand. The whole system would be rendered nugatory
if there were no persons authorized to demand the production of
passes in order to cstablish whether Natives travelling beyond their
Reserves or areas of residence or employment have in fact permission
to do so." (III, p. 317.)
In its Rejoinder Respondent bas set forth the following reason for the
maintenance of the pass system: .
"In the absence of such machinery it would obviously be im- REPLY OF MR. GROSS 293
possible to establish whether any particular Native travelling in the
['areas occupied by the White group'] is an extraterritorial Native,
an inhabitant of the northern territories, an inhabitant of a reserve
in the Police Zone, or a Native living in the areas inhabited by the
White group; in other words, to establish whether such a Native is
entitled to be in the Police Zone." (VI,p. 334.)
8. An adult male Native who is not exempted must obtain a pass to
leave the Territory for the Republic of South Africa. This provision does
not apply to White or Coloured individuals. (See 1, p. 148; III, p. 320;
IV, p.471.)
9. In its Counter-Memorial Respondent relates the effect of certain
legislation as providing-
"... inter alia,that every Native whose domicile of origin is outside
the Police Zone must be in possession of an identification pass when
in that Zone, and ... such a Native must have his pass with him
at all times and produce it on the demand of any authorised person,
any police officer and any persan to whom he engages or offers to
engage himself as a servant". (III, p. 322; see also 1, pp. 96 and 149;
IV, pp. 465 and 475, footnote 3; VI,pp. 333-334.)
Respondent states also in the Counter-Memorial: "In the absence of
such a provision it would be impossible to distinguish between labourers
and visitors, and impossible to ensure the retum of migrant workers
after the expiration of their contracts." (III, p. 323.)
ro. Respondent states in its Counter-Memorial:
"The Administrator may also prohibit any Native female from
entering a proclaimed area for the purpose of residing or obtaining
employment therein, unless she is in possession of certain certifi.cates.
The provisions relating to such certifi.cates are correctly set out in
paragraph 151 of Chapter V of the Memorials." (Ibid., p. 325.)
Paragraph 151 of Chapter V of the Memorials, to which reference has
just been made, is set out at I, page 149 and states that "the provisions
relating to such certificates" are as follows:
"The Administrator may prohibit any female 'Native' from en
tering a proclaimed area for the purpose of residing or obtaining
employment therein without a certificate of approval from an officer
designated by the local authority for such proclaimed area, and a
certificate from the magistrate or 'Native' commissioner of the
district wherein she resides. If 'the necessary accommodation' is
available, a certificate shall upon application be issued to any
female 'Native' 'who produces satisfactory proof that her husband,
or in the case of an unmarried female her father, has been resident
and continuously employed in the said arca for not less than two
years'. Any such certificate may be for a limited period and may be
cancelled at any time after one month's notice."
rr. The Administrator may, at the request of any urban local author
ity, prescribe a curfew under which no unexempted Native (other than a
female dependent of an exempted Native) may be present in a public
place outside a Native residential area during curfew hours without a
permit. (I, p. 149; III, pp. 327-329; IV, p. 471; VI, p. 338.)
With respect to the appllcation to the curfew restrictions, Respondent
states that "curfew notices have been issued in respect of fourteen urban294 SOUTH WEST AFRICA
areas" and that "the usual curfew hours are between 9 p.m. and 4 a.m.".
(ID, p. 329.)
12. "Non-White" persons working in urban areas in the Police Zone
are restricted to segregated areas of the cities and towns and are not
permitted to reside in what are considered to be "White" areas, save
for "hundreds of Native employees [who] reside on the prerrùses of their
employers in the White residential areas", and the Jike. (VI, p. 328;
see also on this point I, p. 148; III, pp. 292-295; IV, p. 465; and VI,
pp..326-328.)
Likewise, again in Respondent's own words, from the Cowiter-Memo
rial, III, page 294:
"By reason of the ultimate objectives of Respondent's policy
regarding Reserves and separate development, Natives are not
entitled to obtain permanent residential rights or ownership in the
urban areas in the Police Zone."
13. Still under the same heading, Applicants have set out in their
Memorials the following paragraph:
"Under section 25 of the Natives (Urban Areas) Proclamation,
1951, entitled 'Removal of Redundant Natives from Urban Areas'
the Governor General may 'declare any urban area to be an area
in respect of which, on being satisfied that the number of natives
within that area is in excess of the reasonable labour requirements
of that area, he may ...
(a) require the urban local authority within a specified period to
lodge with him a list of the names of the natives who, in its
opinion, ought to be removed from the urban area;
(b) determine which of the natives specified in that list shall be
removed from the urban area;
(c) make provision for the accommodation of the natives so
removed who are lawfully domiciled in the Territory.'
Thereafter, the urban local authority, acting under the Adminis
trator's determination, must make arrangements for the removal
of the 'Natives' concerned, in accordance with the prescribed pro
cedure." (1, p. 147.)
In the Counter-Memorial, Respondent has dealt with the above legis
lation at III, pages 287-288 and at page 332. Respondent concedes the
existence of the law in question, to which reference has just been made,
but states the reason why it has never been invoked; paragraph 187,
at page 288, states:
"This section was designed to give effect to Respondent's influx
control policy by providing for the removal of unemployed Natives
who had entered urban areas before efficient machinery to control
their influx was created. In practice, however, Section 25 has never
been invoked as it has been found that adequate action can be taken
under Section ro of the Proclamation and Regulation 2 of the
Regulations for Proclaimed Areas, issued under Section 22 of the
Proclamation."
On this point, see also Reply, IV, page 465, at footnote 4.
I now turn to the fourth general category of duties, set forth in the
Memorials, I, at page 152, as duties with respect to the educational life
of the inhabitants of the Territory, ail to be carried out in a manner REPL Y OF MR. GROSS 295
consistent with, and in the context of, the international standards and
the international legal norm of non-discrimination or non-separation.
These are set forth for convenience, on page r52 of the Memorials as
these categories:
"(7) Educational advancement of such persons;
(8) Social development of such persons, based upon self-respect
and civilized recognition of their worth and dignity as human
beings."
This is the way Applicants have chosen to describe these duties.
The point at issue, as I have attempted to stress, is, in this area
(the area of the educational lives of the inhabitants), whether or not the
norm and standards of non-discrimination and non-separation are
applied and, if not, as is the case on the basis of the conceded laws,
regulations and official practices, then, in the Applicants' respectful
submission, that there is a per se violation of the norm and standards in
question.
At pages 152-r6r of the Memorials (1), the Applicants have, as in the
case of the other areas of life and activity, to which I have referred
economic, political, and civil rights-referred to a series of laws and
regulations, official methods and measures, by which they are imple
mented, in the educational lives of the inhabitants of the Territory,
which, as I have said, in the Applicants' submission constitute per se
violations of the international legal norm of non-discrimination and
non-separation, or of the standards which govem the interpretation of
the Mandate of the same content.
Illustrative examples of the laws, regulations and official practices,
the existence of all of which is conceded by Respondent, include the
following:
I. The educational system of the Territory is organized in three
separate divisions, and the educational facilities and opportunities for
any individual child in the Territory are made available or unavailable,
as the case may be, on the basis of the child's classification as a member
of the "European", "Coloured", or "Native" group, and the Court will
recall the census categories which have been placed in the record on the
basis of which these categorizations-this sorting-out process--of the
population is fixed. The basis of classification or categorization in groups
and the effect upon the facilities and opportunities made available or
unavailable, as the case may be, taking into account the membership in
the group rather than the individual capacity or quality of the child,
are set forth in the Respondent's pleadings in the Counter-Memorial, III,
pages 353-382, 512-514 and the Rejoinder, VI, pages 36, 64-77, and
149-165; in the Applicants' pleadings, Memorials, 1, pages 152-r53, and
Reply, IV, pages 364, 367-374, 398-403. In Respondent's words:
"... the Counter-Memorial clearly reveals that Respondent's system
of having separate schools for the children of the different population
groups is not based on tests of individual ability"(VI, p. 67, para. 6.)
The Court's attention, of course, is invited in ail these cases to the full
paragraph, page, or text cited, as there is inevitably a problem of selec
tion of quoted material possibly, sometimes unwittingly, out of context;
but there is the balance of convenience for the Court because, of course,
to quote the whole Counter-Memorial would obviously be an impossible SOUTH WEST AFRICA
task, and therefore the Applicants, in presenting this, are taking pains
to cite where possible the paragraphs concerned, so that the context
from which these quotes are derived may be evaluated in context. The
Court's attention is respectfully drawn to this problem as it has placed
an onus on the Applicants to make a judicious and fair selection of
quotations with economy of presentation as the main target.
Mr. President and Members of the honourable Court, 1 shall conclude
my summation and cataloguing of the corpus of the legislative and
administrative measures, and the methods by which they are put into
practice officially, in just a few moments, and hope that this is not too
much of a trespass upon the Court's time, but it has seemed relevant and
important to marshal this body of conceded fact in one place at this
point of the record.
I had begun torefer to the broad categories relating to education and
social development as constituting part of the framework of the eight
broadly stated duties in the Memorial, within the context of which the
policy of the Respondent was to be measured and evaluated against
the standards and the norm of the character for which the Applicants
contend. The :firstpoint had been, as the Court will recall, the division
of the educational system of the Territory into three separate divisions.
2. The second point is that the establishment of three separate divi
sions of education naturally leads to the maintenance of separate school
buildings and other material facilities. The needs and opportunities of
any individual members of a group, are consequently served solely by
the buildings and other material facilities reserved to that group
Memorials, I, page 153; Counter-Memorial, III, pages 367-369, 431-433,
434-438, 451-452 and 516; .Reply, IV, pages 371-374; and Rejoinder, VI,
pages 36 and 64-77.
3. Thirdly, this segregation and classification, solely on the basis of
membership in groups, extends to living facilities for students away
from home: "Native" pupils are restricted to the school hostels available
for members of the "Native" group, and so on. Memorials, I, page 154;
Connter-Memorial, Ill, pages 413, 455, 493, 519-521; the Reply, IV,
page 374; the Rejoinder, VI, page 76.
4. Fourth, Respondent has not, during the years of the Mandate's
existence, brought into being any compulsory education for the children
of "Native" parents living in urban areas in the Police Zone. There are
almost as many "Native" persans in such areas as there are "White"
persons. See the Counter-Memorial, III, pages 390-406, 443-445, 500,
514-516; the Rejoinder, VI, pages 49 and 131-136; and in the Applicants'
pleadings see Memorials, I, page 153; and Reply, IV, pages 390-393.
5. Inasmuch as the educational systems and school facilities are sep
arated, the "Native" pupils in the "Native" secondary schools in the
Territory are restricted in their choice of subjects to those available in
the fewer number of "Native" secondary schools, and may not pursue
the differentiated courses offered in "\Vhite" secondary schools. Inas
much as there are few "Natives" in secondary schools, Respondent
states in this regard, and I quote from the Rejoinder, VI, page II7:
"small nurnbers hampered subject differentiation", the subject differ
entiation in question being the options offered to "Native" pupils in
"Native" schools; see also Counter-1\femorial,m, pages 437 and 450;
Memorials, I, page 154; Counter-Memorial, Ill, pages 450-451, 501-503; REPL Y OF MR. GROSS 297
Reply, IV, pages 384-386; and Rejoinder, VI, pages n7-120; these
generally relate to the problem just discussed of the subject differentia
tion problem brought about by the fact that there are fewer "Natives"
in secondary schools than there are "Whites" in secondary schools
reserved for "\Vhites".
6. The establishment of separate facilities for separate groups on a
rjgid basis, has aJso resulted in the fact that "Native" pupils are re
stricted to the vocational training opportunities intended for members
of the "Native" group. It is a matter of record that such opportunities
are notas numerous or varied as those offered to members of the "White"
group. See Counter-Memorial, III, pages 466-468, 507-509, 521-523; see
also the Rejoinder, VI, pages n8-n9; and in the Applicants' pleadings,
see Memorials, I, page 155, paragraphs 167-168; and the Reply, IV,
pages 384-386.
7. Next, with regard to nursing; there are separate training facilities,
separate training programmes and enrolment in separate registers, ail
on the basis of the census category of racial or tribal or ethnie groupin&'·
Members of the "non-White" groups are excluded by law from partic1-
pating in the fonctions of the Nursing Council and the Board of the
Nursing Association, which control the profession as a whole. As has
been mentioned earlier in the proceedings, it is also, under applicable
law, a criminal offence to cause or permit any "White person" registered
or enrolled as a nurse or as a student auxiliary nurse to serve under the-
"controJ or supervision of any registered or enrolled person who is
nota white person, in any hospital or similar institution or in any
training school",
except in an "emergency". (1,pp. 155-156; III, pp. 468-474 and 523-525;
the verbatim record of 3May 1965that is, p. 90; and the verbatim record of
4 May at p.u4, supra, which refer respectively to the Applicants' and
the Respondent's comments on this subject.)
8. By apr,licable law, the only residential universities in South Africa
open to "Native" or "Coloured" pupils from the Territory are those
restricted to "Native" or "Bantu" pupils, and "Coloured" pupils,
respectively. Respondent concedes, in the case of the "Native" or
"Bantu" universities, that they were designed and are intended pri
marily for membersofSouthAfrican "Ban tu'' groups-the word "Ban tu''
is used here in quotation marks. There are no universities in South West
Africa. See Memorials, I, page 157; Counter-Memorial, III, pages 474-489,
509-510, 527-528; Reply, IV, pages 373 and 382-383; and Rejoinder, VI,
pages 105-ro6.
9. As has been mentioned in these Oral Proceedings, Respondent's
practice has been to restrict opportunities in the field of engineering so
as to foreclose the possibility of a "Native" student obtaining the
necessary qualifications to become an engineer. Respondent has made
available opportunities for "Native" engineering students to qualify as
assistant engineers. The premises of this policy have been canvassed in
the written pleadings and referred to at an earlier stage of the Oral
Proceedings. The Court's attention is directed to the verbatim record of
27 April, at pages 29-31, supra, and the verbatim record of 30 April,
at pages 73-75, supra. SOUTH WEST AFRICA
The purpose is to qualify "Native" engineering assistants at the
present tirne, leaving to an indeterminate future the qualification of
"Native" engineers. The policy is asserted by Respondent to be neces
sary to avoid the existence of a "Native" engineer who could not find
employrnent, or who could not exercise authority over a "European",
rather than a "Native", engineering assistant. See Memorials, 1, pages
157-158. In the Memorials the Applicants have referred to a speech on
this subject by the Minister of Bantu Education in the House of Assembly
of South Africain May of 1960, and by reference to the Counter-Memo
rial, ID, pages 527-531, the Court will find the Respondent's character
ization of the speech of the Minister of Bantu Education in the following
words:
"The Minister referred to applications by Bantu students to
follow engineering courses at European universities, and he pointed
out that Bantu engineers could, in existing circumstances, only
expect to be employed by the Department of Bantu Administration
and Development, but that, since such employrnent would entail
their being placed in positions of authority over European engi
neering assistants, there being no qualified Bantu in the country
who could fill the role of such assistants, it was essential, as the
initial step, first to establish a base of Bantu engineering assistants."
This, it will be noted, related to the possibilities of employment, and the
reference is made to the employment in the Department of Bantu
Administration and Development itself where, as appears from the state
ment of the Minister of Bantu Education, the Govcrnment policy pro
hibits the employment of "Native" engineers in the Department itself
because it would be necessary for them to supervise "\Vhite" assistant
engineers; that may be found in the Memorials, I, page 158. See also on
this point the Reply, IV, pages 266-267.
10. And finaily the Respondent, by law and regulation, provides diffe
rential salary scales for"White" and for "Native" teachers respectively,
by which a "Native" teacher with the same or similar qualifications as
a "White" teacher is paid less than his "White" counterpart~see
Counter-Memorial, m, pages 452-457, 503-506 and 532-534; also the
Rejoinder, VI, pages r39-147; and in the Applicants' pleadings, Memo
rials,I, page 158, paragraphs 182-183; and the Reply, IV, pages 394-397.
Mr. President, this concludes on behalf of the Applicants the presenta
tion of the illustrative enumeration of the Jaws and regulations, and
official methods and measures by which they are effectuated, the exis
tence of ail of which is conceded by Respondent. These, and similarly
conceded existent legislation and administrative measures, and effectu
ating implementing policies and practices, form the corpus of factual
material or describe the pattern of Respondcnt's conduct, which is
known and characterized widely as "apartheid" or, more generally now,
in Respondent's own usage, but referring to the same pattern, "separate
development". Pursuant to such policy and practice, the Respondent
allotsstatus, rights, duties, privileges or burdens on the basis of member
ship in a group, classor race rather than on the basis of individual merit,
capacity or quality. In the Applicants' submission such a policy and
practices are inherently incompatible with Respondent's obligations
under Article 2 of the Mandate and Article 22 of the Covenant, and
constitute perse and ipso facto violations of Article2,the interpretation REPL Y OF MR. GROSS 299
and the application of which Article are govemed by international
standards and/or by an international legal norm, as described in the
Reply, IV, at page 493.
In the Applicants' further submission, no evidence or testimony in
purported explanation or extenuation thereof is legally relevant to the
issues joined in these proceedings. In reserving their right formally to
raise the question of such relevance, which the Applicants have not
hitherto done, the Applicants respectfully also reserve their rights under
Article 50 of the Rules of Procedure to comment in the event that any
such evidence is adduced.
Mr. President, I turn now, with the permission of the honourable
President, to a discussion of legal issues involved in and raised by
and related to the series of questions propounded by Judge Sir Gerald
Fitzmaurice in the verbatim record of 7 May 1•The preamble to Judge
Sir Gerald Fitzmaurice's very important, indeed decisively important,
series of ten questions embodies a statement of the central issues of a
legal nature involved in the dispute concerning the interpretation and
application of Article 2 of the Mandate and Article 22 of the Covenant.
The Applicants venture to express gratitude for the opportunity afforded
by these questions to place before the Court the Jegal position of the
Applicants in as clear terms as possible.
Sir Gerald stated, inter alia, that-
"... both the Parties have invoked certain general international
norms, standards and principles, of an a priori character, the
existence or applicability of which they either affi.rmor deny".
The Applicants would point out an essential difference in approach
between the Parties with regard to norms, standards and principles,
which difference bears both upon the judicial fonction in this case as
perceived by the Parties and upon the content and significance of
Article 2, paragraph 2, itself.
The Applicants contend that international standards and an inter
national legal norm of an a priori character exist which provide authori
tative criteria of an objective nature for the interpretation of Article 2,
paragraph 2, of the Mandate and of Article 22 of the Covenant. This
theory of the case, if sustained, eliminates extra-judicial considerations.
It has never been part of the Applicants' case that the Court make a
subjective evaluation of Respondent's policies of discrimination and
separation.
It seems to the Applicants that, per contra, Respondent's invocation
of a principle of unreviewable discretion of an a priori character tends in
the opposite direction. More will be said in a moment about this con
tention; using the phrase "unreviewable discretion" calls for a more
exact reference to the Respondent's contention, and I shall attempt to
cite the relevant contentions on the basis of which this characterization
is made. For if the Respondent is upheld in its claim of inherent discretion
of a breadth for which Respondent contends, or appears to contend, the
only way the Court could pass judgment on an asserted breach of
Article 2, paragraph 2,would be to make a choice between the Respon
dent's conception of well-being, moral and material well-being and social
progress, and that of the Court's.
1 See VIII, Minutes. pp. 30 and 32. SOUTH WEST AFlUCA
300
Such a decision, whatever the outcome, could not rest upon authori
tative or objective criteria.It would not possess the juridical attributes
properly to be associated with the tradition of this honourable Court.
The Respondent, in the verbatim record of 22 April, VIII, at page 627,
stated as follows:
"In the result, Mr. President, except for Articles 3 to 5, there is
nothing which impairs the Mandatory's discretion to decide on
specific actions, measures, or policies, or on methods to be applied
in pursuance of measures, actions or policies which are directed at
achieving this general, prescribed objective. In the result we contend
further that as long as the l\fandatory honestly attempts to achieve
this objective, its conduct cannot be regarded as a violation of its
obligation."
On the other hand, Respondent takes strong issue with the Applicants'
attribution to the Respondent of the view that no legal norm exists by
which a court can judge Respondent's good or bad faith. This is the way
the Applicants have characterized the Respondent's contention, and the
Respondenth as answered no, the Applicants have mis-stated, have
distorted, our true position.
Now Respondent insists as follows in the verbatim record, VIII, at
page 631:
"\Ve made it sa clear, it seemed ta us. \Ve said that for that purpose
a legal norm does exist. The legal norm is the one which we have
indicated, the one, namely of an inquiry into the purposes of the
mandatory, and of the mandatory's particular action or policy
complained of. Is the purpose or objective the authorized one of
promoting to the utmost, or is it an unauthorized ulterior objective
or motive?
That is a legal basis for adjudication, and that is the basis upon
which we submitted that the Court could adjudicate the question
of the Respondent's good or bad faith-in other words, of the
legality of its action.
The inquiry in this regard, Mr. President, i.e., whether a partic
ular person, body or authority has acted in good faith with a view
to achieving a certain objective, or whether he or it has acted in
bad faith, is always an inquiry of fact, on the outcome of which
certain legal consequences follow. The consequence ... involves a
distinction between a violation or abuse of power and acting within
the terms of the power, or, in other words, acting Jegally."
Now there, as the passage quoted indicates, the Respondent does
contend for a legal norm; the legal norm is described and the Respon
dent's description will speak for itself and would not be clarified or
otherwise by our attempt to characterize it. But Respondent at the same
time recognizes and concedes the legal issue squarely joined with respect
to the significance of the standards and the legal norm for which the
Applicants contend. Thus, in the verbatim record of 22 April, from
which I have just quoted the passage regarding the legal norm as pro
pounded by the Respondent, the Respondent comments as follows:
"If we have regard to the alleged norm of non-discrimination and
non-separation, as formulated in the Reply, and even as modified
now in the oral argument before the Court, we find that it involves
a suggestion of a different norm upon which the Court can adjudicate. REPLY OF MR. GROSS 301
It would indeed, as formulated in the Reply, constitute an objective
norm-a norm which could be applied objectively and precisely to
the circumstances of a particular case in the same way as Articles
3 to S of the Mandate could be applied objectively and precisely
to a specific case." (VIII, p. 634.)
The Applicants consider this to be a fair juxtaposition of the respective
legal theories, one may say norm theories, of the Parties. For the sake
of clarity, it only need be added that the Applicants consistently have
maintained their theory from the outset, that in addition to the norm
referred to jn the Jast quoted passage, reference should also be made to
the international standards of the same scope and content which the
Applicants contend exist, whether or not they have reached the status
of a legal norm, and which standards govem the interpretation and
application of Article 2 of the Mandate.
The corpus of the mandate jurisprudence itself strongly reinforces the
Applicants' contention that the sacred trust, the concept of moral well
being and social progress, are to be given content under the judicial pro
tection of this honourable Court by means of true and applicable objec
tive criteria, which the Respondent concedes exist.
As early as 1950 this Court affirmed the eristence and applicability
of "international mies regulating the rights, powers and obligations
relating to the administration of the Territory" (I.C.J. Reports I950,
p. 147). If Respondent could set off its discretion, its motivation, its
purposes against these international rules regulating the Mandate, which
are found in the Mandate itself, then it would become impossible to
uphold, by judicial means, the legal interests of the organized inter
national community, in accordance with the safeguards set forth in
Article 22 of the Covenant and embodied in the Mandate itself. And, as
the Applicants put it the other day, there would be a hole in the man
dates scherne as wide as the sacred trust itself, from the point of view of
judicial protection.
Respondent's theory of the obligation in Article 2 puts in issue
fundamentally the whole subject of international accountability, the
purpose and scope of international accountability, which the Court bas
said is of the essence of the Mandate, which lies at the root of the mandate
concept (the Mandate having been formulated in fiduciary terms with
concepts of trust, tutelage, it matters little, as these terms are borrowed
from municipal legal systems of various kinds) a universal concept of
fiduciary obligation internationally supervised.
The Respondent's claim of broad discretion, a discretion to be apprais
ed only in terms of its good faith, which obviously means the intentions
of its officiais from time to time in office-unless we are dealing with a
pure abstraction here-the Respondent's claim of discretion to pursue
an authorized purpose so broad1y defined wou1d be unjusticiable, and
indeed the first alternative contention of the Respondent frankly poses
that issue to the Court squarely, challenges the Court on the proposition
of non-justiciability, and makes the good faith test a second alternative
contention.
The content of the standards defining well-being, moral well-being
and social progress, is dynamic, evolving with the changing attitudes
manifest in international society. The characteristic feature of moral
well-being and the attitude of the cornpetent international organs with
respect to it has an obviously direct relevance to Respondent's policies302 SOUTH :WEST AFRICA
of group discrimination or separation. On no subject possibly in history
has there been·a greater progression in attitude from disapproval to legal
prohibition in the organized international community than in the field
of race relations.
Forty years ago Respondent's theory that its racial policies lie within
the ambit of its discretion conceivably might have been arguable,
although even then, in the Applicants' view, not convincing. But the
proposition is no longer debatable. With respect to Respondent's policies
of racial discrimination and group separation, international standards
and an international legal norm of non-discrimination and non-separation
have achieved authoritative status during the very lifetime of the
Mandate, so authoritative, indeed, that it is appropriate, in the Appli
cants' submission, to make them applicable as a matter of law per se
to the interpretation of Article 2,paragraph 2,of the Mandate.
Judge Sir Gerald Fitzmaurice, in his preambular statement, has made
reference to the fact that the Applicants "have invoked a norm said to
prohibit absolutely any practice of apartheid". The Applicants do agree,
respectfully, with this depiction of their theory of the case but seek to
avoid risk of possible confusion by taking the opportunity to stress that
this is not the whole of their theory. In this regard we shall endeavour
to demonstrate the existence and applicability of standards and a norm
of similar content on an alternative and cumulative basis. Thus, the
Applicants would prefer, with deference, to reforrnulate Judge Sir Gerald
Fitzmaurice's statement in the second sentence of his preamble as fol
lows: "Thus the Applicants have invoked standards and a norm said to
prohibit absolutely any practice of apartheid."
Sorne terminological difficulty, Mr. President, on this score may well
have arisen from the Applicants' use in the Reply, IV, at page 493, of
the word "norm" to cover both main branches of their argument, that is,
with respect to standards governing the interpretation of the mandate
instrument as well as a binding norm of international law existent
independent of the Mandate but governing its interpretation. The Appli
cants have intended to suggest and do now state that the norrn might be
either regarded as embodied in the Mandate itself, in Article 2, or as
existing independently of the Mandate; if it is regarded as embodied
in Article 2 itself, it would have the character of a mandate norm
a mandate rule-the Mandate being an international institution regulated
by rules, as the Court has said; Article 2 would be a mandate rule, a
mandate norm prohibiting apartheid. This is a possible judicial method
of approach to the matter of the existence of standards and the existence
of a norm. Either or both could and should, in the Applicants' view, be
regarded as governing the interpretation and application of the Mandate
either as a treaty or as an institution or, as the Applicants believe, an
institution which partakes of the character of a treaty and of an insti
tution: in the words of Judge McNair, "a contract and a conveyance".
If the standards, for which the Applicants contend, have achieved
the status of an independent rule of international law, an international
legal norm, they, of course, would be controlling, with respect to the
Mandatory, on the simple proposition that the Mandatory, in undertaking
this arrangement obviously must be conclusivcly presumed to have
undertaken and agreed to comply with international law in the exercise
of the Mandate; that is on the assumption that the Applicants persuade
this honourable Court to find and declare that the international standards REPLY OF MR. GROSS
have achleved the status of a legal norm-a binding rule of international
law. The Applicants' case does not rest on that proposition but if such
an international legal norm exists, then of course, it would apply a fortiori
to the Mandate, an international institution with international rules.
As matters stand, therefore, the Applicants will seek to establish the
norm or rule of the Mandate itself, particularly in view of its fiduciary
setting and the mandate jurisprudence, by showing that international
standards of non-discrimination and non-separation exist which are
applicable as a matter of conclusive authoritative interpretation of
Article 2, paragraph 2-that is with respect to standards.
The Applicants likewise, as an alternative and cumulative proposition
will seek to demonstrate that such standards have achieved the status
of an international legal norm and that the existence of such an inter
national legal norm has emerged and is binding upon Respondent in any
event a fortioriin its role as Mandatory. Such a legal norm, in the
Applicants' view, constitutes an a priori limitation upon Respondent's
discretion in administering the Mandate. The Applicants' effort will be
to demonstrate the existence of the international legal norm in terms
of the sources of law enumerated in Article 38 (1), paragraphs(a)-(d),
of the Statute of the International Court of Justice. So as to clarify
further this basic aspect of the controversy between the Parties, the
Applicants feel it may be helpful now to place before the Court the main
links in their chain of juridical reasoning on the subject of the interpre
tation of Article 2, or the Court's determination of its character as an
institution in a normative sense with respect to the mandate rule.
The intention of the Applicants will be to develop a perspective which
informs and illuminates the Applicants' responses to the several enu
merated questions propounded to the Parties by Judge Sir Gerald Fitz
maurice. The three principle links in the Applicants' reasoning are as
follows:
r. The character of the legal obligation contained in Article 2, para-
graph 2; .
2. the character of the legal criteria governing the interpretation of
Article 2;
3. the character of defences available to Respondent in the face of
the asserted violation of Article 2.
Dealing first with the legal obligation, the character of the legal
obligation embodied in Article 2, of the Mandate, and Article 22, of the
Covenant against which it must be read. The Applicants contend that
the obligation of the Mandatory to promote to the utmost the material
and moral well-being and the social progress of the inhabitants of the
territory embodies a minimum qualitative element. If such qualitative
aspect of the obligation is not satisfied, a violation of Article 2 has taken
place, no matter how much or how little as the case may be, the Manda
tory's policy may benefit the material well-being and material or quan
titative, social progress of the inhabitants in other respects. As a conse
quence, Applicants' contention that a qualitative violation of Article 2
had taken place renders it both superfluous and irrelevant to examine
either the intentions or the good fa1th of the Mandatory or the context
of the specific violation. Article 2, paragraph 2, as is true, of course, of
any governmental relationship with inhabitants anywhere, contains both
quantitative and qualitative aspects. A Mandatory, of course, as any SOUTH .WEST AFRICA
good government, has a continuing obligation to improve for instance,
the health and educational facilities available to the inhabitants; its
suffrage to do so limited to that aspect could be tested in a manner or
appraised in a manner which resembles l\espondent's defence in respect
of the cases at bar; it might include comparative or comparable achiev
ments in other parts of the world. Such a line of defence, however, has no
relevance to a complaint of a qualitative violation, and moral well-being
is inherently incapable of anything but a qualitative analysis. Such a
complaint ex hypothesi presupposes that nothing the Mandatory does or
does not do could compensate for or offset such an aspect of its
conduct.
Secondly (this will be developed subsequently; this is a summary
introduction), the character of the legal criteria which apply in governing
the interpretation of Article 2,of the Mandate. lt is, of course, in tlûs
context of the character of the Iegal criteria that the Applicants invoke
the judgments of the competent organs of the international community
with respect to the practice of apartheid in the territory. Now there are
in this sense no disputed facts which enter into the corpus of facts,
measures and so forth, on which the Applicants rely. The judgment of
the competent organs are, moreover, endowed, in the case of the United
Nations, in the Applicants' legal theory, with the supervisory respon
sibility over this particular Mandate. The judgment of those competent
supervisory organs have been developed m a manner with which this
Court will be familiar and with which the record is replete with examples.
The judgments of the international community are analogous in many
respects to those relative to the phenomena of international legal norms
relating (without comparing the substance or quality of the conduct
but from a legal point of view) and relative to the phenomena of piracy,
slavery, genocide. The international community reaction of concern and
outrage removed the practice from any possibility of a quantitative
analysis and locates it in the qualitative realm where the prohibition
becomes one of an a priori character, if it exists, as the Applicants do
urge that it does. Whether the reaction of the competent organs of the
international community merely have produced standards for authori
tatively construing the Mandate or whether the force, the consistency,
the categorical nature of these pronouncements and judgments have
evolved a legal norm, this, of course, is not a decisive consideration in
respect of the Applicants sustaining of its case, since the legal norm, if
it exists applies a fortiori to the Mandate but the standards which we
submit are authoritative govern its interpretation, whether they have
achieved a status of legal norm or not.
The important point is that objective criteria exist, as Respondent
concedes, although of course, vehemently denying that these exist. But
that the possibility that objective criteria exist is admitted and since
Respondent asserts its own, the Applicants maintain that it is common
cause between the Parties that objective criteria of some sort do exist
and govern this dispute judicially. But the Applicants' objective criteria,
that is, the objective criteria for which the Applicants contend, if they
exist, arc, of course, clearly applicable to this situation because they
were largely developed with specific reference to this situation; if they
exist, then in the Applicants' submission, judicial enquiry into the Man
datory's motives, intentions or good faith is entirely irrelevant. The
essence of the criteria, whether standards or nonn, is to express the REPL Y OF MR. GROSS 305
incompatibility of apartheid with the moral well-being and the social
progress of the inhabitants, and once this incompatibility exists, a
violation in the terms of the Mandate has been per seestablished, and
there is no further element of proof by way of evidence, oral or otherwise,
which is relevant to a judicial decision of this adjudication upon this
dispute, upon this theory. The only difference between the two kinds of
governing objective criteria, standards on the one hand, the Iegal norm
on the other, arises from whether they would be binding on Respondent
independently of the Mandate or because of the Mandate-the distinction
in this case is purely conceptual. Ifthe principle of non-discrimination,
non-separation finds embodiment in international standards authoritative
with respect to the interpretation of this Mandate, then, it governs and
the Mandatory is bound accordingly. If the rule of non-discrimination or
non-separation has achieved a status of an international legal norm,
then it is binding upon the Mandatory, simply by means of its general
obligation to govern the mandated territory in accordance with inter
national law, particularly, in as muchas international law relates to the
well-being of peoples. The fact that such an international legal norm
would also be applicable with respect to Respondent's duties within
South Africa itself, is irrelevant to the theory or position of the Parties
in this case.
\Vith respect to the Applicants' contention that the standards in
question have achieved the status of an international Jegal norm, the
existence of the Mandate, in addition to establishing the compulsory
jurisdiction of the Court under the compromissory clause of Article 7,
also means that the international legal norm, ifitexists, as the Applicants
contend, constitutes an a fortiori basis for the interpretation of the
Mandate-that seems clear.
This consideration makes irrelevant Respondent's contention that its
opposition to the legal norm could preclude the norm from coming into
existence.
The Respondent does not stand before this Court solely in quality as
a sovereign State. The Respondent stands before this Court as Manda
tory, as trustee, accountable to the international community, accountable
to the United Nations system, of which this Court forms a part.
The Applicants, as part of their argument under Article 38 of the
Statute, suggest that the Court could conclude that a norm of non
discrimination has emerged, but that the Respondent, as sovereign
within the Republic of South Africa itself, might conceivably daim an
exemption under familiar doctrine-might itself daim an exemption from
its application on the ground of its clear, open, consistent opposition to
the norm. This conceivably might be claimed by Respondent with
respect toits domestic jurisdiction as sovereign.
\Vith respect to the mandate institution, however, the Respondent is
not before the Court qua sovereign but as mandatory, and even if
Respondent qua sovereign could exercise a veto over the international
norm creating processes, which the Applicants do not concede, Respon
dent nonetheless, as a mandatory, may not daim exemption from a legal
norm which has been created by the overwhelming consensus of the
international community, a consensus verging on unanimity.
These considerations are supplemental and alternative to the Appli
cants' basic contention that an overwhelming consensus of State views,
even in the face of opposition from Respondent, is capable of generating306 SOUTH WEST AFRICA
a legal norrn within the meaning of Article 38 of the Statu te, apart from
the Mandate.
Then, thirdly, the character of Respondent's defences: the limits upon
Respondent's defences available toit on the basis of the theory advanced
by the Applicants upon which they rest, in the light of the qualitative
character of the violation of Article 2, which is charged, as well as the
objective character of the criteria by which the interpretation of the
Mandate is govemed, Respondent's available lines of defence are limited.
It might be open to Respondent to attempt a demonstration that no
qualitative element is contained in Article 2, that the phrase "moral
well-being" is of quantitative application, or is to be offset against
material or quantitative weights and measures. It might be open to them
to do that. Or, it might be open to Respondent to argue that no objective
criteria exists-at least not in the form of the international norrn or
standards of non-discrimination. They themselves, if I understand the
verbatim which I have cited earlier, conceded that some international
legal norrn of an objective character exists, applied to their good faith,
but they might conceivably argue that no objective criteria exist which
are applicable to the interpretation of its obligation. Of course, both of
these possible arguments the Applicants would object to, would oppose
and regard as untenable.
It likewise may be open to Respondent to contend that its policies
do not violate the norm, although such an argument would in this
situation be incredible, inasmuch as it is precisely Respondent's policies
which have given rise to the standards and the legal norm as a large
element of their generation-not entirely, not exclusively. Obviously the
conduct of the administration of the Territory of South West Africa
has not been the sole generating source of the international norm of
non-discrimination and non-separation, but its policy bas entered into
the generation of the norm as a very important factor thereof. There is
no problem here of lex specialis; it is a problem of the generation of the
norm, including the source most directly and immediately concerned in
this litigation.
The central consideration, in the Applicants' view, underlying the
Applicants' replies toJudge Sir Gerald Fitzmaurice's several questions, is
that the governing criteria, plus the character of the legal dutyimposed
by Article2, paragraph 2,plus the incompatibility between apartheid and
Respondent's legal duty, as it is defined by such goveming criteria, all
of these factors as amatter of law constitute a violation of the Mandate.
In the light of these considerations the Applicants submit that there is
no basis for balancing offthe moral and social consequences of apartheid
against material improvements, nor for assessing whether Respondent's
officiais sincerely,or indeed even passionately, feel that apartheid is
calculated to promote the well-bein of the inhabitants in some sense
in which negative human aspects-' 9negative aspects" in the phrase of
the Respondent-are offset by compensating material or other quan
titative considerations. The moral and social consequences of racial
discrimination and group separation, in the Applicants' view, cannot be
calculated by a table of weights and measures, nor put into scales along
side irrigation projects or hospitals.
The Applicants now turn, Mr. President, with your permission, to an
exposition of the evolution and the content, and the applicability of the
international legal norm, and the international standards of non-discrimi- REPL Y OF MR. GROSS 307
nation or non-separation for which they contend, and which are defined
in the Reply, IV, at page 493. Itis the international standards and the
legal norm (thus defined by whatever label one chooses to describe it)
upon which the Applicants rely and which represents the core of their
case-the heart of their case.
The considerations now to be adduced will be relevant particularly to
a response to questions I through 4 and 9 in the series propounded by
Judge Sir Gerald Fitzmaurice on 7 May 1965. However, having said that,
it will be perhaps desirable to point out that other questions in this series
are, in the Applicants' understanding, reiated in certain aspects to the
questions I have enumerated, and, therefore, with respect, it would be
the Applicants' intention, or conception, that in the considerations wlùch
are about to be adduced they will be regarded as generally relevant to
the series of questions propounded, and then at the end thereof we will
attempt to give more specific responses to the enumerated questions
which are not exprcssly answered along the way. This is a diffi.cult task
becausc Judge Sir Gerald Fitzmaurice's questions have struck at the cen
tral issue and challenged us to expound our views.
1. Inasmuch as the Mandate "is an international agreement having
the character of a treaty or convention" (I.C.J. Reports I962, p. 330)
it must be interpreted and applied as such. And, furthennore, and in
addition, the Mandate constitutes a "special type of instrument com
posite in nature and instituting a novel international regime". (Ibid.,
p. 331.)
2. By virtue of the "essential part Article 7 was intended to play, as
one of the securities in the mandates system for the observance of the
obligations of the l\fandatory" (ibid., p. 337), the relevant international
law and international standards must be applied to the institution of
the sacred trust and to the alleged violations of its institutional tenns,
described in 1950 at page 132 as "international ru1es regulating the
Mandate which constituted an international status for the Territory".
And this, if it may be repeated, is the capacity in which the Respondent
stands before this Court.
3. Thcre must be applied to the process of interprctation of the man
date, treaty or institution, the current body of internationally binding
and valid rules, crysta1lized in the overwhelmingly accepted judgments
of the competent supervisory international organs and embodied in
what the Applicants have called "international standards".
4- It is the Applicants' contention that the international standards
concerning racial segregation, separation or discrimination have evolved
through the normative processes to the stage of having achieved
the status and quality of an international Jegal nonn, that is to say,
a rule of international law of the same content but of a different
quality. In the submission of the Applicants, such a legal norm is to be
derived bytlùs honourable Court from sources found in the application of
Article 38, paragraph 1, of the Statute, paragraphs (a) through (d),
inclusively.
5. Whether the Court should adjudicate the issues regarding violation
of Article 2 as a matter of treaty interpretation, or as a matter of pro
tection of an international institution operating a priori in accordance
with international Jaw, the legal result, so far as the Applicants' case is
concerned, is precisely the same. Interpretation of Article 2, cither by
reference to governing standards or to a legal nonn, or to both, leads to SOUTH WEST AFRICA
308
the same result-a finding of violation by Respondent of its duties
under Article 2, paragraph 2,of the Mandate, and under Article 22 of
the Covenant. And, similarly, application of international standards or
an international norm, in the context of the Mandate as an institution
rather than as a treaty, yields the same legal result.
The Applicants now return to the discussion of their theory with respect
to the legal issues underlying the asserted violations of the sacred trust.
The Applicants respectfully point out, first of all, that the interna
tional, political, moral and other considerations which necessarily have
entered into the development and crystallization of the standards and
of the norm are not drawn into issue in this litigation-and cannot
properly be drawn into issue in this litigation. This Court cannot be, and
should not be,invited toexamine the political, moral or other considera
tions which entered into the processes by which the competent inter
national organs have developed their judgments in this respect.
ln the Applicants' submission to the contrary, the normand standards
are themselves among the sources of objective criteria by which the
obligations of the Mandatory may be measured and by which the interest
of the organized international community may be upheld in regulating
the minimum standard governing the interests of the well-being and the
inhabitants of the mandated territory. But, Mr. President, the stress is
constantly laid by the Applicants on the contention that this is a mini
mum standard we are talking about and the promotion to the utmost
requirement makes the minimum standard of a fortiori application.
The function of courts in any social system, in our respectful view,
whether national or international, is to give judicial application to
standards and rules brought into being by the normative procedures in
operation and, of course, it is of the essence of such processes by which
such standards and norms are developed (and they can be developed in
no other way) that social, humanitarian, political and other relevant
considerations are rcflected inthe normative procedures in the developing
of standards or norms and, of course, underlie the judicial application of
the standards and norms thus developed.
Itwas in this respect that, primarily, we accounted for the Brown v.
Board of Education decision as showing the process, not as establishing
a precedent applicable to the international community-that is an
American precedent applicable to the American national community and
the Applicants are perfectly well aware of that-but the processes by
which the highest court of the United States arrived at a judgment,
leaving aside what the decision or judgment was, but the processes by
which they arrived at the judgment are the processes which pertain to
any judicial process inherently, characteristically. The Applicants re
spectfully urge that it is both a relevant and necessary element of the
judicial function, serving in these cases as the final bulwark of protection
against asserted breaches of the Mandate, in the words of the Court
in 1962, at page 336, that full weight be given to the normative functions
of the competent international organs, particularly as represented by or
embodied in the great system of the United Nations and specialized
agencies. That aspect of this honourable Court's high judicial function,
in the Applicants' most respectful view, is signalled by the provision of
Article 92 of the United Nations Charter itself, which declares that the
International Court of Justice shall be the principal judicial organ of the
United Nations. REPLY OF MR. GROSS
The Court, in relation to the Mandate, is requested by the Applicants
to vindicate the role of law in the settlement of international disputes,
of which tlûs has been, as the Court will be aware, a most protracted
dispute. More concretely, in tenns of the issues at bar, the Court is
requested and urged, upon the basis of considerations which have been
placed before the Court and which will now be placed before the Court,
with the honourable President's permission, to confirm the existence of
international standards governing the intcrpretation of the Mandate, as
well as of an international legal norm, of which the violation of the
Mandate is a perse violation. Such a conclusion, or conclusions, involve
the application of canons of interpretations of the mandate instrument
of a traditional nature, not innovative, in the Applicants' view, as well
as judicial recognition of sources of international law, enumerated in
Article 38 of the Statute, all of which re.flect the evolving need and
character of the international order.
Through these proceedings, in their written pleadings and in their
oral arguments, the Applicants have referred constantly to this phrase
ology of international legalnormand international standards, and have
attempted to point out that the content of the norm is precisely the
same as the content of the standards, the only distinction consisting in
the legal quality of the respective concepts. Both are addressed to
government policy by which rights, duties, obligations and opportuni
ties arc allocated onthe basis of membership in a group, class, or race,
rather than on the basis of individual merit or capacity or potential.
Both the standards and the norm are expressed in terms such as to
render any violation thereof a perse violation, since under either heading
of standards or legal norm they prohibit the very existence of the
proscribed official action or policy in the fonn of Jaws, regulations, of
official methods and measures by which they are implemented, and, as
has been shoWI'l:t,he existence of which is conceded by Respondent.
Both the norm and standards, as will be apparent from the analysis
to follow in response to Judge Sir Gerald Fitzmaurice's series of ques
tions, are derived from the same sources and identical contexts. Both
emerge, inter alia, from the authoritative interpretations given to the
United Nations Charter and to the Constitution of the International
Labour Organisation by the member States thereof by an overwhelming
consensus approaching unanimity. Both the standards and the legal
norm contended for likewise emerged from authoritative interpretations
of Article 2 (2) of the Mandate itself by the competent organs of the
international community over the years. Such sources may be described
as Article 38 (r) (a)-sources in relation to the process by which the
standards and/or the legal norm have been evolved. The norm and
standards equally emerge, as the Applicants shall endeavour to demon
strate, from international custom as evidence of the general practice
accepted as law within the United Nations and other public organiza
tions, and from treaties and other international agreements in the rele
vant context-Article 38 (1) (b). Likewise, the standards and the legal
norm, for which the Applicants contend, emerge from the general prin
ciples of law recognized by civilized nations, as manifested in the same
context of the organized international community particularly, and
tlûs, of course, refers to the rubric of Article 38 (1) (c). Finally, they are
expressed in judicial decisions and the teachings and writings of publi
cists, the sources specified in Article 38 (1) (d). SOUTH WEST AFRICA
JIO
The distinction between the international legal norm and the inter
national standards therefore, as has been said, is of legal quality only.
The legal norm is established as an independent rule of international
law, and if so, in the cases at bar, the legal norm governs a fortiori the
interpretation and application of the provisions of the Mandate viewed
as a treaty or an institution or both.
The standards which, likewise of course, have the same content which
similarly relate to non-discrii;nination and non-separation, govern the
interpretation and application of Article 2 of the Mandate as authori
tative interpretation by the competent international organs responsible
for supervision of the Mandate, and which form a part of the network
of protection of which the principal links are the administrative organ
and the judicial body in this honourable Court. This was the point for
which the Applicants cited the Northern Cameroons case in which the
problem was presented of the judicial protection absent from the admin
istrative organ, and the Court spoke of the concomitant relationship
between the two bodies, and this, indeed, is of the essence of this partic
ular point in view of the role assigned respectively to the administrative
and judicial organ, as has been developed and as will be further developed
in response to Judge Sir Gerald Fitzmaurice's questions.
The application of the canons, in the context of the Mandate, results
in the interpretation and application of Article 2 on the basis of inter
national standards or of the international legal norm, or both. Now, in
respect of the legal norm, for which the Applicants contend, a legal con
sideration arises additional to that of mandate interpretation or regula
tion of the mandate institution. If a legal norm exists-an international
legal norm-as the Applicants contend, which is, by its nature, relevant
to and decisive of, the measures adopted for the administration of the
Territory, then Respondent, by violating the international Iegal norm,
has ceased to exercise the Mandate on behalf of the League of Nations
or the United Nations (which has replaced the League)-in other words,
on behalf of the organizecl international community, however it is
embodied and by whoever it is represented. Actions which violate the
international legal norm, ifit exists, must, of course, be ultra vires the
Mandate.
The full power of administration and legislation over the Territory,
granted by the first paragraph of Article 2, is for the administrative
convenience of the Mandatory, as the Applicants have sought to make
clear in their response to the tenth question of Judge Sir Gerald Fitz
maurice. Such power of administrative and legislative discretion was
granted by the community of nations acting in concert, and the modifica
tion of any such power in any manner, or modification of the terms in
which it was bestowed and the methods of its exercise, must be subject
to the consent of the organized international community. That proposi
tion is crystallized in Article 7 (1) of the Mandate itself.
Administration of the Mandate or legislation with respect to the
Mandate in a manner contrary to an international legal norm, if it
exists, as the Applicants contend, is an abuse of the mandate institution
and relationship, in addition to being a breach of the article in question.
It will, of course, be recalled that this Court in defining the scope of
judicial protection referred to it in 1962 as the final bulwark of pro
tection against abuse, asserted abuse, or breaches of the Mandate. REPLY OF MR. GROSS JII
[Public hearing of r8 May r965]
Mr. President and Members of the honourable Court, the Applicants
will commence discussion of the relevant international standards, with
certain general observations. These observations are designed to demon
strate why accepted canons of interpretation, especially as applied to
treaties and conventions, support the Applicants' basic contention that
the international standards generated by the competent organs of the
international community govern the interpretation of Article 2, para
graph 2, of the Mandate by providing authoritative, objective and
relevant criteria which should be accepted and applied by this honour
able Court.
A fondamental point in issue between the Parties is the extent and
manner by which the· obligation of Article 2,paragraph 2,evolves in
response to changing conceptions in the international society of the
concepts of moral well-being and of social progress. Respondent appears
to contend that the meaning of Article 2, paragraph 2, as a matter of
interpretation, remains fixed in accordance with the intentions of the
authors as they must have been in 1920, when the Mandate was con
ferred, but that the application of the Mandate changes with changing
times as a consequence, however, not of objectively applied criteria of
change but of the Respondent's conception, the Respondent's purpose,
the Respondent's intention, analytically and in good faith, as applied to
values and circumstances and conditions in the Territory, as they change
and as they evolve. As the Applicants understand Respondent's con
tention, and this has on occasion during the lengthy litigation caused
some diffi.culty,and confusion, perhaps, in the Applicants' appreciation,
the Respondent's reliance upon the good faith test, as we have called it
in shorthand, appears to pose a certain problem which I have ventured
to describe at an earlier stage of these proceedings as an oscillation
between the purpose of the Mandatory and the purpose of the Mandate;
the latter, according to the conception which appears to be advanced
and which underlies the Respondent's case, the objective of the Mandate,
is appraised and evaluated in light of the Respondent's intention or
purpose or good faith, because these words are used in juxtaposition in
the Respondent's pleadings. With respect to what that objective con
templates, basic to Respondent's theory, in other words, as we under
stand it, is that its discretion as Mandatory is fettered or restricted only
by its obligation to pursue a broadly authorized ultimate aim, and in
good faith, and that therefore its good faith is the criterion by which its
performance should be judged, and by which it gives expression to the
dynamic aspects of Article 2. It is a limitation, so to speak, of a sub
jective nature which creates and evolves the dynam1c character of
Article 2 in terms of, and in the light of, the Respondent's appreciation
of the values and the demands of change. From one point of view it
seems almost, in the Applicants' rcspectful submission, as a rather
metaphysical concept, but this is perhaps a grossly unfair characteriza
tion of it; it has created difficulties in the Applicants' analysis and
appreciation of the true significance of Respondent's theory of its case;
the subjective analysis is, as the Respondent has properly pointed out,
one which is susceptible of factual determination; as the Respondent
has said repeatedly, it is possible for courts to ascertain state of mind;
facts are determinable in terms of states of mind. In certain types ofJI2 SOUTH WEST AFRICA
legal problems-delicts, crimes-the state of mind is indeed the cru
cially relevant fact that determines the character of the crime. Therefore
there is no question but that a state of mind is determinable as a fact.
However, as applied to the objective of the ~fandate, the state of mind
with which the Respondent approaches its task, while a fact, never
theless does not appear to the Applicants to be a fact which is deter
minative of the purposes of the Mandate itself; it seems to have no con
nections with the objectives of the Mandate as distinguished from the
objectives of the Mandatory.
Now, without further elaboration and attempted reformulation, in the
Applicants' tenns, of the true significance, the underlying philosophy
or rationale of Respondent's case (which of course is subject to unwitting
distortion in an attempt at reformulation), it seems to the Applicants
that at this stage, as we approach the final moments of the Applicants'
case-subject to normal reservation of rights of comment on evidence
and othcr rights under the Rules of Procedure-as we approach the
final phases of the Applicants' case it would seem appropriate, and
not an undue burden upon the record, to set forth at this point the
Respondent's own formulation of its concept, its rationale, its philos
ophy underlying its concept of the Mandate. It would seem, from a
careful search of all ofthe volwninous pleadings in this case, that the
most revealing, the passage most pregnant with the philosophy and
concept of the Respondent toward its obligations as Mandatory, appears
from the Counter-Memorial, Il, at pages 386-387, and with the Presi
dent's permission the Applicants would like to incorporate in the record
at this point the passage, which I fear may seem to have undue length
but which should be perhaps set in this record at this time. Respondent,
at page 386 of the Counter-Memorial, Il, begins its discussion of what
I have called its rationale, its philosophy, its concept of the obligations
of the Mandate and the duties of the Mandatory, and at paragraph 7 on
page 386 the Respondcnt states as follows:
"The principle that the main objective of the Mandate was to
promote the 'well-being and development' of the inhabitants (the
'sacred trust' principle) was given effect to in two essentially dif
ferent ways. ln the first place, provision was made in Articles 3 to
5 of the Mandate for the 'safeguards' referred to in Article 22 (5)
and (6) [that is, paragraphs 5 and 6 of the Covenant]. These 'safe
guards' (consisting mainly of the 'prohibition of abuses') placed
certain limitations on the governmental powers of the Mandatory,
and were in effect merely specific implementations, in certain
defined spheres, of the overriding objective of the Mandate sys
tem."
I should like to pause here for a moment to comment very briefly on
the fact that this, as I remind the Court, refers to the provisions in
Articles 3 to 5, and these are set in a category which, again in Respon
dent's words, "placed certain limitations on the governmental powers
of the Mandatory". Article 5, the Court will recall, embodies the duty
to assure freedom of conscience. I think this point was brought up
yesterday in the context of the discussion, that it was difficult and
indeed it seemed to the Applicants really impossible to conceive of the
duty to promote freedom qf conscience as a specific implementation, so
to speak, in a sense different from the promotion of moral well-being. REPL Y OF MR. GROSS
But continuing with the Respondent's formulation, on page 386 of the
Counter-Memorial, Respondent goes on to say as follows:
"Beyond making such provisions for the 'safeguards' it was,.
however, in the nature of things impossible (or at any rate not
considered feasible) for the authors of the Mandate to reduce the
objective of promoting the well-being and development of the
inhabitants of the Territory to a series of specific injunctions or
prohibitions, breaches of which would be capable of objective·
detennination."
Parenthetically, again, this is offset in this context against Articles 3 to 5,.
which are ex hypothesi the approach of the Respondent, and are sus
ceptible, are capable, of objective determination. Continuing with the.
Respondent's statement of its rationale or philosophy:
''No comprehensive set of rules can be devised, the application
of which in the sphere of government would inevitably and in
infinity have a beneficial effect on the people governed. The authors.
of the Mandate consequently coupled the grant to the Mandatory
of full legislativend administrative powers with a provision which_
required the Mandatory to 'promote to the utmost the material and
moral well-being and the social progress of the inhabitants of the
territory'. These words in effect merely constitute a paraphrase of
the main objective of the Mandate system as expressed in the
Covenant,-i.e., 'the principle that the well-being and development
of such peoples form a sacred trust of civilisation'-and in their
context they consequently indicate the objective to be pursued by
the Mandatory, or the spirit with which he should be imbued, in
exercising his power of administration and legislation."
Parenthetically, again, Mr. President, the reference to "the spirit
with which he should be imbued" leads logically to the good faith test;
obviously it follows consequentially and derivatively from this philos-
ophy. No other consequence could follow from this approach than the
positing of a good faith test. Now continuing Respondent's analysis:
"Sorne significant differences between Article 2 (2)of the Mandate,.
on the one hand, and Articles 3 to 5, on the other, illustrate the
essentially different origin and purpose of these provisions. Thus
the wording of Article 2 (2) is wide and general, which is in keeping
with its nature as an expression of an idealistic objective. The·
'safeguards' contained in Articles 3 to 5, on the other hand, being·
·specific obligations, are couched in relatively clear and precise
language-they prohibit or enjoin particular acts or omissions and
provide objective criteria by which the l\Iandatory's administration
may be judged.
The general, overriding nature of Article 2 (2} as denoting the·
spirit in which, or the purpose for which, the Territory is to be
administered, appears also from its position in the Mandate instru
ment: it is not inserted in a separate article, or included with.
provisions limiting the Mandatory's powers (as is the case with.
Articles 3 to 5), but is found in the same article as the grant of 'full
power of administration and legislation' to the Mandatory." (Il,
p. 387.)
Parenthetically, again, Mr. President, this appears to derive a value-314 SOUTH WEST AFRICA
in interpretation, or an inference of logic or law, from the context in
which the fi.rstparagraph of Article 2appears in the mandate instrument.
This, of course, is a matter which has been discussed by the Applicants
in response to a question posed by Judge Sir Gerald Fitzmaurice. lt was
made clear at that time that the contextual arrangement, pursuant to
which the authors of the Mandate incorporated the first paragraph of
Article 2 in Article 2, is of no legal significance because it is imperative
logic, and indeed I think not disputed, that the powers of legislation and
administration conferred in terms of the first paragraph of Article 2
apply to Article 2, paragraph 2, and Articles 3, 4 and 5. Going back,
however, and completing the quotation from Respondent's analysis, or
theory, or philosophy of its case, we corne to the conclusion on page 387
of the Counter-Memorial, Il, in paragraph 9:
"Reading Article 2 as a whole and in the light of the provisions
of Article 22 of the Covenant, the intention of the authors of the
Mandate becomes quite clear. Save for Articles 3 to S, no limits in
respect of subject-matterwere placed on the ftùl power ofadministra
tion and legislation granted by the article; but the Mandatory was
nevertheless required to exercise these full powers for the purpose
of promoting to the utmost the material and moral well-being and
the social progress of the inhabitants of the Territory."
"For the purpose" refers, as the Applicants understand it, to the
Mandatory's purpose, not the purpose of the Mandate, objectively
determined, in a sense apart from the purpose of the Mandatory: not
the purpose or objective of the Mandator, the competent international
organs, but the good faith, the intent, the purpose of the Mandatory.
The Applicants will endeavour now to state why and on what basis
they disagree with the Respondent's view as there set forth. In the con
ception of the Applicants, as we have sought to make clear throughout
these proceedings and in the written pleadings, the content, the scope
and the nature of the legal obligation in terms of Article 2 is measurable,
and indeed governed by, objective criteria, and we believe those objective
criteria have been fixed in a clear and categorical manner of an unusually
explicit nature by the competent international organs; competent, that
is to say, in specific relationship to the exercise of the sacred trust which,
in the words of this Court in 1960, was "laid upon the League of Nations
as an organized international community". Those words have struck
the Applicants with great force and effect and are not, in our respectful
view, to be dismissed lightly, as the Respondent does in its pleadings (by
referring to the juxtaposition of the League as an organized community
and its Members) as importing the significance that the reference to the
League as an organized international community was merely intended
by the Court to distinguish it as an organizabon from its Members.
This is the way the Respondent appears to have interpreted that phrase.
Now, in the first place, the Applicants deny that Respondent posses
ses any discretion relevant to the obligations under the Mandate in the
face of a complaint, of a charge, of a qualitative violation of Article 2-
one which. in the submission of the Applicants, involves an inherently
impermissible course of conduct.
Secondly, international standards, because of the fiduciary setting of
the Mandate, are contended by the Applicants to govern both the inter
pretation and application of Article 2. As we shall endeavour to show, REPL Y OF MR. GROSS 315
brie.fly, there is no relevant distinction between interpretation and
application in respect of a constitutional-type document, if, indeed,
there is a distinction of that sort to be drawn in the case of a statute or
any other type of quasi legislative or institutional document or arrange
ment.
Thirdly, the Mandatory, as agent of the international community,
because it exercises its trust on behalf of the international community,
explicitly inexpressisverbis (that is its obligation and undertaking in the
Mandate) as agent of the international community, on whose behalf it
is acting, it is obliged to defer to international standards and is not
competent to decline to apply these standards because it, whether in
good faith or not, professes to or actually, subjectively speaking, in
terras of its officials, does regard them (such standards) to be inappro
priate in the light of its (Respondent's) appreciation of local conditions.
In particular, the Applicants contend that the organs of the United
Nations, the supervisory agency, if the Applicants' legal theory is
sustained-which is based upon that of the Court's holding in 1950 and,
in our submission, reaffirmed by necessary implication in 1962-the
organs of the United Nations, with such supervisory authority, have
competence to define the standards of well-being which provide authorita
tive criteria for the interpretation of Articl2. As a background for the
assessment of the competence of the international organs for which the
Applicants contend, several factors must be taken into account.
First, the authoritative characterizations and judgments expressed
by the competent organs of the international community have in this
situation, in respect of the Mandate, been expressed with an over
whelming consensus, approaching unanimity, one which must be rare in
the history of international organization.
Secondly, such characterizations and judgments, as I have said, have
been expressed with particular reference to the Territory itself under
mandate.
Thirdly, such characterization and judgments have included, more
recently, in mounting form, the judgment that Respondent's policies
in the territories constitute a threat to international peace and security.
This is to be found in the resolutions to which reference has been made in
the written pleadings.
Fourthly, Respondent has refused to co-operate with the international
community to conform its policy in any respect to the judgments there
expressed to submit reports or to open the mandated territory to normal
administrative supervision, and ail this refusal and denial, in the face
of, in the teeth of, the Advisory Opinion of 1950, which was immediately
and overwhelmingly accepted by the General Assembly, two interpre
tative Advisory Opinions, and the decision of this Court in 1962 which
is now sought to be re-opened-ait fond sought to be re-opened-even
to the extent of arguing that Article 7 is no longer in existence.
\Vhat, then, would the presumed intentions of the authors of the
mandates system have been, confronted with this series of historie,
le~al and factual realities? It would seem that the first thought in the
mmds of the authors of the Mandate would be a request to this honourable
Court to interpret the Mandate, whether as a treaty, or as an institution,
or as a combination of both, in the light of and on the basis of the judg
ments of the competent international organs; the authors of the Mandate
would have rejected Respondent's contention that such a plea, such an3r6 SOUTH WEST AFRICA
argument, constitute, in the Respondent's phrases "subsequent insertions
in the Mandate" or "amendments to the Mandate".
The intention of the authors of the Covenant and the founders of the
mandates system, in the Applicants' submission, would have nothing in
common with Respondent's contention such as the following:
"... this Court does not possess jurisdiction to detennine whether
Respondent has contravened objective principles of International
Law existing independently of the provisions of the Mandate".
(V, p. r40.)
Or, again in Respondent's contention, that there is likewise no jurisdiction
for the Court to determine that Respondent has violated the mandate
obligation, interpreted in the light of current nonns and standards, even
assuming they exist, which are expressed in and as a result of the United
Nations Charter, inasmuch as Article 7 of the Mandate, according to
Respondent's interpretation, and I quote from the same volume V,
page r32 of the Rejoinder, "Article 7 of the Mandate, which bestows
jurisdiction only in respect of disputes '... relating to the interpretation
or application of the provisions of the Mandate'," and, this, the Respon
dent says, excludes reference to, or acceptance of, the standards built,
inter alia,upon the United Nations Charter to which the Respondent is
a Member because the standards are not relevant to the interpretation,
or the application or the provisions of the Mandate, and hence do not
fall within the compromissory clause.
The detennination of presumed intentions of the authors of the Man
date can, perhaps, most convincingly be approached and appraised by
the authoritative technique of interpretation of the Mandate which has
already been applied by the Court, which, of course, is the normal,
traditional concept or canon of giving words their natural and ordinary
meaning. ln the language of the Court in the 1962 Judgment, of course,
this rule of interpretation is riot an absolute one. "Where such a method
of interpretation results in a meaning incompatible with the spirit,
purpose and context of the clause or instrument in which the words are
contained, no reliance can validly be placed upon it." That is at page 336
·Ofthe I.C.]. Reports I962.
In this case, it would seem that the normal and ordinary and natural
meaning of the words used in the Covenant-in paragraphs r and 2 of
Article 22,in the concept of the safeguards in paragraphs 6, 7 and 8 of
Article 22, in the words of the mandate instrument itself, in the language
of Articles 2 through 5, which constitute the core, of course, of the
sacred trust-would exclude a good faith test. But the spirit, the purpose
and the context of the instrument imperatively lead to the judgrnent that
these words mean what they say.
The Mandate, as has been held and which is now part of the juris
prudence of the Mandate itself, is a unique form of treaty or convention,
embodying a commitment to take account of the responsibility and the
judgrnent of the international community. It thus should be construed
m the light of the fact that,in the Court's words in 1962, at page 329,
it established "a regime of tutelage for each of such peopleto be exercised
by an advanced nation as a 'Mandatory' 'on behalf of the League of
Nations"'. That, of course, was the context also in which, on the same
page, this honourable Court said: "The rights of the Mandatory in
relation to the mandated territory and the inhabitants have their foun- REPLY OF MR, GROSS 317
_dation in the obligations of the Mandatory and they are, so to speak,
mere tools given to enable it to fulfil its obligations."
Is the Respondent to be heard to say that the purpose of the tool is
to be determined by its intention as to how the tool should be used?
"The fact is that each mandate constitutes a new international insti
tution", said the Court, "the primary overriding purpose of which is to
promote the well-being and development of the people of the territory
under mandate." These words, these findings of the Court, mark the
"spirit, purpose and context of the clause or instrument in which the
words are contained", as the Court said in 1962, and the "spirit, purpose
and context" is one of the highest standards of fiduciary responsibility
toward the inhabitants of the Territory, on the one hand, and toward
the organized international community, on the other. And the presumed
intentions of the authors of the Covenant and of the Mandate, must, it
seems to the Applicants, be read in this light. "The international regime"
was the way this Court has described the Mandate itself. The character
of such a regime must conform to the changing needs of international
life, as objectively determined, not as determined by the wishes, the
will, or the whim of administrators or governors, who may be in office
from time to time. This would be an intolerable standard for application
by the international community. It would be inconceivable.
The concept of moral well-being and social progress involves the
determination and the protection of intemationally determined criteria
and objectives. Each man's notion of moral well-being and of social
progress is a reflection of his own subjective attitudes toward life, toward
the role of the individual, toward the role of the group, and the relation
ship of both to the social order. How could an individual's state of mind,
or purpose or intent, be marked in any other manner than by his persona!
appreciation and evaluation of his own role toward the social order. The
very concepts of moral well-being and social progress demand and cry
out for objective determination on the part of the competent international
organs whose responsibility, rather than whose right, is fixed by the
mandate itself and this is why the Applicants have respectfully submitted,
and continue to submit, that it is unrealistic, indeed it is a fictitious
distinction sought to be dra\vn between the interpretation of the Mandate
and Covenant, on the one hand, and its application, on the other. The
founding fathers of the mandates scheme, the Respondent itself as
mandatory in undertaking the obligation, must conclusively be presumed
to have undertaken the obligation of a content, scope and nature which
the Applicants contend for. This is not a matter of application as
distinguished from interpretation, it is a matter of interpretation and
application, and the two are inseparable in any system which recognizes
constitutional principles and that, indeed, of course, means every system,
every civilized system.
In addition to the discussion in the Reply, centering on the phrase
"promote to the utmost" in Article 2, paragraph 2, of the Mandate
(Reply, IV, p. 512), the Applicants submit that the phrase "social
progress" embodies two discrete elements: the word "social" and the
word "progress" are discrete. The word "social" implies that the concept
at issue centres upon social values and societal relationships. They are
by definition fluid and not static since society itself, by definition and
by all human experience, evolves and changes constantly. "Progress".
by its terms, is nota constant but a variable, and predicates the natural SOUTH WEST AFRICA
processes of dynamic change in both national and international society.
Applicants refer also to their analysis and discussion of the concept
of evolving standards, as set out in their Reply at IV, pages 512-518,
and the record will not be burdened with a quotation of that discussion.
One sentence, or two sentences, may be useful, in this connection.
At page 512 of the Reply, IV, the Applicants submit:
"Discharge of the obligation to promote well-being and social
progress necessarily involves continuons, dynamic and ascending
growth. The requirement that utmost efforts be directed toward that
end, adds both urgency and dimension to the undertaking. The
proposition, implied by Respondent, that its obligation is to be
measured by its so-called 'intentions' as of 1920 is manifestly
incompatible with, and repugnant to, the essence and purpose of the
obligation itself."
The mandate instrument must, as I say, be interpreted in accordance
with the intentions of the Parties in 1920 but it must be interpreted thus
in the light of its nature, spirit and purpose. When Respondent undertook
in 1920 the obligation to "promote to the utmost" the well-being and
"the social progress" of the inhabitants of the Territory of South West
Africa, Respondent thereby undertook an obligation to apply evolving
and developing standards in the light of modem conceptions and knowl
edge with regard to the well-being and development of dependent peoples,
as appreciated by the international organs vested with the duty of
supervision as a sa/eguard to effectuate the purposes of the sacred trust.
The stress, Mr. President, is on the word "safeguard"-that is embodied
and embedded in the Covenant itself. And, of course, the obligation
undertaken by the Mandatory in 1920 must be interpreted as one which
included the obligation to comply with rules of international law govern
ing the well-being and progress of all peoples under its jurisdiction in
the Mandate.
This is but to interpret the mandate instrument in accordance with
the intentions of the Parties at the time when the obligations were
conferred and accepted. This perspective toward the obligations embodied
in Article 2, paragraph 2, of the Mandate is re-inforced by reference to
Article 2, paragraph 1, of the Covenant, to which constant reference
has been made by the Applicants in view of the fact that the Mandate
is, of course, a mere measure, or method, of implementation of Article 22
of the Covenant. Article 22, paragraph 1,of the Covenant, as the Court
will be well aware, speaks of applying "the principle of well-being and
development" to "peoples not yet able to stand by themselves under
the strenuous conditions of the modem world". This is described as a
principle.
This fondamental Covenant provision implies a dynamic environment
of international supervision; one that evolves with the contemplated
progress of the inhabitants. The objective is under a sacred trust for
which the Mandatory is given tools to enable it to carry on its obligations,
not rights, but tools to carry on its obligations, the purpose of which is
to make it possible for peoples not yet able to stand by themselves
under the strenuous conditions of the modern world to meet the con
ditions of the modern world, and "the modern world" means what the
phrase says-it means the w 1rld as it progresses, as it becomes more
mtegrated. As possibilities for the individuals mature, flower and open REPLY OF MR. GROSS
up, the restriction, the confinement of the individual person to a group
categorization is a directly relevant consideration as to whether or not
he is hein$' developed to meet the strenuous conditions of the modern
world-this is a challenge of utmost proportion to any government,
certainly with respect to its own citizens, but with respect to a sacred
trust and an international accountability it is an awesome burden. For
such an injunction to become more than a pious wish, I refer to the
quotation I have read from the Reply. In respect of the unfettered
discretion, for which Respondent contends, it is imperative that inter
national supervision is able to translate itself into obligations of the
Mandate by means of the standards formally set forth by the competent
international organ, and the capacity of the competent international
organs to do so, under the scheme of the Mandate, rests in this Court's
hands.
If Article 2, paragraph 2, bas any meaning at ail, therefore, it pre
supposes the application of evolving and dynamic standards as well as
international rules of law governing the welfare of the inhabitants of the
mandated territories, not as limited or conditioned by the intentions of
the wielder of the tools of the trust but as objectively determined by the
community upon which the trust was laid. Respondent has strenuously
resisted the Applicants' submissions in this regard, by stating both in the
written pleadings and in the Oral Proceedings, as follows: I take as an
example the Rejoinder, V, page I40, which was cited during the course
of the Oral Proceedings of 24 March, VIII, pages 260-261 :
"The only basis upon which interpretation of the relevant texts
could produce a result whereby current norms govern the content
of the Mandate, would be if Article 2 was ab initio subject to some
qualification such as:
'The Mandatory shall, when exercising its full power of adminis
tration and legislation, give effect to such standards or norrns as may
at the time of such exercise be generally applied by other States'.''
Except for the last clause which refers to "applied by other States",
and evades the basic point of the competency of the international organs
charged with supervision, this is precisely what the Applicants contend;
in essence, that Article 2,paragraph 2, must be interpreted and read as
ifit did explicitly state ab initio and include the qualification that "The
Mandatory shall ... give effect to such standards or norrns as may at
the time of such exercise be generally applied by other States"-! would
substitute for "other States" "the competent international organs".
As Applicants have already pointed out in these proceedings, the
international norrn and standards of non-discrimination and non-sepa
ration for which they contend have been universally accepted and
pronounced by members of the competent organs, reflected in judgments,
resolution~ and decisions by those organs; and members other than
Respondent itself. Under these circumstances and in the light of the
specificity of these judgments embodied in such resolutions and other
instruments, it is not plausible or credible for Respondent to argue that
such an obligation can be said to be of uncertain content-if there is
one thing certain in this regard it is the content of the obligation. The
difficulties of application are precisely why South West Africa is a
mandated territory subject to a sacred trust and subject to international
supervision; it is the very complexity of the task which creates the320 SOUTH WEST AFRICA
main purpose, the main objective and the main burden of the trust. In
so far as interminable dispute (the phrase used by Respondent) is
concerned, there would be no dispute at ail, and there would be no
controversy of law submitted to this Court at this moment had Respon
dent complied, and was now in compliance with, its obligations of
accountability. The legal dispute in the cases at bar has resulted in large
measure because of, and in the light of, Respondent's refusal to comply
with the international standards of non-separation and non-discrimination
and its failure and refusai to co-operate and to consult with the com
petent international organsin the development of their judgments.
It is not only from the expressed terms of the Mandate that Applicants
derive the Respondent's duties to conform to modern standards, as
'objectively determined, in promotin~ to the utmost the well-being and
social progress of the inhabitants; it 1salso because of the quality of the
Mandate as a constitutional type document, which it has been described
as being by scholars who have been cited in the pleadings and by the
Permanent Mandates Commission itself in references also cited in the
Applicants' pleadings. Applicants refer in this respect to a discussion in
the Reply, IV, at pages 513-516.
Throughout this discussion, l\fr.President, it seems important to
emphasize again that what is at stake here is the relative competence
of the Respondent and of the organized international community to
establish the authoritative content of the concept of moral well-being
and social progress. Respondent contends that its discretion, constrained
by its obligation to pursue authorized purposes as it views and interprets
them in good faith, is the means by which to test its compliance with
Article 2,paragraph 2,whereas the Applicants contend that Respondent's
discretion is additionally constrained by international standards gen
erated by the competent international organs. For if, as the Court said
in its 1962 Judgment, at page 329, the mandates system involves, inter
fdia, "the recognition of a sacred trust of civilization laid upon the
League as an organized international community", then it necessarily
follows that that community requires the competence and possesses the
responsibility for specifying the dynamic content of well-being and moral
and social progress by the establishment of authoritative standards
how else could it carry out its competence? How else could it discharge
its trust? If Respondent as Mandatory, rather than the organized inter
national comrnunity upon which the trust was laid, has priority, ifthe
intention of the Mandatory is paramount in standard evolving and
standard setting, then the original, animating concept of the sacred
trust, as laid upon the international conununity, is nullifi.ed. This dis
cussion, therefore, is intended to fortify and confirm the Applicants'
basic contention that the organized international community, rather
than the Respondent, possesses the competence and the responsibility
to determine the content of the obligation in the 1ight of its IJ.ature and
purpose and where the organized international community, through the
competent organs, has set such standards in categorical, imperative and
unusually clear terms, they take precedence over incompatible exercises
of discretion by the Mandatory as a matter of law.
The approach of the Applicants with respect to the judicial process
and its role in the interpretation and application of constitutional-type
charters or ordinances is well summarized in the writin.g of the late Judge
Benjamin Cardozo, of the United States, who I tlùnk 1sregarded as one REPL Y OF MR. GROSS 321
of the great scholars and jurists produced in that country, and it bears
with particular emphasis upon the purported distinctions sought to be
drawn between interpretation and application, which is a purported
distinction which in all candour has baffled the Applicants in their
attempt to analyse it to a legal or constitutional type significance. The
phrases which 1 take the liberty of quoting are from Cardozo's The
Nature of theJudicial Process, published in 1921, and I cite pages 82-85-
the late Judge Cardozo wrote:
"... the content of constitutional immunities is not constant, but
varies from age to age. We must never forget, in l\Iarshall's mighty
phrase, that it is a constitution we are expounding. Statutes are
designed to meet the fugitive exigencies of the hour. Amendment
is easy as the exigencies change. In such cases, the meaning, once
construed, tends Jegitimately to stereotype itself in the form first
cast. A constitution states or ought to state not rules for the passing
hour, but principles for an expanding future. In so far as it deviates
from that standard, and descends into details and particulars, it
loses its flexibility, the scope of interpretatcontracts, the meaning
hardens.
The President of the highest French Court, M. Ballot-Beaupré,
explained, a few years ago, that the provisions of the Napoleonic
legislation had been adopted to modern conditions by a judicial
interpretation in 'le sens évolutif'. 'We do not inquire', he said,
'what the legislator willed a century ago, but what he would have
willed if he had known what our present conditions would be'."
Judge Cardozo cites Munroe Smith, Jurisprudence, pages 29 and 30 and
goes on-
"It follows from all this, said Judge Kohler, that the interpretation
of the Statute must by no means of necessity remain the same for
ever. To speak of an exclusively correct interpretation, one which
would be the truc meaning of the Statute from the beginning to
the end of its day, is altogether erronous." (Kohler, "Interpretation
of Law", as translated in Modern Legat Philosophy Series, p. 192).
If this is true with respect to constitutions generally, it is all summed
up in the historie phrase "It is a constitution we are expounding"; the
word "expounding" means and it comprehends interpretation and appli
cation. The instrument is applied as it is interpreted, and as it is re-inter
preted in constitutional systems throughout the years of its life. But if
we start from this premise it seems incredible, on its face, to assume at
the same time a right or capacity or competence on the part of the
Mandatory, bound by the constitution, itself to interpret or re-interpret
it on the one hand, or itself to determine its scope, content and manner
of its application on the other.
To the extent that this would be permissible at al!, it would constitute
a form of annexation; indeed one would say it would constitute the
essence of annexation. If the only test applicable were that certified
by the Respondent, it would be the test of what one might call, "the
outrageons test of the objective Mandatory". Its intention would be
examined and its good faith evaluated in terms of the purpose, and the
factual state of mind of the officiais from time to time of its government.
The distinction sought to be drawn by the Respondent between inter-322 SOUTH WEST AFRICA
pretation and application therefore, if it has any meaning at all, is one
which is corrosive of the very purposes and nature of the instrument.
It is not only on the one hand formalistic and unreal, it is a constitu·
tion we are expounding; it is the clearest imaginable case of killing the
spirit by the letter, and the letter is a false one.
In the first place, the contention is based upon and proceeds from the
proposition that Article 2, paragraph 2, which is the core and essence
of the sacred trust, merely states and sets forth an ultimate aim or an
exhortation, in the words of the Respondent which I have read, an
indication, a signpost, a marking, of the spirit with which it should be
imbued. Indeed it does that, but that is where it starts. In the Applicants'
view it starts there. ln the Respondent's view, it ends there.
This construction of the intent of the authors of the system as to the
meaning of the trust obligation, not only enables, but requires, by a
logical imperative that the Respondent oscillate between its own purposes
and the Mandate purposes. As I have said before, it construes the position
which leads to a construction of Mandate purposes in terms of the
Mandatory's purposes. The purposes of the Mandate become what the
Mandatory says they are, subject only to the outrageous mandatory
test. This is true, however, only with regard to Article 2, paragraph 2,
in the Rcspondent's submission. This happens to be the essence and core
of the trust. But, with respect to Articles 3 to 5, including the duty to
assure freedom of conscience, Respondent concedes in its own terms,
indeed contends, that these Articles have sufficient specifi.city not only
to be justiciable, but to be governed by objective criteria. Respondent's
argument cornes to this: the more closely the Court approaches the
heart of the trust, the less competence it has to protect the essence of
the trust; the more closely one approaches the heart of the Mandate,
which is Article 2, paragraph 2, and the more vitally concerned the
competent international organs become in the protection of that trust,
the less applicable are their judgments. This is the inescapable logic of
the Respondent's position.
This is not what the Court could have meant by describing international
supervision as the very essence of the Mandate. Is the essence of the
Mandate to be found in the competence of the Court to supervise the
sale of liquor totheNatives, as distinguished from the promotion of the
moral well-being and social progress of the inhabitants of the territory?
ln summary then, whether one interprets the mandate agreement in
accordance with the intentions of the parties at the time when the
agreement was entered into, or whether the Mandate is interpreted
and/or applied in accordance with contemporary standards, the result
is identical. Respondent's obligations under Article 2, paragraph 2, are
to apply and to carry out the recognized and accepted minimum inter
national standards of non-discrimination and non-separation, which in
the Applicants' respectful view have been so dearly and emphatically
established and with such overwhelming approximation to unanimity,
that they have achieved the legal status and quality of an international
legal norm.
The Mandate brought into being an international regime, the character
of which is responsive to and determined by the evolution of international
life, as international life and its requirements are understood by the
competcnt organs, upon whom the trust was laid.
Jt is sufficient for the purposes of these cases at bar, that the standard REPLY OF MR. GROSS 323
in question be clearly expressed by the competent organs; that the
standards, in other words, need not have achieved the status and quality
of an international legal norm; that is not necessary for the Applicants'
purposes in these proceedings. But whether one accepts, as the Appli
cants call it, the existence of an international legal norm, or whether
the Court should merely hold that the international standards govem
the interpretation and application of the Mandate, the foregoing con
siderations would be relevant in either event.
Ali efforts to persuade the Mandatory to conform to the judgments
of the competent organs, whether expressed as standards or as a legal
norm have failed. Al1 efforts to persuade the l\Iandatory even to conform
with its duty of international accountability have failed. The violation
of the standards in question by Rcspondent is so plain that they may
be found to exist on a per se basis, i.e., simply as a matter and on the
basis of the terms and provisions of the laws and regulations and the
official measures and methods by which they are put into effect, the
existence of ail of which is conceded by Respondent, and a summary
of which has been marshalled, collated and presented to the Court in
the record of these proceedings, for the convenience of the Court and
the purposes of the record itself.
There are further reasons, based upon the jurisprudence of the Mandate
as determined by tlùs Court during a period of 15 years, why the judgment
of the international community should be applied conclusively to the
determination of this dispute.
Such considerations of, what l have called them, the jurisprudence
of the Mandate, are to be found in excerpts from relevant decisions,
judgments and opinions of this honourable Court which also have been
marshalled, collated and, for the convenience of the Court, set into the
record of thesc proceedings at a stage then deemed convenient. It will
not, thercfore, be necessary or appropriate for the Applicants to refer
again at this point to that collation of relevant materials establishing
the jurisprudence of the Mandate; it suffi.cesto cite the 1962 Judgment,
at page 331, in wlùch the Court characterized the l\fandate "as a special
type of instrument composite in nature and instituting a novel inter
national regime".
In the course of the same discussion the Court pointed out, and I
stress these words, "the essentiality of judicial protection for the sacred
trust"-that is at page 337 of the Judgment. The essentiality of judicial
protection for the sacred trust. It is the sacred trust which is embodied
and embedded in Article 2 (2)of the Mandate, notArticles 3-5 which the
Court has characterized as marking the essentiality of judicial super
vision forthe sacred trust.
The Court went on to refer to "the rights of member States" under
the Mandate. indicating that under the unanimity rule of the Covenant
"the Council could not impose its own view on the Mandatory", and the
Court then stated, and I am quoting from page 337 of the I.C.J.Reports
r962:
"The only effective recourse for protection of the sacred trust
would be for a Member or Members of the League to invoke Article 7
and bring the dispute as also one bctween them and the l\fandatory
to the Permanent Court for adjudication."
Again, the reference to the protection of the sacred trust and the explicit SOUTH WEST AFRICA
holding of the Court, the explicit finding of the Court, that it was for the
protection of the sacred trust that Members of the League of Nations
were given the right of recourse to this honourable Court.
Under the first alternative contention of the Respondent in the face
of this holding, Respondent argues that Article 2 (2),the essence of the
sacred trust, is not justiciable. The Court's finding thus confirms the
contention of the Applicants that Article 7 of the Mandate includes
protection of the sacred trust provision and, as if to put the matter
beyond the peradventure of possible doubt, at page 337 of the 1962
Judgment, the Court, proceeding from the quotation I have just cited
concerning the only effective recourse for protection of the sacred trust,
stated:
"It was for this ail-important purpose that the provision was
couched in broad terms embracing 'any dispute whatever ... be
tween the .Mandatory and another Member of the League of Nations
relating to the interpretation or the application of the provisions of
the Mandate ... if it cannot be settled by negotiation'. lt is thus
seen what an essential part Article 7 was intended to play as one
of the securities in the Mandates System for the observance of the
obligations by the Mandatory." (/.C.J. Reports I962, p. 337.)
And the obligations specifically refer and include the sacred trust.
The Court went on to conclude:
"While Article 6 of the Mandate under consideration provides
for administrative supervision by the League, Article 7 in effect
provides, with the express agreement of the Mandatory, for judicial
protection by the Permanent Court by vesting the right of invoking
the compulsory jurisdiction against the Mandatory for the same
purpose in each of the other Members of the League. Protection
of the material intcrests of the Members or their nationals is of
course included within its compass, but the well-being and develop
ment of the inhabitants of the Mandated territorv are not less
important." (Ibid., p. 344.) ,
The mandate jurisprudence as determined by the Court in 1962
establishes that the sacred trust (Article 2 (2) of which represents and
embodies the heart and the essence, the primary and, indeed, essential
purpose)-protection of the sacred trust is the essential purpose-for
which the Court was empowered or endowed with the obligation-the
right-to afford judicial protection to the Mandate in the case of alleged
abuse or breaches thereof.
The compromissory clause thus has been established by and, indeed,
demonstrated by the Court as underlying the very purpose and nature
of the Mandate. The compromissory clause was, of course, in issue in the
1962 proceedings, and has been asserted, defmed, and, indeed, elaborated
in this respect by this honourable Court as showing the necessities, the
perceived necessities, on the part of the authors of the mandates system
for extending the judicial protection itself to the sacred trust. The
antecedent history in the United Nations of the relationship between
the Parties herein and the relationship between the United Nations on
the one hand, and the Respondent on the other, is set forth at length in
the Memorials at 1, pages 54-87, and in the Reply, IV, at pages 222-230.
This is under the heading of the history of the dispute, but the Court's
attention is respectfully drawn toit at this point, at this stage, because REPL Y OF MR. GROSS
it is, of course, a history pregnant with significance in these proceedings;
it is a history marked by repeated and there cited judgments of the
competent organs, as well as a history of the endeavours to reconcile the
issues in dispute, to find a settlement through negotiation, and these
have been conducted by the Applicants in and through the agency of
the United Nations itself. The Applicants stand before the Court fully
aware of the fact that they speak for no-one but themselves, but it 1s
perhaps relevant to point out that, both in the 1962 majority opinion
and in other opinions appended thereto, note was taken, particularly in
connection with the preliminary objections regarding the nature of the
dispute, of the identity of the issues in dispute-on the one hand between
the Applicants and the Respondent, and on the other hand between the
United Nations and the Respondent. ·
The United Nations, as the records set forth in the written pleadings
show, has been wholly unable to "impose its own viewon the Mandatory".
(I.C.J. Reports r962, p. 337.) This was with specific reference to the
situation prevailing at the tune of the League of Nations when the veto
rule was applicable in the Council, and the Court took note of that fact
in arriving at its determination regarding the nature, scope and essen
tiality of the judicial protection.
Here, likew1se,notas a result of any constitutional veto, as in the case
ofthe League, but on the grounds, so to speak, of action and of conduct,
the Respondent, by withholding its co-operation and its consent to
international supervision has, in the sense, cast a veto over the operation
of the United Nations no less effective than that which it might have
cast constitutionally in respect of a similar exercise of supervisory capa
city on the part of the League of Nations.
What has happened to "the machinery of administrative supervision''
(again I quote from the apposite language of the Court in 1960) is, of
course, not really that it has disappeared legally, as Respondent contends,
but that Respondent has refused over the years, and even since 1950, to
submit to international administrative supervision.
With these factors in mind, the Applicants reassert in this context
the inter-relationship between administrative supervision and judicial
protection, and more specifically and in this context the judicial role in
applying the standards and judgments evolved by the competent admin
istrative organ to which the Mandatory is accountable and upon which
the sacred trust is laid.
Mr. President, I will now conclude the discussion of the introductory
nature upon which I have been embarked this moming and then, with
the Court's permission, turn to an elaboration of the processes by which
the relevant standards have evolved, and of the content and form which
they have been given. This is the scheme of what will remain of this
morning's Oral Proceedings; this, of course, is all in the context of the
response to the series of questions propounded by Judge Sir Gerald
Fitzmaurice, as well as the reply of the Applicants to the rebuttal on
the issues of law, with which now of course the Applicants have combined
such factual material as it is their intention as presently advised to
present to this honourable Court.
The considerations which have been adduced during the course of the
discussion just concluded, ail taken together, point to the perse violation
of the international standards and the a fortiori violation in terms of the
international legal norm for which the Applicants contend .of the same SOUTH WEST AFRICA
obligations under Article 2 of the Mandate. The considerations may very
bricfly be summarizcd as follows: the intcrrelationship bctwcen the
sacred trust provisions of the Mandate and of the Covenant, and judicial
protection, scope and purpose of judicial protection; the nature, the
scopc and the content of the international standards which have evolved
through the processes of the organized international community, the
competent organs of which have not only the right but the duty to
supervise the Mandate and provide the safeguards for the effectuation
of the sacred trust; the overwhelming consensus approaching unanimity
which has marked the formulation of the relevant standards by the
competent organs; the general and basic obligations of the Mandatory
toward the organized community as a function of its special duty toward
the inhabitants of the Territory, and its special duties with regard to
co-operating with international supervision, submitting to such super
vision and complying with supervisory measures and judgments thus
formulated by the competent organs; the fact that Respondent has
failed and refused to act in accordance with the principles enunciated
by this honourable Court in the 1950 Opinion and subsequent juclgments,
and has failed to co-operatc in submitting to international supervision,
which in itself is a fact lending weight tothe authority of the judgments
rcached by the organized international community which consist of
minimum pronouncements on the Mandatory's duties in the respects
relevant to this discussion; that such standards have been evolvecl with
great effort and caution, despite the Respondent's failure to co-operate
and consult and provide information. The failure and refusai to provide
information, to consult and to co-operate cannot be asserted as a source
of questioning of the judgments which have cvolved; in the face of such
failure to co-operate Respondent cannot be heard to challenge the
validity of judgments reachcd with patience, with effort and with undcr
standing, in the face of its continuecl refusai and failure to co-opcrate in
the evolution of such standards in accordance with the clear spirit of
intent of the Mandate-this is indeed having it both ways; the fact,
added to the others I have just rnentioned, that there is a structural
and functional interrelationship between administrative supervision on
the one hand and judicial protection on the other; that the applica
bility of criteria in the judicial form necessarily depends upon and
presupposes their formulation in the administrative organ; that this
Court, and no court, by reason of the very nature of the judicial process,
has the facilities or the responsibilities to reach judgments, to forrnulate
standards, of the sort which are uniquely within the competence of
administrative organs and which reflect political and moral and social
considerations of which they are specially competent to judge and
evaluate.
Another consideration to be added to these is the fact that the GeneraJ
Assembly is legally bound, not merely permitted, to formulate criteria
with respect to the conduct of the administration of the Territory.
Ail of these factors, in the Applicants' respectful submission, create
ovenvhelming, indeed rnuch more than persuasive, grounds for con
clusive application of the international standard of non-discrimination
and non-separation in the determination of whether there has been, as
the Applicants contend, a perse violation by Respondent of Article 2of
the Mandate and Article 22 of the Covenant.
The Applicants now, Mr. President, turn to an elaboration of the REPLY OF MR. GROSS 327
processes by which the relevant standards have evolved, and of the
content and form which they have been given, and this, as I have said,
is in response to the questions propounded by Judge Sir Gerald Fitz
maurice. At the conclusion of the comments which are to follow in this
respect and related respects the Applicants will cndeavour to summa
rize in more specific terms responses to each of the separate questions,
of the sevcral questions, propounded in the series of Judge Sir Gerald
Fitzmaurice in respects which will not have been covered in the more
general discussion which is designed likewise to relate to and bear upon
the very important series of questions propounded by the learned judge.
The standards by which Respondent's obligations should be measured
are the authoritative judgments which have evolved principally within
the context of the United Nations Charter on the one hand and the
Constitution of the International Labour Organisation on the other, of
both of which organizations the Respondent has been a l\Iember. The
precise legal relationship between the Charter, or the constitutional
provisions and the interpretation thercof by the Member States, the
signatory States, will be considered at a somewhat slightly later stage,
that is, tomorrow (when the Applicants hope to conclude) when Appli
cants tum to the question of the evolution of the legal norm of non-dis
crimination or non-separation. The existence and validity of the inter
national standards emanating from the United Nations Charter and its
interpretation and application to the Mandate are not open to argument.
At pages 104 through 108 of the Memorials (I) Applicants have set out
textually provisions of Articles 73 and 76 of the United Nations Charter.
The Applicants there cite the text of the League of Nations resolution
of rS April 1946 which noted, inter alia-
"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"-
that is quoted at page 106 of the Memorials (1); and, on the same page,
the Applicants submitted-
"that Chapters XI, XII, and XIII of the United Nations Charter
are in pari materia with Article 2 of the Mandate and Article 22 of
the Covenant, and, therefore, that the terms of the Charter may be
employed in construing Article 2 of the Mandate and Article 22 of
the Covenant".
At page ro7 of the Memorials the Applicants have set out, inter alia,
the provisions of Article 76 (c) of the Charter which, as the Court will
be aware, provides that one of the "basic objectives of the trusteeship
system" is "to encourage respect for human rights and for fondamental
freedoms for all without distinction as to race ... ".
Similarly, in the Reply, IV, pages 497 and 498, the Applicants have
set out the provisions of the preamble to the United Nations Charter
which state that one of the goals of the Organization is "to reaffirm
faith in fondamental human rights, in the dignity and worth of the
human persan, in the equal rights of men and women and of nations
large and small", together with the provisions of Article r, paragraph 3,
Article 13 (b), Article 55 (c), Article 56, and Article 62, paragraph 2,
of the Charter and, as the Court will equally be aware, the Charter is
studded with references to purposes and principles, down through the
main body of the Charter itself, and to the rights of persons. Examples SOUTH WEST AFRICA
thereof, as I have said-and thisïs cited in the Memorials-include the
terms of Article r, paragraph 3, providing that among the purposes and
principles of the United Nations shall be that of "promoting and encour
aging respect for human rights and for fondamental freedoms for ail
without distinction as to race, sex, language or religion".
Article 13 {b) of the Charter authorizes the General Assembly to
initiate studies and to make recommendations for the purpose of "assist
ing in the realization of human rights and fondamental freedoms for
ail without distinction as to race, sex, language or religion".
Likewise, Article 55 (c) of the Charter states that the Organization
shall promote "universal respect for and observance of human rights
and fondamental freedoms for all without distinction as to race, sex,
language or religion".
Following these references in the Reply the Applicants stated that:
"Ali of these provisions taken together make manifest the concem
of the international community for the protection of basic human
rights; the most fondamental norm-non-discrimination-is re
peated no less than four times. Thus, even though the Charter does
not make explicit the human rights and fondamental freedoms of
which it speaks, it does make clear that, irrespective of the right in
question, a fondamental norm lies at its base: official non-discrimi
nation on the basis of membership in a group or race." (IV, p. 498.)
The Rule of the Court in relation to the effectuation of the purposes
and principlcs of the Charter of the United Nations is of course pre
scribed in the Charter itself as fol!ows:
"Article 92. The International Court of Justice shall be the
principal judicial organ of the United Nations. It shall fonction in
accordance with the annexed statute, which is based upon the
statute of the Permanent Court of International Justice and forms
an integral part of.the present Charter."
Article r of the Statute of the Court, of course, provides that:
"The International Court of Justice established by the Charter
of the United Nations as the principal judicial organ of the United
Nations shall be constituted and shall fonction in accordance with
the provisions of the present statute."
The purposes and principles of the United Nations, inthe Applicants'
respectful submission, apply both to the member States and to all the
organs of the United Nations.
The third purpose of the Organization, as rendered in Article r,
paragraph 3, of the Charter, is:
"To achieve international co-operation in solving international
problems of an economic, social, cultural or humanitarian character,
and in promoting and encouraging respect for human rights and
for fondamental freedoms for al] without distinction as to race, sex,
language, or religion."
This is embedded in the purposes of the Organization itself, not merely
a substantive obligation, but a stated purpose.
ln the exercise of its judicial function in determining Respondent's
obligations under the Mandate, the Applicants respectfolly submit that
the Court should give full weight to the foregoing purpose of the Orga
nization which has just been quoted. When a question in dispute before REPL Y OF MR, GROSS 329
the Court involves issues directly related to "human rights and funda
mental freedoms", it is submitted that such issues should be determined
by this Court in a manner consistent with that purpose which underlies
the very existence of the Organization itself, with respect to such human
rights and freedoms, that there should be "no distinction as to race"
among other categories.
Likewise, this honourable Court, as an organ of the United Nations,
is required to "promote universal respect for and observance of human
rights and fondamental freedoms for all without distinction as to race,
sex, Ianguage or religion"-in the words of Article 55 (c) of the Charter
as a substantive obligation of the Charter, not only as a purpose, but
as a substantive obligation embodied in the Charter itself. The Court,
as the judicial organ, can only implement such a purpose and such a
substantive obligation in connection with the performance of its judicial
fonctions, to wit, the determination of disputes whlch involve questions
of human rights and freedoms for all. The Court can only perform such
a judicial fonction by giving full application to the purposes and the
substantive obligations of the Charter in the context of a dispute which
involves alleged gross violations of obligations inherent in those Charter
purposes and in those Charter provisions.
The Statute of the Court is, of course, as has been said, an integraJ
part of the United Nations Charter, by its terms. The dispute now before
the Court involves the application of international standards of non-dis
crimination and non-separation on account of membership in a race or
group and, inasmuch as the Charter of the United Nations itself pro
scribes such discrimination and posits elimination thereof as a stated
purpose of the Organization (Art. 1) as well as a duty of the Organization
(Art. 55),it must follow in the Applicants' submission that the standards
of interpretation and application to be applied by the Court to the
international institution of the mandate must not only be consistent
with such purposes and duties but must further reflect and embody all
othcr provisions of the United Nations Charter in their formulation and
detcrmination.
Respondcnt's objections to the relevance or applicability of the United
Nations Charter must be evaluated in the light of these considerations.
The objections of the Respondent indude, but go beyond, the legal
question or bounds of the doctrine of pari materia upon which, as con
firmatory evidence ofconstructional interpretation, the Applicants relied
in the Memorials.
The Respondent's objections to the relevance or the applicability of
the United Nations Charter, as understood by the Applicants, take
essentially two forms. The first is that the Mandate may not be inter
preted, in accordance with the intentions of its authors, by reference to
a convention or charter drawn up 25 years later. This. in Respondent's
contention, does away with the Applicants' references, or reliance upon,
pari materia. I cite the Counter-Memorial, Il, pages 395 to 396 in this
regard.
The explicit reference which has been mentioned in the r8 April 1946
resolution of the League of Nations to Chapters XI, XII and XIII of
the Charter, is in itself a clear indication of the relevance to and appli
cability of Charter provisions to the mandates scheme. Respondent
itself is not only a party to the Charter of the United Nations, but
supported and voted for the resolution of 18 April 1946, which on its SOUTH WEST AFRICA
330
face establishes the relevance of the provisions of the Charter to the
mandates system.
Closely related to the first argument of Respondent, just mentioned,
is a correlative or subsidiary argument to the effect that Article 7,
paragraph 2,the compromissory clause, would not give this honourable
Court competence or jurisdiction to consider Charter violations in these
proceedings. I refer to the Rejoinder, V, page 132. Of course, as is made
explicitiy clear in the writtcn proceedings, the Applicants do not request
this honourable Court to make findings or holdings that Respondent is
in violation of the Charter provisions. \Ve are talking about the relevance
of the Charter provisions to the interpretation of its obligations under
the Mandate and under Article 22 of the Covenant, two entirely different
things. An interpretation of the Mandate must take due cognizance of
relevant provisions of the United Nations Charter; so relevant indeed
that they were referred to in expressis verbis in the very final resolution
of the League of Nations pertaining to the subject of mandates.
Whcn the issue complained of, moreoever, involves principles and
purposes treated in the Charter, upon which the United Nations and its
member States frequently have expounded, it seems clear that such
treatment and exposition, moreover in the form of minimum standards,
pronounced by the overwhelming consensus of the community, that all
these factors taken together cumulate and render imperative, in the
Applicants' submission, the conclusion that the Charter provisions and
purposes are indeed relevant to a determination of the legal scope and
significance of the Mandate, which is an international institution regu
lated by international rules and supervised and safeguarded by an inter
national community.
Respondent's second argument, as understood by the Applicants,
with respect to United Nations criteria and their asserted irrelevance
to these proceedings, is again twofold. First, it appears to be argued that
the standards contended for by the Applicants do not emerge from the
Charter at all. This is the way we understand the Rejoinder, V, page 131,
to which the Court's attention is drawn bccause it is, of course, unneces
sary for the Applicants to attempt to re-formulate Respondent's con
tentions, but it is necessary to express the Applicants' understanding
ofwhat they mean in order to try to respond to them. But this is what
we understand that Respondent mcans: that the standards contended
for by the Applicants do not emerge from the Charter at ail.
ln this context, if this is the proper interpretation, Respondent has
misconstrued the standards contended for by the Applicants and has
ignored the Applicants' major premise, which is nothing more or less
than that the policy complained of is contrnry to Article 2, paragraph 2,
of the Mandate and Article 22 of the Covenant, and that it is based upon
the allotment of burdens and privileges by official action on the basis of
membership in a group, class or race rather than on the basis of indi
vidual merit, quality or capacity.
The misconception implicit in Respondent's representation of the
norm of non-separation as one of, in its phrase, "non-differentiation",
has been the subject of extensive discussion in these Oral Proceedings.
The verbatim record of 28 April 1965, at pages 44 to 46, supra, and that
of 3 May 1965, at pages 85 to 89, supra, deal with the misconception of
Respondent that seems to be built upon its re-statement of the norm
of non-discrimination in the form and terms of non-differentiation, from REPLY OF MR. GROSS 331
which misconstruction it apparently has been lead to certain absurdities,
in the Applicants' view, for example with respect to the significance of
the Applicants' reference to the minorities treatics, and the significance
of the minorities treaties in these proceedings.
The extreme form in which Respondent's criticism attacks the norm
contended for by the Applicants, and which pcrhaps arises from its
misunderstanding implicit in the use of the word "non-differentiation"
as distinguished from "non-discrimination", is found I think in the
Rejoinder, V, at page 13r, where the Respondcnt goes so far as to say
that-
"... on Applicants' argument, a Member of the United Nations
would not be entitled to provide special protection or special public
conveniences for women, or would not be entitled to grant separate
public holidays for different religious communities on their respec
tive religious days, or to establi sh different public schools for
various language groups or ev~n for the two sexes".
One hesitates to call this a travesty upon the effcct and intendment of
the Applicants' true position but it would be difficult to find another
qualification or characterization.
Respondent contends at the same time that (this time from the
Counter-illemorial, II, p. 396) its "policies have in fact been designed to
give effect to the principlcs underlying" the provisions of Articles 73 and
76 of the Charter. It may be that special significance is intended to be
attached to the word "designed" to give effect, since this presumably
bears upon the underlying good faith or intent test, and this contention
presumably is designed to create the conviction that Respondent
intends by its action (intends as a subjective matter) to give effect to
the principles underlying the provisions of Articles 73 and 76 of the
Charter.
If this corresponds to the intention, the purpose, the design of the
officiais of Respondent's Government, one can only say that their design,
their intention, their purpose, have fallen very far short of the mark
indced, and that there are very few, if any, Members of the United
Nations who have interpretcd or would interpret Articles 73 and 76 of
the Charter in a sense which would even remotely correspond to the
Respondcnt's construction thcreof. And if its intention, or the intention
of its highest officiais, is to carry out the purposes and the principles of
the United Nations Charter, they are indeed missing the target by a
vcry very wide distance.
The pleadings of the Applicants abound with references to United
Nations resolutions, to reports of United Nations Committees, to reports
of the Secretariat of the United Nations, and other relevant material,
which cstablish the incompatibility of Respondent's policy of apartheid
with the relevant Charter provisions, in the Iight of which, as the Appli
cants contend in their Memorials, the Mandate should be read.
Applicants refer in this connection, passim, to the Memorials, I, at
pages 44 to 85, 151 and 165; to the Reply, IV, at pages 341 to 361 and
pages 362 to 475, passim, and more particularly including Annexes 5,
6 (1) and 7, as well as pages 497 to 508. In addition, as I have said before,
the Reply chronicles the history of the dispute since 1960 at pages 222
to 230, and in so doing records the more rcccnt history of the United
Nations activities rcgarding the Mandate. Throughout the Memorials332 SOUTH WEST AFRICA
and in the Reply, resolutions of the General Assembly are set out, as are
various relevant quotations from United Nations sources.
The essential element linking all relevant reports, resolutions, com
munications, statements and conclusions of the United Nations bodies,
including the specialized agencies directly concemed, is repudiation and
condemnation of apartheid. This there is no room to doubt or dispute.
As stated in the Reply:
"Since the founding of the United Nations, there have been more
than thirty resolutions of the General Assembly specifically con
demning racial discrimination or segregation, whether in South
Africa itself, South West Africa, or generally in Non-Self-Goveming
Territories." (IV,p. 502.)
Applicants have set out at page 502 of the Reply a Iist of such resolutions.
Inasmuch as the purpose of citing such resolutions was to demonstrate
the judgment of the organized international community with respect to
separation or discrimination on the grounds of race or membership in a
group, it is immaterial to the purposes of the present discussion that the
resolutions apply to apartheid both as practised in the Republic of South
Africa and in the Territory of South West Africa, as the pleadings make
crystal clear and as is conceded by the Respondent. The ftmdamental
policy and practices in force in the Territory and in the Republic are
essentially the same in ail respects rclcvant here.
Indeed, Respondent's only comment with regard to the numerous
resolutions which were cited in the Reply at page 502, as far as the
Applicants are aware, is that set forth at page 130, V, of the Rejoinder.
There Respondent describes the resolutions I have cited, and the three
Security Council resolutions which are cited at pages 503 to 504 of the
Reply, IV, as being inapplicable, inasmuch as the resolutions "did not
create legal obligations and for the most part were not applicable to
South West Africa", and the Security Council resolutions apart from
anything else, says Respondent, were "not applicable to South West
Africa", and this is true.
But Respondent's conclusion with regard to such resolutions, inter alia,
and now I quote from the same page of the Rejoinder, is as follows:
"Inasmuch as all the above items are by their very nature inca
pable of affecting Respondent's rights or obligations in respect of
South West Africa, Respondent will not unnecessarily devote time
or space to considering whether they do indeed possess the content
ascribed to them by the Applicants." (V, p. 130.)
"The content ascribed to them by the Applicants" in Respondent's
phrase just quoted was the following as set out in the Reply, IV, at
page 503:
"Although resolutions of the General Assembly are not in them
selves legally binding on Members of the United Nations, the
repeated and strongly worded judgments by the General Assembly
that racial discrimination, separation, or apartheid are in violation
of the Charter, and in the case of South West Africa, also in violation
of the Mandate, are significant evidence of the general accept
ance of a :1egal norm of non-discrimination or separation on the
basis of race."
These are the purposes for which these resolutions were cited and that RRPLY OF MR. GROSS 333
is set forth in the words I have just quoted from page 503, of the Reply.
Interpretation of the provisions of the Mandate, having regard to the
purposes and ob~igations of the Charter, as reflected by and interpreted
m the numerous reso]utions of member States acting with virtual
unanimity on this matter, would seem to supply authoritativeguidance
and governing principles for the interpretation of the obligations of the
Mandate itself. The fact that Artide 22, paragraph r, of the Covenant
itself provides for securities for the performance of the sacred trust
indicates that the founders contcmplated the responsiveness of the
Mandatory to the judgment of the supervisory safeguarding organ;
there would be no other reason for establishing the safeguards as an
essential element of the mandate svstem in the Covenant itself.
In support of the existence of an international standard of non-dis
crimination or non-separation, with the content which, as contcnded
forbythe Applicants, is defined at page 493, of the Reply, IV, the Appli
cants have rcferred in their Reply to several resolutions of the Security
Council with regard to apartheid as practised in the Republic of South
Africa, not the territory of South West Africa. ln two such resolutions,
set forth at pages 503-504 of the Reply, the Security Council expressed
its view that:
"... the policies of the Government of South Africain its perpetua
tion of racial discrimination are [skipping a few words from the
resolution] inconsistent with the principles contained in the Charter
of the United Nations and [contrary to] its obligations as a Member
State of the United Nations".
This was from Security Council resolutions of 7 August 1953and 4 Decem
ber 1963, the citations of which respectively are S/5386 and S/5471.
Although the allegation of Charter violation through the practice of
apartheid, using that name normally although not invariably, has been
expressed in general terms throughout the years, it has also been speci
fically couched in relationto Article 56 of the Charter. General Asscmbly
resolution rr78 (XII), of 26 November 1957, called upon the Respondent
to observe Article 56 of the United Nations Charter, and reminded
Respondent that it was "as much committed as any other member to
the principles enshrined in the Charter". Similar references to Respon
dent's obligations to uphold the undertaking, the obligation of Article 56
of the Charter, may be found in resolution 1248 (XIII) of 30 October 1958,
as well as resolution 1375 (XIV) of 17 November 1959.
In 1961, resolution 1598 (XV) of 13 April 1961 recalled "that South
Africa has been in wilful breach of its obligations under Article 56", and
reminded Respondent that Article 2, paragraph 2, of the Charter re
quires that "ail members shall fulfil in good faith the obligations assumed
by them in accordance with the present Charter", and also called upon
Respondent to bring its conduct into conformity with its Charter obliga
tions.
Indicative of the seriousness with which member States, with a con
sensus virtually approaching unanimity, have regarded the development
and continuation of the policy of apartheid, both in the Territory and
in t,he Republic itself (since the two are indistinguishable in the respects
relevant here in the context of the General Assembly's appreciation of
the policy as distinguished from the question before the Court in terms
of the competence of the Court) is the characterization by the General334 SOUTH WEST AFRICA
Assemb1y of the policy practised in both South West Africa and in the
Republic itself, not only as a breach of the Charter obligations but also
as a thrcat to international peace. Thus in one of the resolutions of the
Security Council cited in the Reply, IV, at page 504, the Council expres
sed what it tcrmed "its firrn conviction" that-
"... the policies of apartheid and racial discrimination as practised
by the Government of the Republic of South Africa are abhorrent
to the conscience of mankind and that therefore a positive alter
native to these policies must be found through peaceful means ... ".
This is a Security Counci1 resolution of 4 December 1963, S/5471.
In its discussion, both in the writtcn pleadings and before the honour
able Court in the Oral Proceedings, the Respondcnt appeared at one
point, and I have citcd this at an earlier stage, to have posited an objec
tive criterion of its own, which involved the objective determination
proceeding from the fact of its state of mind, conctrning its mala(idesor
bona fides-this is the theory of the Respondent's case. On the basis
even of such an obligation so measured, of objective criteria so-called,
thus defincd, the Security Council resolution stamps even that obligation,
vague as it is, with the characterization of "abhorrent to the conscience
of mankind"-this is the Security Council of the United Nations.
Specifically with regard to South West Africa, Applicants have set
forth inpart, at page 222 of the Reply, IV, the text of Gencral Assembly
resolution 1596 (XV) of7 April 196r, in which the General Assembly,
without dissent, decided to call to the attention of the Security Council
the situation of the mandated Tcrritory itself, with the comment,
"which, if allowcd to continue, will in the General Assembly's view
endanger international peace and security ... ".
Again, the attention of the Security Council was drawn to the Terri
tory on these same grounds by General Assembly resolutions 1702 (XVI)
of 19 December r96r and 1979 (XVIII) of 17 December r963; these were
cited respectively in the Reply, IV, at pages 224 and 229.
In addition to the resolutions of the Genera1 Assembly and Security
Council, the Applicants cite also the many comments and characteriza
tions, conclusions and recommendations, made by the various commit
tees of the General Assembly throughout the years, with regard speci
fically tothe question of racial separation and/or discrimination. These
materials are set out in the Memorials, I, pages 54 through 84 passim,
and in the Reply, IV, pages 341 through 475, passim. With regard to the
simple questions of the violation of Charter obligations, inasmuch as the
bodies are exercisingthe function of administrative supervision pursuant
to the Opinion of r950 of this honourable Court, these conclusions there
referred to in the pleadings are of special relevance.
Two brief examples, among numerous possible, may be cited. These
both occurred at a relatively early stage, and show thereby the long
history of this dispute. The first comment to serve as an example for
these purposes may be found in the Memorials, 1, at pages 70 and 71;
itis the report of the Committee on South West Africa for 1956-nine
years ago (A/3151}. In a concluding· paragraph, which is reproduced at
page JI of the Memorials, the Committee stated as follows:
"To this grave concern over conditions as they exist in 'the
Mandated Territory, [parenthetically, the Court is reminded this
is 1956] the Committee has felt obliged to add its profound mis- REPL Y OF MR. GROSS 335
givings as to the future course of the administration of the Territory.
These misgivings arise from actions and statements of the Union
Government itself: in particular, the transfer to a direct control of
'Native' administration in the Tcrritory, and its stated aim that
a policy of racial segregation be applied in the Territory ...
In view of the foregoing account of conditions in the Territory,
ail of these elements constitute, in the Committee's opinion, a
situation which is neither in conformity with the principles of the
Mandates System nor with the Universal Declaration of Human
Rights, nor with the advisory opinions of the International Court
of Justice,nor with the resolutions of the General Assembly. Accord
ingly the Committee considers that the situation of South West
Africa requires close re-examination at the present timc by the
Assembly, particularly in respect of the failure of the Union Govern
ment to co-operate in the implementation of the advisory opinion
of the Court of II July 1950, as endorsed by the Assembly in resolu
tion 449 A (V) of 13 December 1950."
)Ir.President, it is perhaps relevant to note here that Respondent
throughout the pleadings and again in the Oral Proceedings, has sought
to evade the force of the resolution, and has sought to construe the
findings of agencies of the United Nations, such as and including the
Committee on South West Africa, in terms of allegedly improper motiva
tion, interms of political campaigns, in terms of conspiracy and in terms
of trading among nations for position, or favours, or other considerations
of unenlightened self-interest. The force and effect of these resolutions,
of these findings, cannot, in the Applicants' view, be disposed on such
a basis.
The results of the close re-examination by the General Assembly
which is recommended by the Committee for South West Africa was,
as was made clear in the report itse\f, undertaken in the light of Res
pondent's failure to co-operate in the implementation of the Advisory
Opinion of 1950 which, of course, the Respondent has never characterized
as a portion of a part, or part of, a political campaign or conspiracy.
The General Assembly took special note of the fact that the Respon
dent was failing to carry out its obligation as determined by the 1950
Advisory Opinion which was accepted by the General Assembly and,
having considered the matter, the Committee itself concluded in the
following year, that is to say in 1957, as follows:
"The Committee is of the opinion that the administration of
South West Africa, in which political, economic, social and educa
tional rights are govemed by the practice of apartheid, or racial
separation, operates to the detriment of the population, particularly
the 'Native' majority, and is contrary to the spirit and purposes of
the mandates svstem, the Charter of the United Nations, and the
Universal Declaration of Human Rights." (1, p. 73, doc. A/3626.)
The conclusions of the South West Africa Committee and the resolu
tions and deliberations of the General Assembly have constantly and
repeatedly referred to the incompatibility of Respondent's practices and
policy of apartheid with its Charter obligations and a fortiori with its
obligations under the Mandate itself. Applicants refer the Court to the
passages in their pleadings to which specific attention has been called to
this point, particularly in the chroniclc of the history of the United SOUTH ,WEST AFRICA
Nations Charter and of the Mandate, by the resolutions and conclusions
of the Assembly and its committees, aU of which are set forth in the
written pleadings at the places to which l have called the Court's attention.
Also relevant to the interpretation and application of the provisions
of the United Nations Charter and, consequently, to the interpretation
and application of the terms of the obligations under the Mandate which
must be read in the light of the Charter, are the conclusions and the
proceedings of the Trusteeship Council and of the Committee on Non
Self-Goveming Territories. Reference already has been made in thcse
proceedings to the 1947 treatment by the Trusteeship Council of Res
pondent's report on the Territory for South West Africa for the year 1946.
(The citation is to the verbatim records of II 1\Iay1965, pp. 209-214,
supra, and 12 May 1965, pp. 214-2r7, supra.)
Similarly, in the Applicants' Reply are set forth examples of the
United Nations standards of non-discrimination and non-separation in
the fields of education, economic life, and political development, aU as
cxpressed throughout the years by the organs of the United Nations
with respect to depcndent territories generally subject to the scope of
supervision of the United Nations. This is one reason why the Applicants
feel justified in characterizingpartheid under the heading of minimum
applicability, a fortiori applicability, because the principle, the standard
of non-discrimination and non-scparation, has been applied by the
United Nations in respect of territories in which the policy and practicc
of apartheid is not maintained. Such examples, referred to in the plead
ingsat the places cited, and for the convenience of the Court may I cite
them again: the Reply, IV, pages 398-403, 426-430 and 451-457, are the
examples of United Nations judgments. The Respondent has in numerous
contexts characterized these judgments embodied in these annexes at
the cited pages of the Reply as judgments or contentions of the Appli
cants-this is a misconstruction as the reading of the pages will show.
These are not the Applicants' contentions, these are the judgments of
the United Nations and they refer to other territories and areas not only
of Africa but of the world. These are not the Applicants' judgments,
these are notthe Applicants' contentions, these do not involve questions
of comparative standards of achievement; these are United Nations
judgments with respect to policics relating to and focussing upon the
problem of racial separation or discrimination.
These examples and a multitude of others ail confirm the clear and
accepted international minimum standards of non-discrimination or
non-separation, which are set forth also in Chapters XI, XIr, and XIII
of the Charter and these, in turn, were, as I have said, explicitly refcrred
to in the resolution of 18 April 1946, to which the Respondent adhered
and for which it voted.
The Trust Territories Agreements themselves are concrete evidence
andapplicationofthe directive of the obligation of Article 76 (c) of the
Charter. Examples are adduced at IV, pages 501 and 502 of the Reply;
for example, at page 501 the Applicants have stated:
"Each of the eleven Trust Territories Agreements contains a
provision which contributes to the universai acceptance of the norm
of official non-discrimination, or non-separation on the basis of
membership in a group or race. The various provisions are ail
worded with reference to Article 76 (c} of the United Nations
Charter.'' REPL Y OF MR. GROSS 337
Tlùs standard, this obligation of Article 76 (c) is embodied in II inter
national systems, institutions, designated as Trust Territories Agree
ments.
Finally, the declarations and draft declarations undertaken under the
auspices of the United Nations and witlùn the context of the United
Nations Charter, although not binding in themselves, constitute evidence
of the correct interpretation and application of the relevant Charter
provisions. Examples of these for this purpose, and citations, are given
in the Reply, IV, at page 501 and at pages 504-508, will not be claborated
herc, but they include the Universal Declaration of Human Rights, the
Draft Declaration on Rights and Dutics of States, the Draft Covenant
on Civil and Political Rights, the Draft Covenant on Economie, Social
and Cultural Rights. the United Nations Declaration on the Elimination
of AH Forms of Racial Discrimination, and the lnternationa1 Convention
on the Elimination of Ali Forms of Racial Discrimination.
It is possible, and for purposes of litigation almost anything is permis
sible, forthe Respondent to take up one or the other of thesc resolutions
or declarations and parse them and analyse them. The central point is
that, taken in their totality as well as severally, they establish over
whelmingly the interpretation placed upon the relevant Charter pro
visions by the .Members of the United Nations, speaking with a con
sensus which approaches unanimity. This is the significance of these
resolutions and declarations. These instruments are ail reflections of the
standard of non-discrimination and non-separation, they are consistent
with and illwninative of and interpretative of the relevant provisions
of the United Nations Charter.
A further important conventional source for the standards for which
the Applicants contend may be found in actions taken and judgments
rendered in the context of the International Labour Organisation. As set
forth at page 508 of the Rcply, IV, Article II, paragraph 6, of the Con
stitution of the International Labour Organisation embodics the standard
of non-discrimination and non-separation which was originally pro
pounded and agreed to in the Declaration of Philadelphia which, as I
recall, was in the year 1944, I believe:
"... ail human beings, irrespective of race, creed, or sex, have the
right to pursue bath their material well-being and their spiritual
development in conditions of frcedom and dignity, of economic
security and equal opportunity ... "
The very formulation employed, Mr. President, "material well-being
and ... spiritual development in conditions of freedom and dignity"
bears a close correspondence to the wording of Article 2 (2) of the
Mandate. Respondent, arguing that it was nota party to this instrument,
and also that itis not "in terms inapplicable to South West Africa",
disposes of the constitutional provisions to which reference has been
made in one paragraph of its Rejoinder. I refer to V, page r33, in which
it equates the lang-uage of the I.L.0. Constitution "equal opportunity"
(this is from the Philadelphia Declaration to which Respondent was not
a party} with the obscure concept of "identical opportunity"-equates
"equal'' with "identical", and Respondent avers that:
"It is a matter of impossibility to provide anything remotely
approaching identical opportunitics for material well-being and
spiritual development of ail inhabitants of a State-and, in any338 SOUTH WEST AFRICA
event, such identical opportunities would give rise to great inequal
ity." (V, p. 133.)
This is rerniniscent, of course, of the repeated instances previously cited
to the Court in which the Respondent has attributed extrerne and often
unintelligible positions to the Applicants, including specifically this very
exarnple in which the word, by some sleight of hand, "identical" is sub
stituted for the word "equal".
Respondent rnisconceives the purport of a judgment accepted by the
international community with virtual unanimity, both as to the relation
ships inter se and as to their municipal constitutional legislative practices
in respect of the content and quality of the obligations (both in spirit
and in substance) which are embedded in the Constitution of the Inter
national Labour Organisation.
Respondent argues further on page 133 that the Declaration of
Philadelphia-" ... shows an awareness of the necessity for differential
treatment between various groups". Respondent cites a general pro
vision relating to the progressive application of all the principles set
forth in the Declaration with the following proviso: "... 'with due
regard to the stage of social and economic development reached by each
people' ... " (V, p. 133). Respondent relies upon the latter clause just
quoted as demonstrating the awareness of the authors of the Declaration
of Philadelphia of the necessity for differential treatment between
various groups.
Ïhis, again, is redolent with the misconception which arises from the
false equation of differentiation, as such, with discrimination or separa
tion, which, of course, are forms of differentiation but happen to be
impermissible forms of differentiation.
Respondent's reliance upon such an interpretation of the general
provision relating to progressive application is refuted by the very
sources which are set out in the Reply, and to which Respondent in its
written pleadings does not address itself. lmmediately following the
provisions of Article 2, paragraph 6, of the I.L.O. Constitution, which
relate to "equal opportunity", "irrespective of race", the Applicants
have pointed out in the Reply:
"According to the International Labour Office [and this is from
a publication which is cited in the Reply] 'this principle, which,
from the very beginning, has constituted one of the bases for al! the
standard-setting activities of the International Labour Conference,
has been enunciated in greater detail in the Covention and Recom
mendation concerning discrimination in respect of employment and
occupation, adopted by the Conference in 1958'." (IV, p. 508.)
The authoritative interpretation, according to the International
Labour Office itself, of the "equal opportunity" clause of the I.L.O.
Constitution is, again, also set forth in the Reply, on the same page just
cited, that is, page 508, in which it is explained as-
"... an attempt to achieve the elimination of 'any distinction,
exclusion or preference made on the basis of race, colour, sex,
religion, political opinion, nationalxtraction or social origin, which
has the effect of nullifying or impairing equality of opportunity or
treatment in employment or occupation'".
This is dcsigned to eliminate distinction and the implication of Respon
dent's interpretation is that it is designed to permit distinction on the REPL Y OF MR. GROSS 339
basis of race or classification in group, which, of course, is a construction
of the clause which is, on its face, obviously not its intcnt.
In view of the foregoing considerations, the Applicants submit that
there can be no question as to the effectiveness or authority with which
the standard of non-discrimination or non-separation has found expres
sion in the Constitution of the International Labour Organisation. When
added to the relevant provisions of the United Nations Charter, in the
context particularly of their amplification by way of interpretation and
construction by an overwhclming consensus of mcmbcr States, ap
proaching unammity, the Applicants submit that the two basic ordinances,
the Charter of the United Nations, on the one hand, and the Constitution
ofthe.International Labour Organisation, on the other, establish beyond
a possibility ofdoubt the authority and relevance of the international
standard of non-discrimination and non-separation with regard to the
interpretation and application of a sacrcd trust laid upon the organized
international community specifically designed and intended for the
purposc of promoting to the utmost the material and moral well-being
and the social progress of inhabitants not yet able to stand by them
selves in the conditions of the modem world.
Refcrcncc already has been made to the Convention and Recommenda
tion conceming Discrimination in respect of Employment and Occupa
tion, one of the I.L.0. Conventions. Although not ratified by the Respon
dent, as appears from the Rejoindcr, V, page 130, it is nonetheless an
authoritative source for interpretation of the I.L.O. Constitution, which
has been ratified by the Respondcnt. A further source may be found in
the Convention concerning Social Policy in Non-Metropolitan Terri
tories of 1947, which is cited in the Reply at IV, page 509.
A resolution unanimously adopted by the Governing Body of the
International Labour Office, at the International Labour Organisation,
at its 157th Session held in Geneva on 12-15 November 1963, referred
in terms to-
"... the grave concern exprcsscd in the Conference and Governing
Body on the subject of the odious policy of apartheid deliberately
practised by the Governmcnt of the Republic of South Africa".
The Governing Body further found that-
"... the Republic of South Africa is pursuing its ·baneful policy,
which violates the fondamental principles of the LLO.".
It is not necessary to point out that the words "baneful", "odious",
and "deliberate" are those of the I.L.O. and not the Applicants'.
The I.L.O. by resolution appointed a committee to consider the
question as a whole, and to-
"... endeavour to determine what contribution the I.L.O. could
make to the complete elimination of apartheid and to suggest what
action should be taken to sccure the observance of the principles in
the Constitution and to protect human dignity".
AU conventions, reports, resolutions and conclusions emanating from
the International Labour Organisation or its Governing Body must
necessarily be consistent with the Constitution of the Organization, and
where adoptcd unanimonsly there would hardly seem to be any room
for doubt on that score-unanimously, that is, except for Respondent.
If, then, such material discusses policy and practice relevant to the340 SOUTH WEST AFRICA
''equal opportunity" provision of the Constitution, such discussion must,
in turn, be consistent with the provisions. Being consistent, the sub
stance of the respective conventions, reports, resolutions and conclusions
of the I.L.O. must, in so far as they relate to the principle of non-separa
tion and non-discrimination, be illustrative (illustrative at least) of the
significance of the "equal opportunity" clause of the Constitution of the
I.L.O. In the Applicants' view they are far more than illustrative, they
form authoritative interpretations of the Constitution and, as has been
said, if they are authoritative interpretations of a convention or con
stitution to which the Respondent has adhered-an organization of
which it has been a Member-then such interpretations provide an
authoritative basis for the interpretation and application of the standards
embodied in the mandate instrument itself; these are taken in the con
text of the many resolutions of the General Assembly, of the LLO.
Governing Body itself, in regard to this matter.
Material relating both to the Republic of South Africa and to the
Territory of South West Africa has been adduced in the Reply on the
basis of official International Labour Organisation sources. The reference
to both the Republic and the Territory of South West Africa, notwith
standing the fact that the Republic of South Africa does not stand
before the Court as the Republic of South Africa but as the Mandatory
power over South \Vest Africa, is justified and relevant because of the
fact that, as deterrnined by the competent agencies and organs, the
allotment of rights and burdens and privileges on the basis of member
ship in a group, or race, rather than on the basis of individual merit, is
a common feature, it is a basic aspect and feature common to the policy
practised both in the Republic and in the Territory, as these resolutions,
as these judgments make clear. These are not conclusions drawn by the
Applicants; these are reflections of the judgments of the organs them
selves.
The Applicants have made reference to official reports and conclusions,
as well as conventions and the Constitution of the International Labour
Organisation in their pleadings at various places, but specific reference
is made in this context to the Reply, IV, at pages 406, 417-424, 431-438,
and pages 508-509, and here, also, reference will be found to the Annex
to the report of the Committee on questions conceming South Africa,
which was the Committee set up by the resolution of the Governing Body
of the International Labour Organisation on 15 November r963, from
which report the Applicants have quoted.
The Annex, which has been prepared by the Director-General of the
International Labour Office, was entitled "An I.L.0. Programme for
the Elimination of Apartheid in Labour Matters in the Republic of
South Africa". Dated 1964, the Programme refers on its first page to
reasons why it was concentrating on "three broad areas", namely-
"Equality of opportunity in respect of admission to employment
and training;
freedom from forced labour (including practices which involve or
may involve an element of coercion to labour); [and] freedom of
association and the right to organise."
Among the reasons assigned in the Programme for focus of the Pro
gramme on the areas in question, to which I have just referred, were the
following: REPL Y OF MR. GROSS
"... they are the fundamentals of freedom and dignity; well
established standards approved by the International Labour Con
ference with near unanimity exist in respect of ail of them; these
standards give expression to principles proclaimed in the Declara
tion of Philadelphia as being among the aims and purposes of the
International Labour Organisation ... "
The LL.O. Programme, to which I am referring, likewise stated that
such matters "have all been the subject of an exhaustive enquiry by
authoritative I.L.O. bodies which affords an objective basis for the
formulation of recommendations relating to them". So far as the Appli
cants are aware the functioning of the I.L.O. has not been impugned
or brought into question in respect of motivation or otherwise by the
Respondent in thesc proceedings.
In paragraph 148 of the Programme, the following principles were
stated in the form of conclusions of the Programme itself:
"South Africa should recognise and fulfil its undertaking to
respect the freedom and dignity of ail human beings, irrespective
of race, and as a first stcp in this direction should:
promote equality of opportunity and treatment in employment
and occupation irrespective of race;
repeal the statutory provisions which provide for compulsory job
reservation or institute discrimination on the basis of race as regards.
access to vocational training and einployment;
repeal ail legislation providing for ... any ... form of direct or
indirect compulsion to labour, including discrimination on grounds
of race in respect of travel and rcsidence, which involves racial
discrimination or operates in practice as the basis for such dis
crimination;
repeal the statutory discrimination on grounds of race in respect
of the right to organise and to bargain collectively."
Although these conclusions are, in terms, as I have said, which the
Applicants realize full weli, applicable to the Republic of South Africa
itself which does not stand before the Court in its sovereign capacity,
but stands before the Court as Mandatory, they, nevertheless-these·
findings, these recommendations-are equally applicable in meaning,
in spirit,and in purpose to similar and, indeed for ail purposes material
to this litigation, identical practices and policies in the form of acts
legislative acts-, administrative regula.tions, and official methods and
measures for implementation of the laws and regulations which pertain
in the mandated territory, and which are subject to precisely the same
standards of application, and the same judgrnents as have been set forth
in the Programme of the International Labour Organisation "for the
elimination of apartheid in labour matters in the Republic of South
Africa" as recently as last year.
[Public hearing ofI9 May r965]
Mr. President and Members of the honourable Court, in addition to·
judgments expressed and decisions taken pursuant to the Charter of the
United Nations and the Constitution of the International Labour Orga
nisation, the Applicants respectfully refer the Court to further evidence
of the general acceptance by the international community of standards.342 SOUTH WEST AFRICA
relevant to the proscription of governmental policies by which rights,
privileges, burdens, status are allotted on the basis of membership in
a group or race, rather than on the basis of individual quality or merit,
and such furthcr evidence may be found in the Reply, IV, at pages
493-5ro, and will not be read into the record at this point.
This, l\Ir. President, completes the Applicants' arguments that the
procedures of the competent organs of the organizcd international
-community have evolved international standards of non-discrimination
and non-separntion which govern authoritatively the interpretation of
Article 2 of the Mandate.
The Applicants turn now to their contention that these international
standards, as defined in the Reply at page 493, have attained the
requisite degrce of authority so as to qualify as an international legal
norm. The Applicants contend that the international standards pertaining
to moral well-being and social progress operate by way of, by force of,
interpretation and application of the mandate instrument, that they
opera te as perse restrictions, as authoritativeinterpretations of the man
date obligations, and that such interpretation and application applies
irrespective of administrative and legislative discretion in respect of the
Territorv.
As the Applicants contend with respect to the international legal
norm, such norm would, if it exists and if it is applicable as the Applicants
-contend, render irrelevant, as a matter of law, any issue with regard
to the limits of the Respondent's discretion pursuant to the first para
graph of Article 2. Even as a sovereign State, Respondent must govern
in accordance with international law. Its obligation as Mandatory to
promote wcll-being and social progrcss, in accordance with the obligations
of the sacred trust, do, of course, require that the international law,
the international legal norms pertaining to the Respondent's obligations
as a sovereign State and as Mandatory, apply a fortiori to the Mandate
itself. The jurisdiction of the Court to determine the obligations pursuant
to international law, the international legal norm for which the
Applicants contend, would be founded on, and cognizable under, the
-compromissory clause of the Mandate.
The Applicants contend that the international standard of non-dis
-crimination and non-separation qualifies as Iaw, qualifies as a legal norm,
in accordance with, and pursuant to, the several sub-scctions of Article
38, paragraph r, of the Statu te. Such demonstration depends upon
acceptance by the Court of the Applicants' contention that formai acts
of international institutions in certain circumstances, wlùch the Appli
cants contend apply here, may and do possess a law-creating effect within
-the meaning of Article 38, paragraph r, of the Statute.
By way of introduction to their analysis, the Applicants respectfully
depict concisely the relevant international context. ln recent times there
has been a vastly increased effort on the part of the organized community
to achieve general security, peace and justice through collective processes.
There has been a consequently great and cumulative process of inter
national action in the generation of norms and standards relevant to
increasingly wide areas of social and human concern. There likewise has
followed important changes in the processes by which norms and
standards are created. ln the Tunis-M oroccoNationality Decrees case the
Permanent Court of International Justice affinned that the character of
basic international obligations reflects the conditions of international REPLY OF MR. GROSS 343
society and that changes in the structure and history of international
society have a bearing upon the manner and content of the development
of international law. The Court, in that case, stated, at page 24, 1923,
P.C.!.]., Series B, No. 4:
"The question whether a certain matter is, or is not, solely within
the jurisdiction of the State is an essentially relative question_
It depends on the devclopment of international relations. Thus, in
the present state of international law questions of nationality are, in
the opinion of the Court, in principle within this reserved domain."
The quoted passage reflects the dynarnic content of international law
and is relevant to an assessment of the difference between the inter
national legal status of Respondent's policies of group separation or
discrimination in the Territory in 1920, and the legal status of such
policies in the year 1965. Among the developments in international
society, which bear upon the character and the evolution of international
law, the following appear to be of particular relevance to the issues joined
in these proceedings.
In the first place, the diversity and multitude of States comprising
the contemporary international order have brought in their wake new
concepts and needs regarding the normative process itself. Collective
judgments are, at once, more difficult to corne by and more important
to respect. Special significance is to be attributed, in the face of cultural,
ideological and economic diversity of the members of the international
community, to the fact that so high a degree of consensus, approaching
unanimity, has been achieved regarding the incomratibility of apartheid
with contemporary international norms of officia behaviour.
Secondly, technological development and the spread of information
in the arts of war and of transportation have made internationalsociety
more inter-dependent. Thcre is increasing awareness that events in one
State cannot be isolatcd from concerns of international society in the
maintenance of a system of minimal order. There is ever-increasing
awareness that what is going on in the Territory of South West Africa
has had great impact upon the welfare of nations and of peoples even
in remote areas of the world, and, above al!, that the demand incrcases
that something be donc in deference to minimum expectations concerning
the content of human dignity. The process summarized in the quotation
from the Nationality Decreescase has not diminished sovereignty, but has
recognizcd the necessity for an awareness on the part of States that
enlightened self-interestrcquires due adaptation to the needs and
standards of inter-dependence. Such an awareness should characterize to
the highest degree the administration of a mandate, an international
institution, the origin and terms of reference of which make abundantly
clear the concern of the international community with regard to the
protection of the welfare of individual human persans.
As Judge Jessup pointed out in his separate opinion appended to the
1962 Judgment:
"The mandates system was one of at least four great manifesta
tions in 1919-1920 of the recognition of the interest of all States
in matters happening in any quarter of the globe." (J.C.J. Reports
I962, p. 429.)
And the learned Judge continued by stating:
"The conviction rcgistered in the peace treaties at the close of SOUTH WEST AFRICA
344
World War I in regard to minorities, labour, and dependent peoples,
was that just as peace was indivisible, E>Otoo was the welfare of
mankind." (Ibid., p. 431.)
Acknowledgement of inter-dependence is much more of a universal
phenornenon than was the case 45 years ago when this Mandate was
conferrcd. The international society has exhibited most profound anxiety
that unless the Respondent can be persuaded to adapt its racial policies
to the minimum international legal norm, and minimum international
standards of the same content, tensions will continue to mount with
increasingly dangerous eruptive potential.
Tlùrdly, the connection between world peace and the protection of
hwnan rights in the international sphere has become increasingly
manifest. International co-opcrat~on in the human rights field has
proceeded from this premise with a sense of increasing urgency. It is a
trend especially evident in connection with the effort by the organs of
the United Nations to deal with Respondent's policies of separation and
-discrimination. The organized international community insistently
proclaims the need to correct perceived abuses of human rights, most
particularly where such abuses are implemented as part of authorized
government policy.
\Vhen these factors are taken into consideration in connection with
the assessment of an international fonction of administration of an
international territory subject to international regulations, the status
of the territory itself gives authoritative weight to the concern and
values of the international community with regard to a basic abuse of
minimum standards and a minimwn legal norm. International concem
that apartheid constitutes a threat to international peace and security,
as evidenced in unanimous Security Council resolutions, was discussed
by the Applicants during the Oral Proceedings of 17 May.
Fourthly, within the area of human rights the most significant develop
ments have focussed upon the evolution of standards pertaining to
matters of racial cquality, non-discrimination and non-separation. This
subject-rnatter, as the Court will be aware, and as the record rnakes
clear, has dominated the human rights activities of international insti
tutions, and abuse in this area bas been identified with a consensus
approximating unanimity as an affront to human dignity, as a serious
impediment to individual well-being, and as a grave threat to internation
al peace and security. It is not too much to say that one of the foundation
stones of international peace is the establishment and implementation of
international standards pertaining to racial discrimination, and this
marks a vast advance, as the Court will be aware, from the Covenant of
the League to the Charter of the United Nations.
Sixthly, international society lacks legislative organs, and for this
reason it has had to rely on other than legislative procedures to change
and evolve international standards and norms, and the Applicants will
consider shortly the implications of this rcquirement. The need has
grown acutc, in the light of expansion of international society and the
increasing role of international institutions. For this reason scholars have
increasingly urged that suitable and, in appropria te cases, quasi-legislative
effect be given to official acts of international institutions.Only thus
can an important gap in the international legal order be filled.
The absence of a legislative capacity as such in the international order
has an important bearing, of course, upon the outlook of international REPLY OF MR. GROSS 345,
judicial organs. As Judge Sir Gerald Fitzmaurice has written-and I
refer to his article "Hersch Lauterpacht, The Scholar as Judge", 37
British Yearbook of International Law,I96I, I quote from pages 14 to 15-
"Domestic courts can, if they wish, plead with some plausibility
as a ground for not going beyond what is barely necessary for a
decision that a national legislature exists which can, by legisla
tive action, remedy any gaps or obscurities in the law. In the
international field there is at present nothing comparable to a
legislature, and the operation of the so-called law-making treaty is.
both uncertain and leaves many loose ends. The international
community is therefore peculiarly dcpendent on its international
tribunals for the development and clarification of the law, and for
lending toit an authority more substantial and less precarious than
can be drawn from the often uncertain and divergent practices of
States, or even from the opinion of individual publicists, whatever
their repute."
Seventhly-consideration: closely connected with the need in inter
national society for at least quasi-lcgislative capacity in appropriate
situations, is appreciation of the ordering role played by the organs and
specialized agencies in the great system of the United Nations itself, of
which this Court forms the judicial arm. The same is truc of regional
institutions in world affairs. The world order attributes increasing
importance to the normative functions of international institutions and
acknowledges that actors other than States may evolve authoritative
international standards as well as international legal norms. FundamentaL
to such a modernization process is the degree to which a single, recalcitrant
State, or a small minority of States, may be permitted to veto or block
the emergence of authoritative standards, or legal norms, in international
society, and thus paralyse the growth and development of international
law itself.
Underlying this question is the extent to which the reality of unanimous
sovereign consentis an essential ingredient in the formation of an inter
national legal norm or international standards binding upon all States.
The Applicants contend that the Court should confirm the role of
international consensus as a source of international law within the
meaning of Article 38 of the Statute of the Court and within clear,
practical limitations. "Consensus" is used by the Applicants to refer to
an overwhelming majority, a convergence of international opinion, a
predominance of view; it means considerably more than a simple major
ity, but something less than unanimity. These words and phrases intro
duce no ambiguity in the context of this case. There is a virtual unanimity
with regard to the practice and policy of apartheid, and the shadings and
nuances of language or terminology are irrelevant here.
If the resources of law are not available, only force is left to implement
the preponderant will of the international community, most manifest
in this case. The use of force, if accepted in the context of a threat to or
breach of international peace or act of aggression, is accepted without
positing the necessity of the consent of ail States. The notion of literal
universality should not constitute an impediment to the lcgal order, to
pacifie settlement, particularly in the face of governmental policies
which have been denounced by the international community to be
sources of international tension and even threats to the peace. SOUTH WEST ·AFRICA
The need for judicial settlement by the application of the consensus
of civilized States becomes even more compelling in such a situation,
and if the use of force itself does not rest upon unanimity the maintenance
-0fpcace should rest on no narrower basis.
A substantial increase in the normative function of the organized
international community is found in the relaxation of the requirement
of unanimous consent in the decision-making procedures of the United
Nations in contrast to the procedures obtaining during the lifetime of the
League of Nations. Such normative capacities of the General Assembly
are relevant to the Applicants' submission that the principle of non
discrimination is an international legal norrn: the relevance is established
in at least two respects.
First, there has been authoritative definition of the scope, character
and applicability to Respondent's policies, of the international legal
norm found in Article SS (c) and Article 56 of the Charter, read in the
light of the over-all affirmation in the Charter of the connection between
human rights and obligations of Members.
Secondly, conclusive evidence is to be found in the many judgments of
member States that the standards evolved by the organs in the United
Nations do in fact constitute an international legal norm. Further
evidence of the law-creating competence of the United Nations is
dramatically evidenced by Article 2,paragraph 6, of the Charter:
"The Organization shall ensure that States which are not l\Iembers
of the United Nations act in accordance with these principles so far
as may be necessary for the maintenance of international peace and
security."
This provision in itself makes clear the extent to which the international
legal order has found it necessary to abandon the strict requirements of
universal sovereign consent.
The Applicants turn now to a more detailed analysis of the legal frame
work in which the international legal norm of non-discrimination and
non-separation has evolved, and the reasoning by which it is dctermina
tive of Respondent's duty to refrain from the policy and practice of
allotting rights and duties, burdens, privileges, and status, upon the basis
of membership in a group or race rather than upon individual merit,
capacity and worth.
Article 38 (1} (a) of the Statute has in a sense been disposed of and
covered in connection with the discussion of the development of standards.
This material, which was covered in the Oral Proceedings yesterday,
would, in the Applicants' submission, be relevant here as well since it
falls within the rubric paragraph (a) of Article 38 (1) in the context of the
development of a legal norm as well as the development of an interna
tional standard.
The Applicants have sought to demonstrate that international practice
in conjunction with the human rights and non-discrimination provisions
and purposes of the United Nations Charter, and of the Constitution of
the 1.L.O., have cvolved authoritative standards of non-discrimination
and non-separation; and, as I ha\'e said, the same evidence, the same
materials, the same sources, support the Applicants' contention that
these standard-crcating procedures have eventuated in an international
legal norm of the same content and scopc.
The essence of the position is that the Articles in question, Articles SS REPL Y OF MR. GROSS 347
(c) and 56, impose legal duties susceptible of defmition by a consensus of
the membership of the Organization when such consensus, as in this case,
approaches unanimity and, indeed, in many resolutions, actual unanimity
but for the sole dissenting vote and voice of the Respondent itself.
Specifically in this context, the formal acts of the constituent organs
of the United Nations have produced an authoritative construction of
Articles 55 (c) and 56 of the Charter, inter alia, such that the practice of
apartheid is legally impermissible. Thus, the norm of non-discrimination
and non-separation emanates from the Charter itself and is binding upon
Respondent as a treaty norm within the meaning of Article 38 (r) (a).
With regard to Article 38 (r) (b)-înternational custom, as evidence of
a gcneral practice accepted as law-the Applicants rcspectfully submit
the following.
Sub-section (b} of Article 38, paragraph r, says nothing about unani
mous consent as a prerequisite ta the coming into being of a customary
norm. lt does not posit that practice must be universally accepted, nor
that all States in their sovereign capacity must accept this practice as
law. The language of paragraph r (b) is more in accord with the view
that custom of a preponderant majority of States may in appropriate
situations generate norms.
In common parlance, a custom may develop and exist despite objection
during its period of emergcnce. Sa long as international society was highly
decentralized it was necessary to rest law-creating proccdures on State
practicc. With the growth of an organized international community,
with constituent organs, it is increasingly reasonable to regard the collec
tive acts of the compctcnt international institutions as evidence of
gencral practice accepted as law.
The resolutions of the General Assembly identifying apartheid as
contrary to the Charter and to international law are, accordingly, relevant
to an appraisal by the Court of the Applicants' contention that Respon
dent's policies violate an international legal norm of non-discrimination
and non-separation.
As was noted in an authoritabve work on the Charter of the United
Nations, by that title-Charter of the United Nations (in the revised
edition, at p. 457-this is the well-known work by Goodrich and
Hambro):
"Ali the varions organs of the United Nations will simultaneously
be engaged in thus interpreting different provisions of the Charter
and will build up the practice which will gradually assume the
character of customary law."
Where, as here, there is virtually unanimous agreement among the
varions organs as to the impermissible and illegal character of Respon
dent's policy, the views just quoted from the work of these learned
authorities assume even more persuasive force.
Another authority, Mrs. Rosalind Higgins, Chatham Ronse, London,
in her work-The Development of International Law by the Political
Organs of the United Nations, published in 1963 by the Oxford University
Press, has analysed the point as follows, and I quote from page r of her
work:
"Of all these sources, that is to say in Article 38, international
custom is the most flexible, the most fluid and as such is exceedingly
responsive to the changing needs of the international community. SOUTH WEST AFRICA
Customary international law is therefore perhaps the most 'political
form of international law reflecting the consensus of the great
majority' ."
The criterion advanccd in this work is the "great majority" and not
"unanimity". Ali human experience demonstrates that whatever
requires regulation by law will be opposed by some who are to be the
,object of the regulation; a veto power over the process by which custom
ary law emerges undermines the capacity of international society to
develop international law to meet developing needs, and the capacity to
devclop and give effect to international custom is not equivalent, in our
view, to endowing the General Assembly with legislative law-making
·powers or competence.
As the authority just quoted, Mrs. Higgins, in the work cited, further
.stated:
''Resolutions of the Assembly are not per se binding though those
rules of general international law which they embody are binding on
Member States, with or without the help of the resolution, but the
body of resolutions as a whole, taken as indications of a general
customary law, undoubtedly provide a rich source of evidence.
These resolutions of the Assembly, which deliberately rather than
incidentally providc declarations on international law are invariably
based on other quasi judicial forms of support." (The Development of
International Law by the Political Organs of the United Nations, p. 5.)
The author here refcrs to the work of international commissions and
agencies, such as the International Law Commission; the foregoing views
are applicable to Respondent's policies in South West Africa in a direct
and most forceful manner. These policies have been subject to quasi
judicial scrutiny over the last decade or more by organs of the United
Nations as distinctive as the International Labour Organisation and
Committees of the United Nations in various forms, such as the South
West Africa Committee itself. It is against this background that the
Applicants contend that the international standard of non-discrimination
and non-separation has ripened into a norm of customary international
law within the language and meaning of Article 38, paragraph 1 (b), of
the Statute of the Court.
Respondent argues against the existence of such a norm, largely on the
grounds of its own persistent opposition to its emergence. In the Re
joinder, V, page 141,the Respondent invokes the dictum in the Fisheries
·Caseto the effect that, and I quote from the I.C.J. Reports I95I, at page
131, that-
"The ten-mile rule would appear to be inapplicable as against
Norway inasmuch as she always opposed any attempt to apply it
to the Norwegian coast."
On the same page of the Rejoinder, Respondent cites an article by
Judge Sir Gerald Fitzmaurice, which suggests that a State dissenting
from a general norm being formed in the international community may
enjoy an exemption therefrom even ifthe norm is brought into being for
international society as a whole. Respondent's reasoning, however, ignores
the role and the capacity in which Respondent appears before this honour
able Court; it is a Mandatory. Respondent's citation of Judge Sir Gerald
Fitzmaurice's apt summary of the traditional doctrine would be rele- REPLY OF MR. GROSS 349
vant only if the subject of tlùs litigation were apartheid witlùn the Republic
ofSou th Africa itself. The argument indeed becomesself-incrimina ting when
read in the true light of the posture of the Respondent in this litigation.
Thus, the very language of the learned Judge, quoted in the Rejoinder,
may be cited as demonstrating that a norm applicable to Respondent as
Mandatory could evolve without its consent, and I cite particularly the
following language from the learned Judge's article in 30 British Yearbook
of International Law, at page 25 (1953), the article qU:otedby Respondent
in the Rejoinder to which Ihave referred, where the learned Judge says:
"... if (i) at some time in the past ... any other 'dissenting' State
had in fact, under international law as it then stood, enjoyed rights
wider than those conferred by international law in its present forrn,
and (iion the emergence of a new and more restrictive rule, had
openly and consistently made known its dissent, at the tirne when
the new rule came, or was in process of coming, into otherwise general
acceptance, then the dissenting State could claim exemption from
the rule even though it was binding on the community generally
and had become a general rule of international law."
If the Applicants analyse this passage correctly, it admits that all that
is necessary, to cstablish a norm governing the interpretation and
application of Article 2, exists in this case. Even if Respondent, as a
protesting sovereign State, could daim exemption from the norm in
respect ofthe Republic itself, the law-creating process of the international
society cannot be paralysed by its veto power as applied to the Mandate,
a territory with an international status, over which the Respondent
exercises an international control, subject to international accountability.
The Applicants contend that Article 2, paragraph z, is governed on a
perse basis by existing international legal norms, cspecially because of the
fact that the Mandate itself is an international regime; such contention is
reinforced by the special daim to exercise control on behalf of the well
being of the inhabitants, which derives from Article 22,paragraphs 1, 2
and 6, of the Covenant of the League of Nations. A State qua Mandatory
has no basis for asserting its discretion to violate a norm once it is granted
that the Mandate must, above all clse, be administered in accordance
with international law. If Respondent could veto international rules
governing the l\landate, it could effectively destroy the dynamic inter
national character of the institution itself. Traditional doctrine con
cerning the formation of customary international law, both as it has been
formulated by this Court and by international jurists, has encountered a
difficulty, already mentioned, arising from the concept that sovereign
States are bound only by rules to which they give their consent, either
expressly or tacitly-the argument being that custom rests on tacit
consent or at least on acquiescence or the absence of protest. Thus, the
International Law Commission has stated-I quote from the Yearbook of
the International Law Commission, Volume I, 1950, at page 275-as
follows:
"The emergence of a principle or rule of custom in jnternational
law is generallythought to require presence of the following elcments:
concordant practice by a number of States with reference to a
situation falling within the domain of international relations;
continuation or repetition of the practice over some period of time;
conception by the States engaged that the practice is not forbidden350 SOUTH WEST AFRICA
by prevailing international law; and general acquiescence in the
practice by States other than those engaged."
Such a formulation clearly is meshed with the emergence of customary
international law as a consequence of State practice, rather than as a
result of the formal standard and norm-sctting processes of the organizcd
international community, acting through its competent organs. As such,
the statement just quoted overlooks the centralization of the normative
process in international society resulting from the existence and the
expanding role and the ever-increasing importance, of a decisive nature,
of the international institutions themsclves. lt is principally in the light
of such an expanding role, and its peculiar relevance to the norm con
tehded for by the Applicants that makcs it appropriate to judge in these
procccdings that a broad interpretation of Article 38, paragraph r, of the
Statute (especially sub-section (b)) applies to and governs the establish
ment of an international legal norm of the charactcr described and which
has particular reference to the territory under mandate.
The Applicants conceive that the status of customary international law
should be viewed in the perspective set forth recently by Dr. Wilfred
J enks in his work, The Prospects o/ 1nternational Adjudication, published
in 1964. I quotc a brief passage from page 225 of Dr. Jenks' recent work;
the opening paragraph of this scholar's chapter on customary interna
tional law in relation to the work of the International Court of Justice
reads as follows:
"In recent times a cataclysmic rate of political, economic and
social change has produced widesprcad uncertainty conceming
much which was previously thought to be well-established law. ln
thesc circumstances the nature and extent of the proof of custom
required in international adjudication may have a decisive bearing
on the extent to which such adjudication promotes effcctivcly the
rule of law in world affairs or is a further unsettling factor which
constitutes a new source of uncertainty."
Dr. Jenks urges the view that if the requirements for proving custom
are imposed too rigidly by the Court, the relevance of international law
to the concerns of men and nations itself is drawn into question. He adds.
and I quote from the same page of the work:
"A number of International Court decisions raise in an acute form
the question of the degree of universality and generality of practice
of which proof must be afforded to establish the existence of a rule
of customary international law; a thorough re-examination of the
question of proof of custom is therefore a necessary element in any
satisfactory appraisal of the prospects of international adjudication."
The Applicants consider that it may be relevant in this regard tatake
note of the Fisheries and Asylum cases, both of which may be said to
embody dicta uncongenial to the approach so strongly urged by scholars
such as Dr. Jenks. These cases, however, when examined more closcly,
appear to the Applicants to be irrelevant to, rather than inconsistent
with, the contention of the Applicants that a legal norm of non-discrimi
nation or non-separation may be supported by and found in tcrms of
Article 38, paragraph r (b), of the Statu te of the Court.
In the Asylum case, I.C.J. Reports I950, at page 266, as the Court will
be aware of course, the subject-matter in dispute involved the existence REPL Y OF MR. GROSS 351
of a norm in the field of human rights; there was placed in issue an
unrcviewable discretion on the part of a State to grant asylum in its
Embassy to a political fugitive. The Court held that:
"The Party which relies on a custom of this kind must prove that
this custom is established in such a manner that it has become
binding on the other Party. The Colombian Government must prove
that the rule invoked by it is in accordance with the constant and
uniform usage practised by the States in question, and that this
usage is the expression of a right appertaining to the State granting
asylum and a duty incumbent on the territorial State." (I.C.J.
Reports r950, p.276.)
Notwithstanding the phrase just quoted, "constant and uniform
usage", the Court rejccted the daim of customary norm on the ground,
and I quote here again, this time from page 231 of the Opinion, that-
"The facts brought to the knowledge of the Court disclose so much
uncertainty and contradiction, so much fluctuation and discrepancy
in the exercise of diplomatie asylum and in the official views express
ed on various occasions, there has been so much inconsistency in the
rapid succession of conventions on asylurn, ratified by sorne States
and rejected by others, and the practice has been so much influenced
by considerations of political expediency in the various cases, that
it is not possible to discern in all this any constant and uniform
usage, accepted as law, with regard to the alleged rule of unilateral
and definitive qualification of the offence."
1t would be difficult to find a case in which the situation from a factual
and legal point of view is more in contrast to this one than the pattern
described in the passage just quoted from the Asylum case. The Asyliim
case involved an adjustment of directly competing interests of States.
On the other hand, indeed to the contrary, the norm of non-discrimination
and non-separation involves the promotion of common interests and
collective interests of States, and of the organized international commu
nity taken as a whole. Thesc are, moreover, common interests which rest
upon a widely shared and deeply felt and often eloquently expressed
humanitarian conviction. In this respect apartheid corresponds to
genocide, and the nature of the law-creating process in response to both
has been remarkably similar: one in \vhich the collective will of the
international community has been shockcd into virtual unanimity, and
in which the moral basis of law is most visible. It is precisely because
there is an offender that there has been a drive to create a norm. If the
offender is allowed to avoid the legal condemnation of his action by stating
a protest, then international law is rendered impotent in the face of a
grave challenge to the values underlying the international social order.
In the Fishert'escase the Court affirmed, as I have said, that "the
ten-mile rule would appear inapplicable as against Norway inasmuch as
she has always opposed any attempt to apply it to the Norwegian coast".
But the Court emphasized many other factors as well, including Norway's
long historical daims, its peculiar economic dependence on fisheries, the
general toleration of other States, and the acquiescence by Great Britain,
the other party, itself over a long period of time. Here again the alleged
customary norm was a mattcr of adjusting dircctly competing or con
flicting interests of States differently situated, littoral States versus
maritime States; it did not involve the enforcement of a world community352 SOUTH WEST AFRICA
standard against a sole dissenter who is moreover discharging responsibil
ities on behalf ofthat very community. The proof of custom appropriate
to the evolution of a customary norm of international law of thischaracter
is a consensus manifest from the formai acts of the competent organs of
the international community. Such a law-creating procedure isa function
al requirement of the contemporary order, even given the rudimentary
nature of the collective processes now existing. Such a proccdure parallels
the evolution of custom by State practice, which is ascertained by the
inter-action of States. Here it is generated through expressions mani
festing a collective judgment, a collective will. The Court in the past has
been faced essentially with daims alleging the existence of norms arising
out of State inter-action. It is in this respect that the Applicants may
perhaps appropriately rcfer to this case as rare in the annals of this Court
or its predecessor, inasmuch as the background of precedents, two of
which I have cited, is less relevant than might at first appear from the
generality of the language traditionally used by this Court and its
predecessor in cases involving the conflicting or competing interests of
States and the inter-action of States.
The late Judge Sir Hersch Lauterpacht suggested that concepts of
sovereign consent and universality, if taken literally, would impoverish
the dynamic possibilities for the growth of international law, as well as
undercut much of the law in being. The learned author asked and re
sponded to a revealing rhetorical question-! quote from his work The
Development of International Law by the International Court of Justice,
1958 edition, pages 191-192, as follows:
"If universal acceptance alone is the hall-mark of the existence of
a rule of international law, how many rules of international law can
there be said to be in effective existence? Any such acceptance of the
standard of universality as the test of the existence of a rule of
international law may be open to the objection that it puts into
question the existence of most rules and principles of international
law. For this would appear to be the result of a judicial method
which declines to treat a widely adopted practice as constituting
accepted international law and which elevates the attitude of a
small number of States to the authority of a practice entitled to
equal---or greater-respect.''
Respondent's insistence that its protest should be permitted to obstruct
the formation of a legal norm, even in a context in which the world
community has an interest as manifestas in the Mandate, would seem to
paralyse the dynamic aspects of international supervision by allowing
the Mandatory's objection to freeze the content of Article 2, paragraph 2;
the core and essence of the sacred trust itself. Such discretion vested in a
mandatory must be exerdsed with appropriate appreciation of the
relevance of the will of the organized international community on the
issue of whether or not the norm contended for by the Applicants actually
exists. Such appreciation, if taken together with Judge Lauterpacht's
advocacy of "predominance" rather than "universality" as the measure
of general practice and acceptance by nations, makes out an overwhelm
ing case for the Court to acknowledge the existence of the norm of non
discrimination and non-separation as a matter of customary international
law, and once so acknowledged, makes its application to the Mandate a
perse matter, in the Applicants' submission. REPL Y OF MR. GROSS 353
Article 38 (1} (c): "... the general principles of law recognized by
civilized nations". This third source of international law has concededly a
somewhat indefinite scope and application, and yet is helpful as an
independent foundation for the Applicants' theory of the case on this
branch of this legal theory, with respect to the evolution of an interna
tional legal norm of the sort described in the Reply, IV, at page 493. This
sub-paragraph of Article 38 (r)~sub-paragraph (c)-helps not only as
an independent foundation for Applicants' theory of the case in the
respect relevant here, but also to supplement and reinforce the other
explanations advanced by the Applicants to demonstrate the existence
and applicability of an international legal norm or international standards
that govem the interpretation of Article 2 as a matter of law.
In the jurisprudence of the Court, "the general principles of law" have
been generally used to fill in gaps in international law by relying upon
private law analogies, based upon legal rules and institutions commonly
found in municipal lcgal systems. As such, Article 38 (I) (c) provides a
way to enrich international law on the basis of what may be called
comparative law research. There is no tradition, as with customary
international law, of premising the existence of a general principle of law
upon evidence of univcrsality, or the absence of any protest, or upon a
sense of obligation with respect to a duty. As such, it is the source of law
least closely tied to the ideas of legal obligation associated with the
approach of legal positivism. In this regard, Article 38 (r) (c) has
frequently been identified as the manner by which the perspectives of
natural law can be most easily accommodated in a developing interna
tional system. But in addition, in relation to Article 38 (r) (c), it would
seem most appropriate for the Court to confirm the role of consensus as
manifest in the formal acts and proceedings of the competent organs of
the international community as a source or basis of international legal
norms.
In this respect there would be two ways in which Article 38 (r) (c)
might establish, or at least strengthen, the Applicants' contention that
a legal norm of non-discrimination and non-separation has corne into
being in international society. The first would beto regard the presence of
laws and regulations against racial discrimination and segregation, in the
municipal systems of virtually every State, as establishing, by compara
tive law analysis, an essential precondition for the assertion of the norm
of non-discrimination and non-separation as a ''general principle of law",
within the meaning of Article 38 (r) (c).
The second approach might be to regard the international consensus,
as, for example, evidenced in the Reply, IV, at pages 493-510, as a general
principle of law recognized by civilized nations everywhere in the world.
Such an approach would view the interpretation of the sub-divisions of
Article 38 in light of the nceds of the developing international legal order,
giving to Article 38 a dynamic content. and thcreby giving full scope to
the fact that the Statu te of the Courtis an integral part of the Charter of
the United Nations and is itself capable of, and entitled to, the same
flexible principles ofnterpretation as have been applied to theremaining
provisions of the Charter itself. This of course applies with even greater
force to the mandate instrument, an international regime. The Statute
of the Court, as an integral portion of the Charter, underscores the point
that this Court itself is formally constituted as an institutional component
of the organized international community, thereby making it highly354 SOUTH WEST AFRICA
appropriate to give effect to the Iaw-creating processes active in other
segments of this same international community, of which the Courtis the
high judicial tribunal.
All legal systems, of course, have evolved from some social consensus
on matters of basic social rights and duties. International law has
developed and established much of its content by crystallizations of the
jus gentium or consensus gentium, if we may use that phrase, in the period
of its growth over the centuries which preceded the formulation of
Article 38 of the Statute.
Restrictive approaches to the interpretation of Article 38 (r) (c) tend
to reflect either jurisprudential attachment to legal positivism or-which
amounts to much the same thing-to absolute doctrines of sovereignty
which subject ail international legal obligations to the requirements and
strictures of universal consent. Such a perspective would not only deny
the functional requirements of an effective international legal system,
given the needs and structure of international Society as it currently
fonctions and some of the main characteristics of which were shortly
and briefly enumerated in an earlier phase of this moming's proceedings
by way of introduction, but would also ignore the close association of
general principles with the ideas of equity and natural justice, which
have been present since 1920. For example, when the Committee of
Jurists drafted the Statute of the Court it was present; for instance, one
of the leading members of the Committee of Jurists which drafted the
Statute of the Court, Baron Descamps, referred to this source of inter
national laVyin terms of (and I quote from Judge Manley Hudson's
book The Permanent Court of International Justice I920-I942, pp. 194-
195) "the legal conscience of civilized nations", a phrase reminiscent
of Judge Alvarez' reference to the "juridical conscience of the peoples"
as a source of international law. M. de Lapradelle, also a member of
the same Committee of Jurists in 1920, said, and I quote again from
Judge Hudson's book, that "the general principles" would enable the
International Court to "judge in accordance with law, justice, <;lnd
equity".
Mr. Rosenne has corne to the following conclusion concerning the
character of Article 38 (1) (c):
"These instances show that the 'general principles of law recog
nized by civilized nations' are not so much generalizations reached
by application of comparative law ... as particularizations of a
common underlying sense of what is just in the circumstances.
Having an independent existence, the1r validity as legal norms
does not derive from the consent of the parties as such, provided
they are norms which the Court considers civilized States ought to
recognize." (The International Court of Justice, p. 423.)
This, of course, is a conception of Article 38 (r) (c) which demonstrates
the relevance of general principles of law to (a) the acceptance of the
consensus of the organized international community as a source of
international legal norms, and (b) a construction on a per se basis of the
meaning and intent of Article 2 (2) of the Mandate in question here.
International crimes, such as piracy, evidence processes by which
the international community has acted as a whole to uphold its common
interests, making use of norms and standards in those cases to confer
an extraordinary power of jurisdiction upon member States and nation REPL Y OF MR. GROSS 355
States. In the absence of international institutions, the manner of dealing
with common danger historically has been the expansion of the normal
competence of States, making each, in this sense, an agent of the whole,
and to count upon decentralized actions, unco-ordinated actions, dis
continuous actions of self-help to realize the common interest of the
world, for example, in the suppression of crimes such as piracy.
Professor Charles Cheney Hyde has an intercsting passage in his
treatise which almost exactly coïncides with or expresses the position
of the Applicants in this litigation:
"... the offence of piracy derives its internationally illegal aspect
from the will of the international society. That society, by common
understanding rcflected in the practice of States generally, yields
to each of its members jurisdiction to penalize any individuals
who, regardless of their nationality, commit certain acts within
certain places." (C. C. Hyde, International Law Chiefly as Inter
preted and Applied by the United States, Vol. I, p. 768, second revised
edition 1945.)
What of course is relevant is the first part of the passage just quoted.
Professor Hyde thus gives Applicants' conclusion with respect to
apartheid, in as much as the Applicants contend that "apartheid", in
the words of Professor Hyde, "derives its internationally illegal aspect
from the will of the international society".
Similarly,the international crime of genocide has corne to be accepted
as part of the law of nations. Vlithout an cxtended discussion of this
point, the prohibition of genocide rests principally upon generality of
practice, reinforced by a moral consensus and by a common set of
interests in the suppression of that offence. The Court's Advisory
Opinion in the case of Reservation to the Convention on the Prevention of
Punishment of Genocide states:
"The origins of the Convention show that it was the intention
of the United Nations to condemn and punish genocide as 'a crime
under international law' involving a denial of the right of existence
of entirc human groups, a denial which shocks the conscience of
mankind and results in great lasses to humanity, and which is
contrary to moral law and to the spirit and aims of the United
Nations (Resolution 96 (r) of the General Assembly II December
1946). The first consequence arising from this conception is that
the principles underlying the Convention are principles which are
recognized by civilized nations as binding on States, even without
any conventional obligation. A second consequence is the universal
character both of the condemnation of genocide and of the co
operation required 'in order to liberate mankind from such an
odious scourge' (Preamble to the Convention)." (I.C.J. Reports r95r,
p.23.)
The foregoing passage is relevant to the issues now before the Court.
The Court relied there, in the Genocide Convention case, upon a General
Assembly resolution to construe the character of an international legal
norrn presented for consideration, and, furtherrnore, the Court found it
legally relevant to discuss the impact of genocide upon the conscience
of mankind, the moral Jaw, and the underlying spirit, purposes and
aims of the United Nations itself. Furtherrnore, it is apparent from the356 SOUTH \\"EST AFRICA
quoted language that the Court regarded genocide as violative of inter
national law even without the convention then before it. The law
creating process operative in the context of genocide seems clearly, in
the opinion of the Court, to have been the manifest will of the organized
international community.
Itis, of course, true that when the Genocidc Convention came before
the Court no State was defending the practice of genocide. Respondent,
of course, today stoutly defends the practice of apartheid.
The result of making universality a literal precondition of law forma
tion is to make the organized international community incapable in law
of taking action against an existing practice or policy, notwithstanding
the self-evident fact that it is universally condemned.
General principles of law, for reasons set forth in the discussion just
now presented to the Court, seem to the Applicants to provide a juridi
cally sound basis for a decision that the international standard of non
discrimination and non-separation does qualify with the status of a legal
norm. But even if the Court should reject the international legal norm,
as such, as a general principle of international law recognized by civilized
nations within the meaning of Article 38, paragraph 1 (c), this source of
law, nevertheless, would provide in any event the basis for an interpreta
tion of Article 2, paragraph 2, which would establish the practice of
apartheid as a perse violation in the light of the international standards
for which the Applicants contend, and which are confirmed and de
monstrated by precisely the sarne considerations upon which the Appli
cants rest their case for the establishment of an international legal norm,
as well.
The contention here is that "general principles" should guide authori
tatively the interpretation by this Court of a document of an undertaking
such as the mandate instrument. It is by recourse to these "general
principles" that the Court has consistently read a requirement of equity
and justice into its analysis of legal argument, and especially of treaties
and other similar documents. Judge 1\Ianley O. Hudson in the Diversion
of Water /rom the Meuse case, r937, P.C.[.]. Series A/B, No. 70,
pages 76-77, made the point in detail that the authority of the Court
to apply "general principles of law recognized by civilised nations"
gives it-and I use the words of the late Judge Hudson-"some freedom
to consider principles of equity as part of the international Jaw which it
must apply".
In connection with the interpretative act itself the Applicants also
cite Judge Lauterpacht's Opinion in the South West Africa (Voting Pro
cedure) case.
I would quote briefly from the I.C.J. Reports r955, page 105; there
the leamed Judge was emphasizing the principle nemo judex in re sua
in approaching an interpretation of the Mandate, a principle which,
given the character of the underlying instruments, provides a solid legal
basis for resisting the contention of Respondent that Article 2,paragraph
I,confers a virtually unlimited discretion in the face of contrary daims
by the competent organs. And as Judge Lauterpacht expressed it, in the
same general context:
"In so far as the principle nemo judex in re sua is not only a
general principle of law, expressly sanctioned by the Court, but also
a principle of good faith, it is particularly approprjate in reJa6on
to an instniment of a fiduciary character such as a mandate or a REPLY OF MR. GROSS 357
trust in which equitable considerations acting upon the conscience
are of cornpelling application. This, too, is a general principle of
law recognized by civilised States." (I.C.J. Reports I955, p. ro5.)
And it is interesting in this context to note the phrase "principle of
good faith", of which we have heard much in these proceedings. It is also
relevant to regard the recognition of reason and reasonableness as a
premise for interpretation.
Reason enters into a determination of whether Respondent, in defiance
of an overwhelming consensus in the international community, a
consensus approaching unanimity, can continue its policy unilaterally
or whether, in the light of its refusal to take account of relevant inter
national standards, it has not committed a perse violation of its obliga
tions. In the Right of Passage case the honourable Vice-President of the
Court, Judge Wellington Koo, called attention to reason and reason
ableness as a fondamental source of interpretative guidance by calling
attention to Bynkershoek's dictum-"In the law of nations, reason is
sovereign' '.
Finally and briefly, with the Court's permission, I turn to a discussion
of Article 38, I (d), in the relevant context. The trend toward legiti
matizing the normative processes of the organized international com
munity is evidenced not only by the judgments of the international
institutions themselves, but also by the writings of international jurists
<levoted to the evolvin~ needs of international life in the context of the
traditional system of nghts and duties of States. .
In the opinion of scholars, as the Court will be aware, resolutions and
formal acts interpreting the Charter were conceived even at San Francisco
to have a central role in the development of the law of the Charter. Each
organ was expected to interpret those parts of the Charter concerned
with its particular fonctions.
Article 38 of the Statute of the Court represents a compromise between
the jurisprudential traditions of legal positivism and natural law, as
has been pointed out. One of the most convincing expressions of the
relevance of natural law tradition to a construction of the predecessor
of Article 38 of the present Statute is the work by Judge Spiropoulos,
Théorie généraledu droit international (1930), and the Applicants cite
particularly pages 97 and the following. Natural law sets off the ethical
conscience of mankind against the will of a sovereign Sta te; consequently,
the collective will of the organized international community becomes en
dowed with a law-creating competencewhichcan overcome the defiance of
a nonconforming State, particularly one which stands alone. Such compe
tence exists a fortioriwhere basic considerations of human well-being are
at stake, and again, a fortiori,where the nonconformin&State is carrying
out the fonctions of a Mandatory under an authonzation from the
international community itself. .
Consequently, the provisions of Article 38 should be interpreted in a
broad and flexible spirit. And President Basdevant said, at San Francisco,
that despite certain inadcquacies in the formulation of the sources in
Article 38: "The Court has operated well under it and time should not
be spent in redrafting it." (UNCIO, XIV, p. 120.)
I have quoted from Mrs. Higgins' work and I refer to it again only
because as a major study of the development of international law by the
political organs of the United Nations, it is significant to note the
opinion expressed. I quote from page 2 of the volume cited: SOUTH WEST AFRICA
"CoJJectjve acts by states, repeated by and acquiesced in by
sufficient numbers with sufficient frequency, eventually attain the
status of law.'' (The Development of International Law by the Political
Organs of the United Nations (1963), p. 21.)
The distinguished director of the Legal Division of the United Nations,
Dr. Oscar Schachter, has expressed the view that a consensus approaching
virtual unanimity, disclosed in resolutions by competent organs, would
establish an interpretation of the Charter certainly entitled to great
legal weight. ln his lectures delivered in 1963 at the Hague Academy,
Dr. Schachter said:
"... one might start with the principle that an 'authentic' inter
pretation of a treaty by the parties is le~ally binding on them
to the same degree as the treaty itself. I beltevc that it is generally
accepted that this conclusion would hold for an interpretation of
the Charter adopted by ail the Members (or even 'by the over
whehning majority' except for some abstentions) in the General
Assembly; the interpretation wouJd be characterized by interna
tional lawyers as having the same legal force and effect as the Charter
itself.''Hague Lectures, 1963, I, p. 186.)
The juristic background for the Applicants' theory of the case has
been developed fully and explicitly in the writings of Dr. Jenks, to
whom I have already referred, and in our view most clearly and persua
sively in an essay by Dr. Jenks entitled "The Will of the World Com
munity as the Basis of Obligation in International Law" in his work
entitled Law, Freedom, and Welfare (1963). Dr. Jenks' concept of the
will of the international community is equivalent to, and analogous to,
the Applicants' reliance upon consensus as a basis of international legal
obligation. In this regard it may be appropriate to call to the attention
of the Court the recent decjsion by the United States Supreme Court
in the well-known case, Banco Nacional de Cuba v. Sabbatino, 376
United States 398, decided in 1964, which has been the subject, of course,
of considerable legal analysis and scholarly writing, even in the short
interval since the decision was handed down.
But it is a case, and it is cited here only as, bearing upon the proposi
tion that juridical relevance was accorded to the concept of consensus in
construing the existence of an obligation under international law.
Dr. Jenks views the traditional sources of law in the light of the
overriding relevance of the wm of the wodd community.
ln conclusion of this discussion of the Article 38, paragraph 1, rubrics
or sub-sections, I should like to read from the work of Dr. Jenks, Law,
Freedom, and Welfare published in r963, at P.age 93. In the context in
which Dr. Jenks was demonstrating the poss1bilities-as the Applicants
perceive the context-for accommodating law-creating by the organized
mtemational community within the three main sub-sections of Article 38
(1) of the Statute, Dr. Jenks writes as follows, at the cited page:
"The will of the community constitutes the basis of obligation
but the law of the community cornes into being by all the processes
of legal development and growth known to mature legal systems.
It is the will of the community that principles and rules evolved
in accordance with these processes of growth shall be regarded as
binding. Treaty, custom, the general principles of law recognized
by civilized nations, judicial precedent and the opinions of the most REPLY OF MR. GROSS
359
highly qualifi.ed publicists, all fall naturally into place as methods
by which, in accordance with the will of the community, the law
is developed to meet the changing and growing needs of an evolving
society."
This seems to be a fi.tting place to stop the analysis and now to proceed,
with respect, to a brief point-by-point reference to Judge Sir Gerald
Fitzmaurice's questions in the series propounded by the learned Judge.
The Applicants have already ventured to respond to questions Nos. 8
and IO. With reference to question 8, a point of further consideration
remains which will be considered in a few moments.
Following this next section, of a relatively short order, which will be
directed to the remaining question of Judge Sir Gerald Fitzmaurice's
series,it will be the intention of the Applicants briefly to respond to the
question put by Sir Gerald Fitzmaurice on 13 May with respect to the
rights, if any, of the Principal Allied and Associated Powers, following
which, the Applicants will undertake to respond to the question pro
pounded by the honourable President with regard to certain facts rela
ting to Article 73 of the Charter of the United Nations. Then, following
that, in closing the session, the Applicants will, subject to reser
vation of rights which will be stated, make their submissions, and will
conclude then at the conclusion of the proceedings this morning.
On the basis of the discussion just concluded, it now seems appropriate
to offer a series of specific replies to Judge Sir Gerald Fitzmaurice's
series of ten questions. It will be noted that the Applicants already have
commented upon the language in the preamble to the series of questions,
and, in this regard, it may suffice to point out that the Applicants have
sought in their comments concerning the preamble to establish a context
for the specifi.c answers-a context which, as was pointed out, consists
of three main aspects.
First, the qualitative element of the obligation embodied in Article 2
of the Mandate; secondly, the authoritative and governing character of
the standards and norm developed by the competent organs of the
international community; and, thirdly, the apparently logical require
ment that the defences of the Respondent are confined, under the legal
theories of the Applicants, to disproving the qualitative nature of the
allegation, and to showing that the standards and/or norm do not exist
or are not applicable.
In the discussion just concluded, the Applicants have sought to
vindicate their theory of the case by suggesting to the Court alternative
and cumulative rationales of a juridical nature, by which the Court could
find, on an alternative or cumulative basis, that Respondent's conduct
in the sense which has been placed before the Court in the record and
in these Oral Proceedings, is to be construed as a violation of Article 2,
paragra ph 2.
To summarize, the Applicants have sought to show, first, that canons
of interpretation, viewed in the mandate setting, provide a basis for the
construction of the obligation contained in Article 2, where these canons
of interpretation suggest the authoritative relevance of the international
standards which are reflected in the overwhelming consensus of the
organized international community, upon whom this sacred trust was
laid. By such means, the Applicants have sought to give content to the
qualitative aspects of Article 2 and to demonstrate the incompatibility
between the obligations of the Mandate and Respondent's policies360 SOUTH WEST AFRICA
which are summarized and captioned by the term "apartheid" or
"separate development".
This incompatibility is established as a matter of law, in the Appli
cants' submission, because of the qualitative character of the link
between international standards relatmg to moral well-being and social
progress, on the one hand, and the policy and practice of apartheid or
separate development, on the other.
Subsidiary to this demonstration of Article 2 as what may be called
a mandate norm-that is "a rule regulating the mandate", in the words
of the Court in 1950-as a provision in an international treaty (that is
to say that a mandate norm contained as a provision in an international
treaty), is the view expressed at page 329 of the 1962 Judgment, that
the Mandate establishes "a new international institution" which exists
and which is viable as an autonomous international regime. It is the
nature of this regime to establish a means whereby the international
community can give effective expression to its overriding intention to
set up a political institution, a device, which upholds the welfare of the
inhabitants of the Territory; the institution, the regime, has no other
purpose. The mandate institution can achieve its ovcrriding purpose
only if the competent organs of the international community may
translate effectively their judgments on the subject of moral well-being
and social progress into authoritative rules which take precedence over
inconsistent judgments, no matter how dceply entertained, on the part
of the agent of the international community, the Mandatory. It is in
this context that the Applicants submit that the purposes of the Man
dator must take precedence over the purposes of the Mandatory. To
give content to this relationship between the competent organs, speaking
for the organized international community, the Mandator, and the
Mandatory, the Applicants respectfully urge upon this Court the authori
tative application, as a matter of treaty-and conventional inter
pretation, of international standards of non-discrimination and non
separation.
Altematively and cumulatively the Applicants have submitted that,
given the institutional aspect of the mandate scheme, such standards
have evolved into a distinctive normative category, namely that of
international mandate rules.
Thirdly, and again alternatively and cumulatively, it is submitted that
the international standards have evolved into the quality of international
law, and that the Mandatory must be conclusively presumed to have
intended, along with the founders of the system, to conduct its l\Iandate
in accordance with international law. This makes it a matter of a fortiori
application in the interpretation and construction and application of
the Mandate itself. The Applicants contend that the material, the
evidence, comprised of custom, general principles and the opinions of
jurisconsults-that ail this is evidence of the proscription of discrimina
tion and non-separation as a matter of international Iaw. If the Court
does not accept this contention, it would still remain convincing beyond
dispute, in the Applicants' submission, that the same evidence, the same
sources and the same considerations establish the international standards.
even though they may not in the Court's view have attained the quality
and status of an international legal norm.
In question I, Judge Sir Gerald Fitzmaurice asks about the purely juri
dical basis ofthe nonn of non-discrimination and non-separa tion for which REPL Y OF MR. GROSS
the Applicants contend. In the Applicants' respectful view, their attempt
to show the emergence of an international legal norm constitutes a
juriclical exposition responsive, or intended to be responsive, to the
leamed Judge's basic question. In fact the Applicants feel that their
demonstration of the legal effect to be given to the international stan
dards either by way of canons of interpretation, or because of the
Mandate as treaty, or because of the special attributes of the mandate
institution (in which case it would become a norm of the institution
itself-a rule of the institution) also provides the honourable Court with
a purely juridical basis upon which to construe and apply Article 2 of
the Mandate, viewed as a treaty or as an institution or both.
The Applicants adhere to their original characterization of the norm
as a norm of non-discrimination and non-separation, as labelled and
defined at page 493 of the Reply, IV, although it would seem with
respect to have the same operative relevance to this litigation as would
the phrase "non-apartheid norm" as used by the learned Judge in his
question. The Applicants have stated thcir reasons for this adherence
or, if the Court would prefer, insistence upon their classification or
categorization of the policy by the use of the term "non-discrimination"
or "non-separation", and we have attempted to state our reasons for
that at the verbatim record, page 306, supra, and the Court will not
be burdened with a repetition of that point here.
In his first question, Judge Sir Gerald Fitzmaurice also calls attention to
"the great importance of the humanitarian and sociological considerations
involved"; the learned Judge asks also that we, the Applicants, "have
regard to the position of the Court as a court of law". The Applicants
wish to assert, and take this opportunity to assure the Court, that such
considerations as have been put before the Court have been regarded
by the Applicants as exclusively relevant to the proper discharge of the
judicial fonction of this Court. Humanitarian and sociological considera
tions, of course, form part of the international background of this
litigation; these factors have played an important role, a formative role,
in the crystallization of the very international standards for which we
contend in the field of race relations, so much so that they have entered
into the process by which the standards have developed the legal quality
and status of a rule of international law-a legal norm.
Nevertheless, the Applicants ask the Court in the context here to
apply traditional legal canons and principles to the interpretation of the
·obligations embodied in Article 2, paragraph 2-neither non-juridical
or extra-juridical on the one hand, nor innovational on the other-but
juridical and traditional. In this regard the Applicants advance a legal
theory that is quite independent of the sociological and humanitarian
considerations forming the background of the dispute and entering into
the development of the judgment of the international community. But
the Applicants' submissions depend purely on the interpretation and
application of Article 2, paragraph 2, in the light of objective criteria,
whether such objective criteria take the form of international standards
or international legal norm, or both.
The second question propounded by the learned Judge enquires
whether, irrespective of the answer given to question r, the Applicants
contend that, on the language of Article 2 itself, apartheid, as defined by
the Applicants, "must necessarily and in all circumstances be illegiti
mate". In the Applicants' view the authoritative character of the SOUTH WEST AFRICA
governing international criteria, whether accepted as standards merely or
as a legal norrn, necessarily doand in all circumstances make the practice
of apartheid, or separate development, incompatible as a matter of law
with the obligations contained in Article 2 of the Mandate. As the
Applicants have sought to make clear, once the incompatibility exists in
the context of an asserted qualitative violation of the Mandate, then
enquiry into local circumstances, comparisons with materfal benefits,
good faith considerations of the Mandatory's officiais, the scope of
discretion in Article2, paragraph r-all of these factors are in themselves
irrelevant. Testimony or evidence with respect to them would be irrele
vant. The demonstration of the violation, according to the Applicants'
submission, depends exclusively and solely upon establishing the exist
ence and applicability of objective criteria and the incompatibility
therewith of the laws and regulations, and the measures and the methods,
of an official nature, the existence of which is conceded by the Respon
dent.
This theory of the Applicants' case depends upon the link between
the criteria and the terrns of Article 2, paragraph 2, of the i\Iandate,
as well as upon the entire Mandate setting within which the inter
pretative acts take place, and all this further within the context of what
I have called the mandate jurisprudence which has evolved authorita
tively in this very Court during the past 15 years. Hence the violation
of Article 2 is not in a strict sense based, in the words of the learned
Judge, upon the language of Article 2 itself but rather, in the Applicants'
respectful view, is established by the language in its inter-relationship
with the appropriate canons of interpretation, and most especially with
the need to import evolving international standards into Article 2,
paragraph 2,as an indispensable aspect of realizing the overriding purpose
of safeguarding the sacred trust.
Itis in this respect that the Applicants would, respectfully, emphasize
once more that in addition to the fiduciary idea, the fiduciary con
notation implicit in the Mandate, the mandates system brought into
being a special regime, a novel institution, inthe words of this honourable
Court, which is to be administered by the Mandatory on behalf of the
organized international community upon which the trust was laid, in the
words, again, of the 1962 Judgment. And the Mandatory has no other
fonction in the Territory, and the rights which it has are mere tools to
enabie it to carry out its obligations, again a matter of established
mandate jurisprudence with respect to this very Mandate.
Thirdly, the Applicants have tried to answer Judge Sir Gerald Fitz
maurice's third question, in part, by their discussion of his preambular
statement. In this question the leamed Judge enquires whether "the
criterion of compatibility with the Mandate" is the standard or measure
as such, or "the actual results of the measure or practice concemecl and
its concrete effects on the well-being and social progress of the persans
affected".
As the Applicants have submitted and would reaffirm, the test of a
qualitative violation is whether the practice or measure is compatible
or not with goveming criteria specifying the quality sought. whether
these criteria take the forrn of international standards or an international
legal norrn. The Applicants contend that apartheid is inherently in
compatible with the objective criteria provided by international organs
competent and responsibie for giving an authoritative content to the REPLY OF l\lR. GROSS
meaning of well-being and social progress of the inhabitants as, these
terms are used in Article 2of the Mandate, the essence of the sacred trust.
Fourthly,JudgeSirGeraldFitzmaurice'sfourthquestionaskswhetherthe
Applicants are prepared, and whether they propose, to furnish the Court
with factual evidence designed to show the actual effects of Respondent's
policies, in the words of the leamed Judge. The Applicants, of course,
are prepared or would seek to be prepared to provide the Court with
whatever information or evidence the Court would rule to be relevant
in establishing their theory of the case in respect of Article2,paragraph 2,
of the nfandate, or in any other respect. Nevertheless, it is the view of
the Applicants that the nature of their legal theory and the sole basis
upon which it rests, and has always rested from the earliest pleadings to
the present time, renders irrelevant the calling of witnesses or the
adducing of other forms of evidence designed to show the so-called
"actual effects" of Respondent's policies in the Territory. Factual
evidence of this sort would not, in the Applicants' view, have any
relevance to or legal bearing upon their submission that apartheid,
inherently and per se, constitutes a violation of the standards or the
norm governing the interpretation of Article 2, or both.
With regard to questions 5,6and 7. these deal essentially, as understood
by the Applicants, with the position of the Respondent; although of
course it is understood that the questions have been propounded to both
Parties, tlus series 5, 6 and 7 are in relation to the views of the Respon
dent. The Applicauts have already sou~ht to indicate their analysis of
the Respondent's apparent theory of 1ts obligations under Article 2,
especially in connection with their rebuttal arguments and their com
ments upon the leamed Judge's preamble. Itsuffices here, it would seem,
to say in summary form that Respondent's submissions concerning the
scope of its discretion, the realities of good faith and the character of
the so-called actual effects upon well-bemg seem to the Applicants to be
irrelevant to an assessment whether international standards and/or legal
norms of non-discrimination and non-separation exist, and whether they
govem the obligations of the sacred trust embedded principally in Article
2 of the Mandate.
The ninth of Judge Fitzmaurice's series of ten questions seems to put
into focus the essential disagreement between the Parties as to the
character of the obligation embodied in Article 2 of the .Mandate, which
the Applicants have sought to make clear by the arguments now con
cluding conceming the reasoning which underlies theîr distinction
between the qualitative and quantitative aspects of Article 2, paragraph
2, obligations. If this case were brought on the theory, which it is not,
that the Mandatory had built too few schools or hospitals in the Territory,
then it might be appropriate to adopt a balancing approach to determine
whether the duties with regard to the promotion of material well-being
or other kinds of well-being were upheld. But this case is brought on
the premise that Article 2 contains a qualitative element, violation of
which is a breach of the Mandate.
The Applicants feel also that the character of the international
standards and/or of the international legal norm of the same content,
prohibiting discrimination and separation, entails a condemnation of
apartheid in such absolute terms that it excludes reasonable possibilities
of justifying or extenuating the practice by reference to other con
siderations which become extraneous as a matter of law, and I include SOUTH WEST AFRICA
good faith, local conditions, material progress of a visible, tangible
nature or any other kind. A value judgment, in other words, has been
incorporated into the international standards and norm; the judgrnent
is built into the standards, it is of the essence of the norm, and the
Applicants submit that apartheid is necessarily and in all circumstances
incompatible with the promotion of well-being and social progress of
human beings and, in this case, a fortiori so, because the undertaking is
to accomplish these objectives to the utmost.
I turn now to a supplemental response to Judge Sir Gerald Fitz
maurice's eighth question. The Applicants have been requested to give
further consideration to the status of the French text of the Mandate.
(The citation is to verbatim record, at pp. 264 to 265, supra.) The Appli
cants, in earlier response to this question, adverted to the fact that the
English text is authentic and cited the reasons underlying that conten-
tion. The situation now appears to be as follows: .
As pointed out by the learned Judge, the League Council embodied
both the English and French texts in its resolution of 17 December 1920.
Accordingly, as was pointed out by the learned Judge, both texts have
bcen treated as official texts. In respect of the legal significance of the
Council's action in this regard, it seems to the Applicants that the
commentary on the Law of Treaties in the 1964 report of the Interna
tional Law Commission may be a pertinent consideration. I quote from
United Nations document A/5809, which is, as I say, the 1964 report of
the International Law Commission:
"When a treaty is plurilingual, there may or may not be a differ
ence in the status of the different language versions for the purposes
of interpretation. Each of the versions may have the status of an
authentic text of the treaty; or one or more of them may be merely
an 'official text', that is, a text which has been signed by the nego
tiating States but not accepted as authoritative; or one or more of
them may be merely an 'official translation', that is, a translation
prepared by the parties or an individual government or by an organ
of an international organization.''
In this case, as has been pointed out, the French translation was
prepared by the Secretariat of the Leaguc of Nations, and in the com
munication covering circulation of the document the English tcxt was
stated to be the authentic text. It would seem on the basis of this
commentary that the English text has been and remains the authoritative
text.
Reference also was made by the learned Judge to the Permanent
Mandates Commission; according to the minutes of the First Session,
Second Meeting of the Pennanent Mandates Commission of 5 October
1921, a member (I think it was Mr. de Vries) enquired "which text of the
:Mandates should be regarded by the Commission as authentic-the
English text or the French text?" The Commission, according to the
minutes from which I quote, "were agreed that the French text should be
so regarded in the case of the French and Belgian Mandates and the
English text in the case of the English Mandates". This is from the
Permanent Mandates Commission Minutes, First Session, Second Meeting,
5 October 1921, at page 107.
It appears to follow, therefore, from the practice of the Permanent
Mandates Commission, that in the case of the Mandate for South West REPLY OF MR. GROSS
Africa the English text remains the authentic text, which would be
consistent with the communication of the Acting Secretary-General of
the League of Nations.
In respect of any question arising concerning possible distinctions
between the two texts in terms of meaning or terminological significance
with respect to obligational or substantive requirements or interpretation,
the Applicants here would respectfully rest their case upon their earlier
arguments and submission5 with regard to the legal scope, nature and
content of Article 2, paragraph 2, as these matters have been dealt with
in reference to the English text in other contexts of their response to
Judge Sir Gerald Fitzmaurice's series of questions as wellas to their general
arguments.
lt would, in the Applicants' respectful submission, be the same result
with respect to the French text, as understood by the Applicants.
But we would rest upon the arguments we have made with respect to the
English text, authentic in this case and applicable to this area,-argu
ments and contentions of a legal and substantive nature.
On 13 May, VIII (Minutes), page 36, the question was propounded
regarding the residual or reversionary rights, interests or title which
might revive and become operative, that is to say in relation to the
Principal Allied and Associated Powers, in certain eventualities suggested
in the question. The Applicants would have perhaps preferred an
opportunity to reply to this question following, and in the light of,
Respondeht's answer to Judge Koretsky's question, which appears to
be related in one aspect to the learned Judge's question with respect
to the Principal Allied and Associated Powers.
The Applicants respectfully submit their response to Judge Fitz
manrice's question with the realization that it is not within the Appli
cants' competence, legally speaking, to encompass a full answer of the
sort which the importance of the question naturally suggests and brings
to mind at once. The law on the subject is far from clear, as the Court
will know.
In 1950 the Respondent, appearing before the Court in connection
with the Advisory Opinion proceedings, stated as follows-this is from
page 276 of the Pleadings, Oral Arguments, Documents in the International
Status of South West Afri'ca, I.C.]. Reports r950, Dr. Steyn speaking for
the Respondent-
"That, Mr. President, brings us to the crux of the whole question,
namely, the effect upon the mandates of the dissolution of the
League. In considering this aspect of the matter, it is necessary
to recall that the Principle Allied and Associated Powers were
.fimctio officia after the mandate had been conferred and confirmed.
Between the Union Government and these Powers, in their capacity
as such, there was nofurther relationship, affecting the position of the
Union Government, in regard to South West Africa. They had
fulfilled their function and had passed out of the picture, except of
course as Members of the League." (Italics added.)
The Rejoinder, V, at page 84, sets out a discussion of the matter
which the Applicants will not seek to paraphrase or reformulate, but
would respectfully call to the attention of the Court. As understood by
the Applicants, there is here a reservation implicit but not explicitly
stated, although this again is a characterization with which the Res-366 SOUTH WEST AFRICA
pondent itself might not agree or the honourable Members of the Court
might not agree (it is simply an interpretation by the Applicants of the
intendment); there appears to be a tentative assertion with respect to
the possibility that upon legal lapse of the Mandate, the title of the
Respondent might possibly be based upon "rights of conqucst". This
contention, of course, would affect the possible reversionary interest or
rights of the Principal Allied and Associated Powers, and it is in this
sense that the Applicants thought they perceived a possible relationship
between the question propounded by Judge Sir Gerald Fitzmaurice and
the question propounded to Respondent by Judge Koretsky.
The Applicants would take a view contrary to that which is implicitly
or tentatively set forth in the Rejoinder, V, at page 84. They would
disagree for reasons which are related to the jurisprudence of the Mandate
itself.The Court, in 1962, as the Applicants have reminded the Court,
declared that the sacred trust was "laid upon the League as an organized
international community"-that is from page 329, l.C.]. Reports I962.
ln the Applicants' respectful view, the power of disposition of the
Mandate and the terms of such disposition would either rest with the
competent organs of the organized international community upon which
the trust was laid, or it would rest upon an agreement between the
organized international community and any other powers which might
assert an interest, reversionary or otherwise, in the matter. It would
appear to the Applicants that considerable difference might be implicit
in the circumstances under which the problem might arise, in which
organ of the United Nations a problem might arise or develop with
respect to this weighty matter and it is only with diflidence, therefore,
that the Applicants address themselves to the question at ail,impelled
by a sense of duty to the Court to do so. It would scem, in view of the
fact that the Principal Allied and Associated Powers are all Members
of the United Nations, that it is that the United Nations, in the Appli
cants' view, has replaced the League of Nations as the Mandator, that
the United Nations has asserted a continuing interest in the Mandate,
to understate the matter, that on these, and many other considerations
of a legal nature, it would be difficult to envisage the disposition of this
Mandate or even the analysis of its legal position assuming certain
contingencies, not now before the Court, without the full expression of
view of the United Nations itself. Therefore, the Applicants would
respectfully rest on this point their response to the leamed Judge's
question, fully aware that from a scholarly point of view or from the
point of view of legal analysis, it is less than adequate.
Turning to the question propounded to the Parties by the honourable
President with regard to Article 73 of the Charter of the United Nations:
during the Oral Proceedings of 13 May 1965, the honourable President
propounded certain questions to the Parties, requesting that they give
consideration to certain tacts in connection with the response to Judge
Jessup's question relating to the scope of Article 73 of the Charter of the
United Nations, particularly with reference to the question whether that
Article was intended to, or did, include territories held under Mandate at
the time the Charter was drawn. I refer to the Minutes at VIll, pages
38 and 40, for the text of the questions propounded by the honourable
President.
The Applicants, having made response to the question propounded by
Judge Jessup, address themselvcs now to a consideration of the facts REPL Y OF MR. GROSS
enumerated in the series embodied in the question of the honourable
President, and would request that their comments in response to Judge
Jessup's question, in that context, be considered for what they are worth
as relevant to the understanding and fuller appreciation of the Applicants'
views with respect to the specific factual elements adduced in the question
now propounded by the honourable President.
The Applicants would, with the President's permission, commence by
reference to an important point of background or interpretation, which
may be helpful in explaining or illuminating their approach to the
specific questions which have been propounded-that it is a range of
considerations which emerges from the practice in the United Nations
itself with respect to thismatter. The basic reasons appear most clearly
from the Repertory of Practice of the United ·Nations, Volume IV, and
reference wifl be made to specific page citations in the context of the
brief discussion to follow, all by way of background to speciiic considera
tions related tothe honourable President's question.
Two basic reasons explain why the United Nations has never treated
South West Africa as a non-self-goveming territory within the meaning
of Article73 (e) of the Charter. The first is that the United Nations was
ofthe view that Article 73 (e) did not in law apply to mandated terri
tories, hence, athird system, as the Applicants have ventured to call it,
was established; secondly, the United Nations has approached the
problem of what constitutes a self-governing territory within the meaning
of Article73 (e) of the Charter, not in relation to tcommencement of the
transmission of information in terms of Article 73 (e),but rather witlùn
the context of the cessation of the transmission of information. The
approach of the United Nations never has been to increase the list of
non-self-goveming territories under Article 73 (e) as originally listed in
1946, but consistently to decrease the number of territories on that list;
the original list of non-self-goveming territories, as I say, has never been
increased.
As the Repertory of Practice of the United Nations, Volume IV, points
out at page 86:
''The questions relating to the determination of the territories to
which Chapter XI of the Charter applies, have been examined very
largely in relation to the cessation of information. Aspects of the
obverse question have not becn formalized."
The Repertory states also that apart from the original letter of the
Secretary-General of 29 June 1964 addressed to the United Nations
Members, with respect to listing territories which they regarded as faUing
within the coverage of Article 73 (e), "the United Nations members"
-and this is quoted from page 87, of theRepertory, Volume IV-
"The United Nations members have not been invited to consider
whether by the examination of factors or otherwise, areas under
their administration should be regarded as falling within the scope of
Chapter xr"
It has been contended!on!the one hand that the General Assembly had the
right "to require other countries to transmit information on non-self
goveming peoples under their administration"-that is from page 86,
of the Repertory, Volume IV. On:the other hand, it was argued, according
to the Repertory that-368 SOUTH WEST AFRICA
"those who recognized the competence of the General Assembly to
decide that the transmission of information should be continucd,
should also recognize its competence to decide that information
should begin to be sent for a territory in respect of which no informa
tion had yet been transmitted" (p. 86).
This latter contention was never adopted, as far as the Appticants are
aware.
Neither Respondent nor any other administering authority has ever
bcen requested by the United Nations to add their dependent areas to
the list ofnon-self-governing territories. This fact would, in the Applicants'
view, demonstrate that the Assembly's reluctance or failure to treat
South West Africa as a non-self-goveming territory within the meaning of
Article 73 (e) of the Charter was related to no special considerations such
as desirc to avoid encouraging the failure to submit a trusteeship agree
ment, or any other reason of a nature that pertains specially to the
Territory. It would seem rather, from the history of the matter and from
the discussion in the Repertory, as well as independcnt research concerning
the history of the treatment of Article 73 (e), that the Assembly's relue
tance to treat South \Vest Africa as a non-self-governing territory-and
I use the word "reluctance" here, perhaps improperly-the Assembly's
failure to do so was based upon a common practice, a reasoning and
approach common to all dcpendent territories. The only questions that
arase for formal consideration, with respect to listed dependent territories
were with regard to de-listing, or, more accuratcly, the cessation of the
transmission of information. After 1946, as I have said, the United
Nations did not bring any dependent territories within the terms of
Article 73, in addition to those that were on the tist. This attitude
towards the territory of South \Vest Africa, accordingly, is completcly
consistent and in harrnony with the basic approach toward all dependent
terri tories other than those listed. The establishment of the third system,
as we have called it, is especially applicable to South West Africa, and
moreover appears to confirm that the United Nations has assumed, as a
matter of Charter construction, that the Territory was not comprised
within the category of non-self-goveming territories to which Article
73 (e) applies.
Finally, by way of background, it seems essential to add that the
provisions of Article 73 (e) are inappropriate and inadequate to cover the
requirements of safe-guarding the sacred trust, as has been pointed out
in the response to Judge Jessup's question. The contrast between the
reporting requirements of Article 73 (e) and the supervisory functions
rcquisite and essential to the safe-guarding of the sacred trust appears
from the following factors, among others which distinguish the two
systems.
First, thescopeof reporting; Article73 (e) does:not provide for politi
cal information. Itis moreover limited in scope to "statistical and other
information of a technical nature". Reports as envisaged under the
Covenant and Mandate encompassed the whole performance of the
Mandate, in the words of the Hymans report (to which reference has been
made on more than one occasion in the earlier stage of these proceedings).
The whole performance of the Mandate could not be regarded as falling
within the reporting scope of Article 73 (e).
Secondly, no consultative procedures are envisaged in Article 73 (e).
Thirdly, no right of petition is provided for in Article 73 (e). Fourthly, REPLY OF MR. GROSS
no prov1s10n is made or implied in Article 73 (e) with regard to the
hearing of petit ioners. Fifthly,under Article 73 (e), the information
transmitted by administering authorities is sent to the Secretary-General
for information purposes; it is summarized and analysed by the Secre
tariat, and recommendations are made only in functional areas and not
to particular administering authorities, or in the context of particular
dependent tcrritories.
The Respondent itself has, during the course of the Oral Proceedings,
well summarized the key elements of the supervisory system which is
appropriate to the Mandate. In the verbatim of 14 April 1965 (VIU,
p. 624) in the contcxt of its discussion that the Court lacked judicial
competencc to deal with the alleged breaches of Article 2 of the Mandate,
Respondent referred to the administrative supervisory system in the
following tcrms:
"... po,;itivc contemplation of the authors of the mandates system
that in the functioning of this system mandatories would have the
assistance and the collaboration of the Permanent Mandates Com
mission and the Council of the League-in other words, the assistance
of those processes of administrative supervision, as well as the tech
nical assistance, and expert assistance, involved therein which would
rcally constitute a process of continua! consultation between the
manda tory and those administrative supcrvisory bodies; a process
of consultation which would lead it from step to step in the applica
tion of certain policies".
The reporting scopc of Article 73 (e) has very little in common with these
requirements as they have been well-defined by the Respondent itself.
As has been pointed out in the answer to Judge Jessup's question,
Respondent itself-perhaps for this reason, one does not know-has
never regarded Article 73 (e) as applying to the Territory. It has never
added the Territory to the list of non-sclf-govcrning territories. lt has
maintained throughout this litigation that Article 73 (e) does not caver
the Territory, and this is common cause between the Parties.
These comments are made by way of background, in order to relate the
answers which will now be given to the honourable President's questions,
to the context of the broader answcrs and more comprehensive considera
tions adduced in the answers to Judge Jessup's questions; this is because
of the obvious relevance of these considerations to the facts related in the
honourable President's questions, to which I now turn.
The first question relates to the significance to be attached to the fact
that the discussion in Committee 4 of Commission II at San Francisco
was based upon a working paper, introduced by a number of States,
which papcr was divided into two sections, namely "A-General Policy"
and "B-Territorial Trustee System".
During the Oral Proceedings of 7 May 1965, at pages 135-138, supra,
the Applicants endeavoured to treat the significance of the Working
Paper, which is referred to in the honourable President's first question.
The \Vorking Paper was, of course, based upon several proposais put
forward b_vsix States. (UNCIO, Vol. IO,pp. 641-655.) The wording of the
Working Paper in Part A, and the division of the Paper into General
Policy and Trusteeship sections, was based on the proposa! orginally
submitted by the United Kingdom. (UNCIO, Vol. 3, pp. 609-6r4.)
The several proposais made at San Francisco, the Working Paper itself370 SOUTH WEST AFRICA
and the relevant debates, treated the mandated territories in connection
with the trusteeship section of the Working Paper and within the
trusteeship context. There was no indication, of which the Applicants
have been made aware, that mandates were ever conceived of as falling
within the general policy section of the Working Paper-that is, the
section which eventually became Chapter XI of the Charter-in reference
to Article 73 (e). The practice of the United Nations, to which reference
has been made, appears to establish that a distinction must be drawn and
should properly be drawn between paragraphs (a) through (d) of
Article 73-principles which govern ail dependent territories,and
Article 73 (e)-the reporting requirement-a distraction in regard to
which the United Nations practice is highly illuminating, as has been
said by way of introduction to the response to these questions.
It appears that of ail categories of dependent areas to which the
trusteeship system was envisaged to apply, mandated territories were
the only clearly defmed and identified group of territories in the context
of this discussion at San Francisco. The Australian delegation to the
San Francisco Conference, as has been pointed out at an earlier stage of
these proceedings, was of the view that mandated tcrritories all necessari
ly had to be placed under the trusteeship systcm-this was referred to in
the verbatim of 7 May 1965, at page 137, supra. Although this view did
not gain general acceptance, there were no expressions of opinion that
the Applicants have discovered that mandates could or would in any
event be supervised pursuant to the provisions of what became Article
73 (e) of the Charter. The delegates to the Charter Conference do not
appear to have connected mandates with the general principles of Part A
of the Working Paper, applicable to non-self-goveming territories in
respect of a supervisory or reporting function.
The second question relates to the fact that the description of terri
tories,to which the declaration which was to become Article 73 was to
apply, read as follows:
"Territories inhabited by peoples not yet able to stand by them
selvesunder the strenuous conditions of the modern world."
These being, of course, the precise words used in Article 22 (1) of the
Covenant to describe the mandated territories.
The phraseology just quoted was used in section A of the Working
Paper to describe the non-self-goveming territories to which the declara
tion subsequently to be incorporated in Article 73 was intended to apply.
Considerations relevant to an appraisal of the significance of the use of
such phraseology include the fact that section A, entitled "General
Policy", was intended to apply such principles to all dependent areas,
including mandate and trusteeship areas.
The United Kingdom, in a note concerning its proposai-a proposa!
upon which the Working Paper was largely based-explained that:
"His Majesty's Government in the United Kingdom draw a
distinction between the principle of trusteeship which should guide
Colonial Powers in the administration of their dependent territories
(and should therefore be of universal application) and the creation of
a special system of international machinery, to applv to certain
specified territories." (UNCIO, Vol. 3, p. 6Ir.) ·
The British proposai and the \Vorking Paper appear to make it clear that
the "special system of international machinery", referred to in the note I REPLY OF MR. GROSS 371
have just quoted, was applicable to mandated territories. Thus, the
British proposai states that for certain territories "it is desirable to
establish special machinery" to ensure the application of the principle of
Trusteeship, and that among those territorics are-" ... territories
administered by States Members of the United Nations under Mandate
from the League of Nations" (ibid., p. 609).
The \Vorking Paper itself says that the trusteeship system should
applyto "territories nowheld undermandate" (ibid., Vol. ro, p. 678).
The use of Covenant phraseology in the Working Paper therefore
appears to have been of a broadly descriptive intendment, contemplating
an extension of the principle of the Covenant to all dependent areas.
As the subsequent history of the treatment of Article 73 by the United
Nations makes clear, a distinction has always been perceived between
paragraphs (a) through (d) of Article 73, on the one hand, and paragraph
(e) on the other. It is significant also in this respect that the Parties,
quite independently of each other of course, have treated Article 73 in
precisely this way in their pleadings-both have assumed the relevance
of Article 73 (a) through (d) without, of course, attaching the same
significance to their relevance, and both have excluded from consideration
in their pleadings any thought of the applicability of Article 73 (e).
The third question refers to the fact that the text in the Working
Paper remained unchanged up to 9 June 1945. At least as early as 7 June,
it became clear that the supervision envisaged for colonial areas was not
the same as that provided for by the mandates system. A draft of 7 June
of section A of the Working Paper included sub-paragraph (h), which
called for statistical and other information of a technical nature to be
submitted to the Secretary-General of the United Nations. (Russell,
A History of the United Nations Charter, pp. 8r8-8rg.)
There appears to have been no doubt that the system of supervision of
Article 22 of the Covenant was more extensive than the reporting
provisions contemplated in the scheme which became Chapter XI of the
Charter. .
The fourth question relates to the fact that the text was altered for
reasons set forth in the report of the Rapporteur of Committee Il/4 of
20 June 1945. The Applicants have been unable to find any discussion of
this point in the UNCIO record. In A History of the United Nations
Charter, just cited, at page 8r6, a comment is quoted by the delegate of
Iraq who objected to the Covenant wording on the basis that:
"Very few countries ... werc able to stand alone any more in
terms of military or economic self-sufficiency; while among politically
dependent peoples were some with a long heritage of civilization, as
well as those of primitive culture.''
This is the only comment relevant to a possible significance in the change
of the text and this would, on its face, relate to reasons of a policy nature,
so to speak, in the Iight·of the considerations advanced by the delegate of
Iraq in objection to the Covenant wording.
The fifth question relates to the fact that it was noted in the report of
the Rapporteur of Committee II/4 that the text of what became Article 73
"wouid be applicable to ail such territories" and to all "States Members
of the United Nations having responsibilities for the administration of
territories whose people have not yet attained a full measure of self
government". (UNCIO, Vol. ro, p. 608.)372 SOUT}:[ WEST AFRlCA
The Applicants understand the significance of the foregoing quoted
statements to relate to Article 73 (a) through (d)-the principles. A
literai reading of the statements would include trustecship territories
within the coverage of Articie 73 (e), as well as mandated terri tories, if
these were given a literai meaning as being applicable to Article 73 (e)
as well as Article 73 (a) through (d).
The sixth question relates to the fact that in the same report there
appear certain words, which are quoted in the sixth question.
'fhe considerations relevant to the fifth question appear equally
relevant to the sixth, in the Applicants' undcrstanding. The only distinc
tion appears to be that the passage here quoted in the sixth question
singles out the issue of "independence", which had been the subject of
discussion during the debates. lt was pointed out that section A, relating
to all dependent territories (including those under trusteeship), was not
the appropria te place for reference to "independence".
The principal distinction between sections A and B of the Working
Paper was that which related to machinery for international supervision.
The general principles applied to all dependent territories; the machinery
for international supervision applied, or was designed to apply, to trust
territories; mandates then held were the only group of dependcnt
terri tories specifically dcfined and identified as coming within the category
of potential trusteeship. Mandates were discussed only within the contcxt
of those territories which would be subject to the extensive form of
international supervision envisaged under the trusteeship system.
The seventh question incorporates a series of citations from Field
Marshal Smuts' address introducing the report of Committee II/4 at the
San Francisco Conference. In the Applicants' appreciation of the matter,
Marshal Smuts' references, in the course of the two passages first quoted,
to the "scheme of trusteeships" and the "principle of trusteeship" appear
to show that the Marshal was referring bath to Chapters XI and XII
of the Charter; although of course it is not demonstrable what his intcnt
actually. was, this would seem to be a reasonable construction of those
words, particularly because they would be consistent with the Working
Paper and with the report of the Rapporteur of Committee II/4 that
the principles of section A were said, or intended to be said, by Marshal
Smuts to be applied to ail dependent territories. His address did not,
as the Applicants have studied it, touch on the extent of supervision to be
exercised under Chapter XI, nor did it refer to mandate supervision
under XI.
The third citation from Marshal Smuts' address is consistent also
with the assumption that the principles of Article 73-that is, paragraphs
(a) through (àJ-were intended to be applicable throughout the entire
field of dependent territories, including trusteeship territories, and were
of general universal application. Of course, the trusteeship principles
also apply in the cases of areas put under trusteeship. The fourth citabon
from the Marshal's address appears to confirm the assumption that
mandated territories were not intended to corne under the reporting
provisions of Article 73 (e), the references in question being those to
"colonial powers" and "colonies", indicating a contrary intention-one
which would envisage the extension of a system of international account
ability, limited though it was, to colonial areas not yet brought into an
international system of any kind; and Marshal Smuts' reference to "that
larger extension" indicates that he was speaking of a new development. REPLY OF MR. GROSS
which of course would not have been the case in respect of the mandates
-it would have been a backward step in terms of the scope and range
of coverage.
The sixth and final citation derives from a paragraph of Marshal.
Smuts' address, which is quoted in the sixth question. The theme of
the quoted paragraph is that the new plan differs from the mandates.
system in that the trusteeship scheme or principle to which he had
referred earlier was not to be applied to all dependent areas; the context
here would seem to the Applicants to indicate that he did not conceive
of mandated territories as falling within the reporting requirements of
Article 73 (e) although hcre, as in every other context of his address,
he regarded the principles (a) through (d) of Article 73 as being of
general and universal application. This is also borne out by statements.
made by the Deputy Prime Minister of Australia-reference is made to
UNCIO, Volume 8, page 135, as well as a speech at the same occasion
by Lord Cranborne of the United Kingdom, and reference is made to
the same UNCIO document at page 143.
Perhaps the most explicit recognition that mandates were not to fall
under the supervisory obligations of Article 73 is contained in the address.
by Mr. Peter Fraser of New Zealand, to which reference has already been
made and which is at page 153.
The ninth and tcnth facts to which the Applicants' attention is drawn
for consideration, that is to say that the text of Article 73 was finaJJy
adopted at the meeting of Commission II on 20 June, that the Charter
was signed six days afterwards, and that the text was adopted without
dissent-these facts would be consistent with the Applicants' hypothesis.
concerning the intended scope of Article 73 (e), that is to say, as an
extension to colonial areas rather than a cover for mandated territories.
which might not fall under the trusteeship system.
The conclusion on the point, Mr. President, is that the administrative
supervision system for which the Applicants contend is of minimum and
essential scope and applicability and, rnoreovcr, in connection with this
litigation, that the prayers in Submissions 3 and 4 that the Court adjudge
anddeclare that Respondenthas the duty to cease the practice and policies.
complained of in the Territory-that these prayers for relief would be
impossible of effectuation unless the Court should be pleased to uphold
the Applicants' contention in this regard. These prayers would be
impossible of implementation and eftectuation, in the Applicants'
respectful view, ifthe requirement of accountability were limited to, and
within the confines of, the information reporting requirements of Article
73 (e), leaving wholly apart the fact that such informational reporting
requirements have not, in the practice of the United Nations, been
devoted to specifi.c arcas but to functional areas for analysis by the
Secretary-General.
In conclusion, Mr. President, the Applicants would respectfully
present their submissions and, subject to reservation of rights which the
Applicants respectfully would put before the Court, regard them as their
final submissions.
The Applicants, having completed the presentation of their arguments
of fact and law, now respectfully present their submissions. ln so doing,
the Applicants retain the right, pursuant to Article 50 of the Rules of
Court, to comment on any evidence givcn, or to exercise any other right
to which they may be entitled by virtue of the Statu te or Rules of Court, SOUTH WEST AFRICA
374
or the practice of the Court, including, but without limitation, rights
under Article 41 of the Statute and Article 6r of the Rules of Court,
as well as the right of amendment of submissions prior to the closing of
the hearings.
The ?ilemorials contain submissions, pursuant to Article 42 of the
Rules of Court, Such submissions have been supplemented by further
submissions in the Reply.
ln view of the fact that the submissions, as set forth in the Memorials
and as supplemented in the Reply, refer to any allegations of fact and
statements of law which might subsequently be adduced before this
honourable Court, the Applicants consider it appropriate, for purposes
of clarity and convenience, now to bring up to date and to consolidate
their final submissions, which they now present to this honourable Court
in the following form, that is to say:
Upon the basis of allegations of fact, and statements of law set forth
in the written pleadings and Oral Proceedings herein, may it please the
Court to adjudge and declare, whether the Govemment of the Republic
of South Africa is present or absent, that:
(r) South West Africa is a territory under the Mandate conferred upon
His Britannic :Majesty by the Principal Allied and Associated Powers,
to be exercised on his behalf by the Government of the Union of South
Africa, accepted by his Britannic Majesty for and on behalf of the
Government of the Union of South Africa, and confirmed by the Council
of the League of Nations on 17 Dccember 1920;
(2}Respondcnt continues to have the international obligations stated
in Article22 of the Covenant of the Leaguc of Nations and in the Mandate
for South West Africa as well as the obligation to transmit pctitions
from the inhabitants of that Territory, the supervisory fonctions to be
exercised by the United Nations, to which the annual reports and the
petitions are to be submitted;
(3) Respondent, by laws and regulations, and official methods and
measures, which are set out in the pleadings herein, has practised
apartheid, i.e., has distinguished as to race, colour, national or tribal
origin in establishing the rights and duties of the inhabitants of the
Territory; that such practice is in violation of its obligations as stated
in Article z of the Mandate and Article zz of the Covenant of the League
of Nations; and that Respondent has the duty forthwith to cease the
practice of apartheid in the Territory;
(4) Respondent, by virtueof economic, political, social and educational
policies applied within the Territory, by means of Iaws and regulations,
and official methods and measures, which are set out in the pleadings
herein, has, in the light of applicable international standards or inter
national legal norm, or both, failed to promote to the utmost the material
and moral well-being and social progress of the inhabitants of the
Territory; that its failure to do so is in violation of its obligations as
stated in Article z of the Mandate and Article 22 of the Covenant; and
that Respondent has the duty forthwith to cease its violations as afore
said and to take ail practicable action to fulfil its duties under such
Articles;
(5) Respondent, by word and by action, has treated the Territory in
a manner inconsistent with the international status of the Tcrritory,
and has thereby impeded opportunities for self-determination by the
inhabitants of the Territory; that such treatment is in violation of REPL Y OF MR. GROSS
375
Respondent's obligations as stated in the first paragraph of Article 2
of the Mandate and Article 22 of the Covenant; that Respondent has
the duty forthwith to cease such actions, and to refrain from sirnilar
actions in the future; and that Respondent has the duty to accord full
faith and respect to the international status of the Territory;
(6) Respondent has established military bases within the Territory in
violation of its obligations as stated in Article 4 of the Mandate and
Article 22 of the Covenant; that Respondent has the duty forthwith to
remove ail such military bases from within the Territory; and that
Respondent has the duty to refrain from the establishment of military
bases within the Territory;
(7) Respondent has failed to render to the General Assernbly of the
United Nations annual reports containing information with regard to
the Territory and indicating the measures it has taken to carry out its
obligations under the Mandate; that such failure is a violation of its
obligations as stated in Article6 of the Mandate; and that Respondent
has the duty forthwith to render such annual reports to the General
Assernbly;
(8) Respondent has failed to transmit to the General Assembly of the
United Nations petitions from the Territory's inhabitants addressed
to the General Assembly; that such failure is a violation of its obligations
as Manda tory; and that Respondent has the duty to transmit such
petitionsto the General Assembly;
(9) Respondent has attempted to modify substantially the terms of
the Mandate, without the consent of the United Nations; that such
attempt is in violation of its duties as statcd in Artic7eof the Mandate
and Article 22 of the Covenant; and that the consent of the United
Nations is a necessary prerequisite and condition precedent to attcmpts
on the part of Respondent dircctly or indirectly to modify the terms of
the Mandate.
May it also please the Court to adjudge and declare whatever else it
may deem fit and proper in regard to these subrnissions, and to make all
necessary awards and orders, including an award of costs, to effectuate
its detcrminations.
This concludes the statement of submissions, and with thcPresident's
permission may there be inserted in the record a very brief explanatory
note, which will not take more than three minutes?
The following formal interpretations and explanatory comments with
respect to the foregoing submissions are respectfully presented to the
Court.
(a) The response to the question addressed to the Applicants by the
honourable President during the course of the proceedings of 28 April
1965, at page 96, supra, is hereby reaffirmed, in the following respects,
in particular:
r. The formulation of Submission 4 is not intended in any manner to
suggest an alternative basis upon which the Applicants make or rest
their case, other than the basis which the Applicants present in Sub
mission No. 3 itself (reference is made to the verbatim record, 30 April,
page 61, supra); the distinction between Submissions 3 and 4 being
verbal only, for reasons which have been set out in the cited section of
the verbatim record.
2. The reference in Submission 4 to "applicable international standards
or international legal norm, or both'' is intended to refer to such standards SOUTH WEST AFRICA
and legal norm, or both, in the sense described and defined in the Reply,
IV, at page 493, and solely and exclusively as there described and
·defined-reference is made here to the same verbatim record already
cited, at page 60, supra.
It remains then, Mr. President, to express gratitude on behalf of the
·Governments which I have the honour to represent, and on behalf of
my colleagues, to thank the Court for its patient attention and, subject
to the reservation of the rights stated at the outset of these submissions,
io rest the case. Thank you, Mr. President. 17. REJOINDER OF MR. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA AT THE PUBLIC
HEARINGS OF 24-27 MAY AND 14-18 JUNE
Mr. President, in presenting this oral rejoinder to the Court in regard
to the legal issues which have been argued, I shall have to refer the Court
to a number of features of the Applicants' oral reply, to which I now
have to offer this further reply or oral rejoinder. However, there are two
very general features which I should like to mention straightaway.
The first is that the reply has been a good deal longer than the argu
ment in chief.
The second is, Mr. President, that in almost cvery important aspect
of the case on the legal issues the reply has exhibited a further change
of ground, a change of cause of action to some extent, a change of
motivation to some extent; whatever one calls it technically, in substance
one finds in almost every respect a further, or a new, case made out on
behalf of the Applicants, and this at this very late stage of the oral
reply. I do not wish to pursue that matter at this stage; the general
trend of it would have bccn evident and obvious to the Court as the
oral reply of the Applicants gathered momentum. I shall refer to details.
later.
The sole purpose of refcrring to these two features at this stage is to
indicate, Mr. President, that in the light thereof our rejoinder will also
have to be somewhat longer, will have to take a somewhat longer time
than one would normally associate with a rejoinder at this stage of the
proceedings; but before any alarm spreads in that regard, I may hasten
to assure the Court that we certainly do not intend to make our rejoinder
longer than our argument in chief.
In the course of the rejoinder we shall follow the same sequence as.
we did in our argument in chief. We shall deal firstly with the question
whether the supervisory fonctions previously exercised by the League of
Nations passed to the United Nations. Thereafter we shall consider the
question whether the Mandate survived the dissolution of the League to
any extent at all, and finally we will advert to the interpretation and
the effect of Article2 of the 1fandate.
I may point out at once, Mr. President, one of the significant features
of the further changes which have corne about in the Applicants' case
in the course of this oral presentation, and particularly in the oral reply
to which I am now offering this rejoinder. The question whether a transfer
was effected of supervisory fonctions to the United Nations now appears.
to have attained increased importance. It was, of course, always a very
important question, both by itself and by reason of its possible influence
on the lapse of the Mandate as a whole. But now, Mr. President, in the
reply the Applicants appear to have attributed further significance to
this issue in the following ways:
They contend, in the first instance, that Respondent's failure to comply
with its alleged duty of accountability plays a decisive role in establishing
their charges relating to militarization and alleged unilateral incorpora
tion of the Territory. I can refer the Court to the verbatim record of378 SOUTH WEST AFRICA
I2 May 1965, at pages 235-241, suP,a, where my learned friend Mr. Gross,
on behalf of the Applicants, dealt with this matter.
Secondly, in their contentions to the Court regarding the effect of
Article 2, paragraph 2,they rely on the existence of so-called "norms"
and/or "standards", and, as we understand them, they seem to have
made it clear that their case in this regard now also rests largely, if not
exclusively, upon acceptance of their case regarding administrative
supervision. l say thls guardedly, Mr. President, because it is not
absolutely clear to me whether we do understand them correctly. I shail
have to revert to this matter in dealing with the case in regard to
Article 2, but I may refer the Court to this very significant passage in
the record of 13 May-I am sorry I have not got the page at the moment
~ I will give it to the Court later. They said:
"The norm and the standards ... embody the results of a uni
versal assessment of the evils inherent in racial discrimination and
group separation, as such evils have been found, determined and
adjudged by the competent organs of the international community,
vested not only with the right but the duty of administrative
supervision and safeguarding of the sacred trust."
Mr. President, 1 emphasize those words "determined and adjudged by
the competent organs of the international community, vested not only
with the right but the duty of administrative supervision and safeguard
ing of the sacred trust".
AU I wish to point out at the moment is that apparently the Appli
cants' whole case, as far as the legal issues are concerned and, indeed,
the questions of fact which would have to be superimposed upon the
legal basis of their case, now appears to stand or fall largely by the
Applicants' argument regarding Article 6 of the Mandate.
Now, Mr. President, in regard to administrative supervision itself,
which is the first subject to which we direct this rejoinder, the Applicants
also dealt at considerably greater length than before with the problems
involved in the alleged transfer of supervisory fonctions to the United
Nations. Nevertheless, there are very large areas of the dispute to which
they did not refer at all, as far as we could ascertain, in their oral reply;
and, seeing that this is the rejoinder which cornes at the end, which is
not intended to deal with every facet of the whole field of the dispute
again in detail, it may be convenient at this stage, at the outset of the
argument, to see what the ambit of the reply was, and, in particular, to
see what matters were not dealt with in the reply.
May I fi.rst point out that the Applicants' argument in chief regarding
Article 6of the Mandate involved, in the main, the following contentions.
Firstly, that the mandate documents, properly interpreted, imposed on
the mandatory a duty of international accountability, in that wide,
indefinite form, which could and did survive the League of Nations.
Secondly, that after the dissolution of the League, agreement was neces
sary for continued operation of supervision under the Mandate, but only
for the purpose of providing a new supervisory organ to render the
continuing obligation of international accountability capable of practical
implementation. And thirdly, that such new agreement was, in fact,
reached.
A consideration of these contentions brings about a division of the
case regarding Article 6, or a division of the issues regarding Article 6, REJOI~DER OF MR. DE VILLIERS 379
into two large parts, or topics. The first one relates to the correct inter
pretation of the mandate docwnents in the respect under consideration.
It poses the issue which I defined before as the one of international
accountability versus the Respondent's contention of accountability to
a specific organ of a specific organization. The second large topic is con
cerned with inferences relative to agreement or consent that can pro
perly be drawn from the events of the transitional period 1945-1946 and
thereafter. We gave an analysis of these issues as they stood at the stage
ofthe argument in chief on 31 March, at pages 306 to 320 of the ver
batim record, VIII.
Now, in regard to the first issue, Mr. President, we contended that the
Respondent's obligation was, as I have said, a specific one, namely to
report to a specific organ, the Council, of a specific organization, the
League of Nations. \Ve based this contention on considerations of
language, of contcxt of the relevant instrwnents, of probabilities, of
travaux préparatoires and of surrounding circumstances. \Ve dealt with
these on 31 March at pages 322 to 331 of the verbatim record, VIII, on
r April, in the whole of that record, and on 2 April, at pages 362 to 370
of the relative record, VIII. Now, Mr. President, it is significant that in
regard to this whole broad topic no single counter-argument was advan
ced by the Applicants in reply. It is true that on12 May, in the verbatim
record at page 241, supra, they made what one might almost term a
formai reaffirmation of their submission in this regard. They said:
"To the contrary, in the Applicants' respectful submission, the
terms of the Covenant establish the essential principle of a basic
obligation of international accountability, which inheres in a
mandate institution and which must survive so long as the mandate
survives."
It is also true, Mr. President, that my learned friend maintained the
use of expressions such as "international supervision", "international
accountability", and the like. But this merely emphasizes the omission to
offer any fresh argument, any answer whatsoever to this extensive
detailed review of the whole situation offered to the Court in our oral
argument in chief.
The Applicants do not tell the Court which terms of the Covenant (in
this quotation to which I referred) they refer in making this respectful
submission. They do not tell the Court in which way the terms of the
Covenant establish this broad principle for which they contend-this
vague, general obligation of international accountability. We are left in
the dark, and that, I submit, Mr. President, is a factor not without
significance. I need not labour the point.
We find, therefore, that the Applicants' whole reply in regard to
administrative supervision was confined to the second leg of their
argument, namely their attempt to establish consent on the part of
Respondent to a succession of supervisory organs. But even as regards
this topic we find that very wide and very important aspects of the matter
were not dealt with at ail. I can give the Court a list of those which we
have noted, and I submit that they, too, are not without significance.
The first one not dealt with at ail, was our contention that any consent,
not having been given cxpressly, could be established only on the basis of
necessary inference from all the relevant evidence. That matter we dealt
with in the verbatim record of 2April, VIII, at pages 371 to 373..380 SOUTH WEST AFRlCA
The second one was the fact that in ail other cases where a succession
,or transfer of powers or fonctions from the League to the United Nations
was contemplated detailed and specific provision was made both by the
founders of the United Nations and by the Members of the League at the
time of its dissolution. That factor we do not find referred to at all by the
Applicants. The matter was dealt with in the same verbatim record at
:pages 38:?to 383 and again at pages 387.
The third was the registration of special arrangements and provisions
for transfer of functions and powers under Article ro2 of the Charter
(that we dealt with in the verbatim record of 5 April, VIII, at pages 418
to 421, and in the record of 6 April, VIII, at pages 422 to 424). That, again,
-did not elict a reply from the Applicants.
The fourth dealt with in conjunction with the previous factor I have
just mentioned, was the treatment of mandates, in contrast with certain
other matters, in the report of the Board of Liquidation of the League
-the Board appointed at the final session of the League Assembly. We
dealtwith that matter in the verbatim record of 6 April at pages 423 to
426.
Number 5, Mr. President, we offered a refutation of a statement by the
Applicants which they introduced into the matter, in so far as they saw
relevance between it and the issues in regard to Article 6. This statement
-0fthe Applicants read as follows:
"In 1935 Respondent put before the Permanent Mandates
Commission a proposai for the incorporation of South \Vest Africa
as a fifth province ofhe Union, but when met with a critical attitude
by most of the members of the Commission, decided not to go ahead
with its plan for incorporation." (VIII, p. 139.)
We indicated what the true facts were in that regard, and how signally
inappropriate and completely wrong this statement of the Applicants
was. This was in the verbatim record of 6 April at pages 445 to 449.
We have not heard a further word on that topic.
Number 6: the subject of the non-applicability of estoppel, or pre
clusion, arising from the fact of Respondent's continued administration of
i:he Territory. That is a subject with which we dealt on 9 April, in the
verbatim record. VIII, at pages 513 to 517. That did not elicit a reply
and yet my learned friend continues with a type of submission to the
,effect that supervision, international accoW1tability. must continue as
long as there is administration of the Territory by Respondent.
Number 7: we dealt with the non-applicability of the cyprès doctrine
in the same record of 9 April, VIII, at pages 524 to 525. that has not
been replied to.
Number 8: we dealt with the legal effect of findings in a previous
Advisory Opinion or Judgment on Preliminary Objections, in the same
record at pages 525 to 526. That has not eamed a reply.
Number 9: we offered a detailed and, we submit, with respect, a very
relevant ana]ysisof the r962 Judgment and opinions, in the sarne record
at pages 527 to 538, and again in the verbatim record of 12 April, Vill,
at pages 538 to 547. That has not been replied to, nor, Mr. President, has
Number 10-our analysis of the 1950 Opinion, which we submit to be
equally relevant and of equally crucial importance-been replied to in the
least. That analysis we offered in the same record of 12 April at pages
547 to 557· REJOINDER OF MR. DE VILLIERS
Mr. President, in regard to some of these matters we shall demonstrate
in greater detaillater that the Applicants, except for a word here or therc,
or a sentence here or there, have, in fact, not replied to the particular
points which we raised. In the case of other points, no demonstration at
all is needed and it will not be necessary for me to refer to them at all
again in the course of this rejoinder.
But the point I want to emphasize at this stage is that our case was in
material respects not met by the Applicants, and, as I shall show, the
case upon which the Applicants now rely in regard to Article 6 of the
Mandate, although expounded in the Reply at greater length than in the
argument in chief, rests on a very narrow and a very limited basis.
Before I pursue that point, however, there are two further matters to
which I should like to refer by way of introductory comment.
The first of these is that, in the course of their oral reply, the Applicants
at various stages accused us of misrepresentation and even of distortion.
For instance, in the record of 13 May, at pages 247-248, supra, they said
in regard to our rendering of their contentions, that we presented "a
parody of the Applicants' case". We were accused in the same record of
giving "many mis-statements or misrepresentations of the Applicants'
true legal theory and position". \Ve were accused of "attribution of
extreme and, indeed, unin telligible contentions to the Applicants". We
were accused of holding "Applicants' theory and contentions against a
cracked mirror" and of presenting "mis-statements, and one must say
distortions" of the Applicants' contentions. These remarks in the record
of 13 May which I have just referred to, Mr. President, are related
particularly to our argument rcgarding the interpretation and effect of
Article 2, but similar allegations were made in regard to our submissions
on administrative supervision. We heard, also, in regard to our inter
pretation of the official records to be considered in this regard-the
official records of the Leaguc of Nations and of the United Nations
accusations of injustice to the context of so-called "verbal shredding", of
"strained interpretation", of "exercises in semantics", of "killing the
spirit by the letter", even of "ignoring both spirit and letter". We heard
of our arguments "falling between all stools". We heard of "pressing
words" of resolutions so as "to squeeze out the obligations in them", and
we heard that we were employing a very "singular technique" in these
processes, and so forth. One fmds these expressions to which I have
referred, spread over the records of ro, II and 12 May, Mr, President.
Ali I should liketo say in this connection is that abuse has never been
a substitute for reasoning. The Applicants are merely turning upon us
complaints which we unfortunately found it necessary to make in respect
of certain presentations which they had made to the Court. But, Mr.
President, there was a difference. We gave chapter and verse for saying
what we did. We indicated why wesaid it~that certain of our arguments,
and certain portions of the record, were not presented to the Court in the
manner in which they should have been presented. But the only support
which the Applicants could offer for tuming these accusations on us
would be an analysis of the same kind as that which gave rise to the
initial complaints on our part. We shall show that in due course, and I do
not want to elaborate on the matter now. I merely want to say that, as
far as we could see (and I shall deal with the matter further in detail), the
Applicants have not been able to demonstrate that in truth we have, in
any way, been unfair either to the substance or to the context of the SOUTH WEST AFRICA
records. In so far as they have suggested that, I shall follow up those
matters again in the course of this argument.
In regard to the Applicants' own contentions, l\:'lPresident, ail I can
say is that we certainly did not claim to understand all of them with
certainty ail the time. We never claimed to be certain beyond ail doubt
that we knew exactly what ail of them meant, nor that we could always
keep up with the swift changes in the Applicants' case. \Ve merelv trjed
our best, and we shall continue to do soin tltis oral rejoinder. •
It is unfortunately necessary to make analyses of the contentions, of
the way in which they are presented to the Court, and of extracts of the
record, in the way in which they are presented to the Court. I may say
again, as I did before, that in objecting to the manner in which that is done
I am not objecting or raising any objections to persons or their actions.
I am analy~ing in the process, the merits of this case _whichit is sought to
present agamst us.
Now, Mr. President, that is the first of these introductory matters to
which I wanted to refer. The second one is this, that the Applicants have
made it plain beyond all doubt that they indeed rely on consent on
Respondent's part to the substitution of the United Nations for the
League of Nations as the supervisory authority in respect of the Mandate,
and they make it plain also that they accept the necessity of having to
rely on such consent on the Respondent's part.
In our argument in chief we pointed out what contrary attitudes the
Applicants adopted at earlier stages in these proceedings. It is a matter
to which 1 do not intend to refer again in detail. I merely wish to point
out broadly that we showed how they first sought to base their case in
regard to Article 6 on a theory of succession, how they asked the Court to
reaffirm the 1950 Opinion of the Court, and contended that the Court,
in that Opinion, attributed to Article 80 (r) of the Charter a "positive
quality of 'maintaining rights' to", and how, l\fr.President, they con
tended that "none of the decisive reasons underlying the Opinion of 1950
rests on a premise of 'tacit consent', whether on the part of the Respon
dent, the League of Nations, or the United Nations". We dealt with those
matters in the verbatim record of 30 March, VIII, at page 296, and, again,
in the record of 31 :11farch,VIII, at page 310.
In their oral reply, Mr. President, the Applicants have not contested
that they have had to change their case in regard to Article 6 in these
vital resp'ects. Indeed, they have now further emphasized that their case
rests squarely' on consent on the part of the Respondent to the United
Nations supervision. The fact that that is so is particularly apparent
from a statement which my Iearned friend, l\fr. Gross, made on 12 May
1965, when he stated that-
''The Applicants would like to clear up any possible lingering
doubts ... which may exist regarding their position relating to the
administrative supervision of the Mandate and the basis upon which
it has survived and continues to survive as an obligation of the Man
datory." (Supra, p. 240.)
My learned friend proceeded to state three propositions by way of
summary, when nearing the end of his oral reply, on this aspect of the
case. The first two are not directly relevant to present purposes-1 shall
refer to them later. The important fact is that he made it clear, in the
wording of the three propositions, that the trurd and final one was a REJOINDER OF MR. DE VILLIERS
necessary link in the chain. Thls third, and final, one read as follows:
"Respondent has acknowledged-at the period when it was of
decisive relevance whether it did or not-Respondent acknowledged
and manifested its consent to the assumption by the United Nations
of supervisory authority over the Mandate." (Ibid.p. 240.)
Now, l\lr. President, that point, whfl.tever lingering doubts there may
have been, and whatever uncertainties there may have been, is, therefore
made clear.
ln the Applicants' oral argument in chief they, of course, also contended
for such a manifestation of consent on the part of the Respondent. We
dealt with their contentions in that regard in the records as from 2 April,
at VIII, page 376, running on into those of the next few days. We showed,
with submission, Mr. President, that the attempt, made by my learned
friends in their argument in chiefto show such consent on our part, was a
completely abortive one.
In these portions of the records which I have just mentioned, we refer
to relevant arguments of the Applicants as they had been adduced in
theirargument in chief. We give the passages and the references and I
need not do so again. But I wish to point out how far we really took the
matter before reverting to the manner in which the Applicants dealt
with it in their reply.
We pointed out, Mr. President, that, far from it being merely a case
that the Applicants were unable to establish consent on our part, the
record very clearly indicated the absence of such consent. We showed,
Mr. President, with submission, that there was an absence, on the part of
Respondent, and on the part of all the other Mandatories, of any indica
tion of such consent on their part. We showed that there was, on the
contrary, on the part of all the Mandatories, pertinent indications that
they were not consenting to United Nations supervision over mandates
outside of trusteeship. And, Mr. President, we showed that there was
ovenvhelrning evidence that other States, which were Members of the
two organizations at the time, clearly understood that no such consent
was given by any Mandatory. There is no need for us to cover that whole
field again, particularly in view ofthe way in which the Applicants have
now narrowed down their line of reply to these contentions on our part,
and I therefore wish to revert to the summary which they gave of their
contentions on 12 May, at page 240, supra, "with a view to clearing up
any lingering doubts", as they expressed it. To what I have quoted
already, the Applicants added the following:
"Respondent manifested its consent [that is to United. Nations
supervision] and acknowledged its submission according to the
findings of the Court in 1950 on the basisinter aliaof the statements
made before the League of Nations in April 1946, its pledge to the
League Assembly, its adherence to and support of [or] vote for the
League resolution of r8 April 1946, and as has been referred to often
now, the position it took in the Preparatory Commission with respect
to the temporary trusteeship machinery, and the reason assigned
therefor by M.r.Nichols." (Supra, p. 240.)
There is also a statement to a similar effect, Mr. President, in the
verbatim record of 10 May at pages 173-174, supra, indicating the
breadth, or, shall I say, by way of contrast to what we had before, the SOUTH WEST AFRICA
narrowness of the path now sought to be trodden by the Applicants in
regard to their contention of a manifestation of consent, on the part of
Respondent, and the other Mandatories.
The Applicants remark that Mr. Nicholls' statement "has been referred
to often now", was indeed an understatement, Mr. President. Somebody
in our team counted and found that in the course of my learned friend,
Mr. Gross' response on this part of the case, Mr. Nicholls' statement was
referred to no less than 30 times on the first two days alone-in other
words, in the records of 7 and ro May-and that is apart from quite a
number of further references on the succceding days.
It certainly took the Applicants a long time to fmd out that Mr.
Nicholls' statement is really the ''king-pin" of their whole case against
the Respondent regarding Article 6 of the Mandate, but now that this
grcat light has struck them, Mr. President, they are clearly not hiding it
under a bushel. They now tell the Court that everything of relevance is
to be interpreted in the light of Mr. Nicholls' statement at the time with
reference to the proposai for a tcmporary trusteeship committee in the
Preparatory Commission of the United Nations. Everything, as I say,
is attributed to and is based on Mr. Nicholls' statement, and the contcxt
in which it occurred in the Preparatory Commission-or rather, I should
say, on the significance and the mcaning attached by my Iearned friends
to Mr. Nicholls' statement and to the context of events in that Prcpara
tory Commission. It does seem to us that when the last word has been
spoken on this subject, my learned friends may well wish that they had
hitched their wagon to some other star or that there had been some other
star to which they could have hitched their wagon in this regard, because
it appears on analysis, l\fr. President, that the whole basis, the whole
foundation, of this super-structure which the Applicants have tried to
build up, is a false one; it falls away and, with it, the whole of this
argument which they offered in reply in regard to Article 6.
I should like to begin at the beginning-I should like to analyse first
how this argument was developed by the Applicants, and what appeared
to be the inter-related and the essential links in this argument. I should
Iike to make quite sure first that we properly understand what it is that
the Applicants submitted to the Court in this regard, then we can procced
to deal more easily with the merits of that argument. '
Itseems, Mr. President, that the first contention of the Applicants, and
the first necessary link in the case which they offered in reply, is to the
effect that Respondent and certain other Mandatories in the course of
debates in the Preparatory Commission supported the establishment of a
temporary trusteeship committee. We have a number of statements in
this regard-! shall refer the Court to some of them. First, there is the
verbatim record of 7 May. at page 141, supra, where my learned friend
said the following:
"Indeed South Africa, Australia and the United Kingdom, and
this is to be marked, these three Mandatory Powers were in favour
of the proposa! for a temporary Trusteeship Committee."
Next, verbatim record of 7 May, at page 147, supra:
"... the temporary Trusteeship Committee idea was favoured by the
mandatory powers, including the Respondent-and it was supported
by them".
We found a similar statement, which I shall not quote, in the verbatim REJOIXDER OF MR. DE VILLIERS
record, of IO May, at page 152, supra. Then, we find one on the very next
page of the same record which puts it more strongly. The Applicants
there referred to "the Mandatory's proposal for a temporary trusteeship
committee"-it now becomes "their proposal". (The record gives a
singular apostrophe but I take it that the intention was a plural "Manda
tories" proposaL) We find in the same record, at page 153, supra, the
following statemcnt: .
"the proposal for a temporary trusteeship committce made by three
mandatory powers including the Respondent".
And still later, in the same record, at page155, supra:
"Rcspondent, along with the other mandatories, including the
British Government, suggested the establishment of interim ma
chinery to which to report."
So v.re sec, Mr. President, that this contention, like "Topsy", just
"growed". lt is a feature and a tendency which one saw in regard to
other arguments of the Applicants' agent; they begin on a rather modest
plane but in the course of time, they grow. Thus, from support for a
proposal for a temporary trusteeship committee by three mandatory
powers, South Africa, Australia and the United Kingdom, we end up
with the Mandatorics' proposal for such a trusteeship committee and
the Mandatories' suggestion for the "establishment of interim machinery
to which to report".
But we are merely analysing now what these contentions amount to.
The second, and a very important link in the chain of reasoning, appears
to be this: the proposed temporary trusteeship committee was intended
by îts protagonists to be a body which would, inter alia, exercise super
visory functions over mandates even prior to the establishment of the
trusteeship systcm-that is our paraphrase to the best of our ability.
Ishall refer the Court to the actual wording employed by the Applicants.
On 7 l\Iay, verbatim record, at page 141, si,pra, thcy said:
"The proposal for a temporary Trusteeship Committee indicated
the importance attachcd to international supervision of mandated
territories, even prior to the establishment of the Trusteeship
Council."
At the same page, we find this:
'The South African attitude was clcarest of all. Mr. Nicholls, the
South African delegate, stated that:
'...it seemcd reasonable to create an interim body as the Mandates
Commission was now in abeyance and countries holding mandates
should have a body to which they could report'."
I shall deal latcr with the mcaning of what Mr. Nicholls actually said
in the relevant contcxt, Mr. President. We are merely indicating at the
moment how the Applicants are using l\Ir. Nicholls' statement to support
this second contention of theirs, in regard to which they proceeded to
state, at the same page of the record:
"The statemcnt illustrates the importance which the founders of
the United Nations gcnerally, and Respondent spccifically, attachcd
to international supervision of mandated tcrritories, prior to the
conclusion of other agreed arrangements."
These last words which I have emphasized, being the important point
made by the Applicants in this link in their chain. SOUTH WEST AFRICA
There is some progression in the argument, Mr. President, as we find
at the next page of that same record the following:
"i\Ir. Nicholls, speaking for South Africa, expressed the view that
the mandatory powers were obligated to subject their administration
of mandated territories to the supervision of the United Nations.
He was so convinced of the fact, as appears from his own statement,
that he advocated the creation of an interim United Nations body
to undertake such supervision until the establishment of a permanent
body." (Supra, p. 142.)
Now at the next page, Mr. President, we find a little bit of caution-we
find the matter stated this way:
"The Preparatory Commission debates make clear that at least
some of the mandatory powers, including Respondent, certainly
Respondent, wanted United Nations supervision of mandated
tcrritories and asked for it, even before trusteeship agreements were
entered into." (Ibid.)
There we have, Mr. President, the contention that l\Ir. Nicholls was of
the view that the mandatory powers were obligated to submit to United
Nations supervision of mandated territories. \Ve see the suggestion that
mandatory powers wanted United Nations supervision of mandated
territories and asked for it. As I say, there is some caution here; the
statement is limited to at least some of the mandatory powers "including
Respondent, certainly Respondent", but definitely "even before trustee
ship agreements were entered into". This caution is thrown to the wind
some pages later. In the same verbatim record, at page 146, supra, we
read:
"There was general agreement that the mandated territories
should be under international supervision. The mandatory powers
wanted that supervision to be carried out by an interim or temporary
body prior to the establishment of the Trusteeship Cormeil."
And then, Mr. President, still in regard to this link in the chain, there
are two further passages to which I could refer briefly. One is from the
same verbatim record, at page 145, supra, where it is said that-
"... the proposais for a temporary trusteeship committee, and for
a series of declarations or pledges, were techniques for ensuring
continued international supervision of mandated territories."
And we fi.nd a statement to a similar effect in the verbatim record of
ro May, at page 153, supra, to which I shall refcr in another context later.
The point is that in all these statements-some more cautious, some
very much less cautious-the idea of interim supervision over mandated
territories prior to other arrangements being agreed upon by the United
Nations is stated to be a necessary part-a necessary concomitant~f
the proposai for an interim trusteeship committee, which was favoured
by, or supported by, the mandatory powers or even, as my learned friend
sugfestcd, proposed by the mandatory powers.
Now we corne to the third contention, the third necessary link in this
chain, and that is that the temporary trusteeship committee proposai
was rejected for the reason that it might delay the establishment of the
Trusteeship Council. In the verbatim record of 19 March, the matters are
put very pcrtinently, as follows:
"The proposai for a temporary trusteeship committee was not REJOIXDER OF MR.IDE VILLIERS
adopted by the Preparatory Commission, primarily on the basis of
the objections advanced most forcefully by the Soviet Union, to the
effect that such a committee might dclay rather than accelerate the
establishment of a Trusteeship Council." (VIII, p. 152.)
And we find statements to the same effect in the verbatim record of
7 May, at page 141, supra, where my learncd friend referred to this time
factor as a pragmatic reason-to-delay factor and again, in the same
record, at page 147, supra, the same reason is assigned for the action of
the Preparatory Commission, and the statement is made that the
proposa! for a temporary trusteesh.ip committee "was rejected as in
adequate, and not as going too far".
Then we corne, Mr. President, to the fourth contention-the fourth
link in thisplan-that is, that by plan and design an alternative method
was adopted, namely a system of pledges whercby the Mandatories
would, and in fact did, undertake to carry out all the obligations under
their respective mandates, including the obligation to submit to inter
national supervision, even before trusteeship agreements were concluded.
In the verbatim record of 7 May, the Applicants said in this regard-
"... the authors of the Charter attached importance to international
supervision, even prior to the establishment of the trusteeship
system.
The historical record indicates that two basic methods were
conceived of by the founders of the United Nations. One was the
proposa! for a temporary trusteeship committee, interim; the other
was a proposal for a set of pledges to be made by each of the man
datory powers. There can be no question that these two proposals
were linked to each other, and that each was viewed as a method
for ensuring international supervision of mandated territories: this
was their purpose." (Supra, p. 143.)
And, Mr. President, in regard to this suggestion of pledges as a sub
stitute for the other technique-the technique of the temporary trustee
ship committee-for ensuring interim supervision of a mandate, the
Applicants argued that two kinds of pledges were envisaged. The first
was a type of pledge which, they say, was contemplated by Mr. Peter
Fraser of New Zealand when he addressed Commission Il of the United
Nations Conference at San Francisco on 21 June 1945. The relevant part
of Mr. Fraser's speech is quoted by the Applicants in the verbatim
record of 7 May, at page 139, supra. And they said in this regard that
this type of pledge was one which would merely, "acknowledge the
authority and the supervision of this Trusteeship Council". At that point
they broke off the quotation and they added these words "until other
arrangements were concluded". Then they quoted again the words
"whatever may happen to the Territory afterwards".
Mr. President, I shall not at this stage analyse what it was that
Mr. Fraser really had in mind. I am only pointing to the rendering we
have here of what Mr. Fraser said: some of his words are quoted, then
follow some words of the Applicants themselves, and then are added
again some words of Mr. Fraser. \Ve shall see in duc course were this leads
one to.
T~at was the first type of the pledge, then, which Mr. Fraser was said
to have had in mind.
Secondly, the Applicants suggest that there was a contemplation of a388 SOUTH WEST AFRICA
type of pledge which, they say, was envisaged by the delegates to the
Preparatory Commission. This type of pledge, according to them, "would
have required a declaration of willingness, on the part of the mandatories,
to place mandated territoriesunder the trusteeship system" (supra,
p. 14+) And they went on to say, on that page-
"The delegates at the April session of the League in 1946 made
pledges which were more in line with Prime l\Hnister Fraser's
conception-to acknowledge the authority and the supervision of
the Trusteeship Council when it came to be formed."
They proceed to quote passages from statements made in the Pre
paratory Commission by representatives of Yugoslavia, New Zealand,
the Soviet Union and China (that is in the verbatim record of 7 l\Iay, at
pp. 145-146, supra) in which these States proposed tha t l\Iandatories should
make declarations of their willingness to place their respective mandated
territories under trusteeship.
Then, Mr. President, the Applicants argue as follows-it is a somewhat
lengthy passage, but it is important to get at the real foundation of
Applicants' argument, and I think I should, therefore, reaù it to the
Court:
"Thus, the link between the temporary trusteeship committee
proposai and the concept of pledges is evident. There was general
agreement that the mandated territoriesshould be under inter
national supervision. The mandatory powers wanted that super
vision to be carried out by an interim or temporary body prior to
the establishment of the Trusteeship Council. Mr. Nicholls said so.
This clearly was Respondent's position at that time. However,
other governments feared that this procedure would lead to delay
in the establishment of the trusteeship system and pressed for
pledges by the mandatory powers to place these under the trustee
ship system. What occurred historically, upon the Applicants'
careful analysis, was a compromise between these two positions.
That is, pledges were made but not pledgcs to place the mandated
terri tories under the trusteeship system: rather, the pledges were to
carry out all the obligations of the mandate, including the obligation
to submit to international supervision, the essence of the mandate,
until other agreed arrangements could be made." (Sup-,a, p. 146.)
Thus, Mr. President, there were not to be pledges to place the mandated
territory under trusteeship; not, on the other hand, temporary trustee
ship machinery and temporary supervision over mandates not converted
into trusteeships, but there was a compromise between these two, it is
said, namely pledges to carry out ail the obligations of the mandate
including international supervision until other agreed arrangements
could be made.
Now, Mr. President, how precisely this compromise arrangement on
the Applicants' submission came to be made is nowhere stated by them.
They repeatedly assert that in the light of the events in the Preparatory
Commission, the declarations made by the different mandatories in
April 1946-that is, not in these initial stages of proceedings in the
United Nations, but later at the time of the dissolution of the League
are to be seen as pledges of the nature aforementioned-pledges, there
fore, agreed upon as a compromise in the difficulty which arose in the
Preparatory Commission of the United Nations. REJOINDER OF MR. DE VILLIERS
We find a further development of this argument, Mr. President, or
what really amounts to a repetition thereof in other words, in the verba
tim record of 7 May, at page 147, supra, which I shall not now read to
the Court; but it is on the basis of this submission that the declarations
by the manda tories in April 1946, including that of Respondent, are now
sought to be interpreted, and it is also on this basis that the Applicants
seek to interpret the two Chinese draft resolutions which led to the final
League resolution on mandates on 18 April 1946.
The Applicants then proceed to state in the verbatim record of
7 May 1965:
"Viewed in this context, and from this historical perspective, the
purpose of the declarations made by the severaJ mandatory powers
in April 1946 becomes crystal clear. Plcdges had only been made
as a means of ensuring the continuance of international supervision,
... The Nicholls' statcment of 29 November 1945 and Respondent's
declaration of 9 April 1946, a few months later although not so
explicit, form part of a consistent pattern of behaviour by the
mandatory powers generally, including Respondent. The pattern
was to reject the idea of making an unqualified pledge that the
mandated territories were [to be placed] ... under trusteeship."
(Supra, p.146.)
To round off these quotations from Applicants' contentions, and in
order to have a firm understanding of what they mean, may I ask the
Court's indulgence to refer to this further passage in the verbatim of
10 May, at page 153, supra, where the conclusion is stated as follows:
"The events and transactions which have been described, including
the juxtaposition of the proposai for a temporary trusteeship
committee made by three mandatory powers including the Respon
dent, and the pledging procedures-this juxtaposition sheds light on
the true significance also of the League of Nations resolution of
18 April 1946 ... "
The Applicants then proceed to quote paragraph 4 of that resolution
in the well-known words, and thereafter to state:
"The phrase 'expressed intentions' in the resolution of 18 April
1946 refers to pledges, and that word was used in several of the
statements made at the time; to the pledges which each of the
mandatory powers made pursuant to a plan and design which was
chosen in preference to the proposai for a temporary trusteeship
committee to which they would have reported until other arrange
ments had been agreed between them and the United Nations-that
was the plan."
That is the end of that quotation and it shows, Mr. President, how
the Applicants, building upon their own rendering of the proposai before
the Preparatory Commission for a trusteeship committee, and particu
larly of Mr. Nicholls' statement, now arrive at their result where they
claim to have established that-
"... Respondent acknowledged and manifested its consent to the
assumption by the United Nations of supervisory authority over
the Mandate ... ". (Supra, p. 240.)
Briefly stated, Mr. President, the whole of this argument now appears
to rest on the following: firstly, a contention that the mandatories,390 SOUTH WEST AFRICA
including Respondent, wanted United Nations supervision of mandates
even prior to the conclusion of trusteeship agreements-in the case of
Respondent the Applicants went further and said that Mr. Nicholls
indicated a consideration, or contemplation, that there was an obligation
to submit to such United Nations supervision, but the contentions are
not quite so explicit about the other mandatories; secondly, that the
Mandatories sought to obtain that supervision via the proposed trustee
ship committec, but, thirdly, that by plan and design they, the Manda
tories, acccptcd another method to the same end, namely a method of
pledges by which they conscnted to the assumption by the United Nations
of supervisory authority over the Mandates, even prior to other arrange
ments. That seems to be the gist of this case. I have perhaps analysed it
at some excessive Iength with reference to actual statements made by
my learned friends in the course of developing their contentions, but it
seemed necessary to do so as a basis for considering the merits of their
contention. I have attempted to do full justice to the way in which they
have put their case, and that gives us a basis upon which we can proceed
to consider the merits of their contention.
For that purpose, Mr. President, it seems necessary to scrutinize a
little more closely than we did before some portions of the record of
events in the Preparatory Commission and its Executive Committee
regarding tlus proposai for a temporary trusteeship commîttee, and the
rejection of that proposai.
The Interim Arrangements which set up the Prcparatory Commission
in June 1945 are weUknown to the Court, as are the broad purposes of
those arrangements for which the Preparatory Commission was estab
lished, namely to get the various organs of the United Nations into
opcration at their first sessions, to establish the Secretariat, and to
convene this Court. As the Court knows, provision was also made in
these Interim Arrangements for an Executive Committee which would
exercise the powers and fonctions of the Commission when the Commis
sion was not in session. AUthat we find in United Nations Journal, No. 1,
24 November 1945, at page 5.
Now, for the purpose of carrying out its fonctions this Executive
Committee set up ten sub-committees, and may I mention in passing that
South Africa was nota member of this Executive Committee. Therefore,
throughout all these proceedings in the Executive Committec, before the
matter came first before the Fourth Committee of the Preparatory
Commission and thereafter before the Plenary Session of the Preparatory
Commission, South Africa had no role in the matter at all. Mr. .Nicholls'
comment came at a later stage after the matter had had a considerable
history in the Executive Committee and its sub-committees.
The terms of reference of Committee 4 of the Executive Committee
were the following: ·
"This Committee should be concerned with the preparation of
the Agenda and appropriate documents for the first session of the
Trusteeship Council. It should make recommendations defming the
role of the General Assembly and of the Security Council in trustee
ship matters and of their respective relations with the Trusteeship
Council. [I omit some words, matters of detail, which do not specifi
cally concem our purposes.J
The Committee should prepare recommendations for procedures
which might be followed for approving trusteeship agreements, for REJOINDER OF MR, DE VILLIERS 391
examining annual reports, for receiving and examining petitions,
for arranging periodic visits to territories and for establishing a
questionnaire as a basis for annual reports. It should study the
questions arising if the Mandates System were to be wound up and
examine the feasibility of providing for such interim arrangements
as may be possible, pending the establishment of the Trusteeship
Council." {Doc. P.C./EX/u3/Rev. r, r2 November 1945, p. r33.)
Now, ?.fr. President, the Court will recall that we deal in our Counter
Memorial, II, with the work of this sub-committee and we point out
that the· sub-committee recommended, with certain exceptions and
qualifications, the transfer of the fonctions, activities and assets of the
League to the United Nations. Amongst the exceptions were the political
fonctions of the League, and in this regard the sub-committee stated
with regard _tomandates:
"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." (11,p. 36.)
When we advert to this other part of the report, we find that the
Executive Committee, in accepting the proposais or recommendations
of this sub-committee, made the following recommendations to the
Preparatory Commission concerning the establishment of the trusteeship
system:
"The Executive Committee,
Considering that in accordance with Article 86 of the Charter the
Trusteeship Council cannot be formed until a number of territories
shall first have been placed under trusteeship; and
Considering that it is nevertheless desirable that some interim
organ should be established to assist the General Assembly in
expediting the constitution of the trusteeship system and, pending
the establishment of the Trusteeship Council, in taking such other
action in connection with the trusteeship system as may be found
necessary:
Recommends: . .. "
and then in the operative part, Mr. President, we find a recommendation
for the establishment and composition of such a Temporary Trusteeship
Committee, and for the adoption of provisional agenda and the Rules of
Procedure for it; and also proposals concerning provisional Rules of
Procedure for the Trusteeshlp Council itself, and for the establishment
of the Trusteeship Council as soon as the necessary conditions had been
fui fi.lied.
Mr. President, I had just read out to the Court the recommendation
of the Executive Committee of the Preparatory Commission for the
establishment of a Temporary Trusteeship Committee, I read out the
wording of the preamble giving the reasons, the motivation, as seen by
the Executive Committee, and then gave the gist of the actual recom
mendations. The reference is to the same·Preparatory Commission docu
ment as before, at pages 7 to 8.
Then, i\fr. President, in a footnote to this recommendation we find a
recording at page 7 of the same record as follows:
"... [t]he C:zechoslovak, Soviet and Yugoslav Delegations made
objection to the proposai for the establishment of the Temporary392 SOUTH WEST AFRICA
Trusteeship Committee, on the grounds that such action is not
authorized by the Charter and would be unconstitutional".
That is the only reason given at this stage for the objection to the
proposal.
Then, in its relevant report the Executive Committee gave the follow
ing explanation for its proposai which further explains what I have
already read to the Court from the preamble. I quote from the same
document as before, page 55:
"... thcre are at present no Members of the United Nations ad
ministering trust territories; and, therefore, a Trusteeship Council
composed as laid down in Article 86 of the Charter cannot yet be
formed. Sorne means of resolving tlus difficulty must be found, and
the Committee submits the following recommendations.
. . . ~ ~ . .. . . . . . . . . . . . . . . . . .
The Committee recommends that the General Assembly, acting
under Article 22 of the Charter, create a temporary subsidiary organ
to carry out certain of the fonctions assigned in the Charter to the
Trusteeship Council, pending its establishment."
I emphasize those words, Mr. President, "to carry out certain of the
functions assigned in the Charter to the Trusteeship Council, pending its
establishment".
Now, with regard to the functions of this temporary committee, the
report stated the following-1 quote from the same document, page 56:
"The Temporary Trusteeship Committee would, inter alia, perform
the following functions:
(i) assist the United Nations in expediting the conclusion of
trusteeship agreements by the States directly concerned, and the
coming into operation of the Trusteeship System provided for in
Chapters XII and XIII of the Charter;
(ii) assist and advise the General Assembly in the discharge of
any of its fonctions with regard to proposed non-strategic areas,
including the approval of trusteeship agreements;
(iii) assist the Security Council in such mattcrs as the Security
Council might wish to refer to the Temporary Trusteeship Committee
in relation to matters mentioncd in Article 83 (3);
(iv) 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 exercised under the Mandates
System."
In other words, Mr. President, here was a full indication of the functions
of the proposed committee as then visualized.
With regard to the duration of the Temporary Trusteeship Committee,
the Executive Committee recommended-I read from the same docu
ment at page 56-that-
"the tenure of the Temporary Trusteeship Committee should cease
when, through the conclusion of a sufficient number of trusteeship
agreements, the conditions in Article 86 have been fulfilled".
Then, in the same document, at page 58, we find that under a heading
"Interim Powers" the following recommenda tion was made:
"ln so far as the Temporary Trusteeship Ccimmittee undertakes
the functions of the Trusteeship Council, it shall make use of such REJOINDER OF MR. DE VILLIERS 393
rules of procedure, conceming the formulation of questionnaires,
the examination of reports from administering authorities, the
examination of petitions, arrangements for visitsto trust territories,
and the method of communicating observations to the General
Assembly (or the Security Council) and the administering authority,
as it shall have prepared for submission to the Trusteeship Council.
The Committee shall perform such other fonctions as may be
provided for in the trusteeship agreements or as may be assigned
to it by the General Assembly or the Security Council, including
the expedition and consideration of draft trusteeship agreements
and the preparation of recommendations thereon for submission to
the General Assembly or the Security Council."
:N"owM, r. President, I have given the Court everything relevant which
we could fmd in the records of the Executive Comrnittee and its sub
Committees on what was visualized as fonctions for this Temporary
Trusteeship Committee, and it will immediately strike one, Mr. President,
that in accordance with the contemplation of its sponsors in the Exec
utive Committee and its sub-Committees, this Temporary Trustecship
Committee was not intended to have any supervisory powers over
mandates not brought under trusteeship. Therc is not a word indicative
of any contemplation of that kind in ail that I have read to the Court,
which is all we could find that is relevant on the subject. And indeed,
on analysis of the wording employed, it seems quite clear that such a
contemplation was not intended to be included in anything stated. If
it was intended, one would have expected something to that effect to
have becn said. On the contrary, we find that the Committee was
intended to carry out "certain of the fonctions assigned in the Charter
to the Trusteeship Cotmcil". And while it was foreseen that, in the exer
cise of its interim powers, it could undertake the fonctions of the Trustee
ship Council regarding supervision oftrust terri tories, there is nota word
about mandates not brought under trusteeship.
\Vith regard to mandates, the only fonction referred to in ail this
documentation which I have cited, was 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
exercised under the Mandates System".
That is, then, as far as the formai proposais in the documents are
concerned-I am still talking about the stage where the matter is
dealt with in the Executive Committee and its sub-committees. Indeed,
1Ir. President, a study of the documents of the Executive Committee
reveals that, with one single exception, no suggestion was made at any
stage of its proceedings that the proposed Temporary Trusteeship
Committee should be endowed with powers of supervision over mandates
not brought into the trusteeship system.
The single exception is an interesting one. It was a suggestion con
tained in a memorandum submitted by the delegation of the United
States of America dated 14 October 1945, and officially referred to as
Document No. P.C.fEX/92/Add. r. The document is available in the
records in the Library-we found it there. My learned friend Mr. Muller,
who went into the matter, found it by chance when going through the
loose documents, because there is in fact no reference to it whatsoever in
any of the recorded proceedings--Œrtainlynot in any of the proceedings or SOUTH WEST AFRICA
394
debates. Now, the full text can be referred to in the document. There is
a brief introduction, which does not really take the matter further. Then
follows the amendment proposed to the recommendation regarding
interim arrangements, which, it was suggested should read as follows
(it would have become No. (v)):
"to undertake, following the dissolution of the League of Nations
and of the Permanent i\Iandates Commission, the functions pre
viously performed by the Mandates Commission in connection with
receiving and examining reports submitted by Mandatory Powers
with respect to such territories under mandate as have not becn
placed under the trusteeship system by means of trusteeship agree
ments, and until such time as the Trusteeship Council is established,
whereupon the Council will perform a similar fonction".
In other words, Mr. President, there was an explicit proposal of the kind
to which my leamed friends referred which would have had this Tempo
rary Trusteeship Committee exercise the function of supervising ad
ministration of mandates prior to other arrangements being entered into
in respect ofhem after the dissolution of the League of Nations. And, Mr.
President, the strange thing, the significant thing, is that no effect was
ever given to this proposai. In fact, we found that the report of Committee
No. 4 of the Executive Committee which contained the proposais of that
Committee regarding the Temporary Trusteeship Committee was adopted
at the 27th :Meetingof the Executive Committee-that is, on 18 October
1945-without any reference whatsoever to this proposal of the United
States of America. The meeting was presided over by the United States
delegate, Mr. Adlai Stevenson, but no reference to the proposai can be
traced in any of the debates of the Executive Committee. It appears as
if this was a document prepared with a view to making a proposai, but
that, in fact, as far as one can ascertain from the records, for some
reason or other which is not expiained in the records, the proposai was
not made.
Something simiiar occurred at a iater stage-I shall deal with that
whcn I corne to it-that is in the further stages of the matter through
the Preparatory Commission itself-1 shall then deal further with the
significance of this situation.
The next stage, Mr. President, after the matter left the Executive
Committee, was that it went to the Fourth Committee of the Preparatory
Commission itself. Up to this stage, as I have emphasized, therc was
nothing whatever invoiving a proposal of the kind discussed by my
learned friend-the proposa! that this Committee was to exercise
fonctions of supervision over mandates outside of trusteeship. The matter
was dealt with in the Fourth Committee of the Preparatory Commission
at its Second Meeting on 29 November 1945, and that is the date upon
which Mr. Nicholls made the statement now so heavily relied upon by
my leamed friends. On that occasion the Austraiian delegate explained
the reasons underlying the proposai for a Temporary Trusteeship Com
mittee-one finds the reference in PC/TC/2, pages 2 to 3. Immediately
afterwards the delegate of the Soviet Union stated his Government's
objection to the proposai for a temporary body, and he is reported to
have said, amongst others, the following:
". . . the Charter did not provide for the establishment of any
temporary organ on trusteeship. As soon as trust territories existed, REJOINDER OF _MR, DE VILLIERS 395
the permanent Trusteeship Council should be established. As there
was nothing in the Charter about the establislunent of a temporary
organ, the creation of the temporary Trusteeship Committee would
not be on a constitutional basis. It was true that the General
Assembly might create an auxiliary organ, but the temporary
Trusteeship Committee as proposed by the Executive Committee
would not be an auxiliary but a substitute organ."
I break the quote for the moment. Thus far, there are objections purely
on a constitutional basis,the basis of law, that it would be impermissible
to have such an organ. Now the objection proceeds on other grounds:
"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."
And then we tind, Mr. President, that further on the delegate also stated
"The temporary Trusteeship Committce would in fact delay these
provisions of the Charter rather than speed them up". So we sec the
three factors: firstly, purely a constitutional objection; secondly, partly
a legal, partly a factual, contemplation that as long as there were no
terri toriesnder the trusteeship system, there wou1d be no work for such
a temporary body; thirdly, the fact that the Temporary Trusteeship
Committee would in fact delay the provisions of the Charter rather than
speed them up.
Now one can see also, JlfrPresident, in what sense this factor of delay
was raised here by the Soviet dclegate. It is not in the sense suggested
by my learned friends, that this body would be exercising supervision
over mandates as mandates, outside of trusteeship, and that that would
encourage delay on the part of the mandatories to put the mandated
territories under trusteeship proper. That is not the sense in which the
Soviet delegate spoke of delay at all. The Soviet delegate spoke of delay
in the sense that there would be trusteeships, that they would be super
vised by a temporary body, and that that factor would be a delaying
factor in setting up the proper system of the Permanent Trusteeship
Council. The reference, Mr. President, is to the same document as bcfore
at page 3.
And we find at the same page that the representative of Yugoslavia
expressed agreement with the views of the Soviet Union.
It is then that Mr. Nicholls spoke on behalf of the Union of South
Africa. He used the words (quoted by the Applicants in the verbatim
record of 7 May, on p. 141, supra) in the following context, as recorded
in the records of the debate:
"he had followed the argu'ment against the establislunent 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 delegate for the Soviet Union might be right, but
that was a legal question. The Committee must seek legal judgment
on this question if doubt existed among some of the Delegations.
On the question of expediency, it seemed reasonable to create an
interim body as the Mandates Commission was now in abeyance SOUTH WEST AFRICA
and countries holding mandates should have a body to which they
could report."
That is from the same document as before, at page 4.
Now, ~fr. President, if this statement is read against the background
and in the context which I have indicated, then it becomes immediately
clear that it could never have the meaning and the significance sought
to be assigned toit by my learned friends. In the first place, Mr. President,
Mr. Nicholls spoke after South Africa had already indicated, through its
representative, Mr. Smit, at the San Francisco conference, what its
attitude was in regard to South West Africa and its relationship to the
United Nations in that regard. What justification is there under these
circumstances to assume that when Mr. Nicholls spoke of mandatories
in general, in this particular context, he had in mind the inclusion of
South Africa in respect of South West Africa?
In the previous indication given of South Africa's attitude in regard
to South \Vest Africa, Mr. Smit had made it clear in the document which
is on record, in the Counter-Memorial, Il, at pages 33 to 34 that:
"the Delegation of the Union of South Africa therefore daims that
the Ilfandate should be terminated and that the territory should be
incorporated as part of the Union of South Africa".
He intimated that the matter would be raised at the later Peace Confer
ence and he added:
"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 of the Mandate or the inclusion
of the territory in any form of trusteeship under the new Inter
national Organization."
Mr. President, against that background, as I say, what justification
could there be for assuming that when Mr. Nicholls was speaking here
in general on a question of expediency, not on a question of law, that
he had in mind the inclusion of the case of South West Africa? The
indications are to the contrary. As a matter of fact, one need not stop
at what Mr. Smit had already said at San Francisco. One can refer to
what Mr. Nicholls stated later in this very same Fourth Committee of
the Preparatory Commission, still in the continuation of the same debate
on the same subject-matter. That was at the later stages, before a final
decision had to be taken as to whcther there was to be a Temporary
Trusteeship Committee, or whether other proposals in that regard were
to be adopted. There was at that stage already the Yugoslav proposai
before this Fourth Committee of the Preparatory Commission, broadly
adopted Jater, which was to the effect that there should merely be a call
upon mandatory powers to submit trustceship agreements as soon as
possible, or with expedition. '
That was a proposai before the Fourth Committee at the time but,
Mr. President, the proposai for a Temporary Trusteeship Committee was
still there.he Fourth Committee still had to corne to a decision whether
to adopt the one or the other or maybe something else. And it is under
those circumstances that Mr. Nicholls made the statement of 20 Decem
ber 1945 which we cite in our Counter-Memorial, Il, at page 4I. He stated
there·that he- REJOINDER OF MR. DE VILLIERS 397
"reserved the position of his Delegation until the meeting of the
General Assembly, because his country found itself in an unusual
position. The mandated territory of South-West Africa was already
a self-governing country, and last year its legislature had passed
a resolution asking for admission into Union. His Government had
replied that acceptance of this proposai was impossible owing to
their obligations under the mandate.
The position remained open, and his Delegation could not record
its vote on the present occasion if by so doing it would imply that
South-\Vest Africa was not free to determine its own destinv. His
Government would, however, do everything in its power to 1mple
ment the Charter."
That, Mr. President, was stated as a reservation by the self-same
Mr. Nicholls in the later stages of the very same debate. What justi
fication, then, is there for my learned friend to suggest either that
Mr. Nicholls thought that there was an obligation on the part of manda
tories generally to submit to United Nations supervision, outside of
trusteeship, or that he intended, in speaking of this possibility of report
ing by mandatories to a temporary body, to include South Africa or the
case of South West Africa in tha t suggestion at all?
The matter becomes, if anything, even clearer when we see what
Mr, Nicholls said three days later-three days after this last reservation
when the matter came before the Plenary Meeting of the Preparatory
Commission. \Ve quote his statement, made on 23 December 1945, in the
Counter-Memorial, II, at page 41. The tenor is much the same as the
previous one but there is one particular aspect of it to which I should like
to invite the Court's attention. I am not reading the wholc of it; only
the second sentence which reads-
"In view, however, of the special position of the Union of South
Africa, which held a mandate over South-\Vest Africa, it reserved
its position with regard to the document at present under review,
and especially because South Africa considered that it had fully
discharged the obligations laid upon it by the Allies, under the
Covenant of the League of Nations, on the advancement towards
selfgovernment of territories under mandate."
Mr. President, when having that view of the matter, that contem
plation of the situation, that South Africa had fully discharged its
obligations laid upon it under the Mandate, how could there have been
any contemplation on the part of Mr. Nicholls that there was to be any
reporting or accounting to a temporary body by South Africain respect
of South \Vcst Africa? My submission is that it just does not make sense.
There is not one iota of justification for suggesting that :11Ir. icholls
intended to include South West Africa in his remark, whatever his
remark was intended to mean.
Next, l\Ir.President, on the question as to whether Mr. Nicholls
considered that there was any legal obligation at all, the question is
already partly answered by what I said in regard to the special position
of South West Africa and the attitude he took in that regard. How could
he have considered that there was any possibility of reservations of the
kind indicated ifhe thought that there was an obligation to submit to
supervision on the part of the United Nations, even outside trusteeship?
But apart from that, taking Mr. Nicholls' view generally in regard to the SOUTH WEST AFRICA
position of mandatory powers in respect of thcir mandates and with
rcfercnce to possible United Nations supervision, it should be observed
that Mr. Nicholls did not make his suggestion in answer to the contention
of the Soviet Union that the establishment of a temporary body would be
unconstitutional. In fact, Mr. Nicholls did not purport to take up the
Soviet delegate on that point on a legal basis at ail. He indicated that if
there was uncertainty on that matter then legal opinion or legal judgment
had to be obtained in that regard.
He addressed himself specifically to the question of expediency when
he made this remark, on which my learned friends so heavily rely,
inasmuch as, in his words, "it seemed reasonable to create an interim
body" inasmuch as "countries holding mandates should have a body to
which they could report".
Now, Mr. President, taking those words "a body to which they
could report" alone, that immediately indicates, according to the
natural meaning of the words, a possible wish on the part of such bodies
to report-a body to which they could report. Furthermore, the mere
fact that he said "it seemed reasonable to create an interim body" for
such a purpose, in circumstances where there had never even been a
proposal that the temporary body was to serve such a purpose, that
indicated in itself that he contemplated a need for the creation of special
machinery of this kind in order to bring about any obligation at all.
Otherwise, why would it be necessary to have the special body for such
a purpose, and why should he have referred to that in the context of a
debate where there was no formai proposai before the meeting at all to
the effect that this body should have powers of that kind?
So, Mr. President, the ordinary and natural explanation which the
context suggests for this suggestion of Mr. Nicholls is simply this: that
in the case of mandatories who were intending to place the particular
mandated territories, or some of them, under their control under the
trusteeship system, in those cases it would be reasonable for them to
wish to carry on with a system of international accountability and
reporting, and they might therefore, in respect of those cases, wish to
have a body to which to report. And it would therefore, as a matter of
expediency, seem reasonable to create a body of that kind-this in
answer, apparently, to the suggestion of the Soviet delegate that outside
of the creation of trusteeships there would be no work for such a body to
do. But there is nothing, Mr. President, nothing in our submission which
suggestsany contemplation of an obligation of any manda tory in respect
of any territory to do so.
So, Mr. President, that is one of the reasons why I suggested that my
learned friend might have wished for a stronger foundation for his case
than this, so-often referred to, suggestion of l\Ir. Nicholls.
But the matter goes very much further when we consider it in its
next stage, and that is with reference to the attitudes indicated by other
delegates, and, particularly, by other Mandatories. The Court will recall
the passages which I read out earlier this afternoon in which my learned
friends so strongly relied upon the proposition that other Mandatories,
especially mentioning the United Kingdom and Australia by name,
agreed with Mr. Nicholls in this regard, that they were favouring the
idea of atemporary trusteeship committee with a view to its exercising
this interim fonction of supervision over mandates, even prior to other
arrangements being agreed to. REJOINDER OF MR. DE VILLIERS 399
Mr. President, when one looks at the actual records one finds that
neither the United Kingdom nor Australia nor any other delegate or
country taking part in the debates favoured such a fonction for a
temporary body. The United Kingdom and Australia both spoke in
favour of the crcation of such a temporary body, that is true, but what
they said is on record, and what they said rclated to the original objects
visualized for the temporary body, as set out in the records of the
Executive Committee and its sub-committees, to which I referred earlier,
without any reference whatsoever to a possible fonction of supervising
mandates outside of trusteeship.
The record of what the United Kingdom and Australian representatives
said inthe Preparatory Commission-that is when the matter came to
the stage of the Preparatory Commission-is in the sarne document as
beforc-P.C.T.C. 2, page 4, for the United Kingdom, and page 5 for
Australia. Both of these countries had taken part in the debates and
discussions also at the cartier stage in the Executive Committee. (We
could give those refercncesto the Court later-we intended to have them
ready.) But, again, on our checking of the situation, we have found
that there was not one instance of any of them suggesting that a tem
porary trusteeship committee was to be created for this purpose-the
purpose of supcrvising mandates outside of trusteeship. \Vhat they did
indicate, and what seems to have been indicated in general in the course
of the debates, was the possibility that there could be supervision of
trust areas after certain mandated territories had been placed under
trusteeship, but before the trusteeship committee could begin to fonction.
In that sense, then, the temporary committee would be exercising, on a
temporary basis, some of the fonctions contemplated for the permanent
body.
So, Mr. President, in these earlier statements, which I read out to
the Court, it will be quite evident that the Applicants were wrong when
they said, for instance, that "the proposa! for a temporary trusteeship
committee was made by three mandatory powers, including the Res
pondent", and when they said that "Respondent, along with the other
mandatories, including the British Government, suggested the establish
ment of interim machinery to which to report" (wpra, pp. 153 and r55),
and when they ended up by saying "the mandatory powers wanted that
supervision to be carried out by an interim or temporary body prior to
the establishment of the Trusteeship Committee".
It is on this basis (and, I think I have demonstrated, a false basis)
that my learned friends have sought to elevate Mr. Nicholls' statement
to such tremendous importance in their case, as a basis on which they
now build their whole argument regarding consent by Respondent to the
United Nations supervision of the Mandate. lt is on this basis that they
almost challenge us and say Mr. Nicholls has not found any "niche" in
Respondent's case. We find them saying that, or words to that effect, .
on 7 May, at page 14r, supra. The simple fact is, Mr. President, that it
has never been necessary for Respondent to find a "niche" for Mr. Ni
chotls' statement anywhere in its case before, because this is the first
time that we now hear from the Applicants that Mr. Nicholls' statement
is to be given this strange significance, and that the other Mandatories
are to be associated with that significance in the manner suggested by the
Applicants, that is, in such a way that everything that followed after
wards-including all statements on behalf of l\fandatories and the final400 SOUTH WEST AFRICA
resolution of the League-is to be interpreted in the light of what was
initially suggestedby Mr. Nicholls hearing the significance attached to it
by the Applicants.
The Applicants, Mr. President, seem to have forgotten that this was
not the first time that they referred to Mr. Nicholls' statement. This
very statement was also quoted by my learned friends in the 1962 Oral
Proceedings, but then, of course, as the Court will recall and as I indicated
earlier this afternoon,the Applicants were not attempting to make a case
of consent by Respondent to United Nations supervision, they were
then contending that the 1950 Opinion was decisive and that consent
played no part in the Court's reasoning in that Opinion. And, so, it is
quite in keeping with that contention, that we find that their version
then of the events in the Fourth Committee of the Preparatory Commis
sion took a completely different line. They did not then associate any of
the other Mandatories with the views of Mr. Nicholls. We find in the 1962
Oral Proceedings, VII, at page 269, that the following was stated-I think
by my learned friend, Mr. Gross:
"At the same meeting of Committee 4 of the Preparatory Com
mission South Africa supported the view that creation of an interim
body might expedite the establishment of a Trusteeship Council and
added a proposai, not discussed by any other delegation, that a
Temporary Trusteeship Committee might supervise administration
of Mandated territories."
And this we find repeated, Mr. President, at page 271 of that record:
"... the Respondent strongly supported proposais for establishment
of a temporary trusteeship committee, and even suggested that
it might supervise administration of i'lfandated territories".
Here we have it very definitely, ''a proposai,not discussed by any other
delegation", which, of course, is true-that is as it was. If my learned
friend had only added there that Mr. Nicholls' statement was not intended
to apply to all mandated territories, then it would hardly have been
possible to have had any quarre! with it whatsoever.
Now, Mr. President, not only it is clear that Mr. Nicholls' suggestion
was not discussed by any other delegation, not only is it clear that there
was at that stage no proposai whatsoever before the relevant bodies (which
was in this case the Fourth Committee of the Preparatory Commission),
for interim supervision of the kind suggested by Mr. Nicholls, but it
appears also, from a further and a doser study of the record, that there
is certain verv material and crucial evidence, which is not before the
Court and which was not before the Court in 1950. In fact, we found
that the library record of this Court was, in this respect, incomplete, and
we only came to know of the further evidence, to which I should now
like to referthe Court, during the course of the Applicants' reply, through
certain researches conducted by my learned friends here, which led them
on to the track of the particu1ar documents and which we eventualJy
obtained from America-from the United Nations records themselves.
\Ve have certified copies available for the Court. The matter raises a
forma! question of documentation.
In the course of studying this matter, my learned friends came across
the document PC[EX/92, Addendum I, which is the one from which I
quoted earlier-the written proposed arnendment by the United States
of America regarding the functions of the proposed temporary body, REJOINDER OF MR, DE VILLIERS 401
as already drawn up in October at the stage when the matter was before
the Executive Committee and its sub-committees. That document is on
record here.
My learned friends also found a part of a document which was num
bered PC/TC/rr, which appeared to be also a proposed amendment
filed by the United States of America at a later stage in the proceedings
this is after the matter had corne to the Preparatory Commission itself,
in its Fourth Committee. As I say, the document is incomplete-there is
only one page of it in the records of the library of this Court-it stops
at the end of the first page and it seems to be obviously a document
that runs on. \Ve, therefore, obtained the original of this document from
the records in America. We have ten certified copies of it available.
\Ve alsoobtained a certified copy of another document which is missing
here, namely PC/TC/30, which was a circulated speech of Mr. Green,
the representative of the United States of America, at the Ninth Meeting
of the Fourth Committee of the Preparatory Commission, which is a
speech which has some bearing upon the matter. The whole of this
document is missing from the Court's records and, as I say, part of the
former document is missing. I do not know whether the Court would
prefer us to go through the ordinary stages of presenting a new document.
It rather seems to be just a case of omission in the records. We have
a number of certified copies available which could be made available
in the library too. Perhaps the formal aspects of it could be discussed
later-the Court could indicate to us through the Registrar what it
wishes in that regard. \Ve have available ten certified copies of each
document for inspection by the Court and by my learned friends.
Mr. President, this first document which is PC/TC II, is dated 4
December 1945. It is headed "United States Delegation", and it reads
as follows:
"PROPOSED AMENDMENT TO PART III,CHAPTER IV, SECTION 2,
PARAGRAPH 4, CONCERNING FUNCTIONS OF THE TEMPORARY TRUSTEE
SHIP COMMITTEE.
r. The Report by the Executive Committee makes no provision for
any organ of the United Nations to carry out the fonctions of the
Permanent Mandates Commission. In Part III, Chapter IX, dealing
with the League of Nations there occurs the following statement:
'Since the questions arising from the winding up of the Mandates
system are dealt with in Part III, Chapter IV, no recommendation
on this subject is included here.' (Section 3. paragraph 5, page no.)
No specific reference to the fonctions of the Permanent Mandates
Commission is to be found, however, in Part III, Chapter IV. relating
ta the trusteeship system. Section z, parngrnph 4 of that Chapter
(page 56) merely assigns to the Temporary Trusteeship Committee
a general advisory fonction in this field: '(iv) advise the General
Assembly on any matters that might arise with regard to the transfer
to the United Nations of anv fonctions and responsibilities hitherto
exercised under the Mandatés system.'
2.In order to provide a degree of continuity between the mandates
system and the trusteeship system, to permit the mandatory powers
to discharge their obligations, and to further the transfer of man
dated territories to trusteeship, the Temporary Trusteeship Com
mittee (or such a committee as is established to perform its fonctions) SOUTH WEST AFRICA
and, later, the Trusteeship Council should be specifically empowered
to receive the reports which the mandatory powers are now obligated
to make to the Permanent Mandates Commission. The existing
obligations and rights of the parties involved under the mandates
system with respect to any mandated territory continue in force
until such territory is placed under trusteeship by an individual
trusteeship agreement or until some other international arrangement
is made. To bridge any possible gap which might exist between the
termination of the mandates system and the establishment of the
trusteeship system, it would appear appropria te that the supervisory
functions ofthe Permanent Mandates Commission should be carried
on temporarily by the organ of the United Nations which is to
handle trusteeship matters.
3. In order, therefore, that the report of the Preparatory Commission
may be complete in this respect the following amendment is pro
posed.
4. Amendment
Adda new subparagraph (v)to paragraph 4 of Part III, Chapter
IV, Section 2, to be worded as follows:
'(v) undertake, following the dissolution of the League of Nations
and of the Permanent Mandates Commission, to receive and examine
reports submitted by Mandatory Powers with respect to such
territoriesunder mandate as have not been placed under the
trusteeship system by means of trusteeship agreements, and until
such time as the Trusteeship Council is estabJished, whereupon the
Council will perform a similar function'. "
This proposa! then, Mr. President, was filed on 4 December, five
days after Mr. Nicholls' speech of 29 November, in the course of the
sa.m~ proceedings in the Fourth Committee of the Preparatory Com
m1ss1on.
The Court will note a contemplation here, a rcference in the second
paragraph to the fact that the mandatory powers were then-that was of
course before the dissolution of the League-"obligated to make reports
to the Permanent Mandates Commission". One sees a contemplation
further that as at that stage the existing obligations and rights of the
parties involved under the mandates system would continue in force.
They would continue in force either until the territory was placed under
trustceship by an individual trusteeship agreement or until somc other
international arrangement was made-another international arrange
ment as contemplated at the stage of the writing of this document,
including possible arrangements at the dissolution of the League. So one
fmds that the very next sentence goes on to speak of this problem of the
bridging of "any possible gap which might exist between the termination
of the mandates system and the establishment of the trusteeship system".
And it is for the purpose of bridging that gap that it is suggested that the
supervisory functions of the Permanent Mandates Commission should be
carried on temporarily by the organ of the United Nations which is to
handle trusteeship matters. This goes further, therefore, than ail the
previous contemplations that this temporary body was to exercise
temporarily functions of the permanent body but not that it was to
exercise functions of the Permanent Mandates Commission. In this REJOINDER OF MR. DE VILLIERS 403
document, however, there was a specific proposal directed to the end of
securing that result.
We found that according to the records this proposal was placed on the
agenda of the Fourth Committee of the Preparatory Commission for the
Ninth Meeting held on IO December 1945. That we see in the document
PC/TC/31 at pages 21 and 22. But when we corne to that meeting, Mr.
President, we find that the proposa! was not discussed at ail. We find
that the representative of the United States, Mr. Green, delivered a
lengthy address at that very meeting, which is on record, and in that
address he did not even mention this proposa! contained in PC/TC II
which I have just read out.
Mr. President, in dealing with the practical advantages of the idea of a
temporary trusteeship committee, which idea he was supporting, he
showed concern only with regard to territories that might be submitted
to trusteeship before the coming into being of the permanent Trusteeship
Council. He showed concern that in those cases there would be no organ
which could exercise supervision until the permanent Council came into
being. So we fi.nd, M.r. President, that he posed this question in his own
words:
"Who looks after the territories which have been submitted to
trusteeship (in the absence of the Trusteeship Council)?" (PC/TC/31,
p. 23, and PC/TC/30, p. 8.)
\Ve have, therefore, this very strange but in my submission very
significant situation. Here is a specific written proposai by the United
States which went on record and which was intended to be dealt with on
the agenda of a particular meeting but when the meeting is held, no
mention was made of it at all. It was simply dropped and nothing was
said. I submit that the inference is inescapablc that there must have been
some reason for that, and the most probable reason in the circumstances
would be discussion between the United States delegation and other
delegations which rcsulted in the matter being seen in a different light
or a proposai of this kind not being proceeded with. In other words,
l\Ir. President, a situation very nearly the same in principle as we found
in regard to the first proposai by China at the last meeting of the League
Assembly, which after discussion had to be superseded by another
proposa!, leading to the obvious inference that it was made clear that the
first one could not have obtained the necessary support.
It may well be, M.r. President (we are spcculating, I do not know, the
record does not say), that the other manda tory powers might have said to
Mr. Nicholls and might have said to the United States: this is our
business; we have to negotiate trusteeship agreements eventually with
the United Nations in respect of the territories which we intend to place
under trusteeship. For that purpose, we wish to obtain satisfactory terms.
If we are to be placed by the United Nations, by our consent beforehand,
under general supervision as wide as that which operated in the case of
the League system, then our bargaining position may well be affected.
It may well be that these mandatory powers indicated to Mr. Nicholls
-"you cannot talk for us, when you have excluded yourself from this
situation-we do not want it" and it mav well be that an attitude of that
kind was indicated to the United States ·ofAmerica. I do not know, I am
merely pointing to the record which, in my submission, is a very signifi
cant one in this respect. SOUTH WEST AFRICA
That provides us with the basis, Mr. President, for considering the
further suggestion by my learned friends about the compromise which was
said to have been entered into between two ideas-the pledges system.
Now, it is significant in that regard, first of ail, that in the Fourth
Committee, that is of the Preparatory Commission, various delegations
proposed that instead of having a temporary trusteeship committee, the
mandatory powers should make declarations of their willingness to put
their respective mandated territories under the trusteeship system. We
found that Yugoslavia made that suggestion in PC/TC 4, at page 8; India
in PC/TC 32, at page 24, and China in PC/TC 32, at page 26. That was
then a suggestion that there should be a decision to the effect that
mandatory powers should make declarations of their willingness to place
their mandated terri tories under the trusteeship system, but this sugges
tion also, as we know, was not accepted because in the end the resolution,
which is on record, and which eventually became resolution XI at the
first part of the First Session of the General Assembly, in effect, as the
Court will recall, merely called upon mandatory powers to expedite the
submission of trusteeship agreements, in order tosubmit them for approv
al preferably not later than the second part of the First Session of the
General Assembly. There was no calling upon them to make any state
ments whatsoever whether in the final resolutions of the General Assem
bly or in the resolution eventually adopted for recommendation in the
Fourth Committee of the Preparatory Commission or in the Plenary
Session of the Preparatorv Commission itself, because at that stage
already the report of the Fourth Committee, as one sees from PC/TC 41,
at page 2, contained what eventually became the Assembly resolution XI
with very minor variations in wording.
Now, Mr. President, we find that the reasons why the temporary
trusteeship committee proposai was rejected by the Fourth Committee
were explained at the Fourth Plenary Meeting of the Preparatory
Commission held on 23 December 1945. \Ve find that explanation in the
United Nations ]omnal, No. 27, at pages Iand 2. The first reason given
was that the delegations of certain States objected to the proposai for a
temporary committee on the ground that the formation of such a body
was not authorized by the Charter, and that the establishment of such an
organ would therefore be unconstitutional. The second reason was that
the delegates were divided on the question whether the proposed tempo
rary committee would have the effect of accelerating or delaying the
establishment of the Permanent Trusteeship Council.
The Applicants were therefore, in our submission, clearly wrong when
they said, as they did on 7 l\lay in the verbatim record:
"The proposai was tumed down essentially for the pragmatic
reason that it might tend to encourage delay in setting up the
Trusteeship Council." (Supra, p. 141.)
The main argument advanced by the Soviet Union and other States
which objected to the establishment of the temporary body was that it
would be unconstitutional.
The Applicants' argument, Mr. President, entirely ignores this fact
and also ignores the fact that the Soviet Union was the main objector and
stated explicitly that until other trusteeship agreements had been
concluded there would be no work for such a temporary body, which is
entirely in keeping, incidentally, Mr. President, with the attitude REJOINDER OF MR. DE VILLIERS
consistently taken by the Soviet Union in this matter, viz., that there
was to be no legal continuity between the mandates system of the League
and the trusteeship system of the United Nations.
Now, to revert, Mr. President, to these suggestions that there should
be a decision or a resolution calling upon Mandatories to state their
willingness or their intent to place the1r Territories under trusteeshlp,
which was not accepted, we find that the Applicants' argument is that
by plan and design a different system of pledges was devised as a com
promise, namely pledges "to carry out all the obligations of the Mandate,
including the obligation to submit to international supervision ... until
other agreed arrangements could be made". That is quoted from the
verbatim record of 7 May, at page 146, supra. Yet, Mr. President, we
have seen that there was no resolution whatsoever to which thev could
refer, no resolution calling for any statements whatsoever by any
mandated powers. Yet my leamed friends say, on the one hand-let us
seewhat were the opposing ideas between which this compromise solution
was arrived at-"the mandatory powers wanted that supervision [that
is of mandated territories] to be carried out by an interim ...body prior
to the establishment of the Trusteeship Council", while, on the other hand,
they say "other governments ... pressed for pledges by the mandatory
powers to place these territories under the trusteeship system". So, it was
between these two that the compromise was reached. (These quotations
are from p. 146, supra.)
The system of pledges, Applicants say, was decided upon by plan and
design-by plan and design there was to be a system of pledges-although
they can point to no resolution in that regard. But that system of pledges
was not designed to place mandated territories under trusteeship. lt was
to be a system of pledges to carry out ail the obligations of the Mandate,
including the obligation to submit to international supervision until
other agreed arrangements could be made.
l\fr. President,in the first place the Applicants offer no evidence
whatsoever in support of this so-called compromise plan or design, they
do not point to any part of the record which shows that there was such
a compromise, that anybody was aware of it, that anybody spoke of it,
that there is any kind of a record of it whatsoever. Indeed, they cannot
point to any evidence, Mr. President, because the whole suggestion is,
with the greatest respect and with the greatest submission, a figment of
their imagination. It is entirely in conflict with the true history of the
events. In any event, Mr. President, before we proceed with the factual
record, what kind of a compromise would this have been? In my sub
mission, it does not work out, it does not make sense.
On the one hand, we have mandatory powers, which as suggested by
the Applicants, now wished to have a temporary body which could
supervise mandatory administration even outside of trusteeship. I have
already shown that factually that is a false premise, but let us take it at
its face value for the moment. That is not agreed to by the other States
because they think that tao much delay would be involved through
following a process of that kind. Now, we already have inherent in this
whole clash of ideas that the Parties are agreed, according to the Appli
cants, about the ideals and objectives; they are agreed about the objective
of having the trusteeship system operating as soon as possible; they are
agreed about the objective of having continuity of supervision over
mandatory administration. Those are the objectives, but they are dis- SOUTH WEST AFRICA
agreed upon the methods which are to be resolved upon with a view to
attainment of those objectives. So we have a contemplation, on the one
hand, that machinery 1s to be created-special machinery-in order to
provide for this continuity, the contemplation, therefore, that this
machinery is necessary, but also a contemplation, from the other side,
that it is undesirable to have that machinery and that, therefore, there
should be no such machinery.
Mr. President, in those circumstances what sense does it make to say
there was nevertheless a compromise to the effect that mandatories would
pledge themselves to carry on with all their obligations under the man
dates system, including an obligation of accountability, until the trustee
ship system might eventually corne into operation or until other arrange
ments were made, when by that very same contemplation there would
not be the necessary element of the provision of machinery for that
purpose? The two ideas are so fundamentally in conflict with one another
that it shows that the whole suggestion of the compromise plan and
design in this respect just does not make sense. But, in addition, as I have
said, it is notin accord with the actual facts on record.
[Public hearing of 25 May r965]
Mr. President, I promised yesterday to give the Court references to the
participation by the United Kingdom and Australia in the debates of the
Executive Committee of the Preparatory Commission on the subject of
the proposai for a Temporary Trusteeship Committee. I have here the
loose minutes, as they are probably known to the Court, of the Executive
Committee in Plenary Session, dated 19 October 1955, and the references
are from page 9 onwards. The Court will see that the representatives of
the United Kingdom, Professor Webster, at page IO, Ilfr. Haslock of
Australia, at page II, and the Chairman, who was from the United
States, took part in the debates; and then again, at page 12, the rep
resentatives of France, Australia, and the United Kingdom. I think
those will give a representative indication of the attitudes taken in the
Executive Committee.
At the conclusion yesterday, Mr. President, I was dealing with the
Applicants' suggestion of a "compromise plan or design" which was said
to have been arrived at in the United Nations Preparatory Commission
between the mandatories and other States. As the Court will recall, the
suggestion was that the mandatories wanted supervision by an interim
body, whereas other States wanted pledges by mandatories to place the
mandated territories under trusteeship. The compromise was said to be
that the mandatories were to pledge themselves to carry out al! the
obligations of the mandates, including submission to international
supervision, until other arrangements were agreed upon.
I submitted, Mr. President, with respect, that this does not make sense,
even on the Applicants' own premises, for the reasons which I indicated
yesterday; and I promised to demonstrate to the Court. also, that the
submission was in any event in complete conflict with the true facts as
they emerge from the record.
In the first place, as we have indicated, the Applicants are entirely
wrong when they say that the mandatory powers, in supporting the
proposai for a Temporary Trusteeship Committee, wanted supervision
of their mandated territories before trusteeship agreements were con- REJ OlNDER OF MR. DE VILLIERS 407
cluded. We have shown, also, what Mr. Nicholls apparently meant in
that regard, and we have shown that the other mandatories obviously
did not agree even with his limited suggestion. That, in itself, would
really dispose of the Applicants' argument.
But, Mr. President, the argument is in our submission further com
pletely controverted by what actually occurrcd whcn the proposai for the
Temporary Trustecship Committee was rejected and afterwards. When
the proposai was rejected there was also a rejection of the other proposa!
which 1 mentioned yesterday, namely that mandatories should be cailed
upon to make declarations of their willingness to submit their mandated
territories to the trusteeship system. In place of both these proposais
came the proposai that the General Assembly should merely call upon
the mandatories to expedite the submission of trusteeship agreements,
which proposai was eventually adopted in the General Assembly resolu
tion No. XI of 9 February 1946. (II, p. 43.)
So, Mr. President, in the result there was no calling upon mandatory
powers to make any pledges at all. Yet we fmd that the Applicants
speak of pledges which were linked with a speech which the New Zealand
Prime Minister, Mr. Peter Fraser, had made at the San Francisco Con
ference. I referred the Court yesterday to the verbatim record of 7 May,
at pages 139 and 143, supra, and I read an extract showing the manner
in which this point was dealt with by the Applicants. lt may be as well
to check first on that aspect before referring to the further events which
followed those in the Preparatory Commission. We have to go back to
the San Francisco speech by Mr. Peter Fraser.
l\Ir. Fraser in this speech was referring to the provisions of the Charter
for the establishment of the Trusteeship Council, and he then said the
following:
"The work immediately ahead is how those mandates that were
previously supervised by the Mandate Commission of the Leaguc
of Nations can now be supervised by the Trusteeship Council with
every manda tory authority pledging itself in the first instance as the
test ofsincerity demands, whatever may happen to the terri tory after
wards, to acknowledge the authority and the supervision of this
Trusteeship Council." (Sitpra, p. 140.}
Now, Mr. President, I would, with submission, say that the natural
interpretation of this statement is that Mr. Fraser was enjoining the
mandatory powers to place their mandated territories under trusteeship.
There are m!my reasons, quite apart from the text which appears to be
clear, why he cannot be understood to have suggested that mandatories
should acknowledge the authority and the supervision of the Trusteeship
Council in respect of mandated territories not converted to trusteeship.
The Court will recall from the record that no mandatorv in fact ever
gave a pledge to acknowlcdge the authority of the Trusteeship Council
outside of the trusteeship system.
And the Court will further recall from passages which I cited to the
Court on the attitude of New Zealand-passages which I cited in my
argument in chief-that New Zealand was, on occasion, very emphatic
in denying that it owed any duty of accountability to the United Nations
outside of trusteeship.
Thus, all the indications-the natural meaning, the context, the
probabilities as to what he meant are that Mr. Fraser was simply urging SOUTH WEST AFRICA
the mandatory powers to place their territories under trusteeship and,
in that sense, and for that purpose, to acknowledge the authority and
supervision of the Trusteeship Council whatever might happen to the
territories afterwards, "afterwards" meaning after trusteeship.
The impression to the contrary which the Applicants create, Mr. Pres
ident, is, iny submission, due entirely to the interpolation in Mr. Fraser's
speech of the words to which I drew attention yesterday, viz., the words
"until other arrangements were concluded", words which occur in the
verbatim record of 7 May, at page 143, supra, but which Mr. Fraser, in
fact, did not use.
But, Mr. President, what is perhaps the most important factor of
aUto refute the Applicants' suggestion of a compromise plan, or design, is
the very fact that declarations were indeed made by the manda tory powers
very shortly after the deliberations in the Preparatory Commission, but
that these were not declarations or pledges of the nature described by the
Applicants. That is perhaps the surest test of ail, in order to ascertain
whether they are correct in suggesting that there was a basic plan,
design, or compromise, in pursuancc of which the mandatory powers
acted afterwards. Because whcn that is put to the test, we find that
immediately after the matter went from the Preparatory Commission
to the General Assembly itsclf, certain declarations were, in fact, made
by mandatory powers. This was in the First Part of the First Session of
the General Assembly, when the report of the Preparatory Commission
was under consideration.
In our Counter-Memorial, II, at pages 41 to 42, we cite extracts from
declarations made by certain of the mandatory powers-South Africa,
the United Kingdom and France-on this occasion. It is very clear, in
our submission, from those statements, that not one of these manda tories
had in mind any pledges of the nature contended for by the Applicants.
South Africa's statcment, which is to be found at page 41 of that
Volume, was a reservation of the same nature as before-a reservation of
its whole position regarding South West Africa-for substantially the
same reasons as those given before-pending consultation with the
people of South West Africa as to the form which their own future
govemment should take. There was therefore no suggestion whatever of
a pledge o~the nature contended for by the Applicants. .
The Umted Kingdom statement, or the extract therefrom wh1ch we
cite, is to be found at page 42 of that Volume. That indicated willingness
on the part of the United Kingdom to place certain territories under
trusteeship, but depending on the negotiation of satisfactofy terms. The
position regarding Palestine was explicitly reserved pending the report
of the Anglo-American Committee of inquiry, and the intention was
further expressed to accord independence to Transjordan. Again,
Mr. President, there was no reference to carrying on with mandate obliga
tions pending new arrangements, and certainly nothing regarding super
vision inthe interim.
France, in a statement cited at page 43 of that same Volume of the
Counter-Memorial, indicated an intention to enter into trusteeship
regarding Togo and the Cameroons, again subject to satisfactory terms
being agreed upon. Furthermore, the same remarks apply as in the case
of the United Kingdom in regard to the suggested pledge.
The other mandatories also made declarations. To these we refer at
page 43 of the same Volume of the Counter-Memorial without, however, REJOINDER OF !IIR, DE VILLIERS
quoting them there. It may be significant to refer to portions of the texts
of certain of these declarations.
The representative of New Zealand stated the following (the reference
is to the General Assembly, Otficiat Records, 14th Plenary Meeting, 18 Jan
uary 1946, at pp. 226 to 227).
"The New .zealand delegation has studied with interest the
Chapter of the Report of the Preparatory Commission which
conccrns trusteeship. lt wclcomes the fact that the Commission did
not see fit to proceed with the proposai of the Excutive Committee
forthe establishment of a Temporary Trusteeship Committce, in order
that the trusteeship machinery described in the Charter may be set
up. Three steps are necessary for that. The first is that all the Powers
having responsibility for the govemment of dependent peoples
should announce their willingness to place their respective territories
under trusteeship. The second is that trusteeship agreements should
be concluded. The third step is that the Trusteeship Council should
be set up."
The representative of New Zealand then announced his Government's
preparedness to place Western Samoa under trusteeship. Again, J'llr.Pres
ident, there is nota word of a compromise plan, or design, or of a pledge
to submit the Mandate to United Nations supervision outside of trustee
ship.
The Australian delegate's speech is to be found in the same record to
which I have referred, at page 233. He stated the following:
"At the Executive Committee stage of the Preparatory Commis
sion's work, my colleague, Dr. Evatt, was responsible for putting
forward the first concrete proposais for ensuring the early operation
of these chapters [i.e., the proposai for a Temporary Trusteeship
Committee]. At the Preparatory Commission itself, the Australian
delegation, in a spirit of conciliation, accepted the alternative
procedure which has now been rccommenced." (C.A., O.R., 14th
Plenary Meeting, 18 January, 1946, p. 233.)
The alternative procedure was, of course, that the General Assembly
should call upon the mandatory powers to expeditc submission of
trusteeship agreements, as we noted beforc.
The Australian delegate proccedcd to announce his Government's-
"... intention of negotiating an appropriate trusteeship agreement
with a view to bringing the l\landated Territory of New Guinea under
the international trusteeship system ... ". (Ibid.)
Again, Mr. President, there is no word of a compromise plan, or design,
or pledge of any intention regarding obligations pending entering into an
appropriate trusteeship agreement.
The representative of Bclgium's statement is to be found in the same
record, at page 238. I shall read an extract:
"... the Preparatory Commission has passed a recommendation that
the General Assembly should adopt the resolution according to
which States administering territories under a mandate from the
League of Nations shall be invited, in agreement with the other
States directly concerned, to take the necessary measures forputting
into effect Article 79 of the Charter which provides for the conclusion SOUTH WEST AFRICA
of trusteeship agreements in respect of each territory to be placed
under this system. Desiring to promote the application of the trustee
ship system at the earliest possible date, Belgium hereby announces
her intention to start negotiations imrnediately with a view to
placing under trusteeship the territory of Ruanda-Urundi ... "
Again, M.r. President, the same comment applies as in the case of the
previous citations.
In its eventual resolution of 9 February 1945, resolution No. XI,
the General Assembly, prior to calling upon the mandatory powers to
expedite the submission of trusteeship agreements, also-
"... Welcome[d] the declarations, made by certain States ad
ministering territories now held under Mandate, of an intention
to negotiate trusteeship agreements in respect of some of those
territoriesand in respect of Transjordan to establish its indepen
dence". (Il, p. 43.)
We have here a summary rendering of the gist of the statements of
some of the mandatories prepared to negotiate trusteeship agreements.
lt emphasizes by careful wording that it did not apply to all mandated
territories, and also, by omission, the point I have just been making,
namely that there was no reference whatsoever to the type of pledge to
which my learned friends referred.
Mr. President, in my submission, these declarations in themselves
destroy the whole idea of the Applicants' so-called compromise "plan or
design", in support of which no evidence whatsoever was tendered by
them to the Court.
From this, Mr. President, it follows, if we move along toward the last
session of the League Assembly, that the Applicants' whole approach
to the declarations made by the mandatories on that occasion is also
unsound. There is no support whatsoever for the suggestion that those
declarations by the mandatories are ta be read as emanating from an
a priori plan, or design, for pledges ta submit to United Nations super
vision. On the contrary, that suggestion is in conflict with al! the events
with which we have just dealt.
It is quite clear, Mr. President, that the Applicants' analysis of these
declarations, as they now present that to the Court in their oral reply,
indeed proceeds on the basis that their version of the proposai for a
Temporary Trusteeship Committee and of the reason for the rejection of
the proposa!, is correct. We find that they deal with this matter in the
verbatim record of 7 May-there is a relevant passage at page 148,
supra, which confirms what I have just stated, and I need not read that
because in the same record of 7 May, at page 150, supra, there is a
further passage which substantially repeats the earlier one and takes it
a little further.Itreads as follows:
"The fact that the Preparatory Commission rejected this specific
provision for supervisory machinery for obvious reasons ofexpediency
and policy, read in the light of the views of the mandatory powers,
including Respondent, that there should be such machinery until
other arrangements were concluded, is consistent with the inference
that the members of the Preparatory Commission felt that there was
no need for special provision and that the United Nations, if it
wished and if it became necessary, would assume powers of mandate
supervision in residual and exceptional situations, which is precisely REJOI~DER OF MR. DE VILLIERS 4II
the case presented by South \Vest Africa and, as I have said, no one
ever spoke against United Nations supervision over mandates in
1945 or in 1946; Respondent's representative, to the contrnry,
Mr. Nicholls, explicitly favoured it. Hence, as we have already noted,
the relationship between South African support for the temporary
Trusteeship Committee and the South African pledge to the League
of 9 April 1946 become very meaningful, and precisely the same
pattern may be seen in the pledges made by each of the other
mandatory powers."
The importance lies in this last link, "the relationship between South
African support for the temporary Trusteeship Committee and the
South African pledge to the League", is said to be "very meaningful",
and the contention is that precisely the same pattern may be seen in the
pledges made by each of the other mandatory powers.
Mr. President, I repeat that this approach to the declarations made at
the last League session is untenable for the simple reason that the premises
upon which it rests are entirely wrong, the premises being the Applicants'
version of the proposal for a Temporary Trusteeship Committee, of the
reasons why certain mandatory powers favoured the proposa!, and of the
reasons why the proposai was rejected. Those matters I dealt with yester
day and made it very clear, in my submission, that those premises of the
Applicants are unfounded.
Consequently, the whole basis upon which the Applicants attempt to
criticize our analysis and interpretation of the several declarations made by
mandatory powers is also, in my submission, without foundation. That
attempt to criticize our analysis is to be found in the verbatim record of
ro May, at pages 151-157, supra, where it will be observed that this
premise of their interpretation of the earlier events of the Preparatory
Commission-is the basic feature, the premise upon which the criticism
rests and, if that falls away, the whole criticism itself, as now tendered,
falls away.
That they carry this false premise through also to the interpretation
of the League resolution of 18 April, Mr. President, is evident from a
passage in the verbatim record of 10 May, at page 153, supra, which
I quoted to the Court yesterday-the passage in which they cite para
graph 4 of that resolution, with certain comment.
In the comment they said, inter alia,that the word "pledge" "was
used in several of the statements made at the time". )fr. President, that
is not correct. We checked on it and we found that the word "plcdge" ..
was, as far as we could ascertain frorn the record, used only twice during
the whole of the relevant discussions at the last Assembly of the League
of Nations. It was used once by the representative of Australia, but not
with reference to a pledge with a content such as contended for by the
Applicants. It was used quite clearly as referring to Australia's assurance
regarding compliance with the substantive provisions of the Mandate,
that is, in the words used, "to continue to administer the present man
dated territories, in accordance with the provisions of the Mandates, for
the protection and advancement of the inhabitants". The context in
which the word "pledge" was used, Mr. President, will appear from the
following statement which is well-known to the Court because we have
çited the whole of it before:
"In due course these territories will be brought under the trustee-412 SOUTH WEST AFRICA
ship 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 to-day but also by the explicit international obli
gabons laid down in Chapter XI of the Charter ... " (League of
Nations, Official Jonrnal, Special Suppl. No. 194, p. 47.)
So the pledge refers to the undertaking, the assurance, the expressed
intention to comply with the substantive provisions of the mandate
regarding administration of the territory, and it is stated that the ground
is further covered by "the explicit international obligations" laid down
by the Charter-the point with which I dealt before, viz., the conception
of the Australian representative that there would be reporting, or the
giving of information, to the United Nations under the provisions of
Article 73 (e) of the Charter.
The only other occasion on which the word "pledge" was used was
during the speech of the delegate of Switzerland, who in the relevant part
of his speech spoke solely of the technical activities of the League which
were to be transferred to the United Nations. He said:
''... this last General Assembly is important in so far as it expresses
the will to transmit to the United Nations Organization the technical
activities in which the League has been engaged, often very success
fully: in the social sphere through the International Labour Or
ganization, in the sphere of public health through the Health Or
ganization and in many others referred to just now by M. Paul
Boncour. The instrument of work forged at Geneva, which we are
handing over body and mind to the Organization of tomorrow, will
constitute a pledge for the future." (Ibid.,p. 37.}
It is clear, Mr. President, from the record, that the word "pledge" was,
in fact,never used at the dissolution of the League in the sense contended
for by the Applicants.
The declarations by the mandatories at the last session of the League
Assembly were all made, as the Court will recall, in Plenary Session. Now,
apart from statements made by mandatory powers, the only delegates
who referred in the debates in the Plenary Session to the question of
mandated territories at ail, were those of China, India and Egypt, and
their statements made it clear that they perceived no pledge on the part
of the mandatories as is now contended for by the Applicants.
Dr. Lone Liang of China first spoke in the Assembly in its Plenary
Meeting on 9 April 1946; this was even before the first proposa!
raised by him. He spoke after the United Kingdom had reserved its
position with regard to Palestine and had made its declaration of intention
regarding its other mandates. He mentioned not a word, Mr. President,
about "pledges" or "undertakings" in the sense contended for by the
Applicants. After expressing gratification at Lord Robert Cecil's state
ment in regard to the mandate system, he referred to the institution of
the trusteeship system and stated the following:
"Sorne of the mandatory States administering these territories
have already taken the lead during the first Assembly of the United
Nations in answering this call ["this call", if I may interrupt refers
to the institution of the trusteeship system]Itis to be hoped that the
Trusteeship Council of the United Nations will soon be set up to REJOINDER OF !IIR. DE VILLIERS
receive the torch of freedom and humanity from the League."
(Ibid., p. 31.)
Now this same delegate, Mr. President, spoke later in the Plenary
Session when he proposed a second draft resolution, a matter to which
I have made extensive reference before. We have checked the speech
again and it is clear that he made no mention of anything in the nature of
a pledge. (We find the speech in the same Supplement at pp. 78-79.)
The representative of India, speaking after the United Kingdom,
South Africa, France, New Zealand and Be1gium had made their state
ments, merely said the following:
"The declared intention of several of the present mandatory
Powers to transfer most of the territories to the trusteeship system
is a good and healthy augury for the future. May I express the hope
that the same vision and statesmanship will inspire ail the Powers
in respect of the mandated territories, and thus eliminate what may
well become a potential cause of unrest in various parts of the world."
(Ibid., p. 46.)
Again there is no reference to any "pledge" of the nature contended for.
Then there was the representative of Egypt, with whose attitude we
dealt before. The Court will recall that his attitude was that the "Man
dates [had] terminated with the dissolution of the League of Nations".
(Il, p. 51.)
So it is clear from the whole debate and from what was actually said
by the mandatory powers and the others in response thereto that there
was no concept of an a priori compromise plan, or design, for pledges to
submit to United Nations supervision in an interim period, or at all.
Now Mr. President, the next step in these proceedings is that relating
to the two Chinese draft proposals. Here again we find that the Applicants
attempt to explain the events purely on the basis of their alleged com
promise plan, or design. Thus, they say in the,verbatim record, ofIO May,
at page r6o, supra:
"... the first Chinese draft was, in essence, an attempt to retum to
the first alternative proposai favoured by mandatory powers in the
debates of the Preparatory Commission".
They embroider on this basic submission in more detail at the next page;
it is unnecessary for me to read it out to the Court because the way in
which the false premise affects the conclusion is so obvious as to require
no further elaboration. That, Mr. President, therefore, is the whole basis
upon which they approach this matter. The Applicants are so carried
away by this false premise that they even go so far as to suggest that
Respondent and the United Kingdom would have preferred the first
Chinese draft proposai to the second one. We find stated in the verbatim
record of IO May, at page r6r, supra, and later in the verbatim record of
II May, at page r89, si,pra, they went so far as to say this:
"It is therefore at least as plausible, in the Applicants' viemore
plausible, to infer that it was perhaps the Respondent or other
mandatories or a group of them ail acting together who (were]
overruled when the Assembly decided not to accept the Chinese
draft resolution which would have set up the very machinery the
mandatories had proposed in the Preparatory Commission." SOUTH WEST AFRICA
I added the word "were" before "overruled"-that seems to be the con
text and it appears to have been omitted from the verbatim record. But,
Mr. President, when regard is had to the true factual position, these
suggestions are, of course, entirely ludicrous. The United Kingdom and
South Africa had explicitly reserved their positions regarding Palestine
and South West Africa, respectively. ln both cases they made it clear
how uncertain the future was in regard to those territories. Yet the
suggestion is that these two States would have preferred the first draft
which would have made it obligatory, in respect of all mandated terri
tories to recognize, or submit to, supervision on the part of the United
Nations organs.
New ZeaJand, Mr. President, had in January welcomed the fact that
the Preparatory Commission did not see fit to proceed with the proposai
to establish a temporary trusteeship committee: that appears from the
statement which I read to the Court a little while ago. Yet we still find
in thislast submission of the Applicants which I read out, the words that
the Chinese draft resolution "would have set up the vcry machinery the
mandatories had proposed in the Preparatory Commission". Mr. Presi
dent, one's greatest amazement is that a submission of this kind could be
seriously made. If the mandatories did not oppose the first Chinese draft
proposai, who would have opposed it, I might ask? The Court will recall
that we deal in the Counter-Memorial, II, at pages 46 and following, with
the events at the final session of the League Assembly, and we refer to
certain facts in that regard which, as far as we know, are entirely un
disputed. We say at page 46:
"The session was scheduled to last less than two weeks, and
delegates knew that it would not be possible to discuss the future of
the Mandate System at any length in an appropriate Committee.
Informa! discussions were consequently initiated between those
Members of the League most directly concerned, with a view to
securing the greatcst possible measure of agreement before the
matter was offi.ciallyconsidered in the Committee."
And then at page 49, we indicate that after the first Chinese proposai
had been raised, the informa! discussions were renewed, the Chinese
delegations also participating therein, and that-
"the final outcome was that when the question of Mandates was
reached in the First Committee, on the 12th April, 1946, the Chinese
delegate, Dr. Liang, himself introduced a new draft of which Sir
Hartley Shawcross of the United Kingdom said, when seconding the
proposai, that it-
'had been settled in consultation and agreement by all countries
interested in mandates, and he thought it could, therdore, be
passed without discussion and with complete unanimity' .'' (II,
p. 50.)
Now, Mr. President, accepting those facts, how could it be imagined
that there would have been opposition, as there must obviously have
becn to this first Chinese proposa!, if it did not corne from the manda
tories-if the mandatories were, as my learned friends suggest, in favour
of that proposai, they really wanted such a transfer of superv:isory
fonctions, and wanted to be subject to interim supervision, but were
thwarted in this intention by an undisclosed attitude on the part of other
States? REJOINDER OF MR. DE VILLIERS
Surely, Mr. President, if that had been the position, one would have
expected one or other of the mandatories to have referred to that, even
if only obliquely, in one of their statements in the debates. Surely one
would have expected one of them to have said "we would like to go
further than what we are stating here, we would like to report in the
interim and to subject ourselves to supervision in the meantime, even
before new arrangements are agreed upon, but we have ~een prevented
from doing so because there is an unwillingness on the part of some
States to do what may be necessary in order to create the necessary
machinery''.
For instance, it would have fitted very well, Mr. President, in the
statement of the Australian representative which we cite in the Counter
Memorial, Il, at page 48. In the second sentence of the passage which we
cite,the Australian representative stated:
"After the dissolution of the League of Nations and the consequent
liquidation of the Permanent Mandates Commission, it wiH be
impossible to continue the mandates system in its entirety."
Surely, if there had been any intention, any wish, on the part of the
mandatory powers to support this first proposai to create machinery to
which they could report and account in the meantime, it would have been
unnecessary to rest the matter on the basis that it would be impossible to
continue the mandates system on its entirety. It would then also, Mr.
President, have been very strange that, although we have this contempla
tion of a pledge on the part of the representatives of the mandatory
States and, therefore, also on the part of the Australian representative
(this ishe basis upon which we argue or on which we analyse the Appli
cants' contention) the Australian representative should then have gone
further and have stated a contemplation that Article 73 (e) would
govem the situation in the interim period in regard to the furnishing of
information. On the one hand there would be a pledge, or contemplation
of a pledge, to con;iply with ait the obligations of the mandatorv system
in the interim period, including an obligation of accountabillty. Yet,
although there was a specific proposai for creating machinery that did not
obtain approval, the contemplation still stood. But in spite of that con
templation we find the only explicit rcference to furnishing information,
or reporting, or anything of that kind, in the interim, was one based on
Chapter XI of the Charter, section 73 (e), which my learned friend
himself conceded in his argument was an obligation of a much lesser
content than that provided for in Article 6 of the Mandate for South
\Vest Africa and corresponding Articles in the other mandates.
Yet, Mr. President, that is apparently the inference urged upon this
Court that it should draw as to the attitude of the various mandatory
powers, and there seems to be a scrious suggestion that the Court could,
by a process of necessary inference, corne to a conclusion favourable to the
Applicants' contentions.
I submit, l\Ir. President, that the more one analyses the record, the
more one analyses the successive, varying contentions advanced by the
Applicants to the Court in this regard, the more it becomes absolutely
clearthat there is no basis whatsoever for such a finding in the Applicants'
faveur.
I may, just by way of summary on this aspect of the case, refer to
some of the material facts on the record which stand out as irrefutable SOUTH WEST AFRICA
indications that the Respondent did not, either before or at the dissolu
tion of the League, consent to transfer of supervisory authority over the
Mandate to the United Nations.
The fi.rst of these is the fact that no provision was made in the Charter
of the United Nations for supervision of mandates other than by putting
mandated territories under the trusteeship system.
The second is the fact that Respondent had, at the earliest opportunity,
that is, at the 'san Francisco Conference, declared its intention to have
the tcrritory of South West Africa incorporated in the Union of South
Africa, and that it therefore reserved its position with regard to the
terri tory in the terms which I cited to the Court again ycsterday.
Thirdly, there is the fact that the proposai for the Temporary Trustee
ship Committee, which was intended, inter alia, to supervise trust
territories prior to the establislunent of the Trusteeship Council, was
rejected mainly because the step was considered, at lcast by a certain
number of States, as unconstitutional. In conjunction with this we have
the written proposai by the United States of America that the functions
of the proposed Temporary Trusteeship Council should be cxtended also
to caver supervision of mandates. We have the fact that that written
proposai was not even raised by the proposer, the United States, nor
even discussed in the debates.
Itis only reasonable and logical, Mr. President, in our submission, to
assume that if the temporary body with its functions as originally
proposed was regarded as unconstitutional, it would a fortiori have been
regarded as unconstitutional with the proposed extcnded functions.
Next, Mr. President, we have the reservations made by Mr. Nicholls in
the Fourth Committee of the Preparatory Commission on 20 December
1945, and in the Preparatory Commission itself on 23 December 1945,
with regard to the position of South West Africain the terms to which I
referred again yesterday. And therc was a like reservation by Respondent
before the Plenary Meeting of the Gencral Assembly on 17 January 1946.
Ail these indicate quite clearly that there would, as far as Respondent
was concerned, be no supervision by the United Nations over South
West Africa, either by way of trusteeship or otherwise.
Next we have the first Chinese proposai at the last session of the
League which specifically provided for a transfer to the United Nations
of the League's supcrvisory powers over mandates and the very obvions
inferences which are to be drawn from the fact that this proposai had to
be dropped and superseded by the resolution actually adopted. Our case
in that regard has not been affected in any way whatsoever by what bas
now been offered to the Court by my learned friends, in reply.
Next, there is the fact that the declarations made by the different
mandatories-each and every one of them-merely contain an expression
of intention regarding continuecl administration of the respective
mandated territories and that some of them contain very pointed
indications that there would be no reporting or accounting under the
mandates. Again, our analysis of this matter as offered in our argument
in chief has in no way been touched by the Applicants' argument in
reply. The whole line of attack offered by them in this regard bas fallen
away because of the false premise upon which it rests.
Next there is the fact that the League resolution of 18 April 1946
merely referred to the ''expressed intentions" of the mandatory powers to
continue to administer the territories in a certain manner. REJOI~DER OF MR. DE VILLIERS 417
Finally, there is the tremendous impact of the difference in the treat
ment of mandates, on the one hand, and of other matters, on the other
hand, where transfers to the United Nations were indeed intended, in
the corresponding United Nations and League resolutions, in the registra
tionsunder Article rn2 of the Charter, and in the actions and the report
of the Board of Liquidation.
Upon ail this evidence, of which I have mentioned some of the most
salient examples (1 haven't tried to deal with it ail again because it is
all on record), but upon this evidence as a whole, Mr. President, the
Applicants' contention that the Respondent consented to United Nations
supervision of the mandate at or prior to the dissolution of the League
must, in our submission, without any doubt be rejected.
That brings us to the argument offered in reply by the Applicants on
the question of Respondent's alleged conduct after the dissolution of the
League.
In the verbatim record of ro May the Applicants summarized their
contentions in this regard as follows:
"In summary, up to the autumn of 1947, the South African
Govemment had~
(a) recognized that in law the Mandate of South West Africa
continued in full force and effect, notwithstanding the dissolution
of the League, and this is now common cause;
(b} advocated the establishment of interim machinery for the
supervision of Mandates pending other arrangements since, in the
words of Mr. Nicholls at the Preparatory Commission 'the Mandates
Commission was now in abeyance and countries holding mandates
should have a body to which they could report';
(c) had taken part in the system of pledges by which each of the
mandatory powers in terms undertook to carry out all of the obliga
tions of the mandate until the conclusion of other agreed arrange
ments;
(d) had submitted the issue of the incorporation of the Territory
of South West Africa and the termination of the Mandate to the
General Assembly as the competent international organization for
judgment;
(e) had associated itself in a letter to the Secretary-General of the
United Nations with a Resolution of the House of Assembly of the
Union Parliament, calling for reports to be rendered to the United
Nations as heretofore under the Mandate.
Not until September of 1947, did Respondent's Govemment
begin to question openly the supervisory powers of the United
Nations and only in 1948, did it for the first time begin to question
the legal existence of the ).fandate as a whole." (Supra, pp. 173-174.)
The summary provides a useful basis on which to base our Rejoinder.
·We begin with the allegation under (a) that Respondent recognized "in
law [that) the Mandate of South West Africa continued in full force and
effect, notwithstanding the dissolution of the League". We dealt in our
argument in chief, Mr. President, with the attitude of the Smuts Govern
ment, which remained in power until May 1948, on the question of the
existence of the Mandate as such after the dissolution of the League
of Nations as distinct from the question of accountability to the Uni
ted Nations, and it is unnecessary to repeat what we said in that regard. SOUTH WEST AFRICA
Our attitude is stated in the verbatim record of 6 April, VIII, page 428.
Then, in paragraphs (b) and (c), we find a reference again to Mr.
Nicholls in the Preparatory Commission, to the system of pledges, which
we have fully dealt with. It is unnecessary to refer to those again.
Soit remains to deal with the last two on the list, "(d)" and (e). (d) is
that South Africa "had submitted the issue of the incorporation of the
terri tory of South \Vest Africa and the termination of the J\fandate to the
General Assembly as the competent international organization for
judgment", and (e) refers to the Respondent's letter of 23 July 1947 to
the Secretary-General of the United Nations containing a reference to the
resolution of the House of Assembly. I propose to deal with these two
matters in turn.
Now in regard to the proposa! for incorporation, we have dealt with
this matter fully in our oral argument in chief and the rcferences are to be
found in the verbatim record of 6 April, at VIII, pages 430-448, and
again in the record of 9 April, at VIII, pages 5r7-523. Inasmuch as, in
our submission, the Applicants have hardly adduced any new argument
on this subject, it is not necessary for us to say much in response.
The Applicants repeat their previous argument that there is an essential
link between Articles 6 and 7 (I)of the Mandate. This argument rests
entirely on the Applicants' proposition that consent to modification of
the terms of the Mandate must be "informed consent" and, that being
the case, the body from which such consent is to be obtained must of
necessity, so they contend, be the body which exercises supervision. The
argument is put in that way in the verbatim record of 10 May, at page
165, supra,-! need not quote the exact words used, I think I have
rendered the effect thereof fairly.
The Applicants then proceed to set out again the so-called two "intoler
able situations" which would be created by "the lapse of Article 6 and the
consequent falling away of Article 7 (r) of the Mandate". These two
intolerable situations would be, and I quote from the verbatim record of
10 May, at page 165, supra:
"... either the Mandate would be frozen in its prcsent form in
perpetuity, for reason of the absence of an organ whose informed
consent would be required to a modification, or Respondent would
have the right unilaterally tomodify the terms of the Mandate in the
absence of an organ whose consent would have to be obtained before
such modification ... ".
And on this basis they round off their argument by saying the following
-I think this will reiterate the effect of the argument which I mentioned
before:
"The Applicants accordingly see the need for an organ the consent
of which is necessary for modification of the terms of the Mandate
as evidence ofthe need for the existence of a supervisory organ. The
Applicants think it, and respectfully submit it to be a logical pro
position, that if Article 7 (1) must be considered to have remained
in effect because of the intolerable alternatives which would follow
ifit were not; that if, as the Applicants submit, a competent
organ must exist whose consent is required to modification, and if
that consent must be an informed consent, then the survival of
Article 7 (1) has a direct and logical relationship with the question
of the survival of Article 6." (Supra, p. 167.) REJOINDER OF MR. DE VILLIERS
Mr. President, when the argument is put nakedly in this way it becomes
very difficult to distinguish it, if that is possible at all, from a legislative
argument-an argument as to what the law ought to be. It is an argument
which one would expect to be raised before a legislative body which has
the power of making law or altering the law as it thinks fit: before such
a body one might expect an argument of this kind, i.e., that it is very
necessary, or very desirable, that if consentis to be given to a modification
of a mandate, such consent must be given by the same body as exercises
supervisory jurisdiction, i.e., it must be an informed consent; that to
have the two things connected with each other in one body is necessary,
essential or desirable. But, Mr. President, surely that is not a legal
argument directed at interpreting the law as itis; it merely amounts to
saying to the Court what the Applicants would like to have the situation
to be, and to giving their reasons as to why that would be a desirable
result.Even then, the argument rests, in my submission, on two basic
fallacies. The fi.rst fallacy is that consent can only be an "informed
consent" as a result of prior exercise of a supervisory power by the body
concerned. This is, of course, not so.It is very often not possible to have
a position where the body which is to give consent to an alteration in
status, or something similar, would have had the prior opportunity of
operating as a supervisory body, and in that manner to have become an
informed body. To give an example: the General Assembly of the United
Nations was empowered by Article 85 of the Charter to approve of
trusteeship agreements-in other words, to consent to the modification
of mandates converted to trusteeship--and yet there was no contempla
tion that when acting in that way the General Assembly would already
beforehand have exercised any supervisory power in respect of mandates.
It just could not be possible under those circumstances, of course it could
not be, but that was the best arrangement that could be made under the
circumstances. ,
The same applied, of course, in respect of territories other than man
dates which were brought under trusteeship or could be brought under
trusteeship-the colonies or the ex-enemy territories, which are referred
to in Article 73 of the Charter, and the following Articles.
Then there is also the role of the Security Council under Article 83 of
the Charter regarding strategic areas brought under the trustee
ship system. The Security Council would not have been able to inform
itself beforehand as to what would be desirable by way of a change of
status in those cases through having previously exercised a supervisory
power.
Mr. President, it just cannot be possible under all circumstances, and
where it cannot be possible then the body which is asked to assist in
bringing about a change of status, has to inform itself ad hoc for that
particular purpose as best it can. In the case of Palestine, whose problem
was submitted to the General Assembly for that very purpose, the body
concerned, i.e., the General Assembly, informed itself by appointing a
special commission which had to go into the facts, into the law and into
all attendant circumstances so as to be able to inform the General
Assembly as to what it considered to be the best solution. We referred
in this regard in ourargument in chief (in the verbatim record of 6 April,
VIII, at p. 431) to the Iast resolution of the League of 18 April 1946, which
contemplated that there could be other arrangements agreed upon
between the mandatory powers and the United Nations-there again,420 SOUTH WEST AFRICA
the same applies; the change need not necessarily apply only to conver
sion of a mandate into a trusteeship.
The Applicants' only argument in this regard, Mr. President, is to fall
back on the alleged pledges supposed to have been given by the manda
tories in April 1946 (this we find in the verbatim record of IO May, at
page 169, supra) and, of course,on the statement ofMr. Nicholls (thiswe
find in the same record at that page), which are matters with which we
have fully dealt.
I donot need to take it further, I submit. Although it may be desirable
under circumstances where it can be achieved, that a body which is
required to give consent to a change of status, should be a body that has
properly informed itself through exercising a supervisory function, it is
surely not an essentiality in any sense, as contended for by the Appli
cants.
The second fallacy upon which the argument rests, Mr. President, in
my respectful submission, is the Applicants' assumption that if Article 7
(r) has lapsed there would be no means of modifying the terms of the
Mandate. Now this assumption is, of course, entirely wrong. \Ve dealt
with the matter fully in our argument, which is in the record of 9 April,
and I submit that my learned friends have offered really nothing to
controvert that argument, nor the support which it derives from the
separate opinion of Judge McNair in 1950, as we cited it at VIII, pages
519 and 521 of that record.
ln principle our submission stands that consent by a collective inter
national body rcpresentative of a large number of States may be a very
useful mcans of achieving a change in status, a change in an international
situation requiring consent or acquiesccnce on the part of other members
of the international community, but that is surcly not the only way in
which such consent or acquiescence, where necessary, could be obtained.
Therc are more difficult, more onerons processes possibly, but, neverthe
less, processes which arc in principle always available in law, and that is
exactly the manner in which the point was dealt with also by Lord
McNair in his separate opinion in 1950; he came to the conclusion that
Article 6 had lapsed, that Article 7 (1) had lapsed, but indicated that it
was nevertheless not impossible to bring about an alteration in the
status of the mandated Territory or in the terms of the Mandate by
processes still available to the Respondent.
Now, in regard to this opinion of Judge McNair, the Applicants
advance a contention which, in my respectful submission, puts a rather
far-fetched intcrpretation upon it. The Applicants say in the verbatim
record of ro May at page 167, supra:
"... Judge McNair dealt with the effect of lapse of Article 6 upon
the fate of Article 7, paragraph 1,and the learned judge concluded
that the lapse of Article 6 'by reason of the ensuing impossibility
of obtaining the consent of its [that is, the League's] Council' meant
that Article 7 also had lapsed".
In other words, Mr. President, they attribute to Judge McNair this
reasoning: that Article 7, paragraph r, Japsed because Article 6 had
lapsed, and that that came about by reason of the ensuing impossibility
of obtaining the consent of the Council. But, Mr. President, when one
adverts to what the learned judge actually said, one sees that is something
entirely different. The words used in the passage from the I.C.J. Reports REJOINOER OF MR. DE VILLIERS 421
I950, at pages 162-163, which I quoted to the Court previously, were the
following:
"What then is the effect of the disappearance of the League and
the ensuing impossibility of obtaining the consent of its Council?
In my opinion, the effect is that the first paragraph of Article 7 of
the Mandate has now lapsed."
That is a sufficient quotation for present purposes. In other words,
Mr. President, the effect that Article 7 has lapsed, is an "effect of the
disappearance of the League and of the ensuing impossiblity of obtaining
the consent of its Council" in terms of Article 7 itself. There is no sugges
tion that Lord McNair first found that Article 6 had lapsed, and then
found that because Article 6 had lapsed Article 7 (1) must therefore also
be deerned to have lapsed. \Vhat is true is that he applied similar reason
ing in the two instances-he found that Article 6 had Japsed, and he found
that Article 7, paragraph 1,had lapsed, and it is true that his reasoning
in bath respects was basically the sarne, but he did not say that Article 7,
paragraph 1,had Japsed because of the lapse of Article 6.
The Applicants, in our submission, also give a wrong rendering in this
regard of the reasoning of the majority of the judges in 1950. In our
argument in chief we pointed out how Applicants in their argument
created a misleading impression of the Court's 1950 Opinion in this
regard by taking two unrelated passages frorn the Opinion and putting
them together with words of their own. I refer to the verbatim record of
6 April, at VIII, pages 441-443, where we dealt with this matter. The
Applicants now offer a differently worded argument, but it is to much the
same effect. They commence, in the verbatim record of IO May, at
page 164, supra, as follows:
"The Court in 1950, of course, explicitly held that the organ
vested with supervisory powers is also the competent international
body to determine and modify the international status of a mandated
territory."
Now, Mr. President, in our submission this is a rather cryptic way of
describing what the Court actually said, which is to be found in the
I.C.J. Reports I950, at page 141:
"Article 7 of the Mandate, in requiring the consent of the Council
of the League of Nations for any modification of its terms, brought
into operation for this purpose the same organ which was invested
with powers of supervision in respect of the administration of the
Mandates."
In other words, Mr. President, the Court merely stated a fact which is
self-evident upon reading the mandate instrument itself, that. the
Mandate brought into operation for this purpose the same organ as it
brought into operation for purposes of supervision under Article 6; it
did not say, in Applicants' words, as they render it, that "the organ
vested with supervisory powers is also the competent international body
to determine and modify the international status ... ". The Applicants
proceed to embroider on this submission as follows in the verbatim
record of IO May, at page 165, supra. They say:
"The Court evidently took the view that the vesting in the League
Council both of a supervisory role and a competence with regard to
modification of the terms of the Mandate, was not merely coinciden-422 SOUTH WEST AFRICA
tal but logical, and the Court suggested that by the same logic the
competence of the General Assembly to supervise mandates extended
also to the matter of approving changes in the status of the Terri
tory."
And then the Applicants take it a stage further, in the same record of
ro May, at page 168, supra, without advancing any reasons for their
contention. They say:
"It would seem clear that the Court in 1950 made no distinction
between the international organ competent to deterrnine and modify
the status of the mandated territory and the organ competent to
supervise the administration of the territory. Not only did the Court
nmke no such distinction, but it indicated the linkage between the
two articles, and it would seem fair to conclude that the Court in
1950 at least indicated its view that the two must be one and the
same-the organ under Article 7 and the organ under Article 6 should
be the same organ."
That is the crux of this contention. In our submission, Mr. President,
there is nothing in the 1950 Opinion to justify this conclusion that in the
view of the Court the organ under Article 7 (1) must be the same as the
organ under Article 6.
The Court dealt separately with Article 6 and with Article 7, paragraph
1. ln dealing with Article 6 the Court made no refcrence in its reasoning
to Article 7, paragraph 1. On the basis of a finding of tacit consent on
Respondent's part, as we submitted before, the Court held that the
League's supervisory powers passed to the General Assembly of the
United Nations-that was its holding in regard to Article 6. When it
came to deal with Article 7, paragraph 1,it first notcd that thls Article
referred to the same organ as that referred to in Article 6, that is, to the
League Council. The Court then referred toits holding that the powers of
supervision under Article 6 "now belonged to the General Assembly".
Thereupon the Court noted the powers of the General Assembly under the
Charter to approve trusteeship agreements, and alterations or amend
ments thereof, and the Court then said the following (l.C.J. Reports r950,
at p. 142):
"By analogy, it can be inferred that the same procedure is
applicable to any modification of the international status of a
territory under Mandate which would not have for its purpose the
placing of the territory under the Trusteeship System. This conclu
sion is strengthened by the action taken by the General Assembly
and the attitude adopted by the Union of South Africa whlch is at
present the only existing mandatory Power."
Now, Mr. President, in the first place, there is no indication in the reason
ing of the Court that there must necessarily be a link between supervision
and consent to modification-that is quite obvious from the passage
which I have just quoted. Secondly, Mr. President, it is clear that the
Court reasoned from Article 6 to Article 7. In other words, it first held
that Article 6 was in force, and it relied upon this finding in its reasoning
that Article 7 (1) was still in force. It did not approach the matter in the
converse way, as the Applicants now do, by using a finding or motivation
relative to the existence of Article 7 (r) in support of its reasoning relative
to Article 6, or by arguing, as the Applicants appear to do, that, because REJOINDER OF MR. DE VILLIERS
there must be a body competent to provide for a change or modification
in the status of the Territory, or in the terms of the Mandate, that body
must also be a body exercising or holding a supervisory power.
Mr. President, 1 was dealing with the first of two questions raised by
the Applicants in regard to Respondent's attitude subsequent to the
dissolution of the League of Nations and prior to Septcmber 1947. I
virtually concluded with this fi.rst one, which is the question of the sub
mission of Respondent's incorporation proposai regarding South West
Africa to the General Assembly of the United Nations for judgment, as it
was put in a particular statemcnt. And I was dealing with the reliancc
placed in that regard by the Applicants upon the suggested relationship
between Article 6 and Article 7 (1) of the Mandate, and particularly the
reliance which they placed upon the 1950 Opinion as supporting their
contention in that regard. Our submission is that the Court's Opinion
does not support their contention. The Court did not argue, as the
Applicants appear to do, from Article 7, para~raph 1,to Article 6.
ln particular, Mr. President, the Court d1scussed Respondent's sub
mission to the General Assembly of its incorporation proposai in the
context of its views regarding Article 7 (1) of the Mandate, and it made
no mention of anything relative to Article 6. And it did not, in its discus
sion of Article 6, refer to anything which it said in regard to Article 7,
paragraph I.
Therefore, Mr. President, when the Applicants state the following sub
mission, which I shall read out to the Court, I submit that they do not
derive support for it from the Court's Opinion in 1950. The submission is
stated by them in the verbatim record of IO May, at page 168, supra:
"... the Respondent's submission in 1946 of the question of the
status of South ·west Africa to the competent international organ
for a judgment, in the words of the submission, clearly evidenced
Respondent's recognition of the United Nations as the international
body competent to supervise administration of the Territory".
I submit that the argument which we addressed to the Court on this
matter in our argument in chief, as to the distinction to be drawn between
the two things of submitting to international supervision and utilizing
the facility of coming to possible agreement with an international body
regarding a possible change of status of the Territory, I submit that that
argument stands in every respect and has not been affected by anything
adduced by the Applicants.
We then corne, Mr. President, to the second of these two matters relied
upon by the Applicants in regard to our attitude in the period which I
have just mentioned, and that is the letter of 23 July 1947 to the Secre
tary-General of the United Nations. The Applicants referred to portions
of this letter in their argument in chief, in support of their contention
that Respondent had recognizcd the supervisory authority of the United
Nations. One finds the references in the verbatim record of 19 March,
at VIII, pages 158 to 159.
The Respondent dealt fully with this matter in its argument in chief.
I could refer the Court to passages in the verbatim record of 6 April,
at VIII, pages 449 to 450, and again in the record of 7 April, pages 452 to
45The Applicants have now advanced further argument regarding the
significance of this letter, in relation to their contention that Respondent SOUTH WEST AFRICA
recognized United Nations supervision over the Mandate. They refer to
a fact which we pointed out in our argument in chief, namely that the
reference in the Court's 1950 Opinion to a phrase in the resolution of the
House of Assembly regarding the rendering of reports to the United
Nations was (I quote our words) "nota reference to anything said by, or
on behalf of, the Union Government to the United Nations, or in any
international context". \Ve pointed out, as the Court will recall, the
distinction between something said in a resolution of one of the houses of
the Parliament of the Republic of South Africa, or the Union as it then
was, and the attitude of the mandatory government itself expressed to
international organs, or to the outside world, or in any international
context.
But the Applicants with reference tothat distinction argue-that-
"... nowhere, that the Applicants are aware of, [~espondent]
adverts to or seeks to explain why this resolution was referred to in
Respondent's official communication of July 23, 1947, to the
Secretary-General". (Supra,p. 172.)
Mr. President, if I have to give an answer to that it is plain. There
were many practical reasons why the resolution was referred to, but one
considcration in that regard is quite crucial, and that is that if the Union
Government at the time thought that the wording of this resolution
differed from the attitude which it had already taken in its relationship
to the United Nations through the speech of General Smuts the previous
year in December, then it would have been hardly likely that the resolu
tion would have been included in this letter at all. I indicated before,
Mr. President, in our argument in chief, that there was a link between the
four very relevant salient events: Respondent's statement at the dissolu
tion of the League; General Smuts' statement in December 1946 to the
Fourth Committee, if I remember correctly, of the General Asscmbly of
the United Nations; then, the next stage, this letter of 23 July 1947, and
finally, Mr. Lawrence's statements of September and November 1947.
I pointed out that General Smuts in his statement to the United
Nations in December 1946 referred back to the statement which had been
made on behalf of Respondent at the dissolution of the League. And he
said that if the proposed incorporation was not acceded to that statement
would be abided by, and he added something which had not been said
before, namely the voluntarily submitting of information for the informa
tion of the United Nations in accordance with Article 73 (e) of the
Charter.
The next stage of communication was this letter, and in its actual text
the letter referred to the previous speech by General Smuts, not in so
many words, but by stating that the Union Government had already
undertaken to submit reports on their administration for the information
of the United Nations. So the link there is established.
And, as I pointed out finally, Mr. President, when l\fr. Lawrence made
his statement in September 1947 there was again a link because he was
asked for clarification of a certain document and that document was this
self-same letter, which then carne before the organs of the United Nations.
It was in regard to clarification of what was stated in this letter that he
made it perfectly ciear that the willingness to submit information for the
information of the United Nations, was not based upon any concept of
accountability to the United Nations, but that, on the contrary, the REJOINDER OF MR. DE VILLIERS
basis would be that there was no such supervisory jurisdiction on the
part of the United Nations and that the submission of the information
would be entirely voluntary.
So, Mr. President, it becomes very clear, in that context, how this
consistent line was taken by the Union Government. In the fust place, it
is most unlikely that tliis resolution of the House would have been
intended to deviate from that line taken by the Union Govemment as
intimated by General Smuts to the United Nations the previous year in
December. In the second place, it is most unlikely that, if the Union
Govemment thought that this resolution intimated anything else than
what its consistent attitude had been, the resolution would then have been
referred to in these terms in the letter. The mere fact that the resolution
isquoted and that the subject of giving information is then referred to in
the terms I have just quoted, makes it clear that in the contemplation of
the Union Government there was no difference whatsoever between what
the resolution urged upon it and what its attitude had already been, and
would in future be, toward the United Nations.
Apart from that, there are other very pertinent indications, reasons of
fact, why this resolution was quoted in full in that letter. The letter was
addressed to the Secreatry-General in response to the invitation of the
General Assembly, in its resolution 65 (1) of r4 December 1946, that
Respondent "propose, for the consideration of the General Assembly a
trusteeship agreement". ln this letter the Respondent explained why
Respondent was not prepared to propose a trusteeship agreement, and
Respondent, for tlus purpose, again drew attention to the wishes of the
inhabitants of the Territory, who wanted incorporation. Respondent
stated in the letter that it had "no alternative but to maintain the status
quo and to continue ta administer the Territory in the spirit of the existing
Mandate". (Counter-:Memorial, II,p. 55.)
It is evident, Mr. President, that in this context it was appropriate ta
refer to the resolution of the House of Assembly, which resolution
expressed the "opinion", first, that-
"the Territory should be represented in the Parliament of the Union
as an integral portion thercof, and requests the Government to
introduce legislation, after consultation with the inhabitants of the
Territory providing for its representation in the Union Parliament".
(II,p. 56.)
The resolution further expressed the opinion-a matter to which we have
referred-that "the Government should continue to render reports to the
United Nations Organization as it has done heretofore under the Man
date".
The opinion and the request of the House of Assembly regarding
provision for representation of South West Africa in the Union Parlia
ment, "a/ter consultation with the inhabitants of the Territory" (italics
added), was clearly relevant to the proposal of the United Nations that
the territory should be brought under trusteeship. And that affords a
major reason why this resolution was quoted in the letter. Respondent in
the letter indicated that "step.s will therefore be taken in due course to
carry out the required consultation". (Verbatim of ro May 1965, p. r73,
supra.) In fact,these steps were taken during 1947 when meetings were
held throughout South \Vest Africa to acquaint the non-White inhabi
tants with the General Assembly's resolution 65 (1) inviting a trusteeship SOUTH WEST AFRICA
agreement. These meetings showed that the overwhelming majority were
still in favour of incorporation.And the South West Africa Legislative
Assembly, likewise, on 7 May 1947, unanimously adopted a further
resolution urging incorporation. That we deal with in the Counter
Memorial, Il, at page 56.
The wishes of the people were thereafter again communicated to the
United Nations in a special report which we deal with in the same Volume,
at page 56.
The lettcr, as Ihave said, in referring to the request in the resolution
that the Government should continue to render reports to the United
Nations, merely stated that "the Union Government had already
undertaken to submit reports on their administration for the information
of the United Nations". (Verbatim of ro May 1965, p. 173, supra.) The
previous statement by General Smuts in the Fourth Committee, to which
this referred, read,as the Court will recall, as follows:
"... the Union would, in accordance with Article 73, paragraph (e)
of the Charter, transmit regularly to the Secretary-General of the
United Nations 'forinformation purposes, subject to such limitations
as security and constitutional regulations might require, statistical
and other information of a technical nature relating to economic,
socialand educational conditions' in South West Africa". (Il, p. 54.)
There is no substance, in our submission, in the Applicants' contentions
that, in referring in this letter of 23 July 1947 to the resolution of the
House of Assembly, Respondent "intended to make official representa
tions to the Secretary-General in terms of the Resolution itself". (Supra,
p. 173.)
We find, on the same page, the following submission:
"The resolution made two rcquests for action on the part of
Respondent's Govemment; in both cases the requests were carried
out by the Government, were treated as obligations which the
Govemment would implement or had already carried out ... "
There is, Mr. President, no reason for saying that the two requests to
which I have referred were treated as obligations. Let us take, first, the
request regarding consultation of the people of South West Africa and
the later introduction of legislation for the representation of South West
Africain the Union Parliament. Surcly, there was never any treatment
of that subject contemplating any obligation on the Union Government.
Respondent did, in fact, consult the people wîth that purpose, but it was
under no obligation to do so.
Nor, Mr. President, can it be said that it ever regarded itself as under
an obligation to render reports to the United Nations as if that organiza
tion had supervisory powers over the Mandate. The tenns of the letter
itself make that perfectly clear, in referring back to General Smuts'
statement to submit information in accordance with Article 73 (e), and,
indeed, the official explanation of the letter given on the very first
occasion when it was asked for in the United Nations, made that point
explicitly clear.
The Applicants have offered no answer whatsoever to our demonstra
tion that the clarification given on 27 December 1947 was indeed in
response to a request to clarify this particular letter and the Applicants
have offered no argument in response to the tact that this letter was
merely one link in the consistent chain to which I have referred. Nobody REJOINDER OF MR. DE VILLIERS 427
at that time questioned the Rcspondent's attitude or the explanation
which was given by Mr. Lawrence.
Therefore, Mr. President, when the Applicants say, as they do in their
verbatim record of 10 May, at page 174, supra, that "not until September
of 1947, did Respondent's Government begin to question openly the
supervisory powers of the United Nations"-that is nota truc rendering
of the history of events. At no stage up to November 1947 and even for
some time thereafter, had anybody contended that the United Nations
had supervisory powers over the Mandate in the sense that the United
Nations was vested with the powers formally exercised by the League of
Nations under the Mandate.
I shall deal presently with the attitude of the United Nations as
exprcssed through its Members, but with regard to the letter of
23 July 1947 I just want to point out further that the Court in 1950 did
not rely on this letter as evidence of recognition on the Respondent's
part that the United Nations had supervisory powers over the Mandate.
The Court referred to the 1etter in support of its finding that the Mandate
as such remained in force despite the dissolution of the League-that
matter was dealt with in the I.C.J. Reports I950, at pages 135-156. Itwas
only after having made reference to the letter in this context and after
having disposed of the question of the continued existence of the Mandate
as such that the Court proceeded to deal separately with the question of
Article 6 of the Mandate, as it did at pages 136 and following, of the
Opinion.
Although the Applicants are, therefore, correct in saying that "In the
1950 Advisory Opinion, this honourable Court regarded the letter under
discussion as one of the declarations constituting in the Court's words,
'recognition by the Union Government of the continuance of its obliga
tions under the Mandate'", they omit to state that the Court was not,
in that context, dealing with obligations under Article 6 of the Mandate,
which matter was dealt with quite separately by the Court. That is, in
truth, how the situation was dealt with by the Court.
In concluding our argument on this aspect of the case, I can only say
it is significant that in attcmpting to prove that Respondent, after
dissolution of the League, rccognized the supervisory authority of the
United Nations, the Applicants rely only on these two matters with
which I have just dealt, namely Respondent's submission of its proposa!
for incorporation to the United Nations and Respondent's letter of
23 July 1947. Apparently these were the only two remaining which were
considered of any use to the Applicants' case to refer to, but for the
reasons I have indicated neither of these affords any basis for the Appli
cants' case--certainly, no basis for drawing any nccessary inference
favourable to the Applicants' contention.
Now, Mr. President, we corne to the next phase of the case in regard to
Article 6 and that is how Respondent's attitude was understood by the
other States concemed, and what attitude was adoptcd, particularly in
the United Nations, in the years of transition and shortly afterwards, on
the question whether the United Nations had supervisory power in
respect of the Mandate of South West Africa or not, but before dealing
specificallywith the various aspects of this matter may I make it clear in
what context we spoke in our argument in chief, and what context we are
stil! speaking, of a supervisory power on the part of the United Nations.
1t is necessary to draw that distinction, Mr. President, because in SOUTH WEST AFRICA
Applicants' argument, in reply, we find that a power or a competence in
regard to supervision is spoken of as something which could be derived,
for instance, from an article like Article10 of the Charter of the United
Nations, dealing with the competence of the General Assembly. We find
also that the Applicants in their argument of II May refer to a contention
which we advanced to the Court inour argument in chief, when we said
that-
"The Trusteeship Council [to which the first and the only report
in accordance with Article 73 (e} submitted by Respondent was
transmitted] did not consider that it was required to exercise a
supervisory power (in that regard]." (Supra, p. 192.)
First may I refer to what Applicants stated at that same page:
"Today, Respondent appears to argue, as understood by the
Applicants, that the Trusteeship Council was not at that time
seeking to exercise or intending to exercise a supervisory authority.
So we understand their contention, and perhaps we are wrong in the
way we interpret it."
At the same page, the Applicants indicate on what portion of the record
they base this interpretation of our contention. They say-
"Applicants' statement in this regard reflects the comment made
by Respondent in the verbatim record, VIII,at page 468, from
which I quote: 'The Trusteeship Council did not consider that it
was required to exercise a supervisory power in respect of this
report.' That refers to the report of 1946, submitted by Respondent
to the United Nations."
Now, Mr. President, on this basis the Applicants proceeded to deal for
more than a day, if I remember correctly, with an analysis directed at
showing that what the Trusteeship Council, in fact, did amounted to the
exercise of a supervisory power, and that Respondent at the time com
plained thereat and offered that as a reason why it would submit no
further reports. Applicants made high play of a so-called "conflict"
between our present attitude and the attitude adopted at that time.
There is, of course, no such conflict whatsoevcr. It is perfectly true that
what the Trusteeship Council actually did in that regard and the attitude
taken by the majority of its members as to what it should do in practice,
all amounted in effect to the same as what the exercise of a supervisory
power would have been. That we never intended to dispute. That indeed
we referred to in portions of our record as the reason given by us at the
time, and correctly given at the time, why the submission of the reports
would be discontinued, and there is no conflict whatsoever between that
attitude and the attitude we take now. The misunderstanding, Mr.
President, or the reason why our argument and that of Applicants have
passed one another is because of an ambiguity in this question of what the
exercise of a supervisory power in this context means. For two purposes,
both because of the Applicants' references, to which I shall refer again
later, to Articleroof the Charter of the United Nations, and because of
the Applicants' treatment of this subject in regard to the Trusteeship
Council, it is necessaryat the outset to make clear what our contention
in regard to a supervisory power means and has always meant. In the
Counter-Memorial, II, at page II], we stated the following: REJOINDER OF MR. DE VILLIERS
"Although commentators frequently employ the broad descriptive
terms 'League supervision' and 'supervisory functions of the League',
such phraseology did not occur in the relevant provisions of Article
22 of the Covenant or of the Mandate instruments."
\Ve then examined these provisions of the Covenant and we concluded,
Mr. President, at page II8, "It is evident, therefore, that the essence of
League supervision or the supervisory /unctions of the League was the
Mandatories' obligation to report and account to the Council of the League
in respect of compliance with the substantive obligations pertaining to
administration of the territories and protection and deve1opment of the
inhabitants". We made it clear throughout our further treatment of the
subject in the pleadings, and indeed I should have thought I made it clear
in the treatment of the subject here in the Oral Proceedings, that that
was the sense in which we spoke of supervisory powers, supervisory
fonctions. The problem before the Court is whether supervisory fonctions
in this sense have passed to the United Nations, in other words, whether
Respondent is now obliged to report and account to the United Nations
as successor to the League of Nations. The essence is the question of an
obligation on the part of the Respondent. The supervisory power in the
sense in which we discuss, is a counterpart of that obligation, and as the
Applicants now concede, such a succession from the League of Nations
to the United Nations, in respect of a supervisory power in that sense,
required consent on the part of the Respondent. The main issue between
the Parties is whether such consent was given. Therefore, Mr. President,
when considering the attitude of other States and, in particular, of
Members of the United Nations, the nature of this issue between the
Parties must be finnly kept in mind. Although, when viewing the matter
from the point of view of the United Nations, the question at issue may be
posited as being whether the United Nations now possess a supervisory
power in respect of Mandates, it must never be forgotten that the ex
pression "supervisory powers" is used in this context in a special sense,
viz., as denoting the power that would be exercisable by reason of an
obligation on the part of the Respondent to report and account under the
Mandate to the United Nations-that is the only sense in which we
speak in this context of a supervisory power. Whether the United Nations
in fact possesses, or whether some l\lembers consider that it possesses,
supervisory powers of a different nature or arising in some different way
that is not directly relevant to the issues bcfore the Court at allItwould
be material only to the extent to which it tends to prove or to disprove
the existence of a right of supervision under the Mandate in the sense in
which I have described it.
One may perhaps, as a matter of words, distinguish in this regard be
tween the concept of a supervisory power of the organization being the
counterpart of the obligation on the part of the :tlfandatory, and, on the
other hand, a supervisory competence of a particular organ; meaning that
if there should be a power in the organization of the type of which we
speak, then a particular organ may or rnay not be competent to exercise
that power on behalf of the organization. That is a constitutional question
within the organization itself, but it does not and cannot affect the
question whether the organization as such has a supervisory power in the
sense in which we speak of it, for the purposes in issue between the Parties.
Mr. President, that this constituted the true issue between the Parties,
and that our argument in chief proceeded on that basis, I subrnit is430 SOUTH WEST AFRICA
perfectly clear. The passage which I cited earlier, an expression which we
used in relation to what the Trusteeship Council did in this regard, is of
course ambiguous when taken by itself, when taken out of its context,
standing ail by itself and reading- that the Trusteeship Council did not
think it was exercising a superv1sory power. Of course, the expression
"supervisory power" could be an ambiguous expression, taken by itself,
but when taken in the context of the argument as submitted to the
Court, aiter the same expression was used throughout, even on bath
pages on eithcr side of the expression relied upon by Applicants, it must
have been perfectly clear what our true contention was.
On 30 March, Mr. President, in commencing the exposition of the
issues between the Parties on this aspect of the case, we stated at VIII,
page 280 of the relative verbatim:
"... these legal issues are whether the Mandate is still in force and,
if so, whether Respondent is obliged to report and account in respect
thereof to the General Assembly of the United Nations, as it was
obliged to report formerly to the Council of the League, and whether
it is obliged for that purpose also to transmit petitions from inhabi
tants of the Territory to the General Assembly"
-the accent being, Mr. President, on the obligation.
Later on the same day, at page 283, we stated: "The fondamental
question is ... whether by some process or principle of law a substitution
of supervisory organ has been effected in such a way as to be binding in
law on the manda tory, in such a way as to convert the original obligation
of the mandatory to report to organ A into as being now a new obligation
to report to organ B. That is the fundamental question. The Respondent's
submission is that there has becn no such substitution of the supervisory
organs. The Applicants say that there has been a substitution of the
supervisory organ, and that is the fundamental issue with which I have
to deal in this first part of my argument."
I can give the Court references to similar statements in the verbatim
records of 2April, at VIII, pages 371, 372 and 391, of S April at page 391,
and of 7 April, at page 459.
Having regard more specifically to the practice of States to the attitude
expressed by States, we said in the verbatim record of 30 March, at VIII,
page 288:
"... we submit that analysis of the events during the establishment
of the United Nations and the dissolution of the League shows clearly
a general understanding between the States concerned. The under
standing was to the effect that outside of a trusteeship agreement or
other special arrangement between a mandatory power and the
United Nations, no mandatory would be obliged to report or account
to the United Nations regarding compliance with its mandate
obligations. We submit that that general understanding emerges
very clearly.
\Ve submit further that the understanding is further confirmed
by attitudes expressed shortly after 1945-1946, and in particular
during the years 1947, 1948 and 1949, by United Nations Members
in debates and proceedings of the United Nations. We submit that
the analysis further shows that the Respondent itself in fact never
agreed, either expressly or by implication, either to a trusteeship
agreement or to any other special arrangement involving account- REJOINDER OF MR. DE VILLIERS 431
ability under the mandate to the United Nations. And, Mr. President,
it is very important because it bears on the same point, that Respon
dent was never understood by other interested States as having
agreed to such accountability."
That indicates from the start, Mr. President, the context in which
we undertook an analysis of the attitudes of the various Staes, and the
sense, to which I referred before, in which the expression relied upon by
Applicants was used.
On 7 April, in the verbatim, very near tlus particular statement relied
upon by the Applicants-I am not sure whether it was just before or
just afterwards-we stated-
"... But as far as immediate reactions were concerned, reactions
indicating the manner in which the other governments-the other
Members of the United Nations-had understood the Union's
attitude, there was absolute unanimous confirmation of what I have
been submitting to the Court, namely that outside of trusteeslùp
there would be no obligation on the part of the Union Government
to report and account to the United Nations in respect of its ad
ministration of South West Africa". (VIII, p. 466.)
That, Mr. President, occurred in the middle·of page 466 of the record
of 7 April, just a few pages before the statement we made that "the very
body to wlùch the report referred, namely the Trusteeship Council, did
not regard it as such".
I may just point out that it was in this same sense that we went on to
state at page 468 of that record:
"That is the preamble of this very resolution relied upon by the
Applicants, a preamble indicating a contemplation exactly in
accordance with what I have been advancing to the Court all this
morning and part of yesterday, on what the attitude was as expressed
by the Union Government to the United Nations." (VIII, p. 468.)
Then followed an indication of the original contention of the Applicants
in tlùs regard, namely that:
"Although the Council, in the exercise of its competence, did not
agree upon the extent of supervision, there was no doubt as to the
legal authority of the Council to examine the report of the mandatory
power and submit observations thereon. Notwithstanding the
dissolution of the League, it was agreed that the Mandate continued
in full forceand effect, and that the United Nations was the proper
supervisory authority." (Ibid.)
That was the question to which we then directed our further analysis,
and we said at the very next page:
"In these circumstances I shall analyse the attitude adopted by
each of the member States of this Trusteeship Council in the order
I have indicated, i.e., the attitude they adopted with regard to
Respondent's obligations to the United Nations in respect of its
administration of South West Africa." (VIII, p. 469.)
.lllr.President, I should have thought that in that context the purpose
of the analysis was perfectly clear.It was not to see whether the Trustee
ship Council could in some sense, under the particular circumstances, be
said to be doing something which in practice would amount to the exercise
of supervisory power. The analysis was not related to the question432 SOUTH WEST AFRICA
whether a particular organ of a particular body would have competence
to exercise a supervisory power if there was an obligation on the part of
the manda tory concerned. It was concerned with an obligation on the
Mandatory's part, and more particularly the attitude of the varions
States on that question of such an obligation. And that is so, was made
absolutely clear when we came to the conclusion of our treatment of this
topic, i.e.,the attitudes of the States in the Trusteeship Council. That
conclusion is stated in the verbatim report oï8 April and it read as
follows:
"Not in one single case, therefore, Mr. President, of these members
of the Trusteeship Council, do we find an attitude supporting, or
corresponding with, that taken up by the Applicants in this case.
Not one of them took up the attitude that there was agreement,
consent, acquiescence, on the part of the South African Government
to a substitution of supervisory organs, and that on that basis the
United Nations had supervisory fonctions or powers outside trus
teeship." (VIII,p. 486.)
Those were the concluding words of this review. That was the argument
to which the Applicants were required to address a reply, if they had
any reply. The effect of their treatment of the matter is therefore,
Mr. President, that they never addressed themselYes in their reply to the
real issue between the parties at all. They spent, as I said, more than a
day in demonstrating something which never was in issue, demonstrating
a situation which, if it in fact occurred, would have been of the same
nature in practice as the exercise of the supervisory power. They never
addressed themselves to the real demonstration on our part, that as far
as an obligation to submit to such supervision outside of trusteeship on
the part of the Union Government was concerned, there was no State
which could point to any basis of consent, agreement or the like, or could
have even attempted to do so, in suggesting that any such obligation did
exist, that the greater majority of the States made it perfectly clear as a
matter of law that they realized that there was no such obligation, and
that in the case of the three States which showed uncertain attitudes in
that regard, not one of them based the attitude they took on an allegation
of consent on the Respondent's part.
So Mr. President, since the issue between the Parties is whether
Respondent is obliged under the Mandate to report and account to the
United Nations, it is unimportant to determine which organ of the
United Nations would have supervisory competence if such an obligation
existed. The crucial issue relates to the powers of the organization, and
not to the internai arrangements which would be required ifsuch powers
existed. Consequently, a distinction must be drawn between the powers
exercisable by the United Nations as an organization, and the powers, or
the constitutional competence exercisable by the General Assembly, as
an organ of the United Nations. The extent of the powers of the General
Assembly can only become of relevance if it has been established, orifit
is assumed, that the United Nations has competence in respect of the
matter under consideration. We shall show that a confusion between
these two concepts apparently underlies the Applicants' argument,
particularly as regards the application of Article IO of the Charter.
And the further element of confusion is the one to which I have
referred, namely regarding the sense in which one could speak of super- REJOINDER OF MR. DE VILLIERS 433
vision, or a supervisory power, with respect to what was actually done in a
particular body. Where the United Nations has performed certain
activities pursuant to a voluntary act, or an ad hoc consent on the
Respondent's part, such as occurred with respect to the report for the
year 1~146,the question still remains whether the performance of such
activities provides any relevant indications as to the existence of an
obligation on Respondent's part to report and accowü under the Mandate
to the United Nations. The mcre fact that the activities may or may not
appropriately be called supervision is not by itself of any importance.
The question is whether such activities involved a contemplation or a
daim that Respondent was obliged by virtue of operative consent on its
part to report and account under the Mandate.
So I shall demonstrate, Mr. President, in what follows now, in some
more detail than previously, that because of this confusion, because of a
failure by the Applicants to address themselves to the real question at
issue between the Parties, our case in thcse major respects in truth
stands unanswered. The demonstrations by the Applicants on both these
matters, viz., on Article roof the Charter and on the fact that what was
done in the Trusteeship Council in practice amounted to the exercise of a
supervisory power, that did not meet our case at ail, and our real case
stands unanswered.
May I revert first to the effect of Article IO, and the Applicants'
argument in that regard? The Applicants say in the verbatim record of
IO May, at page 174, supra:
"The United Nations ... was vested by Article 10 of the Charter
with competence to undertake the task of devising special methods
for dealing with any mandated territory which might not be brought
into the trusteeship system."
\Vith respect, the Court would see that the contention is that Article IO
vested such competence in the United Nations.
And then again, in the verbatim record of 12 May, at page 240, supra,
they say-
"The United Nations is endowed by Article IO, it is invested by
the Charter with competence to supervise the Mandate."
And we fmd this contention advanced and developed in other parts of the
present Oral Proceedings. I could refer the Court also to the verbatim
record of 7 May, at pages n7-rr9 and 120, supra; the verbatim record of
ro l\Iay, at pages 173-174 and also page 176, supra; the verbatim record
of II May, at pages 190-214; the verbatim record of 12 May, at pages 220
and 224-227, supra.
Now, l\Ir. President, this contention requires a more specific examina
tion of the purpose and effect of Article ro. I have already indicated in
broad outline what our contention is in that regard, butït may be desir
able to have brief regard to the whole scheme of the Charter, in so far
as it is relevant.
After the Preamble, the Charter is divided into a number of chapters.
Chapter I sets out the purposes and principles of the United Nations as
an organization. Chapter II deals with the topic of membership of the
Organization, and provides for the acquisition, Jossand suspension of the
rights and privileges involved in such membership. Chapter III enu
merates the organs of the Organization. In terms of Article 7, the principal
organs are the following:434 SOUTH WEST AFRICA
... a General Assembly, a Security Council, an Economie and
Social Council, a Trusteeship Council, an International Court of
Justice, and a Secretariat".
The next chapter, Chapter IV, is headed "The General Assembly", and it
is followed by Chapter V, which bears the heading "The Security Council".
Chapter IV, dealing \vith the General Assembly, comprehends Articles
9-22 inclusively. Article 9 is sub-headed "Composition" and, as the head
mg indicates, sets out the composition of the General Assembly. The next
article is Article10, with which we are now concerned, and the heading
of the Article is "Functions and powers", and it reads as follows:
"The General Assembly may discuss any questions or any matters
within the scope of the present Charter or relating to the powers and
fonctions of any organs provided for in the present Charter, and,
exceptas provided in Article 12, may make recommendations to the
Members of the United Nations or to the Security Council or to both
on any such questions or matters."
Article 12, to which reference is made in Article ro, qualifies the wide
ambit of Article ro by limiting the powers of the General Assembly in
respect of matters being dealt ,vith by the Security Council-that is a
qualification; otherwise the scope is as indicated by the wording of the
Article.
It will be clear, Mr. President, in our submission, that both by its
wording and by its position in the scheme of the Charter, Article 10
relates only to the functions of the General Assembly as a particular
organ of the United Nations. Itdoes not purport to define the functions
of the Organization-that is done in Chapter I. Consequently, if a dispute
were to arise whcther any particular matter falls within the competence
of the United Nations, Article 10 could not be of any assistance in resolv
ing such a dispute-that would be a prior question. On the other hand,
once it is established that a matter does fall within the competence of the
United Nations, and the problem is merely to ascertain which organ could
appropria tely deal with it, Article10 would in most instances provide the
answer.
Mr. President, what I have just stated is so obvious, in my submission,
that one finds as a practical result that commentators generally do not
devote much attention thereto. \Ve find that Kelsen in his The Law of the
United Nations (1950) says, very broadly, at pages 198-199:
"By Article 10 the General Assembly is competent not only to
discuss any matter within the competence of the United Nations
but also to make recommendations on any such matter."
Avery correct: short statemcnt, in our submission, Mr. President-"any
matter within the competence of the United Nations", the prior question
therefore being posed whether that matter is within the cornpetence of
the United Nations.
Goodrich and Harnbro say in their Charter of the United Nations,
2nd edition, 1949, at pages 151-152 under the heading "Scope of General
Assembly's Power":
"Article 10 of the Charter empowers the General Assembly to
discuss 'any questions or any matters within the scope of the ...
Charter or relating to the powers and fonctions of any organs
provided for in the ... Charter'. The very fact that this Article has REJOINDER OF MR. DE VILLIERS 435
been put at the beginning of the enumeration of the powers of the
Assembly suggests the importance to be attached toit. It is the key
to the whole role of the General Assembly in the United Nations.
The General Assembly has thereby been designated as the open
conscience of the world. It is a world forum where ail important
questions within the scope of the Charter can be discussed."
We submit, Mr. President, that this interpretation was also the one
placed on the Article by this Court in the 1950 Opinion. The Court said
at page 137:
"The competence of the General Assembly of the United Nations
to exercise such supervision and to receive and examine reports is
derived from the provisions of Article IO of the Charter, which
authorizes the General Assembly to discuss any questions or any
matters within the scope of the Charter and to make recommenda
tions on these questions or matters to the Members of the United'
Nations."
In our Counter-Memorial, II, at page 143, we said that this statement
"is concerncd merely with the determination within the United
Nations of an organ which would be competent to undertake the
supervision: but this would have no relevance in the enquiry unless
there should be an obligation to submit to United Nations super
vision".
And we added that this passage "clearly proceeds on the basis that
such an obligation has been affirmatively established by the first three
stages" of the Court's reasoning. This construction of the Court's Opinion
is,in our submission, the only one which is compatible with the language
used by the Court and the language of the Article itself. Indeed, Mr. Pres
ident, if the Court had considered that Article IO could in some way
authorize the General Assembly to increase the power of the United
Nations by imposing a duty upon Respondent to render accounts to that
Organizatlon, which duty did not exist by the Respondent's consent,
then there would have been no necessity for the Court to refer to any of
the other reasons in support of its conclusion; then it would simply have
based its Opinion on Article ro-it need not have said anything else. It is
quite clear that such a construction of Article IO would have been
completely unjustified, and that it was, in fact, not a construction
intended by the Court.
It is not clear from the Applicants' argument whether they agree with
this interpretation, or whether they attempt to give a wider effect to the
Article. Ifthey invoke Article IO only as a vehicle for establishing that
the General Assembly, as a specific organ, was competent to examine
the reports which the Respondent allegedly undertook to submit to the
United Nations as an organization, then we would not quarre! with their
interpretation of Article ro; our dispute would then be limited to the
factual questions whether such an undertaking was indeed given, and
whether the General Assembly purported to exercise powers of super
vision pursuant to such an undertaking. However, M.r. President, if the
Applicants contend {and their repeated references to Article ro would
suggest that they do contend) that Article IO possesses any wider
significance, and can in sorne way operate to impose an obligation of
accountability on the Respondent which the Respondent did not volun-436 SOUTH WEST AFRICA
tarily assume, then we submit, for the reasons I have given, that such a
contention would be untenable.
This brings me, Mr. President, to the question of Palestine, as now
dealt with in this context by the Applicants in their oral reply. It may
be convenient to set out first, briefly, the history of references to this
issue. In our printed Preliminary Objections at 1, pages 334-336, we
quoted certain extracts from the Report of the Special Committee on
Palestine (U.N.S.C.O.P.) as showing the Committee's-
"understanding that there was, as from the dissolution of the
League, no supervisory authority in respect of the administration
of Palestine and no obligation on the part of the Mandatory to
submit to any supervision". (I, p. 335.)
This was the same formulation of supervisory authority as being the
counterpart of the obligation on the part of the Mandatory to submit
to any supervision.
This contention we repeated in the Oral Proceedings on the Preliminary
Objections, VII, at page 90 and in the Counter-Memorial, II, at pages 68
to 70. The passages in question read as follows:
"(c) The case of Palestine was investigated and reported upon by a
United Nations Special Committee, consisting of representatives of
the following eleven Members of the United Nations: Australia,
Canada, Czechoslovakia, Guatemala, India, Iran, the Netherlands,
Peru, Sweden, Uruguay and Yugoslavia.
The following are extracts from the Committee's report dated
3rd September, 1947, all from portions unanimously agreed to by the
Committee.
'Following the Second World War, the establishment of the
United Nations in 1945 and the dissolution of the League of
Nations the following year opened a new phase in the history of
the mandatory régime. The mandatory Power, in the absence of
the League and its Permanent .Mandates Commission, had no
international authoritta 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 mimi, at the final session
ofthe League Assembly the United Kingdom representative declared
that Palestine would be administered "in accordance with the
general principles" of the existing Mandate until "fresh arrange
ments had been reached".'
After recommending unanimously that:
'The Mandate for Palestine shall be terminated at the earliest
practicable date',
the Committee commented as follows:
'(d) It may be seriously questioned whether, in any event, the
Mandate would now be possible of execution. The essential feature
of the mandates system was that it gave an international status
to the mandated territories. This involved a positive element of
international responsibility for the mandated territories and an
international accountability ta the Council of the League of Nations
on the part of each mandatory for the well-being and development
of the peoples of those territories. The Permanent Mandates
Commission was created for the specific purpose of assisting the REJOINDER OF MR, DE VILLIERS 437
Council of the League in this fonction. But the League of Nations
and the Mandates Commission have been dissolved, and there is
now no means of discharging Jully the international obligation with
regardto a mandated territory otherthan by placing the territory under
the International Trusteeship System of the United Nations.
(e) The International Trusteeship System, however, has not
automatically taken over the functions of the mandates system with
regard to mandated territories. Territories can be placed under
Trusteeship only by means of individual Trusteeship Agreements
approved by a two-thirds majority of the General Assembly.
(/) The most the mandatory could now do, there/ore, in the event of
the continuation of the Mandate, would beto carry out its administra
tion, in the spirit of the Mandate, without being able to discharge its
internationa{ obligations in accordancewith the inteizt of the mandates
system. At the tune of the termination of the Permanent Mandates
Commission in April, 1946, the mandatory Power did, in fact,
declare its intention to carry on the administration of Palestine,
pending a new arrangement, in accordance with the general
principles of the Mandate. The rnandatory Power has itself now
referred the mattcr to the United Nations.' " (Il, pp. 68-69.)
Mr. President, I have read the whole of this long quotation again and I
have done it for a purpose. The purpose is this: to make it clear that our
attitude, which we have stated as from the Preliminary Objections stages
already, and consistently throughout these proceedings, about this
UNSCOP report on Palestine, is one which is based not on a word here or
there, it is not based on a sentence here or there, or a phrase which may
be taken out of its context or may be viewed on its own so as to open the
door for a retort: well, that is what you rely upon but when you look at all
the circumstances and all the aspects of context you are not correct in
relying on that view of the report of this Committee. The whole of this
portion which I have read to the Court, in three or four passages of
different wording, makes the contemplation of this II-nation Committee
so perfectly clear.It makcs it so clear that thcir contemplation was that
with the disappcarance of the League and with the disappearance of the
Permanent Mandates Commission and the Council, there was no other
body to which reports could be made.
This is so directly in conflict with any suggestion of an understanding
or a contemplation on the part of any of the States concerned that there
was a continuing obligation to report and account, because liow could
that obligation exist or be operative without a body to which those
reports could be made?
There are portions of these extracts to which no answer has at any
stage been offered by the Applicants in their pleadings or in their oral
presentation. The following is one instance:
"The mandatory Power, in the absence of the League and it
Permanent Mandates Commission, had no international authority
to which itmight submit reports and generally account for the
exercise of its responsibilities ... "
That, Mr. President, as far as I can recall, the Applicants have never
attempted to reply to in all their dealings with the matter.
Sunilarly, this other sentence:
"But the League of Nations and the Mandates Commission have SOUTH WEST AFRICA
been dissolved, and there is now no means of discharging fully the
international obligation with regard to a mandated territory other
than by placing the terri tory under the ... Trusteeship System."
That was the basis upon which that subject was introduced into these
proceedings and, Mr. President, I submit that having regard to ail the
words that have been spoken since, nothing could reduce by one iota the
impact which is made by the contemplation appearing from this docu
ment.
Sorne attempt was made by my Iearned friends in the 1962 Oral
Proceedings to reply to our contention in this regard. I can refer the
Court to the record of those Oral Proceedings at VII, pages 294 to 295.
However, when it came to the written pleadings, after we had taken the
matter up again in our Counter-Memorial, nothing was said in the Reply
in that regard. Consequently, prior to these Oral Proceedings, the Appli
cants' attitude towards this question was confined to one of defence. No
attempt was made on their part to derive any positive support for their
case from the events regarding Palestine.
But in these Oral Proceedings the Applicants went further. They
attempted to derive some positive advantage from the facts regarding
Palestine, and we find that Mr. Moore said in the verbatim record of
19 March, at VIII, page 161:
"The handling of the Palestine problem by the United Nations
shows clearly that the general understanding in 1947 was that not
only was the Mandate for Palestine still in effect, but that the United
Nations had the authority to supervise the administration and
termination of that Mandate."
In support of these Iast words the Applicants relied on certain recom
mendations of the Special Committee, and they are dealt with in the
verbatim record of 19 March, at VIII, pages r6r to 162. But in the
course of this argument the Applicants did not give any explanation for
the quoted passages (which I read again a few minutes ago) in the report
of the Special Committee.
In our submission, the correct position regarding the source of United
Nations competence is clear. The Committee considered that the United
Nations possessed no supervisory jurisdiction under the Mandate, but
the Committee regarded the United Nations as competent to recommend
a solution involving temporary United Nations supervision, because the
United Kingdom had consented to, and indeed requested, the advice and
the assistance of the United Nations. In the words of the Special Commit
tee,"the mandatory power has itself now referred the matter to the
United Nations" and that, in our submission, remained the basis upon
which the Committee and the United Nations considered it was competent
to deal with the matter in the wav in which the United Nations wanted
it to deal with the matter. ,
[Public hearing o/ 26 May 1965}
'Mr. President and honourable Members of the Court, I was dealing
at the adjournment yesterday with the treatment of what might be
called the Palestine question at the United Nations, in so far as that is
relevant to the issue between the Parties in regard to Article 6 of the
Mandate. I traced the manner in which the question of Palestine came REJOINDER OF MR. DE VILLIERS 439
into the discussion, through the pleadings. I indicated how we first raised
it with reference to extracts from the UNSCOP report, how the Appli
cants' attitude was at first confined to defence, and how they did not
attempt to derive positive support from the events regarding Palestine,
but how they have tried to do soin these Oral Proceedings, by contending
that the handling of the Palestine problem by the United Nations showed
that it was considered that the United Nations had authority to supervise
the administration and termination of the Mandate.
Our submission in that regard, to which I refer again, is that the whole
basis upon which the United Nations could act in the matter, in those
respects, was submission of the matter to the United Nations by the
mandatory power concerned, the United Kingdom, and that the compe
tence of the United Nations arase from the United Kingdom's consent
and request.
Proceeding from there, Mr. President, it is also, in our submission,
noteworthy that the recommendations of the Special Committee went
very far beyond anything comprehended in the ordinary processes of
supervision in respect of mandates. In the verbatim record of 8 April
we considercd the nature of the recommendations of the Committee and
we showed that such recommendations could not have been, and did not
purport to be, based on any suggested power of supervision in respect of
mandates, but were clearly based on the request of the United Kingdom.
I can refer the Court to the record of 8 April, at VIII, pages 493-500.
The Applicants in their reply, in the first place, conceded that in order
to deal with the exigencies of the situation the United Nations exercised
far wider powcrs than the League of Nations could have exercised under
the Mandate. They also conceded that these United Nations activities
could not have been undertaken save with the consent and co-operation
of the United Kingdom-when I say "these activities" I mean these
which went beyond the ordinary confines of supervision. That, I think,
appears clearly from what they stated in the verbatim record of ro :!lfay.
at pages 179-180, supra.
Tt would therefore seem, Mr. President, to be common cause that the
actual activities of the Commission, at any rate in so far as they tran
scended the exercise of normal supervisory fonctions, required the consent
of the United Kingdom, and the dispute seems to centre around the
question of the ordinary supervisory fonctions. The question is whether
there is anything to suggest that, in the absence of specific reference by
the United Kingdom, the Committee or the United Nations generally
would, in any event, have possessed ordinary supervisory fonctions under
the Mandate.
Now, in our submission, the absence of such fonctions is clearly
indicated by the terms of the Committee's report, which I quoted to the
. Court again yesterday, and which could hardly be clearer. Despite that
very clear tenor of the report (and, as I pointed out yesterday, the
Applicants have never in their argument really met the crucial aspects of
that report-of those extracts which I read again yesterday), we find
that the Applicants nevertheless make statements to the contrary effect,
such as:" ... the basis of United Nations competence was rooted in the
proposition that the United Nations was exercising supervision over a
l\fandated territory" (p. 176, supra). In the same record, at page 179.
supra, the Applicants stated: "The Assembly was supervising a mandate
-that is clear, obvious-but it was doing something much more, in SOUTH WEST AFRICA
addition, and the accomplishment of that additional burden and function
depended largely upon the co-operation of the Mandatory Power".
In the verbatim record of II May, at page 186, supra, they said:
"The General Assembly, at all times, evidenced a broad conception
of its competence in the Palestine question, a competence which was
based on the Assembly's supervisory powers under the Mandate,
even though it went far beyond the limits of those powers to meet
the exigencies of the problem."
And then, in the same record, at page 187, they stated:
"... references to consent of the United Kingdom, read in the
context of the problem itself, merely show that the United Nations
was exercising a fonction which included and was rooted in its
supen,isory power over the mandate but which, in addition, went
far beyond the normal exercise of such administrative authority".
Mr. President, as I have said, my learned friends never made any
serious attempt to reconcile statements of this kind with the very clear
terms of the report, to which I referred yesterday. The question is
whether there was anything else whatsoever to which my learned friends
could refer in support of thcse submissions. They did refer to a number of
factors but, in our submission it becomes quite clear, on analysis, that
not one of those factors supports them.
They say, first of ail, that the mandate was regarded "as still in
existence" (p. 177, supra). It seems clear, Mr. President, that this was
widely accepted, inter alia, by the Special Committee, with the reserva
tions which were expressed in that regard and which we noted again
yesterday. However, that this acceptance did not entai! a view that
supervisory functions in respect of mandates had passed to the United
Nations, seems equally clear, particularly from the passage of the report
which we quoted.
Then, .li.fr.President, at page 177, si,pra, of the same record of ro May,
there is a reference to the so-called "British pledge". The contention is
really put in the negative. I should like to refer the Court to the terms
thereof:
"To interpret this as a grant of special power to the United Nations
to carry out normal responsibilities of supervision under the Mandate,
as if that did not exist without this grant of power, if it may be
called one, would seem to me to involve a strange construction
indeed of the British pledge and the British position historically."
That was the way in which it was put by my leamed friend at the page
indicated.
Now, Mr. President, that British statement of April 1946, which is
apparently the one referred to as a pledge, seems in itself, with its
reference to the general principles of the Mandate, to exclude a contem
plation of accountability towards the United Nations, and, when it is
read in conjunction with the passages from the UNSCOP report which I
read yesterday, the matter becomes clear beyond doubt. This is also a
point which has never been met by the Applicnnts in anything which
theyhave submitted tothe Court-i.e., the manner in which that British
pledge is dealt with in the UNSCOP report.
Next, Mr. President, they stated in the same record, at page 178, supra,
that the Committee did not question "or deny the competence of the REJOINDER OF MR. DE VILLIERS
United Nations to serve as the international agency for giving effect to
the central obligation of submitting to supervision". But, il.fPresident,
how can it be said that the Committee did not question, or deny this,
in the face of the passages from the report which I read yesterday, and
which are not met or dealt with?
Then, Mr. President, my leamed friends relied strongly on certain
discussions in the Ad Hoc Committee on the Palestinian Question. That
we fmd in the same record of ro May, at pages ISo-182, supra. Ncverthe
less,it is, in our submission, highly significant that the Applicants can
point to no single statement by any dclegate which based the competence
of the United Nations on any transfer or succession of supervisory powers
in respect of mandates. The delegates on that occasion-on the occasion
of deciding whether there was to be a request for an Advisory Opinion
were divided into two categories. There were those who held that the
Mandate had lapsed and that, for that reason, inter alia, the United
Nations could not exercise further rights in respect of the Territory.
The contrary view, which one can put broadly as being that action by the
United Nations was intra vires, eventually carried the day. That view
was forrnulated by different speakers on a number of bases.
The delegate of the United States of America, to whom we can refer
as an example, stated the following:
"The manda tory power had requested the United Nations to make
recommendations for the future Govemment of Palestine and had
unilaterally declared that it was relinquishing its responsibility.
Hence any legal objections to the actions of the General Assembly
must be forma! in character. The United States delegation would
support the proposais of Sub-Committee I which, in its view, met
the request of the Mandatory Power." (G.A.,0.R., Second Session,
Ad Hoc Committee on the Palestinian Question, p. 169.)
Thus the delegate, l\frPresident, firmly based the attitude of the United
States on the request of the mandatory power and the declaration that it
was rclinquishing its responsibility.
The importance of the attitude of the United Kingdom Govemment
was also stressed by the Polish delegate. He said, in that same record, at
page r6o, the following :
"The situation was that the Mandatory Power had notified its
decision to terminate the Mandate and to withdraw from Palestine.
It had requested [the mandatory power] the General Assembly to
make recommendations for the future govemment of the country.
It had, however, made it clear that it did not wish to participate in
the implementation of a solution which did not meet with the approv
al of bath Jews and Arabs. Neither of the plans submitted satisfied
that condition and it was highly improbable that such a plan could
be drawn up. Since the United Kingdom had stated that it was
prepared to transfer its powers only to an organ of the United
Nations, the United Nations was obliged to establish such an organ."
This statement came, Mr. President, fairly near the beginning of the
speech in which the delegate of Poland was replying to varions points
which had been raiscd in regard to the report then under considcration,
including the question of the competence of the United Nations to
proceed with the matter at all. He started off with the actions of the SOUTH WEST AFRlCA
mandatory power-its consent, its decision and its reference of the matter
to the United Nations-and he proceeded, l\lr. President, with regard to
the General Assembly's right to make recommendations, to refer to
Articles IO and 14 of the Charter, particularly Article IO.That is in the
same record, at page 16I.
As we noted ycsterday, Article IO granted competence to the General
Assembly only in respect of questions falling within the scope of the
Charter. That aspect of thè matter was also referred to by the Polish
delegate. Following up the question whether this was a matter falling
within the scope of the Charter, he took the view that the question to be
decided was essentially that of the future government of a territory whose
population was not yet self-goveming. He therefore regarded the pro
visions of Article 1 of the Charter and of Chapters XI and XII of the
Charter as being applicable: these provisions would then bring the matter
within the scope of the Charter, and Article IO would bring it within the
scope of the competence of the General Assembly.
In regard to Article 1, he specifically referred to the objective, or
purpose, of specific scttlement of disputes endangering generaI welfare or
friendly relations, and in regard to Chapters XI and XII he stated,
particularly with regard to Articles 77 and 79, as follows:
"Those Articles had been included in the Charter for the purpose
of emphasizing that the United Nations should assume the responsi
bilities of the League of Nations in respect of peoples who had not
yet become independent." (G.A., O.R., Second Session, Ad Hoc
Committee on the Palestinian Question, p. 161.)
This, Mr. President, was the expression of a broad view of the competence
of the United Nations to deal with a question of this kind-a question
which the Polish delegate defined, as I have said, as being, essentially,
one of the future govemment of a territory whose population was not yet
self-governing.
Finally, in dealing with the disputed validity of the Mandate, the
Polish delcgate used the words quoted by the Applicants. They read as
follows (at pp. 16r-r62 of the same record):
"... that the question had not been examined, but that it was
impossible to dispute the validity of the Mandate conferred by the
League of Nations and confirmed by the terms of Article 80 of the
Charter. Although the functions of the League of Nations had corne
to an end, that did not mean that all control was thereby abolished.
That responsibility now rested with the United Nations." (G.A., 0.R.,
2nd Session, Ad Hoc Committee on the Palestinian Question,
pp. 161-162.)
In the light of the whole of this speech, of which I have attempted to give
certain salient features to the Court, it becomes clear, Mr. President, in
our submission, that the responsibility to which the honourable delegate
referred was clearly related to that which he considered to be provided
by Chapters XI and XII of the Charter-and particularly by Articles 77
and 79, in the sense which he had ascribed to them-plus, perhaps, the
purposes of the organization as set out in Article r of the Charter-the
purposes rclating to specific settlement of disputes.
In the whole of this address therefore, reading it in its proper context,
therc is nothing to suggest a contemplation on the part of the Polish
delegate that, independently of consent on the part of the Mandatory, REJOl.'.',DER OF MR. DE VILLIERS 443
there would, or could, be any normal frmction of superv1s10n of the
Mandate, or of mandatory administration by the United Nations.
Then, Mr. President, the Applicants quote, from the debates, further
references to Article 10 of the Charter. These references are given in the
verbatim record of ro May, at pages 176 and 182, supra. However, as we
noted before, Article 10 serves only to grant competence to the General
Assembly, as a particular organ of the United Nations, to consider
matters falling within the ambit of the Charter. Article ro does not defme
which matters fall within such ambit. l dealt with that fully yesterday,
and in our submission it is quite clear that Article ro can never serve to
establish United Nations competence in a matter. In the case of Palestine,
United Nations competence in respect of the solutions actually proposed
could, and did, arise only from the consent of the parties directly inter
ested, as the Applicants indeed concede.
If, in addition, Mr. President, a general power to discuss the future of
non-self-governing territories and to make non-binding recommendations
thereon, was granted by Chapters XI and XII, as contemplated by the
Polish delegate, that grant would also not support the Applicants' thesis,
and the same would apply to any recommendations regarding specific
settlements of disputes under the purposes contemplated in Article r of
the Charter. So reviewing the whole of these various attitudes expressed
by various delegates with reference to Article ro, it becomes quite clear
that they do not, in any way, assist the Applicants' contention. Itfollows,
therefore, that the Applicants have not adduced anything to suggest that
the activities of the United Nations regarding Palestine were based on
any supervisory power in respect of mandates exercised by the United
Nations as a successor to the League of Nations, in the sense that there
was an obligation on the part of the manclatory power to submit to such
supervision. Their statement, in one of the passages on record which I
have read, to the cffect that this was a "given"-that the power to
exercise normal supervision was a "given" in the situation-is really in
our submission a pure ipse dixit. It is something which is not established
by any material upon which the Applicants could rely or to which they
could refer the Court.
Finally,l\ir. President, we find that some issue is made of the attitude
of the United Kingdom Government; we find that clone in the verbatim
record of ro .May, at page 183, supra, and in the record of II May, at
page 184, supra. In these passages, my learned friends sought to draw a
distinction between on the one hand, accepting the sole responsibility
and, on the other hand, burden-sharing or acceptance of United Nations
recommendations in that regard. They said the attitude of the United
Kingdom Government was that it did not want the sole responsibility but
it was prepared to accept United Nations recommcndations on a basis of
"burden-sharing". That, Mr. President, does not, however, invalidate
the Respondent's point, which is that the United Kingdom Government
reserved the power in certain circumstances not to accept or carry out
United Nations resolutions. The principle of that situation is of impor
tance in regard to the issue between the Parties.
\Vhether the United Kingdom Government was reasonable or un
reasonable in reserving its rights as regards particular situations, is a
question of policy and is not a matter which affects the issue between the
Parties as a question of law. The fact is, that the circumstances which the
United Kingdom Govemment indicated as circumstances under which444 SOUTH WEST AFRICA
it would not accept any resolutions, were indeed wider than those
suggested by the Applicants; it was not merely a matter of avoiding sole
responsibility. Thus, Mr. President, I can refer the Court to an extract
from the speech of Mr. Creech Jones in the Ad Hoc Committee, appearing
in the records we cited before, at pages 3-4.
"The United Kingdom Government was ready to assume the
responsibility for giving effect to any plan on wlùch agreement was
reached by the Arabs and the Jews. If the Assembly were to rec
ommend a policy which was not acceptable to the Jews and the
Arabs, the United Kingdom Government would not feel able to
implement it. It would then be necessary to provide for some alter
native authority to implement it. The United Kingdom Govemment
was not prepared to undertake the task of imposing a policy in
Palestine by force of arms. In considering any proposai that it
should participate in the execution of a settlement, it would have to
take into account both the inherent justice of the settlement and
the extent to wlùch force would be required to give effect to it."
(C.A., O.R., 2nd Session, Ad Hoc Committee on the Palestinian
Question, pp. 3-4.)'
That makes it perfectly clear, Mr. President, in our submission, that
the matter went very far beyond mere concem about having sole res
ponsibility. The matters in respect of which the position of the United
Kingdom Govemment was reserved with a view to not necessarily
accepting recommendations, extended far beyond that.
I conclude therefore, Mr. President, in regard to the Palestine question,
by saying that what the Applicants have added in their oral reply in
this regard, has provided no support for their case and has in no way
shaken or altered the firm support which the UNSCOP report provides
for Respondent's case in regard to Article 6.
I now proceed to revert to the Trusteeship Council debate on the report
for 1946 which was in fact submitted by the South African Govemment
for the information of the United Nations.
As I pointed out yesterday, the contention of the Applicants which
gave rise to the review which we gave on this point in our argument in
chief, was to the effect that there was in the Council "no doubt as to the
legal authority of the Council to examine the report of the mandatory
power and submit observations thereon". The quotation proceeds:
"N otwithstanding the dissolution of the League, it was agreed
that the Mandate continued in full force and effect, and that the
United Nations was the proper supervisory authority." (VIll,
p. 160.)
In other words, Mr. President, the topic was introduced by the
Applicants in an attempt to establish agreement among members of the
Trusteeship Council to the effect which I have just mentioned. The
expression "proper supervisory authority" clearly refers to supervisory
authority under a mandate in force; that is the context of lt: it was
agreed that the Mandate continued in full force and effect and that the
United Nations was the proper supervisory authority. And in support of
this contention the Applicants referred to statements by China, Belgium
and the United States of America-that was in their argument in chief,
and the reference is to the same record of 19 March, VIII, p. 160.
Now, Mr. President, the circumstances under which the South African REJOINDER OF MR. DE VILLIERS 445
report was submitted to the United Nations have been discussed. Itwill
be recalledthat the report was dealt with by the United Nations in terms
of the General Assembly resolution 141 (II).It will also be recalled that
in the preamble to that resolution the Assembly acknowledged, amongst
others, that the Union Government had "undertaken to submit reports
on its administration for the information of the United Nations", and this
was, therefore, the basis upon which the General Assembly authorized
the Trusteeship Council "to exarrùne the report on South West Africa
recently submitted by the Government of the Union of South Africa and
to submit its observations thereon to the General Assemblv". The whole
basis was that it was a report which had been submitted fà'rthe informa
tion of the United Nations-a basis clearly so understood on both
sides.
ln our oral argument in chief we, with submission, completely refuted
the Applicants' contention regarding the alleged agreement between the
12 States represented on the Council. After reviewing the attitudes taken
by each one of them at the tune, both in those debates and in other
debates in other organs of the United Nations at the time, we reached
certain conclusions which we set out in a summary form in the verbatim
record of 8 April, at VIII, pages 485-486, and I should like to refer very
briefly to the gist of those conclusions with a view to taking the matter
further as regards the issues that arose from the reply stage of the
Applicants.
Our first conclusion was that there were at least five of these States
which took up the attitude that the Mandate had Japsed on dissolution
of the League and that there was a sixth State, the United States of
America, which, through one of its representatives, stated the contempla
tionthat the Mandate had lapsed and, through another, that it was still
in existence, but without accountability.
Secondly, we pointed out, we concluded, that nine States, including
the six just mentioned, took up a very clear and unqualified view to the
effect that, outside of a trusteeship agreement, there was no supervisory
power on the part of the United Nations.
That left only three States-Cuba, the Philippines and Belgium. In
the case of Cuba and the Philippines, we submitted in the final summary
that their attitude was the following-
"that, although, in general, there was no supervisory power on the
part of the United Nations outside of trusteeship, there was an
opportunity for the Trusteeship Council to perform functions
similar to those which had been performed by the Permanent
Mandates Commission". (VIII, p. 486.)
In the case of Belgium, the twelfth State, we submitted that its attitude
was the following:
"... on the one hand, that by virtue of Article 80 (1) of the Charter
the people of the Territory were entitled to have the Territory
supervised ... but on the other hand, Belgium recognized that there
had been no agreement by South Africa to have United Nations
supervisory organs substituted for those of the League". (Ibid.)
Tuen, in summary, we said:
"Not in one single case, therefore, Mr. President, of these members
of the Trusteeship Council, do we find an attitude supporting, or446 SOUTH WEST AFRICA
corresponding with, that taken up by the Applicants in tlùs case.
Not one of them took up the attitude that there was agreement,
consent, acquiescence, on the part of the South African Government
to a substitution of supervisory organs, and that on that basis the
United Nations had supervisory functions or powers, outside
trusteeship." (Ibid.)
That, therefore, was the conclusion, Mr. President, to which the
Applicants' reply was required to be directed. From the nature of the
argument to which we were replying at the time, as well as of the argument
which wewere presenting, lt wasqui teclear that the examination related to
the question whether the Trusteeship Council regaided itself as exercising a
power of supervision under the ;\Iandate as a successor to the Permanent
Mandates Commission or the League Council a power which would have
involved a corresponding duty on the Respondent to report to the
Council. This point I also stressed again yesterday. The argument did
not deal with the question whether the Council's activities pursuant to
Respondent's voluntary transmission of information could or could not
appropriately be callcd supervision, or whether it could or could not
appropriately be regarded as amounting to supervision, in practice.
That was not the question, that was not the point, as far as the arguments
in chief were concerned. Yet, Mr. President, we find that it is to this point
that the Applicants chose to address themselves in their reply in the
verbatim record of II May, at pages 191, etseq., supra, and, as I pointed
out yesterday, tb.is really means that our real argument on this subject
and our real demonstration in that regard stand unanswered.
It is hardly necessary for me to say anything more about the treatment
of the matter in the debates of the Trusteeship Council, but I may point
out that the Applicants clearly indicated an abandonment of their
contention which they originally advanced with reference to Sornehand
picked statements. They abandoned the contention of an agreement
said to have been manifested in the Trusteeship Council that the Mandate
continued in full force and effect and that the United Nations was the
proper supervisory authority. They did not proceed to attempt to estab-
lish tha t. We are told now, on the contrary, tha t: ·
''... there was confusion and there was considerable discussion of a
nature which, looked back upon now in these dusty records, is
ambiguous: one reason for the request for the 1950 Opinion".
(Supra, p. 198.)
In the context, l\fr. President, of the argument in the verbatim record
of II May, at page 198, supra, it seems perfectly clear that this statement
relates to these very proceedings in the Trusteeship Council-that it
at least includes a reference to those proceedings. As it would seem tous
from the context, this particular passage relates specifically to those
proceedings.
I can also give the Court a reference to page 199, supra, of that same
record, where the Applicants stated this:
"... the Iraqi view, as was the case of so many others at the time,
does indeed reflect confusion, witb. ail respect to the distinguished
delegate of Iraq at the tùne, confusion and ambivalence".
l\fr.President, in my submission, this concession by itself negatives REJOINDER OF MR. DE VILLIERS 447
any possibility that thcre existed any consensus of opinion amongst the
members of the Trusteeship Council of the nature originally relied upon
by the Applicants. ln addition, Mr. President, in a wider sense, this
concession negatives any possibility that it could be said that there was a
general understanding in 1945-1946 to the effect that a transfer of League
supervisory fonctions to the United Nations was effected. If therc had
been such. a general understanding, in 1945-1946 as relied upon by the
Applicants, why then do we find so soon afterwards, in 1947-1948, this
confusion, this ambiguity, this ambivalence in the attitude of so many
States so directly concerned with the matter? On the Trustceship
Council were represented the former mandatory powers which had placed
their territories under trusteeship, and other States directly concerncd,
and one would expect that their delegates would have acquainted
themselves with the relevant facts at the time. How then could the
Applicants, under those circumstances, corne to Court and say, on the
basis of necessary infercnce, that there must have been this general
understanding or intent in 1945-1946? But the matter does not end there,
Mr. President.
In regard to the fact that the Applicants addressed themselves solely
to the question whether the activities of the Trusteeship Council could
appropriately be called supervision, and whether those activities were
regarded as falling within such a concept, it is interesting to note the
contention which the Applicants stated in the verbatim record of IIMay,
at page 191, supra:
"Compliance with the instructions of the General Assembly,
[i.e., resolution 141 (II)] of course, .pre-supposed the existence of
supervisory fonctions with respect to the Territory, which is
consistent with no other assumption, obviously."
Mr. President, I refer to the words "Compliance with the instructions"
and "pre-supposed the existence of supervisory fonctions with respect
to the Territory". Quite clearly there is a play of words here-a play on
the inherent ambiguity in the concept of "supervisory fonctions", in the
sense which I cxplaincd yesterday. "Supervisory functions"-do they
relate to a power of the Organization as being the counterpart of an
obligation on the part of the mandatory power, or do they simply relate
to some constitutional concept of the competence of a particular body?
Our submission is that in regard to a supervisory power of the first
named kind the Applicants have brought not one iota of evidence that
there was a contemplation, either in the resolution or on the part of the
Trusteeship Council, that it was intended by the resolution to exercise
such a power.
We referred earlier to the terms of resolution 141 (II), and I referred
toit again this morning. Quite clearly a compliance with that resolution
did not imply any expression of opinion to the effect that authority to
supervise the Territory under the Mandate had passed to the United
Nations-supervision, that is, in the sense of the counterpart of an
obligation to submit to such supervision.
The voluntary submission of a report by South Africa created a
practical situation where something had to be done with the report. The
fact that the United Nations examined the report, whether or not such
examination can appropriately be referred to as supervision, provides no
evidence whatsoeverthat the Members of the United Nations regarded the SOUTH WEST AFRICA
Organization as the successor of the League of Nations as supervisory
organ in respect of mandates, in the sensc which I have just mentioned.
Indeed, as we have shown, the majority of the Members did not so
regard it, and the Applicants' demonstration that many States, including
the Respondent, regarded such an examination as amounting, in practice,
to supervision, which, Respondent asserted, was not justified, cannot
serve to alter this basic reality-the basic reality that there was no
contemplation of a supervisory power in the proper sense to which I have
referred-a power binding the mandatory by way of an obligation on its
part-nor can it serve to assist the Applicants in any way.
The attempted distinction which the Applicants sought_to draw between
a wider and a narrower basis of supervision by the Trusteeship Council,
does not, Mr. President, help in any way whatsoever in this inquiry-it
has no relevance. The wider and the narrower bases of supervision,
favoured by various Members of the Security Council, related to what
was being done in fact and in practice. They did not relate to the question
whether there was a supervisory power on the part of the Organization
in the sense under discussion.
The Applicants did not in any way attempt to refute our evidence that
not one of the Members of the Trusteeship Council expressed a view that
Respondent had, through consent, become obliged to submit to United
Nations supervision, and that nine Members were definitely of the opinion
that, outside of trusteeship, there was no such obligation. Therefore,
Mr. President, to complete the remarks on these debates in the Trustee
ship Council it is again a case of the argument in chief which we made out,
standing unaltered and unaffected.
That brings us to the list of 25 States. I may here also, for setting and
background, refer very briefly to the manner in which this question arose.
The basic issue, of course, with which we are dealing, is the question
whether Respondent consented in 1945-1946 to accept the United
Nations as successor to the League of Nations for purposes of supervision
of mandates. In view of the factual situation, it is also relevant to
consider whether other Mandatories manifested such consent. It is
hardly likely that there would have been any material difference in the
attitudes taken by the various Mandatories on this question, and,
Mr. President, inasmuch as a consent cannot be given in vawo, a highly
relevant further test is whether the other States concemed-the other
States present at the final League Assembly in April 1946 and/or the
initial Members of the United Nations-understood that such a consent
had been given, either by Respondent or by any of the othermandatory
powers.
This test of establishing how the situation was understood by the
other States concerned, can best be applied by having regard to the
attitudes which were expressed by such States immediately after the
events of 1945 to 1946-in other words, during the years 1946 to 1949.
That was the time when the events of 1945 to 1946 were still fresh in
memory, and when the same question of the possibility of United Nations
supervisory power outside of trusteeship arose in various practical
circumstances with reference to various mandates. The political alignment
in each instance was not always the samc; therc were different practical
considerations involved in regard to this question with reference to
the manner in which it arose in regard to South West Africa, and in regard
to various other Mandates-Palestine, the New Zealand Mandate of REJOINDER OF .MR. DE VILLIERS
449
Samoa, and so forth-also the issue which arose in the Security Council
about the former Japanese Mandate, and as to the competence of the
Security Council in that regard, a matter to which we referred before,
There, again, the political questions involved were different, but,
Mr. President, it is therefore very significant to sec what was the con
templation of the various States in these first years in relation to these
various ways in which the question manifested itself.
lt is important when embarking upon this examination not to lose
sight of its purpose. The purpose must always be to ascertain firstly,
whether the mandatories mamfested the consent in question in 1945 to
1946 and, secondly, whether such consent involved an undertaking to
give effect to Article 6 of the Mandate by rendering reports, as provided
for in that Article, to the United Nations as successor to the League of
Nations, on a cornpulsory basis.
Now, Mr. President, to this inquiry no direct answer is provided by
varions matters which have been introduced into this discussion
matters such as, firstly, the consideration that some States regarded it as
desirable,or considered it obligatory, for former Mandatories to conclude
trusteeship agreements, does not aid the inquiry whether there was an
obligation to submit to United Nations supervision outside of trusteeship,
or whether there had been such a consent on the part of the mandatory
powers in 1945 or 1946.
Secondly, Mr. President, the consideration that some States regarded
Article 73 (e) as applicable and binding upon former Mandatories, does
not suggest a positive answer to the quest10n whether there was anobli
gation to report and account under Article 6 of the Mandate, or the corres
ponding Articles in the other mandates.
And, thirdly, the consideration that some States considered the United
Nations competent to examine information voluntarily supplied by a
former Mandatory, or to make recomrncndations and give advice on
matters submitted to it by a former Mandatory, again, is an irrelevant
one; at least, it does not provide a favourable answer for the Applicants
on the real question being investigated.
These matters, Mr. President, cannot by themselves be of relevance to
the issues before the Court, save and except to the extent to which
expressions of opinion regarding them may bear upon the actual issue,
namely whether consents were given whereby former Mandatories were
obliged under the mandates to render account to the United Nations.
Itwas, therefore, in consideration of this question that the Respondent
embarked upon an inquiry in the pleadings, an inquiry which was
repeated, to a large extent, in the oral presentation. The result thereof is
summarized in conclusions stated in the Counter-Memorial, Il, at
pages 140 to I4I. 1
The first element in the conclusion was an important one, and related
solely to the first year in which the South West Africa question came to
be extensively discussed-the year 1947. We pointed out that, up to the
end of that year, 41 States had taken part in debates on South West
Africa; we pointed out that South Africa, through its representative,
Mr. Lawrence, had in September, and again in November, of that year
made explicitly clear its attitude that, outside of trusteeship, there was
no accountabilitv on its part to the United Nations.
We pointed out also that New Zealand had adopted in that year a
similar view in relation to Western Samoa which was expressed at the450 SOUTH WEST AFRICA
United Nations, and yet one found, Mr. President, that of ail those
41 States which took part in the debates, and of all the others which did
not take part, not a single one voiced any contradiction to the attitude
so explicitly stated by l\fr. Lawrence; nota single one.
Then we stated in that conclusion that over the ycars 1947 to 1949 at
least 24 States, l\Iembers of the United Nations, other than the Respon
dent itself, in participating in the debates and procecdings of organs of
the United Nations, or in expressing views in its agencies, whethcr in
regard to the Mandate for South West Africa or to other Mandates,
demonstrated clearly, either expressly or by clear implication, that in
their view, in the absence of a Trusteeship Agreement, the United Nations
would have no supervisory powers, in the sense under discussion, over a
mandatcd territory. And wc gave the list of those 24 States. I need not
repeat the details again.
\Ve pointed out, further, in this conclusion that up to 1949 only five
States voiced any contradiction to that propos;ition. They were Belgium,
Brazil, Cuba, lndia and Uruguay. In the case of the la.st-mentioned thrce,
we pointed out that their attitudes were inconsistent at various stages,
and we pointed out, further, that in no case was the contradiction by any
of these five States based upon a suggested agreement or understanding
(other than Article 80 (1) of the Charter)~save for that qualification
there was no suggestion of an agreement or understanding arrived at
during the transitional period of 1945 to 1946.
\Ve pointed out further that up to 1949 thcre was at no stage any
contradiction of the kind under discussion, which was voiced by either of
the two Applicant States, Liberia and Ethiopia.
That was the case we made on this point, and that was the case which
we substantially repeated before the Court in dealing with the matter
in our prcsentation in chief.
Now let us see, Mr. President, how the Applicants attempted to whittle
down the significance of this analysis. First, in their argument in chief,
with reference to what we have set out in our pleadings, and before we
could deal with the matter in our oral presentation, my learned friend,
Mr. Moore, sought to eliminate, firstly, the six States which were inc!uded,
as they said, merely because they had signed the Palestine report
(verbatim record of 19 March r965, at VIII, p. 165). I shall omit comment
for the moment, and I shall merely give a summary of what his attitude
was at the time.
He proceeded, further, to attempt to eliminate Cuba, India and
Uruguay, which, as we had noted ourselves, had taken inconsistent
attitudes. They had spoken first in favour of non-accountability under
the Mandate, and had later switched their position. That is very clear
from the record, as I had understood from my learned friend's contention.
There was never any dispute on their part that there was such an in
consistency.
Thirdly, thcy sought to eliminate the United States of America, which
had argued before the Court in 1950 in favour of accountability towards
the United Nations. On that basis they sought to exclude the United
States.
And, final!y, they sought to exclude China and the Philippine Republic
on the strength of certain statements made by them, again showing, in
their submission, an inconsistency, but not arguing away the original
statements on which we had relied when we put China and the Philippine REJOINDER OF MR. DE VILLIERS 451
Republic on our list. That we find in the same record of 191'farch aVIII,
pages 165 to 166.
Now in our argument recorded in the verbatim record of 8 April 1965,
atVIII, pages 499 and the following, we pointecl out the fallacy of this
argument of the Applicants, and we demonstrated that the most that
could be said in faveur thereof was that, in addition to Cuba, India and
Uruguay, the Philippines and the United States of America might
possibly be reganled as having been inconsistent on the point in issue. On
the other hand, it was submitted that l\Iexico should be included in the
list of States which had indicated a positive view that no succession of
supervisory fonctions had taken place. Be that as itmay, one major point
remained untouched. The major point was that there was no general
understanding among Mcmbers of the United Nations to the effect that
the United Nations would have supervisory powers in respect of man
dates not converted into trusteeships, but that the general consensus,
whatever figures im·olved, was to the contrary. In addition, r1lr.President,
we pointed out that throughout these debates no reference was made to
any "pledge" in April r946, nor, indeed, to any agreement or consent
said to have been given anywhcre withln the periocl 1945-1946.
In their reply, the Applicants returnecl to the fray. But wc find that
here also they now restricted thcmselves to a very limited objective,
compared with the wide scope of the issue between the Parties as dealt
with in the arguments in chief. Thls limited objective was to show the
following:
"... confusion and inconsistency, of course, attended the anomalous
situation created by the single, residual Mandate other than Palestine
itself, which confronted the United Nations with the necessity for
making a decision which it hoped it would never have to make but
which it possessed power to make if necessary, and which it did
exercise, when it became necessary. And this situation of doubt,
confusion and ambiguity, of course, led to the submission by the
General Assembly of its request for an Advisory Opinion in 1950 ... "
(Supra, p. 224.)
Mr. President, this statement by the Applicants, by itself, and on its
face, establishes our contention. If there had been a clear understanding
. in the years 1945 to 1946, as alleged by the Applicants, it seems absolutely
incomprehensible that there should have been this doubt, this confusion,
this ambiguity about the question in these years 1946 to 1949.
Surely, l\lr. President, if an agreement and understanding had arisen
by implication, had been in the minds of the parties and was so clear that
they found it unnecessary to express it, then surely one or other of the
States involved would have said "but the position is so clear, there was
this agreement; there was this understanding; why should there be any
doubts, or any confusion or any ambiguity about it whatsoever"? On
that basis it becomes quite clear that the Applicants cannot, on a
foundation of a neccssary infcrence from circumstances, hope to establish
their contention. But Mr. President, in fact the matter docs not end there.
An examination of the matcrial adduced by the Applicants does not
show any support for their theory of consent in April 1946 or in r945 to
1946 generally, and it does not seem, in any material way, to whittle
down our demonstration of the substantial consensus which, in fact,
existed in favour ofour contention.452 SOUTH WEST AFRICA
The Applicants now attempt to reduce the list of 24 States, or 25 with
Mexico, even more than before-perhaps I should say 25 or 26, because
South Africa itself now cornes into play. \Ve find this attempt of theirs in
the verbatim record of 12 May, at pages 220, supra and the following.
Firstly,they return to the attack as regards the six signatories of the
Palestine Commission, of whom they say that they merely signed tha t
report. Mr. President, surely, for the reasons which we have given, this
attack must again be regarded as complete1y repulsed. The real point,
as it appears in the most significant passages of that report, has never
been met by my learned friends.
Also Cuba, India and Uruguay are again brought under fire, and the
position remains exactly the same as before. They are brought under fire
merely because they were inconsistent-that that was so, was conceded
by us, but that does not take away the fact that they initially expressed
themselves in favour of the Rcspondent's contention on this legal
question, and that they later became inconsistent with themselves in
that regard, and that is why we put them on the list. That they did
initially express those views, is not and cannot be contested.
In the case of the United States, it is now said that it was not only
inconsistent, but that it was always doubtful of the correctness of its
statement regarding supervision, and that that doubt, or diffi.culty was
apparently first cleared up when the United States presented an argu
ment to this Court in 1950. May I rcfer again, Mr. President, to the way
in which this matter was now dealt with? 1 should like to begin by
referring to the verbatim records of II May and 8 April.
In the record of n May my learned friend, Mr. Gross, was dealing
with a statement by Mr. Gerig to which we had referred earlier in our
oral presentation, and quoting from our previous presentation, he read
the following:
"... from this quotation Respondent concludes, quite categorically,
and I quote Respondent's statement, that I\Ir. Gerig-
'... proceeds from the basis that the Mandate is in existence as a
clearand explicit view to the effect that the United Nations had no
supervisory authority in respect of the Mandate'."
I am reading from page 205, supra, of that record of 11 May. My learned
friend went on to point out that Mr. Gerig ended up his statement by
using the words "its duties under the present Mandate, admitting that it
exist", and he indicated that Mr. Gcrig "was just doubtful about the
whole proposition"-those were the words he used. Now, l\Ir.President,
in the first place there is a mistake here. In the record of 8 April, to
which my leamed friend was replying, we had referred to two statements
of Mr. Gerig, not only to this one. We referred. first, at VIII, page 482,
supra,of the record of 8 April to the statement of l\fr. Gerig 1nDecember
1947 in the Trusteeship Council. That statement included this sentence,
which had, incidentally, been quoted by the Applicants before: " ... it is a
mandated territory, recognized as such by everyone, including the Union
of South Africa." (VIII, p. 160.) Then I went on to quote the statement
by Mr. Gerig of 12 December of the same year, some 12 days after the
previous statement, and it was there that Mr. Gerig said:
"It was said here earlier this afternoon, and I did not hear any
member object, that while we ail hope-my delegation as much as
any delegation feels that way-that there will be a trusteeship REJOINDER OF MR. DE VILLIERS 453
agreement for tlus territory, we do not, in the absence of a trustee
ship agreement, have supervisory functions over this territory.
Thercfore, 1 do not think we ought to imply that we do have super
visory functions to ensure that the Union Government discharges its
duties under the present mandate, admitting that it exist." (Il,
p. 28r.)
I proceeded to point out that there were two speakers on behalf of the
United States: the first one had been Mr. Dulles, who had expressed the
view that the :Mandate had lapsed, and then Mr. Gerig, Mr. Gerig's
attitude was contrasted with that view; and then followed the sentence
which my leamed friend quoted. There is a mistake in the recording of the
sentence-! spoke of a speaker proceeding "from the basis that the
Mandate was in existence to a clear and explicit view to the effect that the
United Nations had no supervisory authority in respect of the Mandate"
the "to" unfortunately was rendered wrongly in the record as "as". So,
the clear and explicit view did not relate to the question whether the
Mandate was in force or not; it related to the fact that the United Nations
had no supervisory authority in respect of the Mandate, whether or not
the Mandate was in existence-that was the gist of what I stated in
regard to Mr. Gerig's attitude in contrast with that of Mr. Dulles.
Now my learned friend says to us that Mr. Gerig, at the end of that
address, indicated that there was uncertainty in his mind. I may refer
again to the address in the Trusteeship Council. I read the relevant
portion of it again to the Court-it is perfectly clear. I may also refer the
Court to that same page (505) in the Trusteeship Council records of
12 December 1947, as to how l\lr. Gerig began. He began by stating:
"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 doubts hcrc, I raised that question."
He was refcrring back, apparently, to his carlier statement of r December.
He then made an addition, Mr. President, in the contcxt of replying to a
speech by Mr. Liu Chieh of China, who had been the previous speaker
the speech to which I referred before, in which it was suggested that the
Council could see whether the Union Government discharged its responsi
bilitiesunder the Mandate. Replying to that suggestion, he stated:
"I would add that even if it does remain in force, that thought,
namely whether the Union Govemment is discharging its duties
under the mandate, looks as if we have certain supervisory functions
to see toit that the Union Government discharges its responsibilities
under the mandate."
This, as I have said, was stated by way of reaction to the Chinese statc
ment. Mr. Gerig objected immediately that approaching the matter in
the way suggested by the Chinese speaker would look as if the Trusteeship
Council had certain supervisory fonctions and had to see that the Union
discharged its obligations under the Mandate. Then followed that state
ment which we have quoted-"It was said here earlier this aftemoon,
and I did not hear any member abject ... ". So, Mr. President, this was
Mr. Gerig's reaction, his immediate reaction: "but surely we have no
supervisory fonctions of that kind." Mr. President, the fact that he then
ended up by stating:
"I cannot help but feel that there are difficulties of this kind which SOUTH WEST AFRICA
454
we should not take up at this point. I am willing to consider it in
June, but I do not now fecl clear in my mind that the Trusteeship
Council has implied or cxpressed supervisory fonctions over that
territory. However, I should like to hear the thoughts of the other
members of the Trusteeship Council".(Supra, p. 206.)
The fact that he said that at the conclusion of his speech surely does not,
in the context, indicate that there was any substantial doubt in his own
mind. This was mere!y another way of saying that he certainly could not,
at that stage, agree with a view that there was any supervisory power on
the part of the United Nations Organization in the sense under discussion,
and in the sense suggested by the Chinese delcgate, i.e., that such a
fonction should be exercised by the Trusteeship Council. It was another
way of putting a view on his part, but to say that that indicated any
substantial doubt upon the matter really takes it completely out of
context. If there was such a substantial doubt, if this view which had
been expressed so explicitly, came under reconsidcration at a later stage
during thosc same debates, or at a later stage in similar debates on the
South West Africa question, one would at least have expected the United
States to have indicatcd something of the kind at some stage in the
debates at the United Nations, but there was no such indication whatso
ever at any stage.
ri.Ir. President, I was dealing with the Applicants' attempts in their
oral rcply to reduce the list of States, 25 or 26, which we said indicated
a clear agreement during the ycars 1946 to 1949, with the proposition
that outside of trusteeship there was no supervisory power, in the sense
under discussion, on the part of the United Nations over the .Mandate
of South \Ve~t Africa. or over mandates in general, and I was dealing
more specifically, Mr. President, with the question of the attitude of the
United States.
Apart from 1\1.r. erig's statement, with which I have again dealt, there
is of course still the statcment of Mr. Dulles to which, as far as I can
recall, the Applicants offered no reply, and with reference to both Mr.
Gerig's attitude and to l\frDulles' attitude, we certainly do not see any
reason why the United States should be taken off that list.
Then, to China, the Philippines, New Zealand and the Soviet Union.
The Applicants sought to eliminate them because they expressed the
view that the United Nations was empowered to consider the South \Vest
Africa report or the matter of Palestine. But, Mr. President, in both cases
these were questions which had specifically been referred to the United
Nations by the administering powers-the actual South West Africa
report for 1946 which came before the United Nations and the specific
case of Palestine. And, therefore, there is again here a confusion between
the two senses in which one could speak of, say, supervisory competence
as a matter of constitutional arrangement, so far as a particular organ is
concerned, and a supervisory power in the sense under discussion,
implying a right as a counterpart to an obligation to submit to super
vision.
Applicants' reference to the attitudes taken up by these States on the
question of the South \Vest Africa report, or on the question of Palestine,
is therefore not relevant at ail to the question under consideration. They
do not meet our point. There is no inconsistency between the attitudes
taken up by these States in this regard and the attitudes explicitly
expressed by them-the reasons why we put them on the list-as REJOIXDER OF MR. DE VILLIERS
455
indicating that outside of trusteeship there would be no obligation of
accountabili ty.
France, Mr. President, is sought to be excluded because its representa
tive expressed a desire that information should be transmitted. The
expression used was "he urged the submission of reports". But, Mr.
President, l suppose that other delegates did that too. Sorne of them
said that they were sorry to see that the Union of South Africa decided to
send no further reports and that it would be a good thing if they werc to
do so. But that is no indication of the existence of an obligation on the
part of the South African Government to do so. There is no such indica
tion on the part of the representative of France, or any representative of
France at any stage, and the real and the clcar reasons, which we gave,
why France should be put on the list were not touched upon or substan
tially affected inany analysis of the Applicants. The place where this was
dealt with by my learned friends was the verbatim record of 12 May,
at page 223,supra, and I submit that their attitude in regard to France,
thereforc, is also without substance.
The Applicants also now refer to a statemcnt by the delegate of
Pakistan-that is in the verbatim record of 12 May, at page 222, supra.
However, Mr. President, reading the passage as a whole, it seems quite
clear that the delegate did not seek to convey a view that the United
Nations possessed any powers in respect of mandates qua mandates.
What he said is recorded in the OfficialRecords of the General Assembly,
Third Session, Part I, 1948, Fourth Committec, page 315. A portion of
what he said was quotcd by the Applicants in the verbatim record of
12 May, at page 222, supra. The point to which I wish to direct the
Court's attention occurs in certain words which were not quoted, and I
should for that purpose like to read the full passage:
"The Mandates Commission of the League of Nations had had
supervisory powers for twenty years. Reports had been submitted
annually by Mandatory Powers and scrutinized with jealous carc by
the Mandates Commission.
The Leaguc of Nations had been replaced by the United Nations,
which had taken over the functions forrnerly exercised by the
League."
If I may break there, that was the portion specifically relied upon by my
learned friends. The quotation proceeds:
"... several provisions of the Covcnant of the League of Nations
relating to mandatcd territories had been included in the Charter.
[I corne now to the portion that had not been quoted) Article 77 and
Article 80, paragraph 2, clearly indicated that there must be no
undue delay in the negociation [sic] and conclusion of Trustecship
Agreements. The Union of South Africa claimed that its authority
procecdcd from the mandate under the terms of which South West
Africa could be integrated with the Union of South Africa. However,
ifthe mandate was no longer in existence, neither was the authority
proceeding therefrom. The Union Government could not daim its
rights and reject its obligations."
And later the delegate said, in a passage which was quoted by the
· Applicants:
"... the United Natians should retain the rcsponsibility ofcontrolling SOUTH WEST AFRICA
the mandated territories, and that the Union of South Africa was in
no way justified in defying the repeated recommendations made to
it to submit a Trustceship Agreement".
Mr. President, reading the passages as a whole it seems clear that the
delegate regarded Respondent as being under an obligation to enter into
a trusteeship agreement; he regarded that as the legal obligation. It was
by virtue of the trusteeship system, therefore, that the United Nations
had, in his view, taken over the fonctions of the League regarding
mandated territories. lt was in that sense that there had been a taking
over of functions-not a taking over of fonctions outside of the trustee
ship system. That appears to be the clear purport of the words, and of the
passage read as a whole in its context.
There is consequently no warrant for holding that the delegate ex
pressed a view that a dut y of accountability existed outside of trusteeship.
Indeed, that view would have been clearly inconsistent with the state
ment made by another Pakistan reprcsentative in 1947, which we quote
in the Counter-Memorial, Il, at pages 278 to 279, and which was the
reason why we put Pakistan on the list. It is submitted, therefore, that
there is no reason for removing Pakistan from the list.
Finally, the Applicants suggest that the often-quoted comment by
Mr. Nicholls should serve to disqualify South Africa itself for inclusion
on the list. That we fmd in the verbatim record of 12 May, at pages 222
to 223, supra. Mr. President, in view of the very evident collapse of this
whole Nicholls story, I think my learned friends may also be relieved if I
say that forther comment is unnecessary.
Then, in addition, Applicants suggest that in Sorneway "the 25 States
which voted against asking the Court for an advisory opinion conceming
the competence of the General Assembly with respect to the l\fandated
Territory for Palestine" should be regarded as having indicated a con
viction that there had been a transfer of supervisory powers to the
United Nations. We fmd that argument stated, if we understand it
correctly, in the verbatim record of 12 May, at pages 221 and 223. supra.
However, 1\Ir.President, as we have shown, the competence of the United
Nations regarding the Palestine question rcsted on an entirely different
basis.
The Applicants have not attempted to show that, in this regard, any
reliance was placed by any State on any alleged consent in 1945 or 1946
to United Nations supcrvisory jurisdiction. None of these States took up
an attitude that on such a basis the United Nations had, in any event,
supervisory jurisdiction and that, for that reason, the United Nations
was competent to deal with the Palestine question in the form in which
it was submitted to the United Nations.
So, l\fr. President, to summarize, even acceptance of the Applicants'
submission that there existed doubt, confusion and ambiguity as regards
the transfer of supervisory powers in respect of unconverted mandates
must sound the death knell of the Applicants' contention of a clear,
generally understood, pledge in April 1946-or generally in 1945 to
1946-which pledge was, so the Applicants said, the outcome of a
planned process which had already commenced in San Francisco in the
summcr of 1945.
In view of the fact it is for the Applicants to show the existence of such
a p!anned process (such a general understandîng, plan, compromise,
agreement, call it what you \vil!by a process of necessary inference REJOINDER OF MR, DE VILLIERS 457
consistent with all the true facts and excluding all other reasonable
inferences, the mere fact of the existence of such doubts, confusion and
ambiguity, suggested by Applicants, makes it quite clear that they
cannot succeed on a contention of that kind. But, in fact, Mr. President,
the analysis shows that the case against the Applicants is even very much
stronger. There was, in truth, very little, remarkably little, confusion on
this crucial question at issue between the parties, the prevailing attitude
being acceptance that supervisory functions undcr the Mandate had not
been transferred to the United Nations, and the few States which adopted
a different view, did not rely on any agreement in 1945 or 1946.
So, there again, the substance of our case in regard to the attitudes of
the States, how they understood the attitudes adopted by Respondent
and the other mandatory powers, stands unaffected.
Before leaving this subject entirely-the reaction of the other States,
their understanding of the situation-there is still the Applicants'
contention to be found in the verbatim record of 12 May, at page 224,
supra. It reads:
"Respondent disputes the contention that the General Assembly
resolutions 141 (II), 227 (III) and 337 (IV) calling for reports from
the Respondent were designed to establish international supervision
over the mandated territory."
The truth is, Mr. President, that Respondent never disputed this
contention for the simple reason that no such contention was advanced
by the Applicants in their argument in chief or at any previous stage.
It first came in this form in their oral reply.
\Vhat the Applicants did contend in their oral argument in chief-and
this was the contention which we disputed-was that:
"The unclerstanding of the United Nations that the Mandate
continued in force and that the obligations of international account
ability were owed to the United Nations, thus appears clearly from
the General Assembly resolutions 65 (I) of 14 December 1946 and
141 (II) of r November 1947, as well as 227 (Ill) of 26 November
1948, and 337 (IV) of 6 December 1949." (VIII, p. 165.)
As the Court will see, this was a completely different contention and the
way it was put again, in that same record, at VIII, page 165, was as
follows:
"... the view of the United Nations, as a whole, expressed through
its resolutions on the subject, clemonstrated its understanding that
the mandate remainecl in full force and effect, and that the United
Nations had supervisory authority over the Territory".
Those were the original contentions. We dealt with them and in our
submission showed that there was no substance in them whatsoever, no
justification, no evidence in substantiation for them on the records,
properly understood.
Now the Applicants retreat from these original contentions and they
put it in this form, they speak now of a contention that these particular
resolutions were designed to establish international supervision over the
mandated territory, and when we analyse what they say in that regard, it
is a contention to the effect that here there was an establishment of a
so-called third system, or an establishment of the necessary procedure, in
order to exercise supervisory jurisdiction i/that jurisdiction should exist458 SOUTH WEST AFRICA
by way of a power being a counterpart of an obligation. They deal, in
other words, with that question without reference to the crucial question,
the question of the obligation of accountability, or otherwise, on the part
of the mandatory. In dealing with it in that way, of course, they, in this
respect also, with reference to the true significance of the resolutions and
the true understanding indicated therein, leave untouched our point,
our argument, and our demonstration in that regard in our argument in
chief.
But the Applicants go further and they speak of an "acid test" which
is to be applied to thismatter, namely the reaction of the United Nations
in 1949 after the Respondent had decided and announced its intention of
sending no further reports on its administration of the Territory. \Ve
find thîs position stated in the verbatim record of 12 May, at page 224,
supra. The "acid test" is to see how the United Nations rcacted under
those circumstances.
They then refer to a resolution adopted by a vote of 25 to 15 in the
Fourth Committee, a rcsolution to hear a petitioner from the Territory of
South West Africa-to accord an oral hearing to a petitioncr. Having
quoted the views expressed by a fcw delegates in the Fourth Committee,
the Applicants then concluded, at page 226, supra, of that record of
12 May:
"The system of supervision, accordingly, was actually extended
by the United Nations over the territory in the face of Respondent's
decision to cease submission of its reports. This, in turn, sheds light
on the original purpose of the resolutions of the Assembly, calling
for the submission of reports, and in the Applicants' view demon
strates that the General Asscmbly did indeed attempt through those
resolutions to establish a system whereby Respondent's account
ability to the United Nations would be made effective."
One sees here, l\fr.President, no reference to the question of the
obligation on the part of the Respondent to submit to such supervision.
We have never disputed that in 1949 some l\Iembers of the United
Nations began to express the attitude that Respondent was legally
obliged to account to the United Nations in respect of its administration
of the Territory, cven outside of trusteeship. We included those five
States (perhaps there ought to be seven on further analysis) in our oral
presentations on the subject-five States who began to voicc attitudes
of that kind towards the end of 1948 and in 1949. Sorne of thcm indeed
did so, particularly on this very occasion of wh1ch we speak, namely in
reaction after the South African Government had indicated that it was
no longer sending reports.
But we pointed out, Mr. President, in the verbatim record of 8 April, at
VIII, page 505, that even "there were very few of them and they then
found a basis which did not relate to any consent on the part of the
Respondent in the transitional stage".
It is, in itself, in our submission, highly significant that this kind of
reaction first came from some States after the Respondent had made
known this particular decision-that in itself is highly significant. At
a stage when it was thought that the Respondent was contesting its
obligation but that it was, nevertheless, submitting certain reports, even
though only for the Iimited purpose of the information of the United
Nations, some of these States did not see their way clear, apparently, to REJOINDER OF MR. DE VILLIERS 459
contesting the Respondent's submission that there was no obligation of
accountability outside of trusteeship. Sorne of them went so far as to
associate themselves with that submissiun, but contended for something
else which they would have liked to sec achieved. However, when the
Respondent said: but you (meaning a certain number of States in the
United Nations) abused .the facility affordecl to look at these reports
which I sent to you; you acted as if you really had a power of supervision
which, in truth, I never conceded to the United Nations, we find this
reaction. And, on analysis, it becomes clcar, Mr. President, that in
substance the reaction was a political one; it was not a lcgal one; it was
not based 011any attitude of law which in any substantial sense supports
the Applicants' attitude or their contentions in this case.
It becomes clear, on looking more closely into the debate in question
leading up to this very resolution rcliecl upon by my learnecl friends, that
the grounds upon which these various clelegates relied in supporting the
resolution were rather confusecl, that some of these grounds were not
legal grounds at ail, and that nobody, cvcn then, sought to ground an
obligation on any agreement or consent on the part of the Respondent.
In order to demonstrate this, I propose to refer very briefly to the
attitudes adopted by some of the 25 dclegates in the Fourth Committee
who voted for the resolution. Applicants have quoted the viewsexprcsscd
by four reprcsentatives, those of Cuba, Brazil, Thailand and Mexico, but
in the passages cited by the Applicants only the representatives of the
first two States (Cuba and Brazil) expressed an opinion that the Respon
dent was obliged to recognize United Nations supervisory jurisdiction
over the Territory. The other two did not found their attitude on a legal
obligation. It is therefore convcnient füst to examine the grounds upon
which thcse rcpresentatives of Cuba and Brazil based their attitude.
At the 130th Meeting of the Fomth Cornmittee on 2r November 1949,
the represcntativc of Cuba, Mr. PérezCisneros, cxplained why he was of
the opinion that the Committee was entitlcd to hear petitioners. He said:
"No Trusteeship Agreement had in fact been concluded in respect
of South West Africa. Attention should be drawn, however, to
Article So of the Charter which explicitly stated [and then he
quoted the contents of Article 80 (r). I necd not reacl that and I will
continue with the quotation] It was therefore clear that the situation
which had prevailed under the l\fandate System should not be
changed in the case under discussion. The rights of the people
concerned were clearly compromised when the international
community ceased to receive information on how they wcrc being
administcred, and when the people themselves could no longer
excrcise their right of pctition. He considcred that the Committee
was faced with a flagrant violation of Article 80 of the Charter, a
violation which had not yet been sufficiently emphasized in the
General Assembly." (C.A., O.R., Fourth Session, Fourth Committee,
p. 216.)
It will be observed, r1lr. President, that the attitude was a very vague
one. It involved a complete reliance on Article 80, paragraph r, of the
Charter, in a sense which the Applicants thcmselves no longer seck to
support in these proceedings.
The same attitude was latcr expressed by another representative of
Cuba, Mr. Lopez, still during the course of the samc debates on 23 No- SOUTH WEST AFRICA
vember 1949. I necd not read the passage to the Court, it is at page 236
of the same record.
We corne then to the views expressed by the Brazilian delegate, cited
by the Applicants at page 225, supra, of the verbatim record of 12 May.
Ail that he said that seems to be pertinent was the following:
"South West Africa was not a sovereign state but a territory
placed under the mandate system of the League of Nations, and
consequently, was under the supervision of the community of
nations, namely, the General Assembly."
That is from the same record at pages 223-224. A vague, general
attitude, .Mr. President, is to be observed indicating no precise basis,
certainly no basis of alleged consent on the part of the Respondent to a
substitution of supervisory organs.
In the case of Thailand and Mexico, the other two States referred to by
the Applicants, as I have said already, they did not rely on a legal
obligation. I may point out further that Thailand was one of the six
countries which abstained from voting on the Guatemalan draft resolu
tion, which was eventually adopted, that a hearing should be grantcd to
petitioners-that appcars from page 241 of the record.
During the course of the debate, a number of delegates sounded a
waming that the Guatemalan draft resolution in effect prejudged the
question which it, the Fourth Committee, had not yet answered in the
affirmative and which was proposed to refer to this honourable Court,
namely the very question whether Respondent was obliged to submit to
United Nations supervision. Perhaps the clearest expression of this
attitude was given by the representative of Belgium with whom several
other delegates Jater associated themselves to a greater or lesser extcnt.
That representative, .Mr.de Bruyne, spoke in the same record at page 227,
and I quote:
"IfSouth \Vest Africa was still governed by the provisions of the
Mandate, those provisions should obviously be applied; in that case,
however, there arose a preliminary question, namely, by what right
the Fourth Committee substituted itself for the Permanent Man
dates Commission of the League of Nations, what its juridical
foundations were, and what the source of its legal competence was.
Thus, it would seem that reference to the continuation of the
Mandate System would not solve the question of hearings of rep
resentatives.
A final possible solution might be provided in Chapters XII and
XIII of the Charter. Under Articles 80 and 87 of the Chapter, the
Trusteeship Council could receive and examine petitions. The obvious
fact had to be faced, however, that South West Africa had not been
placed under the Trusteeship System, that might be regrettable but
it was undeniable.
The question of the status of the territory was precisely what the
Commission was trying to solve. Yet those discussing the problem
seemed to prejudge the outcome of their discussion. That was a
grave mistake."
He sounded this very clear waming about the absence or the possible
absence of a legal basis for the Committee to do what was proposed in
this proposai bcfore it; a matter on which there was already a proposal
to obtain the opinion of this Court. • REJOINDER OF MR. DE VILLIERS
We find that similar views which, as I have said, to a greater or lesser
extent associated themselves with this statement by the Belgian rep
resentative, were expressed by representatives of Israel (at p. 229 of the
same record), Canada (p. 229), France (pp. 230-231). Greece (p. 232),
the United Kingdom (p. 233) and Australia (p. 238). Therefore, Mr. Presi
dent, we still see this aspect of the matter strongly emphasized even at
the stage my learnecl friend has now chosen as his battle-field or the
stage of his acid test, which came at the time when the South African
Government said it was no longer sending reports. The most important
point, however, is that whilc 26 countries voted in favour of the draft
resolution proposed by Guatemala, the representatives of only five
countries expressed a more-or-less firm view that Respondent was
obliged to recognize United Nations supervision, and none of thcm based
their view on any agreement or consent by Rcspondent to do so. I have
already dealt in that regard with statements by the representatives of
Cuba and Brazil. I can also very briefly note the views of delegates of the
other three countries-the Philippines, India and China. They have
already been referred to very briefly in earlier stages in another context,
but I may, for purposes of completing the record in this regard, refer to
them very briefly again. The representative of the Philippines adopted
the attitude that Respondent was accountable to the United Nations
because of the provisions of Articles 77 and 80 of the Charter; in other
words, the provisions relating to the trusteeship system and Article 80.
He moreover said that Respondent's decision not to send any further
reports was in violation of Article 73 (e) of the Charter~that we find
in the same record at page 206.
The attitude of Mr. Liu of China was apparently that Respondent was
obliged to account to the United Nations because, and only because, it
was legally obliged in his view to enter into a trusteeship agreement.
That was the attitude then stated by the Chinese representative:
there was a legal obligation to enter into trusteeship agreement and on
that basis Respondcnt was to be regarded as obliged ta account ta the
United Nations. One finds that at pages 208 and the following of the
same record.
The representative of India, Mr. Shiva Rao, placed a very vague kind
of reliance on the 1946 League resolution. Aftcr he had indicated in the
debate that he agrecd with another delegate to the effect that the legal
questions were for the Court and the political questions for the United
Nations, one finds his attitude stated at pages 210 and 2II, and the
Court will recall, of course, that in the next vear India advanced a sub
mission to the contrary in this respect to this Court.
It may then be asked why 26 States voted for the draft resolution
which was eventually adopted if all the representatives concerned were
not of the opinion that the United Nations had supervisory authority in
respect of the Territory. An answer to the question is suggested by some
examples of other attitudes which appear from the remarks made by
particular delegates. Of course, I cannot say to what extent they were
representative ofStates which did not explain their vote, but the examples
are somewhat significant.
We begin with the remarks made by the representative of Haïti at the
r32nd Meeting of the Fourth Committee, on 22 Novernber 1949. He
said the following, at page 228:
"The draft resolution submitted by the Guatemalan delegation SOUTH WEST AFRICA
conformed in cvery way to the noble purposes of the Organization.
An absolutely impartial white man wishcd to speak, in his capacity
of clergyman to make the truth known. On procedural or legal
grounds, it was proposcd to reject the appeal of that defender of
populations which had no other means of making themselves heard.
If the Committee wcre to refuse, on purely formai grounds, to
ascertain the truth, it would be judged severely by world public
opinion and by the conscience of its own members."
At the same meeting, the Liberian representative said the following:
"Human rights should be respectcd by all States ?ilembers of the
United Nations. How could certain populations be prevented from
bencfiting from thosc rights merely bccause they wcre under
forcign administration. The populations of South West Africa should
be given an opportunity of being heard by world public opinion."
(P. 228.)
So, ;\Ir. President. one secs herc a reliance on non-legal considerations
which were summarized by Mr. Garreau of France, as follows at page 230:
"As regards humanitarian arguments, the representatives of
Haïti and Liberia had observed that truth and justice came before
legal quibbling. When dealing with populations who were thought
by some people to be oppressed and deprived of the fondamental
rights proclaimed in the Charter, the Gcneral Assembly could
disregard legal texts and ought to takc a humane decision."
That was the interpretation put by the French rcpresenta.tive upon
thosc two attitudes.
[Public hearing o/ 27 May r965]
Mr. President, at the conclusion yesterday I had very nearly concluded
a brief review of attitudes takcn up by varions States in the debates in
1949 which led to the resolution, passed by the Fourth Committee by
a vote of 25 to 15, to hear a petitioner from South West Africa. I had
indicated towards the conclusion that certain States, of which I quoted
two examples-Haiti and Liberia-indicated attitudes which did not
particularly rely upon a certain view of the legal situation. These attitudes
amounted to this: that therc were factors outside lcgal considerations
which, in the view of the delegates concerncd, J·ustified the proposed
action. And the action takcn by such States di not, therefore, imply
any attitude on their part which would be of any relevance to the Appli
cants' legal attitude in this case regarding the powers or otherwisc of the
United Nations to supervise administration under the Mandate in
South West Africa, or a corresponding obligation on the part of the
South African Govemment to submit to such supervision.
There was one further quotation which I wish to give to the Court
from the speech of the representative of the sponsor of the draft resolu
tion. At the 132nd Meeting of the Fourth Committee, Mr. Mendoza of
Guatemala said the following-it is at page 229 of the record to which
I rcferrcd before:
"The Committee was faced with a situation that was tantamount
to the annexation of South West Africa by another State. In thosc REJOINDER OF ~IR. DE VILLIERS
circumstances, it was justified in granting a hearing to a represen
tativc of the populations of South West Africa, who would state
whether or not those populations were in favour of such a situation."
Again, Mr. President, there was on the part of the very sponsor of the
resolution eventually adopted, an attitude which was not based upon any
legal view affording any support for the Applicants' contention.
It follows, therefore, from this review, that no value can be attached
to the Applicants' conclusion as stated in this regard in the verbatim
record of 12 May, at page 226, supra, to the effect that the adoption of the
Guatemalan draft resolution by the Fourth Committee-
"... sheds light on the original purpose of the rcsolutions of the
Assembly, calling for the submission of reports, and in the Applicants'
,·iew demonstrates that the General Assembly did indeed attempt
through those resolutions ta establish a system whereby Respon
dent's accountability to the United Nations would be made effec
tive".
I respectfully submit, Mr. President, that there is nothing in the record
which supports that conclusion, and that even the "acid test" which
my learned friends chose to put in this regard as a whole fails to provide
any real support for th~ Applicants in their issue with Respondcnt regard
ing Article 6. It merely affords further confirmation of Respondent's
analysis of the situation in the United Nations up to 1949.
So that, l\Ir. President, concludes the further review of attitudes
expressed by various States over the years -in question at the United
Nations, considered necessary by way of rejoinder for the purpose
which I indicated yesterday. Our submission is that nothing which was
said at the rcply stage has detractcd anything from the analysis which
we gave to the Court in that regard in the first instance, but that, on
the contrary, the further discussion has served to confirm that analysis.
It is pcrfccùy clear that, on the whole, therc was no understanding to the
effect that there was an obligation of accountability on the part of
Respondent to the United Nations, and that a substantial number of
States were definite in their view that, outside of trustceship, there was
no such obligation.
I refer again, .Mr. President, to the summary which the Applicants
gave in the form of three propositions-the summary of their contentions
regarding Article 6 of the Mandate. The Court will recall that I referred
earlier to those three propositions, which were stated by the Applicants
as being tendered to the Court for the sake of clearing up any lingering
doubts. They were given to the Court on r2 May, at pages 239-240, supra.
I have dealt with their third proposition, which relatcd to Respondent's
alleged consent to assumption of supervisory authority over the Man
date by the United Nations. I promised at the time to revert later to the
first two.
The second of the propositions, Mr. President, has also been disposed
of, although I did not again rcvert to it by name. The second proposition
read as follows:
"Secondly, the United Nations has replaced the League of Nations
in the capacity as embodying or representative of-it matters not
which way it is put-the organized international community upon
which the 'sacred trust was laid as a responsibility' in the words of
the 1962 Judgment. The United Nations is endowed by Article ro, SOUTH WEST AFRICA
it is invested by the Charter with competence to supervise the
Mandate." (Supra, p. 240.)
Now, l\fr. President, as regards the reference to the "organized inter
national community"-the view taken of the situation, of seeing the
United Nations as embodying or representative of the organized inter
national community, we dealt very fully in our pleadings with contentions
of that nature on the assumption that they were intended to carry some
legal signification. Ian refer the Court to our Rejoinder, V, at pages 31-
53, but, if I understood my learned friends' oral argument correctly,
they indicated in a passage occurring in the verbatim record of 22 March,
VIH, at pages 197-200, that they no longer rely upon this description
as having any legal significance in itself. lt was merely a broad form of
description to cover their real submissions as to the legal situation,
based on what had occurred, and, in particular, this form of description
did not render it unnecessary for them to rely upon consent on the part
of the Mandatory to a substitution of superv1sory organs. The only
contention of real legal significance contained in this second proposition
is, therefore, to be found in the last sentence, which statcs: "The
United Nations is endowed by Article ro, it is investcd by the Charter
with competence to supervise the Mandate." I have already dealt with
the submission, as far as Article ro was rclied on, for saying that the
United Nations, as an organization, was endowed with certain powers,
as distinct from particular fonctions having been assigned to an organ
of the Organization, the General Assembly, once it had been decided that
the Organization was endowed with a power. I need not take that matter
any further-1 dealt with it fully yesterday.
The sentence, however, also suggests, more generally, that the United
Nations is invested by the Charter with competence to supervise the Man
date. Mr. President, in that regard my submission isthat the Charter, qui te
clearly, could not glve to the United Nations a power which it could not
have without the consent of the Respondent, and it has not been so
suggested in the Applicants' argument anywhere. In fact it seems to be
common cause hetween the Parties that as far as the provisions of the
Charter are concerned they, by themsclves, do not provide for an obliga
tion on the part of the Respondent to submit to supervision on the part
of the United Nations in respect of the performance of its obligations
uncler the Mandate. At most, this description of the Charter providing
for a certain competence or for certain powers on the part of the General
Assembly of the United Nations can be taken in that alternative sense
of the words "supervisory compctence" or "supervisory power". It
can only relate to the competence which the Organization wbuld, as a
constitutional matter, be able to exercise ifthere were an obligation on
the part of the Respondent to submit to its supervision.
That, therefore, takes the matter no further. The crux still lies in the
third proposition which alleged consent on the Respondent's part, but
this proposition must, in my submission, for the reasons I have given,
be taken to have failed.
The first proposition was concerned with the suggested nccessity of
the element of international accountabilitv, and read as follows in the
verbatim record of 12 May: ,
"ln the first place. administrative supervision as an obligation
is an essential part of the mandate system, inescapably linked to REJOINDER OF MR. DE VILLIERS
the due performance of the obligations of theMandatory towards the
inhabitants and the organized international community; again,
inthe mandate jurisprudence of thishonourable Court, to exclude the
administrative accountability of the Respondent would be 'to
exclude the very essence of the Mandate', at page 334, I.C.].Reports
I962." (Supra, p. 240.)
Now, Mr. President, I should like to take up, first, this reference to the
"mandate jurisprudence of this honourable Court". \Ve submitted in
regard to the r950 Opinion, and we have consistently advanced this
submission to the Court in the pleadings and again in our oral argument
in chief, that it did not treat the element of accountability under Article 6
as an essential part of the Mandate in the sense that the rest of the Man
date could not exist without it. I need not repeat my argument because
it has nevcr been answered, I am merely drawing attention to that.
Secondly, as far as the 1962 Judgment on the Preliminary Objections is
concerned, it is at least very highly questionablc whether this expression
referring to the exclusion of "the vcry essence of the Mandate" was
intended to refer to the obligation under Article 6 at ail. On the contrary,
we submitted to the Court that, on a proper analysis of that judgment,
the indications are that its authors wcre of the opinion that supervision
under Article 6 had lapsed, or may well have lapsed, to put it at its very
lowest; and that argument on our part has also not been met in any way
by the Applicants.
Mr. President, there is also in the proposition a reference to the element
of essentiality,and I should like to say something more about that. The
Applicants place considerable emphasis on this factor of necessity of
supervision in respect of the Terri tory, and they doit in a rather peculiar
way. It was, of course, a recurring theme of the Applicants' case at
earlier stages of the procecdings, and we have had occasion to point out
in the past that the existence of such cssentiality could have servcd to
cause the lapse of the Mandate as a wholc upon dissolution of the League,
but that it could not have served by itsclf to kcep the Mandate alive nor
a /ortiori could have served to provide a new supervisory organ to replace
the League. For those things new consent would have been necessary.
But, Mr. President, we find that in the oral reply, to which we are now
offering this rejoinder, the Applicants again relied very heavily on
various submissions in regard to necessity of supervision, as an argument
why the Court should find that accountability still exists, and they
illustrated it with certain new examples. For instance, they ascribed a
role to the administrative supervisory organs as being necessary, inter
alia, for the establishment of the standards to be appHed by the Court,
which is a point with which we shall deal in the later portion of the case
regarding Article 2 of the Mandate. They relied on that neccssity for the
effectuation and the implementation of any judgment which the Court
might deliver in this case. That the Court will find in the verbatim
record of 12 May, at pages 232 and 234, supra. They rely on it as being
necessary for the supervision of the implementation of the Odendaal
Commission report-that we find in the same record, at pages 232 to 234-
They also rely on such necessity to ensure that the Territory would n~t
become "effectively militarized in two or three days". Those were thetr
words and they are to be found at page 232 of the same record.
Again, )Ir. President, our submission is quite simply that these ar~ not
legal argwnents. They are legislative arguments in the sense wh1ch I SOUTH WEST AFRICA
ascribed to that term earlier. They do not relate to any basis upon which
the Court could decide in accordance with principles of law. At most, they
arc arguments which show why a particular measure could be considered
desirable, depending upon the outlook of the person who has to decide
whether it is desirable or not, rather than arguments showing that it is
something which exists. We frequently emphasized that this Court is a
court of law and nota court of expediency. lt may be preferable in many
situations of which one can think, to have international control of them;
it may well be considered desirable to have supervision in respect of
particular territories or particular countries because of what is allcged
to be happening in those countries, but that would not justify a court's
departing from its legal fonction of determining whether there does or
does not exista legal arrangement whernby such supervision eau lawfuHy
be exercised, or whether there is an obligation on the part of the Govern
ment conccrned to submit to such supervision. I may refer, as an cxample,
Ilfr. President,to a rather amusing incident: after we had offered to this
Court the invitation to undertake an inspection of the Territory of South
West Africa and proposcd that therc should be an inspection of other
territories, we received documents from an organization calling itself
"The Ethiopian People's Movement Council", in which there arc ail
kinds of allegations of alleged oppression in the State of Ethiopia.
Vlhethcr they are truc or whether they are not, nobody knows of course.
but, nevertheless. that was a reaction which one found. The style of
writing is reminiscent, indeed, of the style which one finds in man y of the
petitions which have been submitted on behalf of inhabitants of South
West Africa to the United Nations. \Vhether the authors are the same,
or are related, one does not know; it mav be, on the other hand, that this
is a perfectly genuine case, and that there are complaints of this nature.
The mere fact that one does not know may possibly serve as an argument
that it is desirable in circwnstances of that kind to have a system of
international supervision to probe into the facts-to find out whether
such allegations are true or not. But, Mr. President, the Court can take
no account of a desirability of that kind, nor even of a suggested necessity
of that nature.
Reccntly, i\frPresident, there wcre reports in the Press about corn
plaints by a certain International Federation of Airline Pilots Associations
about allegcdly very serions maltreatment of, and denial of human rights
to, two of its pilot members in Liberia-that was the gist of the accusa
tion. It was said that that was the result of official action in Liberia, and
the Federation took such a serions view of it as to forward the cornplaints
in writing to govemments all over the world, including the South African
Govemment. Mr. President, again the same remarks apply: whcre there
are alleg-ations of that kind it may well be desirable, or it may well be
argued that it is, or would be, desirable, or necessary to have a system of
supervision, but that is not an argument for this Court. I would not suggest
that, on the basis of such allegations having been made, this Court ought
to find that there is an obligation on the part of those govcrnmcnts to
submit to international supervision.
Thercfore, Mr. President, I submit that the first proposition of the
Applicants, and the way in which they elaboratcd it in thcir oral reply,
take the matter no further.
That brings me to the 1950 Opinion of the Court. As we have noted,
the Applicants did not deal with our analysis of that Opinion with REJOINDER OF MR. DE VILLIERS
referênceto the question now under discussion, and it is, consequently,
not necessary to repeat the basis which we contend the Court adopted in
reaching its decision, but there are one or two points which call for
comment.
ln the verbatim record of 12 May 1965, the Applicants said the
following:
"lt carne as something of a surprise to the Applicants to learn that
any proposition which they could scriously advance could fumish
the basis for a reconsideration de novo or otherwise of the 1950
Advisory Opinion-we are still at a loss to understand what such
a motivation would be grounded upon." (Siipra, p. 240.)
\Ve did think, Mr. President, that we had made clear which of the
Applicants' propositions, advanced in ail apparent seriousness, fumished
a basis for a reconsideration of the 1950 Opinion-in conjunction, of
wursc, with othcr factors.
These propositions in the Applicants' contentions were the following:
Firstly, there was the Applicants' admission that, in order to succeed,
thcy werc obliged to establish that Respondent had, as a fact, consented
to a substitution of the United Nations for the Leaguc as supcrvisory
organ in respect of mandates, in the transitional period 1945 to 1946 or
thereafter. This admission, is of course, in direct conflict with the inter
pretation which they formerly placed on the Opinion, particularly in
1962, during the Oral Proceedings on the prelimmary objections, when
thcy said that none of the dec1sive reasons underlying that Opinion
rested on a premise of tacit consent.
Consequently, Mr. President, one of two alternatives must be appli
cable; eithcr the Applicants' 1962 interpretation of the Opinion is correct.
and that thcy consequently now regard the Opinion itself as having been
incorrect in the respect in question, or it follows as an alternative that the
Applicants' 1962 interpretation of the Opinion was wrong and is now
admitted by them to have been wrong.
Secondly, the Applicants' contention that the Court crrcd in 1950 as
regards the correct interpretation to be placed upon Article So, paragraph
1, of the Charter (that was stated in the verbatim record, 31 March, at
VIII, p. 303), is a further relevant consideration. In the Oral Proceed
ings in 1962. however, the Applicants, as the Court knows, contended
that Article 80, paragraph 1, played an important role in the Court's
reasoning and consequently hcre again, there are two possibilities
inherent in the Applicants' prescnt attitude: their present attitude must
be either that the Court was wrong in 1950, or that the Applicants'
interpretation was wrong in 1962.
In the result, Mr. President, the Applicants' contentions involve
that the Court erred in major respects in its reasoning in 1950, or that the
reasoning of the 1950 Opinion is in material respects open to widely
divergent interprctations, or both. On any of these bases, their conten
tions, if seriously advanced, indicatc, in our submission, at lcast aprima
/acie.additional necd and justification for a thorough re-appraisal of the
whole matter: that is, in addition to what we submit to be the real rcason
why it is desirable to have such a re-appraisal of the situation having
regard to the facts which were not bcforc the Court in 1950.
It is significant that the only attempted answer prescntcd by the
Applicants to these arguments of ours, which we statccl earlicr and which
are rc-stated bricfly with a view to noting their reaction, is to be found SOUTH WEST AFRICA
in the verbatim record of 12 May at page 240, supra, where they said the
following:
"... the Applicants rely upon the 1950 Opinion and consider that it
should be foilowed and if it is possible to make that contention any
more clearly than the Applicants have made it, the Applicants
welcome this opportunity to assure the honourable Court to that
effect".
The Applicants do not, however, Mr. President, tell us upon which
basis they rely on the 1950 Opinion; they do not say whethcr it is on a
basis of res judicata, or on a basis of "the law of the case", which was one
of the expressions they used, or on the basis of "the mandate jurispru
dence", which is another of their expressions, or on the principle of
Eastern Carelia. Ali of these, Mr. President, have been propounded at
some stage or another by the Applicants as the basis for rcliance upon the
1950 Opinion. They do not tell us whether they rely on the Opinion for
some formal reason or another of this nature, or whether they rely on it
on the basis of its reasoning. If the Applicants suggest the reasoning of
the 1950 Opinion as forming the basis for their reliance thereon, then the
further questions arise: How do they suggest that the rcasoning is to be
interpreted? Must it be interpreted, Mr. President, as involving a doctrine
of succession, or an application of the cy-près doctrine? Must it be inter
preted as resting on consent on the Respondent's part in 1945 or 1946?
Must it be interpreted on the basis that lack of consent in 1945 to 1946
is irrelevant? Is it relied upon, Mr. President, on the basis of its heavy
reliance on the positive effect of the "conservatory clause", i.e., the
heavy reliance ascribed toit by the Applicants, of course, on Article 80,
paragraph 1, of the Charter, or is it relied upon by the App!icants on the
basis of ascribing toit a very heavy reliance on Article 10 of the Charter?
Is it relied on as being based on what the Applicants call the "interna
tional rules regulating the mandate", or on the objective elements of the
situation, or on what else? I am not mcntioning these things in order to
be facetious, l\Ir. President. The fact is that the Applicants tell us from
time to time that this is the basis on which they rely on the Opinion.
This isthe meaning they ascribe toit and when they run into difficulties
they drop that one and they corne on to another one.
The Applicants do not tell us clearly or exactly where they now stand
when assuring us that they rely on the Opinion. That is vcry significant,
because our attitude has alwavs been a consistent one to the effect that
the Opinion rested upon a finding of fact concerning tacit intent on the
part of the intercsted parties during the transitional years. lnasmuch as
that was, in our submission, the true basis for interpretation of the
Opinion, it becomes so relevant to have regard to the facts which were
not before the Court in 1950 and could not therefore have been considered
by it in 1950 but could reasonably be cxpected to have influenced the
decision at which the Court arrived eventually, had those facts been
before it.
The Applicants have consistently sought to evade this view of the
situation. They have tried to minimize or rule out the possible significance
of new facts. We find that even in the oral reply to which we are now
offering this rejoinder, the Applicants still quote the 1962 Judgment as
saying-"all important facts were before the Court in 1950"-that
quotation appears in the verbatim record of II Mav, at page 197, supra.
Nevertheless, it seems that they now, even if only·for a brief interlude, REJOINDER OF MR, DE VILLIERS
relented somewhat in that rigid attitude. They did that when they found
something which they thought could assist them as a new fact, namely
this Nicholls' story, the story about Mr. Nicholls' statemcnt and the
attendant matters in the Preparatory Commission. And so we find,
Mr. President, that they say in the verbatim record of II May, the:
following:
"A careful reading of the submissions before the Court in 1950, of
the arguments before the Court in 1950, shows that thcre was not
an elaborate or even a studied demonstration or representation to
the Court in 1950 concerning the actual circumstances within the
Preparatory Commission at that time-the Applicants have now·
endeavoured to lay thesc bcfore the Court in perspective. lt would_
seem reasonable to assume that if the Court in 1950 had known,
for example, about Mr. Nicholls' proposai for the establishment of a.
temporary machinery to which to report, if the Court had known
that other Mandatories had supported a similar procedure, if the
Court in 1950 had known that there was substituted for this proposai
the technique of the pledging procedure-if the Court had known
this in 1950,it seems to the Applicants, far from changing their view
with regard to the proper interpretation of the circumstances, they
would have regarded their view to be fully confirmed and justified. "'
(Supra, p. 188.)
And in the same record, Mr. President, at page 189, the Applicants even.
went so far as to contend that the two dissenting judges in 1950, Judge
Reed and Judge McNair, might then have agreed with the majority
judgcs if they had merely known about these new facts.
Now, Mr. President, that the whole contention about the episodc of
:\-IrNicholls' speech and attendant circumstances has collapsed-as we
submit it clearly has on a proper review of all the relevant facts-one
,vonders what the Applicants' attitude is now going to be; are they going
to withdraw into their shell again and say that there are no new facts
which could assist the Court, or which could have affectcd the judgment
of the Court in 1950? \Ve submit, :Mr. President, that the still deeper
probing into the facts has advanced our contention about the 1950
Opinion considerably further-that there are facts which werc not before
the Court in 1950 and which could and, in our submission, ccrtainly
would have exerciscd an influence on it had they bcen known. The
further probing into the matter as a result of the Applicants' contention.
about Mr. Nicholls' speech and about the attitude of the other manda
tories in that regard has brought to light the proposai by the United
States of America in the Preparatory Commission, the proposai which,
although put on the agenda, was eventually not further referred to at
ail-a further very significant feature, with which I have dealt, and
which I need not repeat. We submit that had these full facts, as now put
before the Court, been before the Court in 1950-as the Applicants now
admit was not the case-then it is inconceivable that the Court in its
Advisory Opinion could have corne to the conclusion that Respondent
consented to United Nations supervision over the Mandate.
That brings me, Mr. President, to the various questions which were
put by Members of the Court and to the argument addressed to the Court
by the Applicants in regard to the possible applicability, or non-applica
bility of Article 73 of the Charter to the case of South West Africa. On470 SOUTH WEST AFRICA
1
14 April 1965 , the following question was put to the Parties by the
honourable Judge Jessup:
"ln the interpretation and application of Article 73 of the Charter
of the United Nations, is South West Africa to be considered one of
those territories whose peoplcs have not yet attaincd a full measure
of self-government, as this phrase is used in that Article?"
2
On 13 May , the President asked the Parties to give consideration to
certain stated facts, nine in number, in the response which the Parties
would make to Judge Jessup's question. This scries of questions, l\Ir.
President. raises very important issues, which have, or may have, far- ,
reaching legal and political implications. As the Courtis aware, the exact
scope and content of the Article have never been defined to the satisfac
tion of everybody concerned. In this regard, I may convenicntly refer at
the outset to the facts set out by the honourable President in the questions
to which I have referrcd-dealing, as they do, with events at the San
Francisco Conference. With the greatest respect, Mr. President, we have
checked on the facts for accuracy and context as you askcd us to do, and
we say, respectfully, that thcy are, indeed, as far as wc can ascertain,
accurate extracts from the record.
It seems clear from facts I to 4, inclusive, that the gencral purpose of
Article 73of the Charter was to extend the main principle of trusteeship,
of guardianship, of the mandates system to colonial territories generally.
This, of course, does not by itself answer the question whether former
mandated territories werc intended to fall within the tcrms of the Article.
It was an intent to extend thcse principles, broadly speaking, to colonial
territories generally, but the answer in regard to mandated territories
does not automatically follow from that. The intention may well have
bccn to limit Article 73 to colonial tcrritories and to provide for former
mandated territories only within the context of the trustceship system.
As a mattcr of textual interpretation atone there is much to be said for
a contention to the latter effect. I may refer the Court in this regard,
rcspcctfully, to the oral addrcss to this Court by the South African
representative, Dr. Steyn, in the 1950 Advisory Proceedings. That is to
be found in the Pleadings, Oral Arguments, Documents of those proceed
ings, at pages 304-312.
As far as the actual discussions at the San Francisco Confcrence were
concerned, it would appear, from the facts numbcred 5 to 8 mcntioned
by the honourable President, that there existed considerable support for
the attitude that territories then held under mandate did indeecl fall
within the terms of Article 73.
However, Mr. President, there also exist strong indications to the
contrary about attitudes thcn takcn by various delcgatcs, as was shown
by Dr. Steyn in his acldress, at pages 308 and 309.
This difference of opinion which existed is one factor of clifficulty in
relation to the question which has been put. A furthcr source of difficulty,
Mr. President, in answering the question of Judge Jcssup, is that it
relates to the present applicability of the Article to the Territory. In
order to answer it, Respondent would consequently not only have to
consider whether Article 73 was regardcd by its authors as applying to
1 See VIII, l\Iinutep.1o.
1 Ibid., pp. 38-40 REJOINDER OF MR. DE VILLIERS 47I
territories then held under mandate, but, with a view to assessing the
implications of the situation, legally, politically, practically and otherwise,
but also have regard to the extent to which subsequent developments
may have affected the position. These developmcnts are of a twofold
nature. In the first place, the political development of the Territory itself
has advanced bcyond the stage at which it was in r945. Secondly, the
manner in which Article 73 has been sought to be appliecl by majorities.
inthe organs of the United Nations has changed to such an cxtent as to
raise the question whether an administcring authority, evcn in a case initi
ally falling undcr the Article, would not now be entitled to refuse to submit
to the obligations undcr the Article by reason of non-compliance there
with by thcse very majoritics-the majorities holding sway in the organs.
of the United Nations itself. That is a very important practical and
juridical question which would arise if one werc to go fully into the
question as it has bcen put to the Parties by the honourable Judge
Jessup. As an illustration of this possibilit1 shall shortly rcfer the Court
to certain of the salient fcatures just by way of example of what has.
occurred in this regard.
In view of these circumstances, Mr. President, a proper answer to the
question put by the honourable Judge would require a great deal of
research and thought, and would involve implications of a legal and a
political nature stretching very far beyond this case itself. Whereas these
considerations would not have deterred us had the question related to a
matter directly in issue, we must, with the greatest respect, point out
that that is not the position he:iieThe Applicants have not asked the
Court to determine that Article 73 is applicable to the Territory, and in
view of the provisions of Article 7, paragraph 2, of the Mandate, which
are relied upon as the sole source of the jurisdiction of the Court in
respect of this case, the Court would, in our respectful submission, possess
no jurisdiction to makc such a determination if it were formally asked to
do so in these proceedings.
The Applicants have not asked the Court to makc such a detcrmination,
they have indicated an attitude in which they strenuously contest the
applicability of the Article. In these circumstances, Mr. President, the
question is, therefore, as amatter of law and as a matter of fact, not one
which is submitted to the Court for determination. And, in view of aU
these circumstanccs, we must regretfully, and with the greatest respect,
decline to express a definite point of view on the question put by the
honourable Judge Jessup. It is, of course, with great reluctance that we
adopt this attitude, but the practical implications, particularly in the
light of the examples to which I shall now refer the Court, arc such as to
leave us, in our judgment, no alternative.
May I, in referring to certain examples of the practical implications,
refer to the analysis which the Applicants have ventured in this regard
as to the scope of Article 73. In our submission, not only have the Appli
cants given an incomplete rendering of the historical record with regard
to the inception of Article 73, but thcir analysis of the scope of the
Article also calls for comment in the light of actual occurrences at the
United Nations.
Firstly, the Applicants made the point that the United Nations does
not decide which territories should fall under Article 73 (e) of the Charter
and does not enlarge the list of such territories, it having becn left to the
i\iembers to decide which territories should be taken up in such list. That47 2 SOUTH \\!EST AFRICA
·the Applicants very clearly submitted to the Court in the verbatim
record of 19 ?Ilay, at pages 367-368, supra.
Secondly, r--IPresident, with regard to the scope of reporting under
.Article 73 (e), the Applicants made the following submissions:
At page 368 of that record that "Article 73 (e) does not provide for
politicalinformation";
That Article 73 (e) "is ... limited in scope to 'statistical and other
information of a technical nature' ";
That "no consultative procedures are envisaged in Article 73 (e)";
That "no right of petition is provided for in Article 73 (e)";
At page 369, "no provision is made or implied in Article 73 (e) with
regard to the hearing of petitioners";
And this further quotation, from page 369, that-
"under Article 73 (e), the information transmitted by administer
ing authorities is sent to the Secretary-General for information
purposes; it is summarized and analysed by the Sccretariat and
recommendations are made only in functional areas and not to
particular administering authorities or in the context of particular
dependent territories".
Now, when the actual record of developments in the United Nations is
-examincd, it becomes clcar that there is an enormous difference between
this interpretation and application of Article 73, as given by the Appli
cants,and the present practices in purported application of the Article at
the United Nations, practices which, I may say, are enthusiastically
participated in by the Applicant States.
To attcmpt to deal exhaustively with the developments in the United
Nations in this regard would, in our submission, be an enormous task.
I am, therefore, offering only some very brief illustrative events and
:aspccts-bringing them to the attention of the Court so as to give some
indication ofthe nature of the problem which confronts one.
Let us take the fi.rst point made by the Applicants, namely that the
United Nations does not dccide which territories should fall under
Article 73 (e) of the Charter. lt is true, ~Ir. President, that no provision
was made in Article 73, or anywhere else in the Charter, that any organ
of the United Nations would have competence to decidc which territories
fa]] under Article 73. And the General Assembly, indecd, initially left it
to the Members concerned to determine which terri tories fell within the
-category of non-self-governing territories.
Member States, initially, in fact decided for themselves in respect of
which territories information was to be transmitted, and they also
decided when it was no longer necessary to transmit information. To
mention only a few examples, the United States ceased to transmit
information on the Panama Canal Zone, the United Kingdom ceased to
transmit information on Malta and France ceased to transmit information
on a number of territories after 1947, including French Guiana, Guade
loupe, Martinique, Réunion, New Caledonia, French Oceania, and others.
The information in this regard, Mr. President, is given in a publication
of the United Nations in 1950. It is given the reference number A/915
and it is entitled Non-Sel/-Governing Territories: Summaries and Analyses
<JjInformation transmitted ... during I949 (U.N. Pub. 1950, VI.B.1),
Volume I, pp. 7-8. REJOINDER OF .MR. DE VILLIERS 473,
But this position, Mr. President, changed in due course, first gradually
and then apace. It would require very considerable research to trace the
developments through their various stages, and I do not propose to do so,
as we have not instituted the necessary full enquiries. Suffice it to say
that by 1960 the matter had progressed to a stage where the General
Assembly adopted resolution 1541 (XV), of 15 December 1960, which
formulated certain "Principles which should guide Members in deter
mining whether or not an obligation exists to transmit the information
called for under Article 73 e of the Charter''.
On the very day of the adoption of these "principles" they were
applied in fact to a number of Portuguese territories despite Portugal's.
protest, having been a bone of contention for some time whether Portu
guese territories were to be treated under Article 73.
In the very next numbered resolution, No. 1542 (XV). the General
Assembly declared that-
"... an obligation exists on the part of the Government of Portugal
to transmit information under Chapter XI of the Charter concerning
these territories... ".
That was adopted on the very same day, 15 December 1960.
Later, Mr. President, with regard to Southern Rhodesia, the General
Assembly went even further. Although the constitutional provisions
applying to Southern Rhodesia quite clearly made that territory self
governing, in the economic, the social and the educational fields at least,
the General Assembly adopted a rcsolution in 1962 in which, in a pream
ble, it bore in mind that, according to one of the principles stated in the
resolution to which I have referred,
"... the constitution of a N on-Self-Governing Terri tory giving it
self-government in economic and social matters has to be established
through freely elected institutions".
Further, in this resolution it relied on "the fact that the indigenous.
inhabitants have not been adequately represented in the legislature and
not rcpresented at ail in the government"; and the General Assembly
resolved to request the Special Committee on "The situation with regard
to the implementation of the Declaration on the granting of independence·
to colonial countries and peoples", which was created in 1961, to consider
whether Southern Rhodesia was not a non-self-governing territory. The
resolution was No. 1745 (XVI) of the Sixteenth Session, 23 February
1962. That was the request, then, to this Special Committee on impie-·
mcnting the granting of independence to colonial peoples and territories.
That Committee was to go into the question whether Southern Rhodesia
was nota non-self-governing territory: it was no longer left to the author
ities concemed.
And on 28 June 1962 the General Assembly, despite legal objections,
affirmed that Southern Rhodesia was a non-self-governing territory
within the meaning of Chapter XI of the Charter, and designated the
United Kingdom as the administering power. That was resolution 1747
of the Sixteenth Session, 28 June 1962.
Itis interesting to note, Mr. President, that Ethiopia was a member of
the Special Committee of Seventeen, now known as the Committee of
Twenty-Four, namely the Committee on the Irnplernentation of the·
Declaration of lndependence, and that both Applicants, in fact, supported. SOUTH WEST AFRICA
474
the development which I have just mentioned, and yet they say to tlus
Court-
"Neither Respondent nor any other administering authority ever
has been requested by the United Nations to add their dependent
areas to the list of non-self-governing territories." (Supra, p. 368.)
Mr. President, in regard to the second set of points made by the
Applicants, concerning the scopc of reporting under Article 73 (e) and
the method of dealing with such reports, there an even more striking
change has taken place in the actual practices of the United Nations. I
mean here, of course, the various points which the Applicants made about
no political information being provided for, nor petitions, nor hearings of
petitioners, and about recommendations being made only in functional
areas and not with regard ta particular authorities or particular terri
tories.
The pressures against this initial situation started very early, and it
would again be a tremendous task to trace their various phases of
developrnent. From time to time one knows that there were resolutions
encouraging and later exhorting Members to transmit political informa
tion voluntarily, as it was put in those resolutions. But this concept of
"voluntariness", if I may use that word, was dropped after 1959. lt
disappeared entirely from the resolutions, never to return.
Resolution 1535 (XV), dated 15 Dccember 1960, of the Fifteenth
Session, which we noted before, inter alia, in paragraph 7-
"... notes with regret that ... the absence of information of a
politicaland constitutional character on a majority of these Terri
tories renders it impossible to assess the extent of their progrcss
towards the goals of the Charter;
8. Considers that a full knowledge of the political and constitutional
developments in Non-Self-Governing Tcrritories is essential not
only to a proper evaluation of the progress of the Territories towards
independence but also to that of their economic, social and cultural
advancement;
9. Urges once again the Administering Members concerncd to
extend their full co-operation to the General Assembly in the
performance of its functions by transmitting information of a
politicaland constitutional character."
By resolution 1700 of the Sixteenth Session, 19 December 1961, the
General Assembiy broadened the terms of reference of the Comrnittee
on Information, and decided that this Committee should examine
political or constitutional information as well as information relating to
the functional field.
These fonctions of this examining Comrnittee were linked to those of
the Special Committee for the implementation of the granting of indepen
dence to colonial peoples and countries. The linking of these fonctions
occurred in resolution 1654 (XVI) of 27 November 1961.
And on 19 December 196! the Gencral Assembly reacted to Portugal's
refusai to transmit information under Article 73 by adopting a further
resolution in that regard. That was resolution 1699 (XVI) of the Six
teenth Session, adopted on rg December 1961 as I have said. A salient
feature of this resolution was the establishment of a Special Committee,
inter alia-
"... to examine as a matter of urgency, within the context of REJOINDER OF MR. DE VILLIERS 475
Chapter XI of the Charter and relevant resolutions of the Assembly,
such information as is available conceming Territories under
Portuguese administration, and to formulate its observations,
conclusions and recommendations for the consideration of the
Assembly and any other body which the Assembly may appoint to
assist it in the implementation of its resolution 1514 (XV)".
The resolution refcrred to, Mr. President, was the Declaration on the
Granting of Indcpendencc to Colonial Countries and Peoplcs, and the
other body was, of course, the Committee appointed for the implemen
tation thereof.
There was here, quite obviously, no longer any limitation to non
political information, or to functional areas. In addition, the General
Assembly, in paragraph 5 of that resolution relating to Portugal, autho
rized the Special Committee "to reccive petitions and hear petitioners.
concerning conditions prevailing in such terri tories".
The trend was not confined to the reporting provisions of Article 73 (e),
but extended also to the substantive provisions of the Article. As Members
of the Court may be aware, Article 73 (b) and Article 76 (b) reflect a
compromise in their wording, a compromise which was arrived at in
San Francisco whereby the latter article, Article 76 (b), spoke of "devel
opment towards self-government or independence", and the former,
Article73 (b), referred only to, "to develop self-government". The word
"independence" was not uscd in Article 73 (b) specifically as a rcsult of
the compromise arrived at. The history of the matter is dealt with, inter
alia, by Goodrich and Hambro in Charter of the United Nations, revised
edition, 1949, especially at pages 410 and 422 to 423.
The idea was that the term "self-government" in Article 73 (b} might.
but need not necessarily, include independence. Sorne of the administering
powers insisted that this degree of elasticity should be allowed and that
msistence on their part became part and parcel of the compromise. It was
uphcld in the compromise and therefore we find that "independencc" is.
not referred to in so many words in Article 73 {b) but is referred to in
Article 76 (b) dealing with the trusteeship system.
But, Mr. President, as from about 1960 the cry of the majority in the
General Assembly was for nothing but indepcndence in relation to Article
73 territories, and thcn independence of a very special kind. Resolution
1514 (XV) of 14 Dccember 1960 of the General Assembly, that is, the
declaration on the granting of independence to colonial countries and
peoples, provided, inter alia, that-
"lmmediate steps shall be takcn, in Trust and Non-Self-Governing
Territories, or ail other territories which have not yet attained
independence, to transfer ail powers to the peoplcs of those terri
tories, without any conditions or reservations, in accordance with
their freely expressed will and desire without any distinction as
to race. creed or colour, in order to enable them to enjoy complete
independence and freedom."
The special committee for the implementation of this declaration,
originally known as the Special Committee of Seventeen and now known
as the Committee of Twenty-Four, gradually took over complctely from
the committee on Information from Non-Self-Governing Territories, and
in 1963 the General Assembly formally requested the committee on
implcmentation to takc over the fonctions of the other committee and.
the latter was then dissolved. SOUTH WEST AFRlCA
ln addition, the same resolution requested the special committee on
implementation to study the information submitted by administering
.authoritiesand to-
"take it fully into account in exarnining the situation with regard
to the implementation of the Declaration on the granting of indepen
dence to colonial countries and peoples in each of the Non-Self
Governing Territories, and to undertake any special study and
prepare any special report it may consider necessary in addition to
Jts activities under General Assembly resolutions 1654 (XVI) and
r8IO (XVII)" (Resolution No. 1970(XVIII) dated 16December 1963).
This special committee, ~fr. President, therefore has a very free hand
.and apparently it exercises it very freely, as the records indicate. It
concentra tes on examining the situation in specific territories; it receives
petitions; it hcars petitioners; it sends visiting missions to wherever it
wishes. The committee has been deeply concerned when visiting missions
have not been granted access to territories which they wished to visit, but
they have proceeded to remedy the gap by sending missions or sub
-committees to adjoining territories in order to grant audience to political
refugees and others, and in this manner the desired information is then
,obtained. Only this last week-end we read in the press, Mr. President,
that the cntire committee with officiais, constituting a full mission of
about 60 strong, was on its way to Africa again. The Committee has
·further bccn specifically invited, by the General Assembly amongst
others, "To continue to seek the most suitable ways and means for the
speedy and total application of the Declaration to all territories which
·have not yet attained independence" (Resolution 1810 (XVII), 17 De
cember 1962). And all the administering powers have been exhorted to co
operate in the implementation of this task by the committee. We find such
,exhortation, for instance, in resolution 1956 (XVIII) of II December 1963.
Therefore, Mr. President, we find that from a legal situation which was
intended to involve very much less than supervision initially, there has
now evolved a factual situation extending very far beyond supervision.
The protests of the administering States have been to no avail. The whip
is cracking for nothing but independence without delay-independence
,of the special kind of which we have already taken note.
In these circumstances, Mr. President, the Court will, with respect,
have little difficulty in appreciating the far-reaching legal and political
considerations that would be involved in an attempt to answer fully the
question of the honourable Judge Jessup and the considerations which
have had a practical bearing upon our decision to decline, with the
greatest respect, the offer of an answer to a question which does not form
·part of the dispute before the Court.
That concludes my reply to the questions put in regard to Article 73
and the arguments offered in that regard by my learned friend. It also
,concludes what I had to say in regard to the general subject of Article 6
and of the Mandate and matters peculiarly concemed therewith.
It remains for me to offer some brief remarks on the subject of the
lapse of the Mandate and to answer two questions put by Members of the
·Court in that regard. 1
Mr. President, on 22 April, reported in the verbatim record , the
1See VIH, Minutes, p. 18. REJOI!>IDER OF MR. DE VILLIERS 477
following question, which I read in its translated form, was put to the
Respondent by the honourable Judge Koretsky:
"If the Mandate for South \Vest Africa lapsed on the termination
of the League of Nations, what, in Respondent's vicw, is now the
legal nature of the right of the Republic of South Africa to administer
South West Africa?"
Mr. President, the question, in our respectful subrnission, arises
logically frornthe Respondent's contention that the Mandate, as a whole,
has lapsed. That this is the case, has quite obviously been consistently
acknowledged by Respondent in these proceedings. I can refer the Court
in this regard ta the Oral Proceedings on the Prelinùnary Objections, at
VII, page 354, to the Countcr-Memorial, 11,at page 173, and to the
Rcjoinder, V, at pages 82 to 84. However, Mr. President, equally con
sistently and with the greatest respect, Respondent has also pointed out
that the question does not fall to be considered or decided for the purposes
of the present case. We did so at these very same places in the record to
which I have referred the Court.
In the Counter-Memorial we only stated this fact as being an obvious
one. But in the Reply the Applicants' reaction was that, is so doing, the
Respondent was "curt" towards the Court. That was the word used by
the Applicants in the Reply, IV, at page 244, and the rnanner in which
they there dealt with the matter suggested that Respondent had also
becn evasive in this regard.
Consequently, in the Rejoinder, we went into more detail than before,
in order to show that these suggestions on the Applicants' part were
unfounded.
At page 82 of the Rejoinder, V, we cited a statement of the Applicants
in their Reply which read as follows:
"Applicants respectfully submit that ... there is no basis whatever
other than the Mandate itself, for the continued exercise by Respon
dent of rights of administration, or of any other right, title or
interest in or to the Territory."
We continued then to point out, Mr. President, in the first place that if
that subrnission were to be a formai one, in terrns of which the Court
were asked to adjudge and declare, this Court would unquestionably have
to decline jurisd1ction to do so.
\Ve pointed out further, that, as far as we could see, the subrnission
could not even indirectly be of assistance to the Court in the decision of
the case which was actually before it, the case, namely whether the
Mandate existed and, if so, whether it contained an obligation of account
ability. We stillwith the greatest respect maintain this position.
The Applicants' case is not that the Respondent is committing a
trespass by being in possession of South West Africa and continuing to
administer it, or that the Respondent's occupation of the Territory, or
its administration of the Territory, is in any way unlawful. If that were
the Applicants' case, then the submission in question would, of course,
be highly relevant. But, in truth, the Applicants are asking the Court to
adjudge and declare that the Respondent is in lawful occupation of the
Territory, and that it has a right of administration-bath of these in
terms of a Mandate which the Applicants contend to be in existence.
But the Applicants ask the Court to adjudge and declare that certain
provisions of the Mandate are being violated by the Respondcnt. SOUTH WEST AFRlCA
It needs no demonstration that the Applicants' case as it is now before
the Court would fall to the ground, without more, if the Court were to
hold that the Mandate had lapsed, and thcsc further questions would not
arise.
In sum, therefore, the position is as follows: ln the first place the
dispute before the Courtis bascd, as far as jurisdiction is concemed, upon
a clause providing for adjudication of disputes "relating to the interpreta
tion or the application of the provisions of the Mandate". A dispute
whether, on the lapse of the f\Iandate, the Rcspondent would have any
right or title to administer the Territory, and if so, what the source and
legal nature of that right or titre could be, would clcarly be a dispute
relating to something outsidc of the interpretation or the application of
the provisions of the Mandate. Consequcntly the jurisdiction clause does
not in law permit adjudication upon such a dispute.
Secondly, Mr. President, in keeping with the legal situation, the Appli
cants' formai submissions in fact do not ask for adjudication of such a
dispute.
\Ve therefore, still, respectfullyontend that the subject raised by the
honourable Judge's question does not eithcr legally or factually form part
of the case before the Court, although it would, in contexts outside of
this case, arise in a logical and a practical way from a finding that the
Mandate has lapsed.
It is for this reason that wc have not, in the pleadings, dealt fully and
systematically eithcr with the factual basis upon which the answcr to
such a question would have to be sought, if and when it should arise for
decision, or with the legal conscquences which would flow from such a
factual basis.
It stands to reason, Mr. President, that we are still not in a position to
offer a full legal argument on that question, and that we must, with the
greatest respect, desist from any attempt to do so. The foundations have
not been laid; there is no foundation for the proper investigation into ail
the facts and into the legal questions that would arise, on the pleadings
before the Court.
But this docs not mean, Mr. President, that the South African Govern
ment seeks to evade the question, or that it is unable to rcnder any
valid account of its attitude in regard to the question.
In particular, the South African Government has no objection to
stating succinctly what its attitude is, as distinct from arguing or
canvassing the question as if it were a matter calling for a decision in this
case.
ln the Rejoinder, V, at pages 83 to 84, the Respondent mentioned some
of the facts by reason of which it has never had any qualms as to the
validity of its daim to title on the basis that the Mandate has Iapsed.
The question enquires about the legal nature of the right to administer
the Territory. The Respondent says, Mr. President, that the legal nature
of its right is such as is recognized in international law as flowing from
mi!itary conqucst. South Africa's right of administration originated in
the act of snrrender of the German forces in 1915, in pursuance of which
the Territory was lawfully governed and administered by the South
African Government for several years prior to and until the mandate
arrangement, to which the South African Government was, and in law
necessarily had to be, a party. There could not have been that mandate
arrangement on the basis of what had already occurred, as far as South REJOINDER OF MR, DE VILLIERS 479
Africa's occupation of the Territory was concerned, without the South
African Government being a party to that arrangement.
Upon the postulatcd lapse of the Mandate in 1946-not through any
fault on the Mandatory's part, but as a result of something done by
general consent of all the interested parties-then in law the status quo
ante revived, in other words, the same lcgal right of administration as
had existed prior to the mandate arrangement was still held by the
South African Government.
In fact the Tcrritory had, under the Mandate, been administered as an
integral part of the Union, as between 1920 and 1945, even as it was from
1915. ln fact the Territory had because of these devclopments to a large
extent become administratively integrated with South Africa itself, and
economically dependent upon South Africa. The South African Govern
ment, in these circumstances, in maintaining the legal right as it existed
prior to the Mandate, does so subject to the policy of continuing to act
in the spirit of the Mandate. In pursuance of this policy the South
African Government is engaged upon a positive programme for leading
the peoplcs of the Terri tory towards self-determination. lt considers that
this position must endure until the sacred trust which it originally
assumed vis-à-vis the differcnt peoples of South West Africa, and in the
spirit of which the Terri tory continues to be administcred, has been fully
discharged.
That concludes the answer to the question put by the honourable
Judge Koretsky, and that leads me immediately, Mr. President, to the
answer to the question-the question put to both Parties1by the
honourable Judge Sir Gerald Fitzmaurice, on 13 May 1965 ,and reading
as follows:
"\Vhat, in the opinion of the Parties respectively, is the present
and potential objective legal position relative to the mandated
territory of the Powers which, at the end of the First \Vorld War,
came to be known as the Principal Allied and Associated Powers,
namely, (in their then French alphabetical order) the United States
of America, France, Great Britain, Italy and Japan? When these
Powers, in favour of whom sovereignty over the future mandated
terri tories was renounccd undcr the PeaΠTreatics, consented to the
arrangements whereby the territories werc placed under League of
Nations mandate, did they thereby divest themselves of all right,
title and interest relative to the territories, or did they, as a matter
of law, retain a residual right of sovereignty or other right, title or
interest which would revive and become operative in the event, for
instance, of a dissolution ofhe League of Nations, or of a terrnination
of the mandate on a basis other than self-government or indepen
dence for the territory concerned-and, if so, what is the nature and
extent of such right, title or interest and how may it operate?"
Now, Mr. President, it seems to us that there are two postulations
towards the end of this question and it will be convenient to deal with
them separatcly.
The fi.rst one isto consider the position on the assumption that the
Mandate has continued in existence dcspite the dissolution of the League.
In this regard we submitted in the Preliminary Objections, I, at pages 307
1 See VIII, Minutes, p. 36. SOUTH WEST AFRICA
to 308, and in the Counter-Memorial, Il, at pages 205 to 207, that no
fonction was contemplated for the Principal Powers as such in the opera
tion of the mandate system. \Ve abîde by this contention, Mr. President,
the validity of which would not, in our submission, be affected by the
falling away of League supervision, because on that assumption the
Mandate as such would still continue in operation and there was no
contemplation, in our submission, of a function for the Principal Powers,
in their capacity as Principal Powers, in the operation of the mandates
or the mandates system.
Now, that brings us to the second postulation. The answer I have
just given does not, of course, necessarily cover the situation if the Man
date as a whole has lapsed. The question of a possible revival of rights
on the part of the Principal Powers in such event is a different and a
difficult question. From our reply which I have just given to the question
of the honourable Judge Koretsky, it will follow that such a possible
revival of rights on the part of the Principal Powers, if any, could, at
most, constitute some form of qualification to the rights or title which
Respondent possesses on the basis to which I rcferred in that reply.
\Vhether such rights do exist, what their content would or might be are,
however, very difficult questions of law and they have practical implica
tions extending far beyond the present case. Apart from the inherent
problems involved in an enquiry of this sort, further complications arise
from the history subsequent to the grant of the Mandate and, in particular
the events of the Second World \Var and the settlements following
thereon. This history very profoundly affected the political and the legal
relations betwcen the States which were formerly the Principal Allied
and Associated Powers, those relationships amongst themselves and with
other powers, including the Respondent.
In order to provide a proper answcr to the question put by the honour
able Judge, these varions matters would require very thorough and very
extensive canvassing and consideration. The matter is not in issue; in fact
the Applicants have not presented any formal submission on this point
to the Court and, in law, it seems that in the light of the compromissory
clause they could not properly have done so. In view of these facts, and
of the implications which would be involved in the presentation of a more
defmite answer by Respondent in this regard, we must, regretfully and
with great respect, decline to express any view thereon. We arrive at the
result with regret and reluctance, but the practical, legal and political
implications are such, coupled with the fact that the matter is not
presented to the Court for its decision, as to leave us, in our judgment,
no alternative.
Mr. President, then in regard generally to the issues between the
Parties on the question of the lapse of the Mandate as a whole, the
Applicants have, as far as we can ascertain, offered nothing in their oral
reply which seems to us to call for a further treatment in addition to
what we have already stated in our argument in chief. In particular, we
may point out that they have offered no argument in reply to the detailed
presentation which we gave to the Court on the proposition that if one
assumes that accountability to the League organs was intended to be an
essential part of the Mandate, then the result of disappearance of the
supervisory organs without more must be the lapse of the whole Man
date and not, as the Applicants contend, the survival of the Mandate
with accountability to organs not agreed to by the mandatory. \Ve dealt REJOINDER OF MR. DE VILLIERS
with that matter very fully in our presentation on 13 April, which is to
be found in the verbatim record of that day at VIH, pages 577 to 581,
and, as far as we could see, no answer to that was offered by the Appli
cants, nor have they offered any further argument on the proposition
which they had advanced earlier to the effect that continued administra
tion, in factmust in law involve continued accountability to some inter
national organ. \Ve, in our respectful submission, refuted that contention
in our argument on g April, at VIII, pages 513 to 517, and we again
referred toit on 13 April, and dealt with it atVIII, pages 580 to 581,and
as I have said, nothing further has been offered by the Applicants in that
regard.
The Applicants have maintained that there are in this respect only
the two extreme alternatives~either a survival of the Mandate in toto
with accountability to the United Nations, or a lapse of the Mandate
in toto, and that there is no possibility of something in between. Mr. Pres
ident, if that is so, it is not clear to us what has become of one of the
Applicants' contentions, offered initially to this Court in its oral presenta
tion as being a basic one, narnely that the obligation provided for in
Article 6 of the Mandate was to be seen generally as an obligation of
international accountability, which obligation could survive even the
lapse of the particular supervisory organs.
On the basis of that contention, when the League became dissolved
there would have been nothing affecting the obligation of accountability.
it would still have existed. But the Applicants suggested that on that
basis and on the analogy of the Barcelona Traction case the obligation
might become a donnant one. That seemed, .on the presentation of the
Applicants' case initially, to be an inherent possibility lying in between
the two extremes, but yet in the Reply it does not seem that they still
make provision for that possibility. That is in keeping with the factor to
which I referred before, Mr. President, that, apart from aformai reaffirma
tion of their submission in that regard, the Applicants offer no further
argument in reply to our submission that the Mandate obligation under
Article 6 related to specific organs and was nota general obligation nor a
vague one of international accountability.
The Applicants have also, on the basis that one views the matter in the
light of the Respondent's contention of an obligation relating to specific
organs, not taken the malter any further on the question of whether the
obligation was to be regarded as a severable one from the rest of the
Mandate provisions, or as an inherent one. The arguments have been
repeated as before, but they have been taken no further and the possi
bilities,the various alternative possible conclusions, at which the Court
might arrive in that regard, remain the same as before.
We abide by our contentions, which are set out in a summary form in
the verbatim record of 13 April (VIII, p. 584). We abide by the conten
tions as tothe various possibilities which exist in regard to the issues as to
accountability and as to the existence or otherwise of the Mandate,
alternatives which exist for the Court as possible findings on those issues.
The alternatives are summarized in that record of 13 April, at VIII,
pages 582 to 584, and we continue to ask, Mr. President, for a determina
tion in our favour in accordance with the alternatives which we stated in
that record, at page 584. SOUTH WEST AFRICA
[Publi(hearing of 8 June I965]
Mr. President and honourable Members of the Court, it will, with
respect, be evident to everybody that a dramatic change has corne about
the Applicants' case in the whole basis of that case regarding Article 2 (2)
ofthe Mandate. I had occasion to refer to a similar phenomenon in regard
to Applicants' case on Article 6 of the Mandate, the issue of international
accountability-the lapse or otherwise thereof and issues attendant
thereto. In tlùs particular instance the change is, if anything, even more
remarkable. In relation to international accountability one could still
say that the ultimate effect of the contention remains the same, namely
that the accountability is now owed to the United Nations, but that the
various grounds upon which it was sought to substantiate that contention
changed from time to time. In this instance one cannot even say that
as a matter of substance. As a matter of form one might still say that the
contentions all along have been tha t there has been a violation of Article2
(2) of the Mandate through policies applied by the South African Govern
ment in South WestAfrica. That remains the same, Mr. President, but the
whole substance of the case has changcd: the proposition which is
advanced to the Court as to the manner in which obligation has been
violated, as to the aspects of policy which may be said to violate the
obligation. AU that has changed entirely, in substance and not only in
form, so that one can really speak here of a totally new case, which has
been brought for the first time at the reply stage of the oral presentation
of the case in Court.
We shall have occasion in due course to deal fully with this whole
matter, wîth the manner in which this change came about gradually in
stages from the inception of the proceedings until now, and we shall
suggest to the Court the reasons why the Applicants found it necessary to
bring now what is, in effect, an entirely new case. Athis stage I only want
to raise the matter very bricfly and very generally in an introductory way.
My sole purpose is to indicate very broadly what the case now is that
Respondent is called upon to meet, how it differs from the case initially
brought, and howwe now propose to meet tlùs case in the altered circum
stances. I must emphasize, Mr. President, that I am doing so very
broadly, because all the aspects of this matter will have to be subjected
to more detailed treatment at a later stage, and I should not like to
burden the Court with unnecessary repetition. But it does seem necessary
to have some initial reference to this aspect.
My learned friends are fond of referring to what they call the annals of
litigation. Mr. President, it might be said that seldom in the annals of
litigation can it have occurred that a party has taken such a long time
over realizing what its real case is, the case that it wants to bring; that
it has taken that party nearly five years to do so; that the party should
have had four occasions on which to statc its case, four attempts at doing
so-in the Mcmorials, in the Reply, in the oral argument in chief, and then
again in the oral reply-and that on each occasion it should corne with a
new version, until on the last one the whcel has turned full circle and we
find something which is virtually the opposite of what was advanced in
the beginning.
At this stage I only want to compare in a broad sense the two ex
tremes-the one with wlùch they started, and the one as it now is.
In the :Memorials, l\fr. President, the Court will recall that the charge REJOINDER OF MR. DE VILLIERS
was undoubtedly one of deliberate oppression of the Native inhabitants of
South West Africa-it was that and nothing else-and that charge,
Mr. President accorded entirely with the previous and subsequent
history of the dispute in the United Nations itself. The Court will recall
that the previous history of the dispute in the United Nations was relied
upon by the Applicants in order to substantiate jurisdiction, in ordcr to
show that thcre was a dispute which had proved to be incapable of
settlement by ncgotiation. For that reason very full reference was made
to an earlier dispute at the United Nations, a matter which wc shall
follow up in due course. Ail I want to say at this stage is that, when that
;s clone, it will become apparent that that was the type of case made
against South Africa at the United Nations-one of deliberate oppression
of the Native peoples of South \Vcst Africa. And that was the case which
was taken over in the Memorials of the Applicants and presented to this
Court. There was then no charge bascd on an alleged norm or standards
of the nature now contended for. There was indeed, Mr. President, no
mention of such an a!leged norm or standards of so-called non-discrimina
tion or non-separation. The norm thcn rclied upon, if one could call it
that, was a norm of non-oppression-a simple basic norm to which
nobody would have any difficulty of subscribing-and, indeed, Mr. Pres
ident, a norm which undoubtedly and indisputably forms part of Arti
cle 2of the Mandate itself. Article2 of the Mandate enjoins the mandatory
to promote to the utmost the well-bcing and progress of the inhabitants
of the Territory, of all the inhabitants of the Territory, and it stands
to reason that if a mandatory pursues a policy of oppressing some
inhabitants for the benefit of others, then it must ipso factoand ipso juris
be violating Article 2 of the .Mandate. That norm of non-oppression is
contained in Article2 of the Mandate. It was not necessarv to hunt about
the decision and the activities of an amorphous body calle·dthe organized
international community in order to find a norm of that kind. But,
Mr. President, that reliance upon that norm required the substantiation
of a case on.facta case which established that the policies applied by the
South African Government in South West Africa in fact amounted to
deliberate oppression of the Native peoples. And that was the case which
ought to be made in the particularization provided in the Memor
ials.
That is where the Applicants' difficulties started. We came in the
Counter-Memorial and we dealt at length with those charges and we
indicated, Mr. President, in what manner they were totally unfounded.
Although differentiation was practised in regard to the different popula
tion groups of South \Vest Africa-because of their natural condition,
because of the fact that they did not at any stage forma unified popula
tion but in fact formed separate groups at varying stages of development
-it was for that reason, and with a purpose and effect not of opprcssing
some for the benefit of others, but of uplifting ail in accordance with
their own needs and capacities, and particular circumstances, that the
differentiation was practised.
That was the answer we gave, and we gave chapter and verse for every
detailed aspect of it. And that was where the Applicants' difficulties
started. They found that it was not so easy in this Court as it was at the
United Nations to assert oppression and then to find that it is generally
accepted that the assertion is as good as substantiation. They found that
in order to make a case here to that effect it was a case that would require SOUTH WEST AFRICA
proof, and proof in the face of very strong and very cogent opposition.
That was why we found at the Reply stage that the Applicants came to
mention a so-called norm of non-discrimination or non-separation, which
was then alleged to be binding on the Respondent as a matter of inter
pretation of Article 2 (2) of the Mandate. But in addition to the norm the
Applicants still persisted throughout the Reply, if the Court will recall,
with their original charges of improper motives and oppressive conduct
on the part of the Respondent, sa that the oniy reasonable interpretation
we could give to that Reply at that stage was that the Applicants,
although not specifically saying so, were still resting their case on two
alternatives-on this norm on the one hand and on the original charges of
deliberate oppression on the other hand.
That was the case which the Respondent came to this Court to meet.
We came prepared to meet that case, Mr. President, not only by way of
legal argument but also by way of a full factual inquiry into Respondent's
policies, their purposes, their motives, their effects,heir objectives, and
their implications, and also the actual results achievcd by those policies.
In substantiating that case, Mr. President, the Respondent intended to
call a number of witnesses to testify with reference to ail these aspects
which I have just mentioned. But all this has now become unnecessary,
because the Applicants have changed the whole basis of their case, with
the result that the dispute which the Courtis now requested to adjudicate
upon is, in essence, an cntirely new dispute.
The Applicants' case, and their only case now, is that Respondent has
acted in breach of a norm of non-discrimination or non-separation
and/or on standards of the same content as the norm.
They have made it abundantlyclear, and we could give the references to
the record to the Court at a later stage, as we develop the argument, to
the statements by the Applicants which made it perfectly clear that they
now no longer rely on any case in which they allege oppressive conduct, in
which they allege improper motives, in which they allegc bad faith, in
which they allege a wrongful intent or purpose on the part of the Re
spondent, Mr. President, on the one hand, or on the othcr hand, in which
they allege that, measured according to results, Respondent's policy has
contravened and violated Article 2 of the Mandate. \Ve will give those
references later. ·
Mr. President, what I want to point out by way of general comment
at the start is this: that after discovering their difficulties in respect of
substantiating their original case on the facts, the Applicants have sought
to meet their difficulties by raising the standard of the norm on which
they rely. They elevate that standard from a commonly accepted one of
non-oppression to one which is now called "non-discrimination" and
"non-separation", but which on analysis, Mr. President, we maintain still
amounts to non-differentiation in defincd spheres-non-differentiation
which results in a position that even if a policy involving contravention
of the norm should in fact be intcnded for the benefit of a population,
and should in fact enure to the promotion of well-being and progress of
the population, that policy would still be contravening the norm.
The norm therefore, in that sense, Mr. President, is a technical one
technical because it does not invite this Court to find itself that there is
anything bad attached to Respondent's policies, that Respondent's
policies in fact injure the population or that these in fact have been
improper motives attached to them. It is simply a technica1 nonn against REJOINDER OF MR. DE VILLIERS
which the policy is to be tested because, it is said, the policy differentiates
in certain sphercs,and that differentiation is illegal, it is contrary to the
norm. lt will be evidcnt that in order to arrive at that position, it was
necessary for the Applicants to elevate the norm to this new plane.
That was nccessary in order to obviate an enquiry into the facts, the
matter with which Applicants found the difficulty. And in order to do
so the Applicants ran into new difficulties. They ran into the difficulty of
finding justification for sayinghat that norm or the equivalent standards
were standing at this high level and were binding upon the Respondent
independently of its consent, and despite the fact of Respondent's
vehement and consistent protests.
Mr. President, for the purposes of establislùng this case the Applicants
have to go very far, and they attempt to do so. They say they rely on
standards, and what does their case amount to in essence, in basic
substance, in regard to those standards? They say that there is a peculiar
relationship between the Respondent and the organized international
community, whercby the Respondent as Mandatory is obliged to take
-0rders, as it wcre, from the organized international community-to be
ordered and directed by the organized international community-as to
the manner in which itis to seek to achieve the objectives of the Man
date of promoting well-being and progress to the utmost.
They say that that discretion rests with the organized international
community, and by virtue of that discretion the organizedintemational
community can decide and Respondent is bound in law-it must obey.
That they say, Mr. President, despite the fact that they cannot point
to any similar position having obtained in the time of the League, the
international organization Wlder which the Mandate was intended to
operate. They cannot point to a situation in the League time where
supervisory organs, admitted supervisory organs, could lay down
standards or norms which would be binding upon the Mandatory,
independcntly of its consent, and despite its opposition. They cannot
point to that.
In fact, Mr. President, the situation, as we have shown and as we shall
endeavour to show again, was exactly the contrary. They cannot even
point to such a situation obtaining in the new regime of the United
Nations relative to the trusteeship system. They cannot point to a
precedent there, or to a principle there, to the effect that States, ad
ministering authorities which have put territories under trusteeship
under the auspices of the United Nations, would be bound to comply
with directives given to them by the very supervisory organs of the
United Nations itself contemplated in the Trusteeship Agreement; that
they cannot show. Yet, Mr. President, the effect of their contention is
that despitc ail this the Respondent-who did not place the mandated
Territory under trusteeship, and they admit that there was no obligation
on the Respondent's part to do so, the Respondent is in the worse
position. It is in the position now that the organized international
commW1ity can order it about-not only the supervisory bodies of the
United Nations which supervise administration under trusteeships, and
which, it is suggested by the Applicants, are also to have supervisory
powers in respect of the Mandate-not only those bodies, Mr. President,
can order it, but also other bodies said to represent the organized inter
national community in some way or othcr, such as the International
Labour Organisation. That is the length to which the Applicants find it SOUTH WEST AFRICA
necessary to go, in order to substantiate their case as far as standards
are concerned.
Now when it cornes to the norm, the position is even very much more
far-reaching. The norm is alleged by the Applicants to have been estab
lished by the "consensus", by the "collective judgment", by the "collec
tive will" of the "organs of the international community". Ail those
words I have stressed are the words actually used by the Applicants in the
course of the statement of their argument, in the verbatim record of
19 May 1965. They are all to be found atone page also-page 352, supra,
of that record.
The effect of this case appearsto be, Mr. President, if we understand it
correctly, that there is now a kind of a legislative power, quite indepen
dently of a mandate arrangement or something similar. There is a
legislative power on the part of the organs of the so-called organized
international community to bind States that do not agrec with tbat
so-called consensus, or collective judgment, or collective will. In other
words, Mr. President, we now find a collectivist approach in the organized
international community, something in the nature of a legislature or
legislation which by a collective will can bind dissidents, eau bind people
who do not agree with that collective will.
That the proposition is a novel one, and that it is very far-reaching,
Mr. President, with implications extending very far beyond this case, is
a factor which I need not stress. It will be obvious and patent, with
respect, to every Member of this Court. The implications on the whole of
the international order, of which this Court forms a part, are indeed of a
startling nature. I do not intend to elaborate upon that now. Itis enough
to say at this stage that they could threaten the very existence of that
whole international order. This whole organized international community,
all the organization, all the achievement that has gone into the interna
tional order up to this stage, stands threatcned, Mr. President, by the
implications of what is suggested to this Court under this "norm"
contention of the Applicants. But I shall leave it there for the moment;
it isa matter which willrequire elaboration at al ater stage of the argument.
The Applicants are not unaware of the fact that they are coming here
with an entirely novel and almost revolutionary proposition to this Court.
They themselves admit, and I quote from the verbatim record of 13 May
1965, at page 262, supra, that:
"... they perhaps rest upon a law-creating process which has not
heretofore been considered or passed upon by this honourable Court''.
That is the end of that quotation, and in the verbatim record of
19 May, page 352, supra, they said they " ... may perhaps appropriately
refer to this case as rare ine annals of this Court or its predecessor ... ".
Mr. President, in the light of the real implication of the contentions
which they advance, these may perhaps be called the under-statements of
the year. But even taking them on this level of the Applicants' own
admission it is rather evident what a long way the Applicants have corne
from the good old days of the Memorials, in which they said at the very
beginning of their statement of the Jaw regarding Article 2 of the Mandate:
"In the present case, ... the issues of fact and Jaw, and of the
application of Jaw to fact, do not involve conjecture. The violation
of the duty to promote 'material and moral well-being and social
progress' is beyond argument." (1,p. rn4.) REJOINPER OF MR. DE VILLIERS
That was the note, Mr. President, on which this litigation started.
Also, in the Memorials, at I, page 166, also the Court will recall the refer
ence there to the "polar disparity between the duties of the [Mandatory]
... and its conduct in the administration [of the Territory]". As I say,
that was the tone on which we started. We now end up with atone of
law-crcating process which has not heretofore been considered or passed
judgment upon by this honourable Court.
I do not intend to take this matter further at the present stage. It
will be dealt with in detail later, as I have said.
It is suflicient to say that this volte-face on the Applicants' part has
rendered it unnecessary for us to enter upon their original charges. The
only issue before the Court now is whether the norm and/or the standards
as contended for by the Applicants exist, and whether they apply in this
case. As I have said, I shall in due course give the Court the necessary
references to the record which make that clear beyond any dispute.
We therefore no longer have to meet those onginal charges, and in a
way we regret that we have been deprived of the opportunity of putting
our full case before the Court in respect of them. But then, Mr. President,
as in ail courts, the Applicants are thedomini litis.They, by the charges
they bring, and by the charges they alter as they go along, determine the
ambit of the dispute. We shall not, as we intended, with respect to the
original charges, lead evidence or otherwise canvass a case in answer to
charges as raised in the pleadings but now dropped.
We have given serious consideration, Mr. President, to the question
whether in these circumstances it would be necessary, or desirable, to
have oral evidence at ail. For reasons which we shall explain in more
detail later, we have considered it desirable to have evidence nevertheless,
particularly inasmuch as it may be of assistance to the Court to consider
that evidence in answer to the Applicants' contention that a norm (or
standards, or both), of the nature suggested by them, exists or is appli
cable to the administration of Respondent in South West Africa.
We shall, at a later stage, explain the nature and the purpose of the
evidence in more detail. That we shall do partly in the course of elabora
tion of our legal argument and partly in the course of the introductory
statement upon the facts which we intend to makc at a later stage, i.e.,
the introductory statement upon the evidence which we intend to lead.
Broadly speaking, Mr. President, one can say that the matter, nar
rowed down as it now is, falls under two heads. The first concerns the norm
and standard creating processes. The question is whether they exist as
suggested, i.e., inhe form and with the effect suggested by the Applicants
and, ifso, how such norm and standard creating processes have corne
into existence, what it is that has elevated them into being binding upon
dissenting and protesting States, and what the implications are of those
contentions generally.
The second aspect on which we intend to present a case to the Court
-and that is mainly whcre the evidence will corne in-is that of the
suggested actual application in practice of a norm and standards of the
content now contended for by the Applicants. One will have to investi
gate-and that is largely a question of fact-to what extent such a norm
and such standards are indced so universally or even widely accepted and
practised as is suggested by the Applicants. Those are features of the
difficulties into which the Applicants have now run and on which we shall
have more to say, both by way of argument and by way of presentation SOUTH WEST AFRICA
of evidence to the Court at a later stage, quite apart from the other
important factual aspect, namely the implications which the application
of such a norm will have in circwnstances such as pertain in Southern
Africa and also in some other parts of the world.
One can say, in effect, Mr. President, that it is now no longer the
Respondent's policies that stand in the dock and have to be defended.
What has to be analysed here, and what really stands in the dock now, is
the suggested norm and suggested standards which form the basis of the
Applicants' case. And that will largely be the centre of gravity 1n the
further canvassing of the issues in this case rcgarding Article 2, paragraph
2, of the Mandate.
Now, before pursuing the matter further with regard to the Applicants'
case as now presented to the Court, it îs necessary for me to revert, even
if only briefly, to the contentions which we advanced to the Court in
regard to the proper interpretation and application of Article 2, para
graph 2, of the Mandate, in so far as the issues before the Court are
concerned.
Our case in that regard may now be said to have become largely
academic in view of the change that has corne about in the Applicants'
case to which I have just referred. But in some ways, }fr. President, we
find that the Applicants seek to build, in support of the case which thcy
are now advancing, contentions of their own on comments which they
pass upon our original Iegal contentions with regard to Article 2 of the
~fandate. They pass comments on our argument in that regard; in part
they oppose us; in part they agree with us; in part they put a certain
intcrpretation upon those arguments and then, on that basis, they try
to build arguments in purported substantiation of the case which they
now putto the Court.
For that reason, it may serve some purpose and be of assistance to the
Court if I were to revert briefly to what our contentions amount to and
to clear up any possible misunderstandings that may have arisen in
regard to them. The Court will also recall the questions putto the Parties
in regard to their respective contentions by the honourable Member of the
Court, Sir Gerald Fitzmaurice on 7 May 1.To a large extent, many of the
questions putto us in that regard have now also largely become academic
in view of the factors to which I have referred, but again, in order to
clear up any misunderstanding which might have arisen, in order to have
complete clarity as to the attitude we took and in so far as that may be
of assistance to the Court in regard to the case which is now still before it,
it seems desirable to revcrt very briefly to our attitude.
The Court will recall that our first and main legal contention regarding
Article 2, paragraph 2, of the Mandate is that the paragraph was not
intended to be justiciable at all, at any rate, not at the instance of a
State which has no direct interest in the matter either for itself or through
its subjects or citizens. Our alternative contention is that in the total
effect of Article 2 no act or omission on the part of the Respondent could
constitute a violation of the Article unless that act or omission was
actuated by an intention or was directed at a purpose other than one to
promote the interests of the inhabitants of the Territory.
Now, Mr. President, in their opening oral argument in this Court the
Applicants went into some detail in their attempt to show that our main
tSee VIII, Minutes, pp. 30ff. REJOINDER OF MR. DE VILLIERS
contention was untenable. We reacted to that by analysing all the argu
ments adduced by the Applicants and in our submission we showed
conclusively that those arguments were dcvoid of substance. lt is perhaps
of some significance that in their oral reply the Applicants have not
revcrted to this sphere of controversy. They have remained singularly
silent as regards our main contention which they termed our first alterna
tive contention. ln so far as they referred to it at all, the references have
been mostly to no greater effect than to register surprise at the fact that
the matter is still raised by us at all after the Court's 1962 decision. But
those references, of course, omit any indication of the margin by which
their decision was reached. They omit any reference whatsoever to the
merits of the controversy in that regard and to the analysis which we put
before the Court.
On the contrary, Mr. President, as we shall show, the Applicants now
adopt attitudes which go very far towards confirming the correctness of
our first contention, i.e., by the attitudes which they have put forward
in regard to their norms and their standards. The effect of this argument
in regard to norms and standards is, of course, that to the extentprovided
for in the suggested norm and in the suggested standards, the Respon
dent's obli$ation under Article 2, paragraph 2, is justiciable. But, Mr.
President, 1tis only to the exten t provided for by the suggested scope of
the normand of the standards. What is important is that the Applicants
have not sought, either in their ,\Titten or in their Oral Pleadings, to
advance or to formulate any general basis upon which the obligation is
said to be justiciable, any general basis, that is, upon which it would be
possible to adjudge any conceivable allegcd violation of the Article. They
go only so far as the scope of the norm and the standards. They go no
further.
i\fay I illustrate the difficulty with an example? Let us assume, Mr.
President, that the Respondent has applied in the Territory a general
policy of integration between the various groups, but that purcly for the
purposes of protecting the Bushmen. an arca has been set aside for the
sole and exclusive use of the Bushmen an area of which the Bushmen may
avail themselves if they wish and in which they need not stay if they do
not wish. According to the Applicants' contentions, if I understood them
correctly, such differentiation would have bcen entirely permissible. Now
let us assume, l\lr. President, that the dispute then cornes before this
Court under Article 2 of the Mandate, because it is alleged either that this
area given to the Bushrnen is too small to cater for their needs properly,
or that it is too large and takes away too much territory from the other
inhabitants of the territory. Let us assume that that kind of dispute cornes
before the Court. How do the Applicants suggest that a dispute of that
kind is to be justiciable under Article 2, paragraph 2, of the Mandate?
How does thcir contention in regard to a norm or standards assist at ail
with a view to solving a dispute of that kind?
Let us assume, Mr. President, that the Courtis rnerely asked to adjudge
that the Respondent has applied a wrong or an antiquated economic
policy to the Territory generally, a policy impeding the material progress
of ail the inhabitants, without any reference to colour policies or to
distinctions between groups and so forth. Let us suppose that that is the
dispute which cornes before the Court-raised by somebody in the
interests of the inhabitants-and that it is alleged that the economic
policy is antiquated, inadequate and wrong.490 SOUTH WEST AFRICA
Mr. President, how do the Applicants suggest that a dispute of that
nature is to be adjudged by this Court? It would be evident that their
contention in regard to the norm of non-separation or non-discrimination,
or the so-called standards to the same effect, would be of no assistance,
for the simple reason that they do not constitute general criteria by
which divergent policies and practices can be tested for legality.
Nowit may be, of course, that the Applicants may contend that outside
this particular normand these particular standards, there are other norms
and other standards governing other aspects of a mandatory's conduct.
But, Mr. President, that already begins to throw doubt upon the accept
ability, or even plausibility, of this whole approach through the medium
of norms and standards settled by the organized international commu
nity. Could it really seriously be suggested that the organised inter
national community would have concerned itself with the evolution of
norms and standards for each and every aspect of governmental policy
and practice in mandated territories or in such territories generally? If
the Applicants cannot suggest that the whole field is now covered by
such norms, clearly evolved norms, practices or standards, then it is
quite clear that the whole field of possible dispute under Article 2 would
not be covered by their legal contention at all, and that there would
remain a residuwn in respect of which Article 2, paragraph 2, is not
justiciable at all.
If they do contend, Mr. President, that there are standards, or a norm
and standards, for all the spheres, then I have not heard them suggesting
that yet. I submit that such a contention would be absurd. If one looks
at all the trouble and the difficulty that the Applicants have encountered
in trying even to define the content of this single norm and the cor
responding standards on which they seek to rely, and in trying to show
that it is a matter of general acceptance, one wonders how interminable
the disputes would be if they were to try to show that the whole field is
covered by relevant and applicable norms and standards.
However, Mr. President, the fact remains that the only counter which
has been offered by the Applicants to the Respondent's main contention
that Article 2was not intended to be justiciable, is that based upon their
norm and their standards, and it is inadequate to the extent I have
indicated. lt is also the only counter which is offered by the Applicants to
our alternative contention as to the limited basis upon which the Article
would be justiciable, if at ail.
The field is then narrowed to the questions of the existence, the
applicability, and the binding nature or otherwise of the suggested norm
and standards, and to the questions whether they have the content
ascribed to them by the Applicants, and whether they bind us.
It is in these circumstances that my remarks apply that to deal with
our contention, our alternative contention, and the legal arguments and
the legal principles involved, would largely be academic; but nevertheless,
forthe reasons I have indicated, I shall now proceed to deal briefly with
the alternative contention, and I propose to start to do soby reference to
the questions put by Sir Gerald Fitzmaurice.
The Court will recall that questions 1-4 of that series put on 7 May 1
related to the position of the Applicants. Questions 5-7 related to our
position, and questions 8-10 related to the position of both Parties. We
1
See VIII, Minutes,pp. 30 ff. REJOINDER OF MR. DE VILLIERS 491
shall deal first, M.r.President, with the questions which relate specifically
to our position, and which are addressed to us; in other words 5-7
relating specifically to our position, and 8-10 relating to the position of
both Parties. Thereafter we shall in gcneral revert to an analysis of the
merits or otherwise of the Applicants' case.
Question 5 reads as follows:
"It is solely on a basis of general principle that the Respondent
daims for the Mandatory an absolute discretionary power to deter
mine for itself by what methods Article 2 of the Mandate shall be
implemented-subject only to good faith and correct intentions?
or does the Respondent claim that a discretionary power of this
kind is to be dcrived from the language of Article 2 itself?"
Mr. President, it will be noticed that this question as so worded seems
to impute tous an abstract legal contention to the effect that as long as
the Respondent acts in good faith it has an absolute discretionary
power to determine for itself by what methods Article 2 of the Mandate
shall be implemented.
\Vith the greatest respect, Mr. President, it seems to us, on analysis,
that this would perhaps put too highly what we intended to convey in
our argument. Perhaps the mistake is ours; perhaps we did not make it
as clear as we should have, what it is that we really and in fact contend
for; and, if so, I welcome this opportunity of clearing up any misunder
standing there might be in that regard.
Let us go back to the Rejoinder, V, at page 157, where we said:
"... the Court can determine whether a legislative or administrative
act or policy constitutes an infringement of Article 2, paragraph 2,
only by examining whether or not the exercise of a discretion involved
in such act or policy, was directed at the purpose of promoting ta the
utmost the well-being and progress of the inhabitants. Such an
examination would, in the circumstances, involve an enquiry as to
the good or bad faith of the Mandatory".
I stress the words "in the circumstances", Mr. President, because they
have a significance; they refer back to a more extensive treatment of that
point, to which I shall rcturn.
We have always endeavoured to indicate in terms of this alternative
contention that in theory the Respondent's policies and practices can be
testcd by the Court in the same manner as administrative acts and
decisions are tested by courts in municipal systems, and that this could
include a finding of invalidity on bases which are quite independent of
bad faith.
But, Mr. President, our contention has always been that in view of the
particular circumstances pertaining to the Mandate-the practical
circumstances pertaining to the Mandate and the territory-a judgment
to the effect that Respondent has abused or excceded its discretionary
power would in practice and cffect necessarily amount to a judgment
that Respondent has acted in bad faith. That was the effect of what we
tried to convey. We did not suggest that good or bad faith could always,
in relation to discretionary powers, or in theory, in relation to this
particular discretionary power, be the only basis upon which an act, or
a policy, or a practice could be invalidated. But wc said that, having
regard to the particular practical circumstances that was very much the
practical result at which one arrived.492 SOUTH WEST AFRICA
We dealt with this matter, for instance, in the Counter-Memorial, Il,
at pages 385 to 389; we dealt with it in the Rcjoinder, V, at pages 157 to
159; we dealt with it again in our oral argument in chief in the present
proceedings, especially in the verbatim record of 14 April, VIII, at pages
612 to 621.
There we demonstrated the basic theme that the Respondent's powers
in terms of Article 2 of the Mandate were of a discretionary nature. \Ve
based our arguments on an interpretation of Article 2 of the Mandate
itself, read in the light of Article22 of the Covenant, and we referrcd to
strong authority in support of our arguments on the basic proposition
that the Respondent's powers in terms of the Article were of a discre
tionary nature.
In their oral argument in chief the Applicants did not dispute our
contention that a discretion was conferred upon the Respondent. They
joined issue with us only in respect of the manner in which an exercise of
that discretion could be tested by the Court. ln effect, they said that
the Respondent's discretion was curtailed by the norm and by the
standards for which they contended. One fmds our treatment of the
Applicants' attitude in that regard in the verbatim record of 14 April,
at VIII, pages 623 to 625, and again in that of 22 April, at pages 633 to
639.
But now, in their oral rcply, ~Ir. President, the Applicants adopt what
seems to be a new attitude, namely that the Mandate in effect confcrred
a discretion on the organized international community to decide by what
methods the interests of the inhabitants of the Territory should be pro
moted. And they seem to contend that the Manda tory has to bow to this
discretionary power. As I have said, we shall deal with that attitude at a
later stage. I am concerned for the moment with an analysis of our
contentions in regard to Article 2; I merely wish to point out in passing
that the Applicants did not contest the discretionary element in the grant
of power.
What I want to emphasize is that the discretionary nature of the power
for which we contend is derived from the language of Article 2 itself, rcad
in the light of Article22 of the Covenant and of the mandate instrument
as a whole.
The language reflects a grant of full power of administration and
legislation. Those are the words of the grant itself-"full power of
administration and legislation". That full power is subjected to a general
limitation as to purpose or objective, and to a few specific limitations
about particular subjects in Articles 3 to 5 of the Mandate.
Inasmuch as that concept, as used in Article 2, viz., a power of ad
ministration and legislation, is inherently a discretionary power, and as
the limitations are such as merely to circumscribe or qualify the discre
tionary element, and not to remove it,we say that the discretion follows
from the language of the Article itself. It flows from it. It is part and
parcel of an explicit grant of power.
However, Mr. President, whcn we corne to the grounds upon, or the
circumstances under, which a court can adjudge that Respondent has
abused or has exceeded the limits of the discretionary power, then, of
course, we rely upon ordinary, or general, principles, of law and logic
as recognized in all civilized municipal systems of which we are aware.
But, in doing so, we must respectfully point out that here, too, we do not
conceive ourselves as proceeding from principles of an a priori character, REJOINDER OF MR. DE VILLIERS 493
as is suggested, with respect, in the introductory portion of the question.
We do not, in the wording of that introductory portion, postulate an
inherent discretionary power in the Mandatory. \Ve submit, with respect,
that the power is explicitly granted; it follows from the grant, the
discretionary clcment which is included in the grant, and it therefore
follows from the wording of the grant, and not from any a priori assump
tion of something inhering in the Mandatory, independently of the grant.
We say, likewise, Mr. President, that the principles for determining
whether a violation of the discretionary obligation has occurred find
their application as a result of the language employed. They flow from it.
They do not find their application by way of being invoked a priori in
order to put a forced construction upon the language. \Ve construe, with
respect, the language first, and we submit that from the meaning of the
words employed, from their significance, there flow certain consequences
as regards the discretionary nature of the power granted, certam con
sequences which then follow in law as to the principles upon which it can
be found that the discretion has been violatcd.
This answer, Mr. President, in our submission, partially answcrs
question S put by Sir Gerald Fitzmaurice. In order to formulate a full
answer to the whole question it remains to consider the grounds upon
which, according to our contention, it would be possible to say, in law, that
the Respondent bas abused its discretion.
In the course of dealing very briefly with this, i\frPresident (I do
not want to go into it at any length), I should also like to indicate, with
respect, that to say that we lay claim to an absolute discretion perhaps
puts the matter too highly. Itis not an absolute discretion. It is certainly
a discretion which is relative to a certain defined sphere. It is a discret ion
which is in some way limited by curtailment, by qualifications, but which
is then left to operate in a residual field without qualification but still
within the limits of that :field.
Becausc of certain remarks made by the Applicants in answcr to our
contention about the discretionary nature of the power and about the
legal consequences which flowed from it, wc went into this matter again
rather fully before this rejoinder stage. We thought, having regard to
some of the Applicants' remarks, that perhaps wc might have misunder
stood the relevant legal principles in some municipal systems and that it
might be necessary for us to check on our own appreciation of those
principles, so we went into the matter as fully as we could. We obtained
such expert assistance as we could even from a continental professor in
administrative law, but, Mr. President, we found that, in the words of
Omar Khayam, "in the end we came out by much the same door as in we
went".
It seems, with respect, that our exposition of the basic principles has
been substantially correct thus far, subject only to a possible misunder
standing that mayhavearisen from statcments which we sometimes used
by way of a shorthand description, and which may therefore have created
an impression of over-simplification. \Ve dealt with the matter in more
detail in other passages of the record and we thought that we had left no
room for misunderstanding of the nature manifestcd by the Applicants in
their comments, but it seems that we were wrong in that respect.
In our pleadings and in our oral argument in chief we submitted that
it was a logical proposition, inherent in ail cases where courts have to
decide on the legality or othenvise of the exercise of a discretionary494 SOUTH WEST AFRICA
power, that the Court is not entitled to substitute its own discretion for
that of the authority upon which the discretion has been conferred. In
other words, we submittcd that the Court cannot conclude that such an
authority has abused its discretion in a legal sense merely because the
Court does not agree as a matter of merit with the decision, or with the
steps taken by that authority. If the Court were to do that, we submitted,
it would be the very negation of the concept of a discretion.
We submitted, further, that in view of the provisions of Article 2 of
the Mandate, no act or omission on the Respondent's part would con
stitute a violation of this Article unless such act or omission was actuated
by an intention, or was directed at a purpose, other than the purpose
expressed in the Article, namely to promote the interests of theinhabitants
of the Territory. We made it quite clear that in advancing this proposition
we were concerned only with the particular situation obtaining under
Article 2, and that we were not to be understood as suggesting that in ail
cases wherc a discretionary power was confcrrcd upon a persan or a
body, the possibility of judicial interference with the acts of the holder of
the power must necessarily be equally limited. I may refer the Court to
certain passages in our pleadings in that regard just for convenience: in
the Counter-Memorial, II, at pages 390-393, in the Rejoinder, V, at
pages 158-162, in the verbatim record of 14 April, at VIII, pages 620-622,
and again in that of 22 April, at VIII, pages 627-628. ln these passages
we referred to a number of grounds, to which one could perhaps add a
few more, on which courts in municipal systems can set aside an exercise,
or a purported exercise, of a discretion-grounds of a special nature
pertaining to particular circumstances which can find no application in
the present case. I can rcfer to them quickly in passing.
In the first place, we indicated that an act can be set aside if it is not
the act of the persan or body competent to exercise the discretion in
question.
Secondly, powers may have been exceeded in regard to subject-matter,
in regard to place, in regard to time, or the like-i.e., of course, if limits
were imposed upon the power in regard to subject-matter, place, time, and
so forth.
Thirdly, a court may interfere if a body or a persan has failed to
comply with specified formai requirements before taking a decision,
or before taking steps in relation to which a discretion was conferred upon
it, for example, if there has been a failure to do something of the nature
of a prerequisite, such as sending a letter of demand before taking other
action, and so forth.
Fourthly, a purportcd exercise of a discretion may run counter to a
prohibition or restriction of a material or substantive nature, as distinct
from a merely formai one. attached to the grant of power. That pro
hibition, or restriction, may be an express one or it may be an implied
one. Such restrictions, we say, are contained in Articles 3 to 5 of the
Mandate. \Ve are not here concemed with allegcd violation of any of those
Articles. Also, the Applicants say that their norm, or standards, con
stitute a substantive basis of limitation which has been violated by the
Respondent's policy and acts. That, too, is a matter which we shall
consider at a later stage. But, independently of that, Mr. President
independently of Articles 3 to 5 and App1icants' suggestion as to a norm
or standards~we find nothing whatsoever which suggests a curtailment,
a prohibition or restriction of a substantive nature attached to the power. REJOINDER OF MR. DE VILLIERS 495
Fifthly, the statute or the treaty conferring the discretionary power
may itself prescribe a legal criterion according to which a court may
review an exercise of the discretion. We find that in many municipal
systems the court is sometimes empowered to set aside an act or a
decision if the court is of the opinion that it is unreasonable, grossly or
othenvise.
Then, in the sixth place, in the case of bodies exercising judicial or
quasi-judicial powers there are special rcquirements relating to observance
of the so-called rules of natural justice, for example, the audi alterum
partem rule in cases where it applies. The reviewing court can interfere
where those principles have not been applied. This, too, Mr. President,
is a special type of situation which does not apply here.
In the seventh place, a court may interfcre if the persan or the body
concerned has, as a result of an error of law, rnisconstrued the scope of his
or its discretion, or of his or its power, or the limits thereon, or the
obligations imposed upon him, or it. In the evcnt of such a misconstruc
tion, which may be entirely bona fide, therc may be a failure to exercisc
the discretion which the legislature intended the holder of the power to
exercisc. This, too, we suggested, for the reasons we gave, that that did
not seem to be of possible practical application to the circumstances of
this c~se. And the same, of course, applies to the whole list which I have
now g1ven.
And that brings us back, Mr. President, to the more general criteria
applied by courts or by other reviewing bodies in various legal systems in
circumstances of this kind. As one might expect, the approach and the
manner of formulation of these criteria in varions legal systems are not
identical. One finds certain differenccs between various municipal legal
systems which are sometimes referred to by writers and commentators.
Sorne commentators give more emphasis to differences, others givc Jess
emphasis-less significance-to those. On the whole, however, it seems,
on analysis, that those differcnces relate more to matters of approach,
and to practical or technical considerations, than to matters of substance.
As an example we may point out that the law of France developed in
this respect around the activities of the Council of State. One finds that
there is a much greater inclination on the part of such a reviewing body,
which is partly an administrative one, to go into the motives of a particular
administrative act and to uncover what it considers to be some trickery
or some concealed abuse in the professed exercise of power, than there is
on the part of courts of other countries, which are generally reluctant to
do the same thing. But the principles applied are still the same, in so far
as their basic substance is concerned.
In considering these general principles applied in the Yarious legal
systems, we are to keep in mind that wc are dcaling here with a typical
example of a power which is defined with reference to a stated purpose or
objective. A.part, thcn, from the special possibilities which we have
excluded, on what grounds, as recognized in these various legal systems,
can the exercise of such a power, or an act purporting to be an exercise
of such a power, be interfered with?
Alithe legal systems which we know appear to agree that the appro
priate test is whether the purpose of the holder of the power, the purpose
with which he acts or with which he inspires his action, is in conformity
with the prescribed purpose, i.e., the purpose for which the power was
conferred. Those two things have to be compared-the purpose of the SOUTH WEST AFRICA
instrument, the purpose for which the power was conferred; and, on the
other hand, the purpose of the holder of the power, the purpose with
which he acts, the purpose with which he jnspires hjs action. Those are
basically the two matters to be compared.
So we find that in the French law there is this exposition by the
commentator Walene. I refer to his Droit Administratif, the seventh
edition, at page 417, and to his exposition of the doctrine of détournement
de pouvoir, which, if we understand it correctly, is the specific ground of
interference in a case where it is said that the motive, or purpose, does
not concur with the authorized one. I give our own translation:
"This case of invalidating administrative acts differs profoundly
from all others, in that it docs not conccrn any longer an objective
appreciation of conformity or non-conformity of an act to a legal
provision, but the making of a double research into subjective
intentions: it has to be ascertained whether the incentives or
motives [the author uses the word 'mobiles'] which have inspired
the author of an adminjstrative act are such as, according to the
intention of the legislator, should have inspired him."
In other words, those incentives or motives, the "mobiles", which
inspired the author of the act, must be those which according to the
intention of the legislator, should have inspired him.
After a few paragraphs the author continues as follows:
"In order to establish détournement de pouvoir, the judge should
enquire:
(a) for what purpose or object [the word 'but' is used in French]
the legislator has conferred a certain power on administrative
authorities;
(b} for what purpose, in fact, this authority, in the case subject to
litigation, has used these powers;
the judge approaches these two purposes in order to ascertain
whether the second is in conformity with the first; in more simple
terms, the judge enquires whether the administrative authority has
used its power in order to achieve a purpose which is among those
which the legislator has actually had in mind in conferring such
powers."
\Ve fmd that a similar description is given by Rokham and Pratt in
Studies in French Administrative Law, at page 37 of the Library edition:
"The doctrine of détournementde pouvoir contempla tes a situation
in which an administrative agent has accomplished an act within the
scope of his powers; he has observed all the forms prescribed by law;
but he has performed the act from motives other than those for
which the power was conferred."
Then I quote again from pages 37 to 38:
"But the question of détoitrnement de pouvoir presupposes an
inquiry into the mjnd of the agent, into his secret intentions which
he has probably made every effort to conceal. Each case thus
resolves itself into a twofoldinquiry into: (r) the purpose for whkh
the Jaw vested this particular power in the agent; (2) the purpose
for which the agent actually exercised it. If the motive fails to
measure up to the purpose for which the power was conferred, the
act is nullified." REJOINDER OF MR. DE VILLIERS 497
Mr. President, these authors, at least, would have found somewhat
misplaced my learned friend, Mr. Gross' suggestion that our argument
alternated like a metronome between the purposes of the Manda tory and
the purposcs of the Mandate. The Court will recall that that expression
was used by him quite a few times-in the verbatim record of 28 April
at pages 40 and 42, supra; of 13 May, at page 253, supra, and of
18 May, at pages 311 and 322, supra.
We did exactly, Mr. President, with submission, what these authorities
require us to do, i.e., to see whether the purposes of the Mandatory, the
purposes and intentions of the .Mandatory, agrce with, correspond to,
those which were prescribed for it-the purposes of the Mandate, the
purposes which ought to be pursued by the Mandatory. And that this
is the basic principle to be applied in cases of this kind, appears not only
from French law but in all other legal systems of which w·eare aware.
I can refer the Court to Dutch law-mcrely by way of reference, I am
not going to read any extracts-to Krancnburg, Jnleiding in het Neder
landsch Administratief Recht, at pages 50 to 52: and to a note in Neder
lands Jurisprndensie for 1949, at page 1062. As regards Belgian law I
refer to Mast, Overzicht van het Helgisch Administratief Recht, pages 388
to 390. As regards ltalian law I refer to Galeotti, to a work written by
him in English called Judicial Control of Public Aidhorities in England
and Italy, at pages rn9 to 115. As re~ards English law, I refer to de
Smith, Jndicial Review of Administrative Action, at pages 190 to 194;
to Griffith and Street, Principles of Administrative Law, at pages 215 to
217; and to Keir and Lawson, Cases in Constitutional Law, second
edition, at pages 138 to 139.
As long ago as 1866 Lord Cranworth said in Calloway v. London
Corporation, (1866) Law Reports, I,Housc of Lords, page 39, at page 43,
in regard to powers exercised under legislation:
"... the persons so authorised cannot be allowed to exercise the
powers conferrcd on them for any collateral object; that is, for any
purposes except those for which the Legislature has invested them
with extraordinary powcrs".
In Arthur Yeats Company Proprietary Limited v. Vegetable Sced
Committee, a decision in the High Court of Australia, reported in (1950)
72 Commonwealth Law Reports, it was said at page 37 with respect to a
legislative power:
"If a power is conferred in terms which require it to be used only
for a particular purpose, then the use of that power for any other
purpose cannot be justified."
Mr. President, thus far, in dcaling with the principles in the various
legal systems which involve a comparison of the purpose ofthe author ofan
administrative act with the purpose prcscribed in the grant of power under
which he acts, I have done so without reference to the question of good
or bad faith. Thus far it has been in essence a question of comparison of
these two purposes. The question then arises how the concepts of good or
bad faith enter into the picture at all, and before I attempt to answer that
it may perhaps be necessary to clear up some misunderstanding as to the
various senses in which the terms good or bad faith might be used,
particularly in relation to an enquiry of this kind. One could speak of
good or bad faith in the sense of whether the author of the act wishes to
achieve a result which he considers to be good-in other words, one might SOUTH WEST AFRICA
have the situation where the author of the act knows that there is
prescribed for him, a certain objective or purpose which he is allowed to
pursue, and that he is not allowed to use his powers for another objective
purpose, but he thinks that anothcr objective or purpose is a !audible
one and he then uses his powers for that purpose. Or, on the othcr hand,
he might know that the purpose for which he wishes to use his powers is
really a bad one; it is a corrupt one and morally bad. Itmight be possible
in some senses of the use of the terms good and bad faith to use that as
the criterion for distinguishing between the two, whether in that sense
the author of the act has in mind a good or bad purpose, but that,
Mr. President, is not the sense-the relevant sense-in which the concept
falls into the picture here. It is obvious that if there is mcrely one
authorized purpose and the power is usccl for a different purpose, even
though the aùthor means good in general, then nevertheless his act is an
illegal act.
Altematively, the expression good or bad faith may be used in relation
to the question whethcr the author of the act endeavours to conceal what
it is that he is rcally doing. He may pretend to be using his power for
purpose (a), whereas, in fact, he is using it for purpose (b), or he may
pretend tha t he justi:fieshis action on a basis or a causa (a), whereas he,
in fact, justifiest on some other basis. That again is a sense in which one
can speak of good or bad faith, but again it is not the relevant sense for
an enquiry of this kind. Whether a person conceals his action or does not
conceal his action does not make any difference in law. 1t might make
the factual enquiry a more difficult one, one might have to go behind
the cloak to sec what was really there in substance before one could
apply the law, but again the concept of good or bad faith in that
particular sense is not relevant here. The relevant sense in which good or
bad faith arises here is this: it is whether there is a knowledge on the
part of the actor that the purpose for which he acts is not the prescribed
purpose.
If the actor-the persan who acts, the holder of the power-knows the
purpose which he is authorized to pursue, and in interpreting that purpose
thinks that allows him to do so-and-so but misinterprets the purpose, and
then bona fi.deuses his powers, in fact, for another purpose, his act will
stillbe an illegal one, but he will be acting bona fide in the sense under
consideration. If, however, he knows and realizes that what he is doing is
to pursue a purpose other than the authorized one, then he is acting
mata fide in the relevant sense under discussion, and that is the sole sense
in which we sought to use the term mata fideearlier, and the sole sense in
which we suggested it does enter into the picture at all.
Now, all legal systems that we know of seem to agree that, on proof of
bad faith or ma/a fi,des in this sense, the exercise of the discretionary
power or the act purporting to be done under the discretionary power is
ipso fitre invalidated. As soon as one establishes that the man acted in
bad faith, that he was bribed, or was seeking to achieve an improper
purpose, or even if he knew that he was sccking to achievc a purpose
which he thought to be a good and a !audible one but which, he knew,
was an unlawful one, as soon as it is established that that is the basis
upon which the persan or the body acted, then that in itself is a ground
for invalidating the action. \Ve can refer the Court to de Smith, in regard
to the English law, at pages r99-200 of the work to which we have referred,
to Hamson, also the work to which we have referred, at page r95, and. in REJOINDER OF MR. DE VILLIERS 499
general (1 need not refer to ail the authorities) one finds that that is the
position recognized in the various legal systems. If one does establish bad
faith in this sense it leads to invalidation of the act, but the contrary is not
necessarily true.
It is not necessarily true that, in order to invalidate an act on the basis
that the purpose is not the authorized purpose, there must necessarily be
bad faith in the sense under discussion. l might quote in that regard
from Pro/essor Galeotti, in the work to which I have referred, at pages
II8-II9.
"... if it is true that any case of bad faith can be reduced to a
détournementde pouvoir, the opposite cannot always be true, ... The
variance in the purpose set by law and the one pursued by public
authority may result not only in a wrongful, fraudulent use of power,
as it does when the authority is acting ma/a fide; it may well occur
from an authority pursuing bona fide an object, which is at variance
with that allowed or set by law, without being aware of it. This kind
of case may even be said to be (as opposcd toma/a fides cases), the
genuine, unsophisticated instance of détournement de pouvoir. Indeed
it exhibits variance with the purpose prescribed by law, without
attempting to conceal it under a pretence and colour of the right use
of power, which is, on the othcr hand, the necessary ingredient in the
ma/a fides cases."
The Court will see that this author speaks of the branch of, or specics of
mala fides which concerns the hiding of what has really been done, but, as
I have said before, that is nota relevant consideration, as far as 1 can see,
in law undcr any circumstances, because the court, for legal purposes,
liftsthe cloak and sces what the real substance is. The author, however,
stresses that the détournement need not nccessarily consist of an act of
bad faith.
We find, however, that in municipal legal systems there is a further
general ground upon which the courts may interfere with the exercise of
a discretionary power; it is one which almost runs into the basic principles
of a détournement, but in some legal systems we find the two separated
from one another. In other legal systems, the English system for instance,
there is some difference of classification as to whether all the principles
run together or whether they are to be separated.
This ground of challenge occurs eYery timc that an administrative act
issues on the crroneous assumption or acceptance that a certain set of
facts isexistent or non-existent, or when there is a failure to find, or an
absence of justification for finding, facts which serve as a necessary pre
requisite or a cause or a causa for the exercise of the powers. In this
context the French use the word "motif", meaning, as we understand it,
the legal cause or the justification for an action, something which is to
exist as a prc-requisite for the authority. The holder of the power is to
satisfy himself as to the existence of certain facts before exercising his
power.
The word "motif" is the one used by Walene in the work to which I
have referred, at pages 409-4rn. The author explains that such a "motif"
must be a legal one. And I quote at page 409 (our translation):
"For example, a functionary may be dismissed, but on condition
that he has committed a fault of such a nature as to justify a
disciplinary measure; the fault is thcn the legal motif of the decision.''500 SOUTH WEST AFRICA
At page 410, the author proceeds in paragraph 722, headed as follows,
to say:
"Each decision should rest on a motif
There must always be a motif for an administrative decision, and
above all when it affects the situation of a third person or a public
liberty.
Thus, when in the pleadings in an action for excess of power, the
minister has been unable to indicate any motive for his decision,
this defect alone brings with it the annulment of the decision."
The word "motif" here, Mr. President, is quite clearly used not in the
sense in which we use the word "motive" in English. lt is used in the
sense of being a pre-requisite, a causa, a justification for an act. And the
principle is that ifthe reviewing court finds that the neccssary causa did
not exist, then the reviewing authority is entitlcd to set aside on that
ground the action of the authority of fi.rst instance. But, Mr. President,
this is the important point, the authorities make it clear that a court may
not interfcre merely because it disagrees with the finding or reasoning of
the administrative agency on which its action was based. The finding or
the reasoning must be such that no reasonab1e persan or body could have
arrived at or adopted the same. ln other words, the situation must be
such that it gives rise to one of two inferences, eithcr that the agency
must have acted in bad faith, for an improper motive or for an un
authorized motive, or on the other band, that it failed to apply its minci
properly to its task. The situation must be such an extreme one, on
principle, before the reviewing authority will act. That is of course
independently of what I mentioned before, viz., a greater readiness on
the part of administrative tribunats sometimes to interfere, than would
be the case with a reviewing court of law. But that is a matter of inclina
tion, of particular approach: it is not one which affects the principle of
the situation.
This again stresses the difference between the concept of review and
appeal. lt is not for the court to go into the question and say, well, there
was some evidence tending one way, there werc some tacts on which it
might have been found that this necessary causa or "motif" existed.
On the other hand, there was evidcnce tending the other way, so as to
show that it did not exist. The authority of first instance preferred to
accept the first-mentioned evidence and found that the causa did exist.
I, sitting hereas a court, going into the evidence again, find that perhaps
the balance goes the other way and the authority shouJd not have found
that that fact existed. That is not the proper approach for a court under
these circumstances-that is what the authorities make plain. The
authorities make plain that the court can only interfere whcn there is no
basis upon which the authority could reasonably have acted, whether the
court agrees on merit with the authority's finding on that particular point
or not.
In the case of the French law, we can make further reference on this
point to Jean-Claude Venezia, Le Pouvoir Discrétionnaire (1959), at
pages 137 and the following, where he stresses that the facts or the
appreciation of the facts on the part of the administrative body must
have been "obviously wrong". \Ve can refer also to Hamson, in the work
I mentioned before, Executive Discretion and Judicial Control, at page 197,
who says that if the administration has acted on a ground- REJOINDER OF MR. DE VILLIERS 5or
"... which might on some rational view possibly be supposed to be a
justification for the exercise, the court will not further inquire into
the matter ... ".
If the court finds that the ground on which the administration actcd,
might on somc rational view possibly be supposed to be a justification
forwhat the authority did, then the court cnquires no further; it does not
interfere.
We found, i\Ir. President, that the same attitude has been adopted by
the Italian administrative courts. Professor Galeotti, in the work to
which I have referred, says at page 130, that this particular ground of
which we are speaking,
". . . recurs any time that an administrative act issues on the
assumption that a certain set of facts is existent or non-existent,
whilst from the material collccted, they appear ta be unquestionably
the other way round".
And he proceeds at pages 132 to 133 to quotc the following passage
from a decision in Polenta c.Min. della Educazione Nazionale:
"In the complainant's opinion the impugned order would be
unlawful on account of absence of the facts upon which it is based;
it must be borne in mind, however, that this kind of 'eccessodi potere'
i;xists only when there is positive evidence of the non-existence of
such facts, or, at any rate, when evidence on their existence is totally
absent. In the former case there is a contrast between the order and
the actual truth; in the latter, there is a contrast between the ordcr
and what may aptly be called 'recorded truth' ... This latter case
may be said to be equivalent to the former, since bath Iogically and.
legally, the statement on the truth of a fact cannot be kept apart
from actual evidence; henceforth its total and absolute absence
makes that statement without any foundation. \Vhen, on the othcr
hand, the findings of fact in the administrative process conflict one
with another-in the sense that there are circumstances in favour
and others against the truth of the facts-the order which takes
those facts as truc is the result of an apprcciation which cannot be
but a subjective view. ln such a case it is not possible to perceive a
contrast in either of the described forms; nor can the judge of the
legality of the order ... be allowed to remake the decision which was
issued by the administrative agency, nor to substitute his own
discretion forthat of the public authority."
Clearly I think, Mr. President, this puts the matter, in other words, on
the same basis as I attempted to do before.
In regard to the German law we can refer to Ernst Fortshofj, Lehrbuch
des Verwaltungsrechts, 8th edition, Volume I, at page 86. I need not quote
from that. The effect is much the same.
In English Iaw the position is similar. If anything the reluctance to
interferc is stronger there than on the Continent. Sorne critics say the
reluctance is too strong, it is a matter of appreciation, but the principle
isthe same.
In Smith v. East Elloe Rural District Coimcil (1956) 2 \Veekly Law
Reports 888, at page 905, Lord Reid adopted the following words of
Lord Green, the Master of the Rolls, in an earlier case:
"It is truc to say that, if a decision on a competent matter is so502 SOUTH WEST AFRJCA
unreasonable that no reasonablc authority could ever have corne to
it, then the Courts can interfere. That, 1 think, is quite right: but to
prove a case of that kind would rcquire something overwhelrning ... "
It is typical, Mr. President, of other cases, of which Membcrs of the Court
may be aware; similar pronouncemcnts wcrc repeatedly made in the
English practice in this regard. It is in exact accordancc with the law of
our own country, as we know it and as wc practise it.
In Holland this ground has, together with the others that arc applied,
been set out crjsply but clcarly in a number of decisions of the highest
court, the Hoge Raad, and, in commenting on one of these decisions, we
find that D. J. Veegens says in a note in Nederlandse]urisprudensie, 1949,
at page ro63:
'This ground is not present if the judge, had he sat on the seat of
the administration, would have given another decision, ... but
only if the deciding authority, after weighing up the interests to be
taken into consideration, could not reasonably have corne to that
decision, and if this can therefore only be regarded as an arbitrary
act ... As long as the judge must still acknowledge the possibility
that the administration coulcl have taken its dccision as it stands
there, he has to refrain from interfering."
We can refer the Court to three other decisions of the Hoge Raad on the
same point; l merely give the references: I want to deal only with the
third one. The rcferences are to that on 25 February 1949, reported in
Nederlandse ]urisprudensie, 1949, at page 1045, and those on 8 Dccember
1961 and 19 January 1962, reported in Nederlandse ]urisprudensie
1962, at pages 222 and 417, respectively.
Now this last decision, Mr. President, is of special interest for our
purposes because it concemed the application of a treaty, namely the
European Convention on Human Rights, which was referred to by the
Applicants in their Reply at IV, page 509. Article 9, paragraph 1, of this
Treaty provides that the nationals of the States parties to the Treaty
should have "the fre~dom, either alone or in community with others and
in public or priva te, to manifest his religion or belief", that is, the freedom
of religion or belief, but expressed in this form, he shall have the frecdom,
either alone or in community with others and in public or private. to
manifest his religion or belief.
Now, in terms of Article 9 (2) this frcedom may be curtai]ed by the
govemments or relevant authoritics of the States parties only by such
restrictions "as are prescribed by law and are necessary in a democratic
society in the interests of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of
others". This then, provides exempted circumstances where there could
be an exception to the main principle, where there may be a curtailment
by legislation or otherwise. The question which arose in the case under
consideration was whether certain Dutch Iegislation was in conflict with
these provisions of Article 9 of the Treaty. The legislation prohibited,
amongst others, the practising of religion by means of a procession along
a public road. It said that religion might not be practised by a procession
along a public road, and it made that a criminal offence. There was a
prosecution and the matter came to the Courts of First Instance, and,
eventually, to the Hoge Raad, on appeal. The Hoge Raad held that
Article 9, paragraph 2, of the Treaty conferred on the parties thercto REJOINDER OF MR. DE VILLIERS
-that is on the State governments-a discretion to determine whether
restrictions should, or should not, be placed on the freedom of worship
for the purpose of protecting the public order, and so forth, a discretion
also to determine whether existing restrictions directed at this purpose
should be retained, and, on the basis of finding that there was such a
discretion conferred in terms of Article g (2), the Court concluded (and
I give it in our translation):
"... that the judge, confronted with the question whether the
application of a specific provision, containing a restriction on the
freedom to hold public religious meetings outside buildings and
confined spaces, is in conflict with Article 9 of the Treaty, may
answer that question in the affirmative only if it should be regarded
as completely unth.inkable that a legislature faced with the necessity
of making provision with a view to protecting the public order,
could reasonably make or maintain such a provision ... ". (Neder
landse Jurisprudensie, 1962, p. 421.)
So, here again, Mr. President, the basis of testing the matter where the
discretion is found to exist is put on the same plane.
These are, then, the several relevant general grounds upon which
municipal courts would interfere in cases which may be said, in the
respects I have mentioned, to be similar to the present case.
My learned friend, Mr. Grosskopf, reminds me that we refer also in our
Rejoinder, V, at page 158, to a number of authorities. Sorne of them have
again been mentioned in this review I have given; some I have mentioned
have been additional, and, in particular, the Court is referred there to a
summary of a convenient comparison of laws (I refer to footnote No. 4 at
p. 159) of France, Belgium, LmŒmbourg, the Netherlands, ltaly and
Germany, in respect of détournement de pouvoir, vide in Lagrange,
Chronique Européenne. (The rest of the reference is given there and the
page reference also.)
So, Mr. President, when we apply these general principles to the
prcsent case with which we are dealing, the promotion of well-being, as
prescribed in Article 2,paragraph 2,is, in our submission, to be secn as a
prescribed purpose or objective, the "but", according to Walene's usage.
\Ve submit that the promotion of well-being is that purpose or objective,
the "but", rather than a pre-requisite or a caiisa for action, described as
the "motif". It is an authorized purpose for which an authority may act,
and, accordingly, if wc are correct in saying that, the only appropriate
enquiry would really be along the lines of an allcged détournement de
pouvoir rather than along the lines of enquiring into an allegcd absence of
a motif or a causa.
But, Mr. President, we do not want to be technical about that; we
have no objection whatsoever to viewing the mattcr on the broader basis
of assuming that either or both of these approaches could be an appro
priate one. Let us then see whether on that basis a bona fi.deviolation
could possibly have occurred, in the circumstancesofthisparticularcase,
regard being had to the provisions of the Mandate, and their practical
implications.
If we approach the matter along the lines of an alleged détournementde
pouvoir, a bona fide violation could have occurred only if there was a
wrong concept on the part of the Mandatory-a wrong concept or a
misunderstanding ofthe scope and the purposc of his power, or of his SOUTH WEST AFRICA
duties. ln the circumstances of this case, where it is so clearly said what
the purpose of the power is-the promotion of the well-being and progress
of all the inhabitants of the Territory-it hardly seems possible that
there could, in any relevant way, have been any misapprehension or
misunderstanding on the part of the Mandatory as to what the scope of
its powers is.Anct, therefore, Mr. President, even in the initial formulation
of their case against the Respondent-the initial formulation of a case
allcging oppression-the Applicants did not suggest that there was any
question of a bona fi.demisunderstanding on the part of the Respondent.
The allcgation was very firmly one of a deliberate and intentional
oppression. That is why we say, approaching the matter along those
lines,that it does not seem tous that in a practical sense, as distinct from
a theoretical one, there could be any suggestion of a bona fide violation of
-0bligation.
Approaching the matter, now, along the lines of an alleged absence of
causa or motif. the prïnciple is that the court can interfere only if the
action of the holder of the power is so unreasonable that it is unthinkable
that any reasonable authority, acting honestly and properly in the
drcumstances and, applying its mind to the matter, could have taken
such action. That test puts the matter on a plane where it, in effect,
means that the inference from this extreme situation is such that the
holder of the power must have had a wrong idea of the purpose of his
power; he must have interpreted it wrongly, or he must have had a wrong
purpose, knowing that it was a wrong purpose. The only other possibility
seems to be that in an arbitrary way he failed to apply his mind to the
matter at all; he did not consider it properly, he misinstructed himself in
some way or other, or he did not think of it properly at al!, and that
failure to apply the mind again could possibly have been a bona fi.deor a
mata fideone.
Again, Mr. President, having regard to the practical situation with
which we are dealing, and in the light of the charges that were brought,
in the light of the suggestion that the Mandatory has not been acting
properly, or legally, with reference to some of the inhabitants of the
territory, as distinct from others, it seems almost impossible to suggest
or to think of anv example of a case wherc it could be said that the
ofandatory has acted unlawfully in this particular sense, without at the
sarne time realizing that ît was acting unlawfully.
\Ve have racked our brains, my colleagues and I, in trying to find
examples where it could be said that the Mandatorv's conduct is so
unreasonable that no reasonable authority would have donc this; but
then if we look at the practical example it becomes so obvious that it
must have been a case then where the Ilfandatory itself must have
realized that it was not serving well-being and progress, and that conse
quently it is unlawful.
My learned friend liked to refer to the example of genocide, the exarnple
of the i\fandatory thinking that it might be a good thing for other
inhabitants of the territory ifit should practise genocide on a particular
population group.
Surely, Mr. President, the Mandatory would know under such circum
stances that it was acting improperly, that it was acting in conflict with
the provisions of Article 2 requiring it to promote to the utmost the
""'.ell-beingand progress of ail the inhabitants of the territory, and not to
k1llsome off. REJOINDER OF MR. DE VILLIERS
The same applies to other examples. I do not want to claim perfection
in this regard. lt may be that the Court, or Members of the Court, could
think up examples of which I have not been able to think, where it could
possibly be said that applying these general principles one could corne to
a conclusion that the Mandatory has exceeded the line of legality without
knowing that he has done so. If the Court, or a Member of the Court,
could think of an example of that kind, it still would not invalidate our
argument. Our argument is that these basic principles which I have
mentioned are the ones which are to govern the approach. They govern
only the extreme cases where the Court can find that the purpose has.
been a different one, or where the Court can find, alternatively, that the
action has been so unreasonable that no reasonable authority could have
exercised the power in the same manner.
The application of those tests as they stand are sufficient for my
purpose. I only add the comment that as far as we can see it must
inevitably result in a situation in which it would appear, whether the
Court formally finds it or not,that the Manda tory must have been acting
in bad faith.
The position in that regard might arise in the form that the Mandatory
knows beforehand, when he passes a particular law, when he takes a
particular administrative decision, or formula tes a particular policy.
that that policy is not likely to be conducive to well-being and progress.
That is one form in which the relevant mala fides could exist.
Another form in which it could exist, .Mr.President, is that the Manda
tory starts completely in good faith and genuinely on a certain policy,
with a certain measure, or with a certain line of conduct, thinking that it
will serve well-being and progress. And after the matter has proceeded
for a certain time, then it becomcs quite manifest that that particular
measure does not serve well-being and progress-it has an opposite effect.
Well, if it becornes so manifest to evcrybody concerned that the Court
could possibly make a finding to that effect, then it must have become
obvious to the Mandatory also. Thcn the Mandatory's persistence in
that line of policy, or with that particular measure, after it became
convinced of its ill effects, in itself would constitute bad faith.
That, Mr. President, is the background of principle against which our
contentions are to be weighed, and that is the background against whiclt
we propose to·answer Sir Gerald Fitzmaurice's question No. 5.
That question states that-
"Respondent daims for the Mandatory an absolute discretionary
power to determine for itself by what methods Article 2 of the
Mandate shall be implemented, subject only to good faith and
correct intentions."
For the reasons, Mr. President, which I have indicated in this rcview,
and in order to avoid any misundcrstanding in that regard, we would
respectfully prefer to re-word the daim which we make for the Manda tory
as follows:
"Respondent daims for the Mandatory a discretionary power to
decide upon the rneasures and methods whereby it seeks to promote
well-being and progress, as required by Article 2, paragraph 2.The
discretion is subject to the provisions of Articles 3-5 of the Mandate.
Decisions made in purported exercise of the discretion may be
invalidated506 SOUTH WEST AFRICA
(a) if they are not in truth directed at the purpose of promoting
well-being and progress, or
(b) if they amount to an abuse of power in the sense of being so
unreasonable that no reasonable authority could have arrived
at them in the interests of promotion of well-being and progress.
In theory a finding under either (a) or (b) need not necessarily
impute bad faith to the l\fandatory, but in the practical circum
stances it is not conceivable that such a finding could be arrived at
save under circumstances where the Mandatory must have been
mala fide, in the sense of realizing that the decision was not directed
at the prescribed purpose."
That is, with respect, the way in which we should prefer to formulate
it in order to avoid possible misunderstanding.
Now, Mr. President, with further refcrence to the question we say,
for the reasons which we have already given, that it is on the basis of the
wording of Article 22 of the Mandate, rcad in the light of the mandate
instrument as a whole and of Article 2 of the Covenant, that Rcspondent
daims for the Mandatory the discretionary power as just described. And
it is also on the same basis that there is rendcred applicable certain con
sequential principles of law and Iogic, applied in the law of civilized
nations, indicating the ambit of possible violation as just dcscribed.
I now proceed then to question 6, which reads as follows:
"In so far as it is simply a matter of fact whether in any particular
respect therc has been a brcach of Article 2or not, do the i'ntentions
(good or bad) of the Mandatory have any relevance to the question
of whether a given practice constitutes a breach of the Mandate;
more especially, do the Mandatory's good intentions have any
relevance, supposing it to be established as a fact that the practice is
injurions to, or incompatible with, well-being and social progress?"
Mr. President, the last part of this qucsbon presupposes that jt is
established as a fact, by the application of some or other critcrion, that
a particular practice is injurions to, or incompatible with, well-being and
social progress. This supposition, wc submit, requires further consider
ation before we can properly answer the question. If the facts are such as
to permit of genuine difference of opinion on the question whether this
measure does or does not promote progress, or is or is not likcly to promote
progress; and if the Court and the Mandatory in fact take opposing views
on that question, then our submission is, on the principles which I have
submitted to the Court, that there would be no legal basis for interference.
The fact that the Ilfandatory in the exercisc of its discretionary fonction
genuinely decided, on facts which could reasonably justify the decision,
that the measure was likely to promote well-being and progress, and not
to be injurions thereto or incompatible therewith, that fact would be
decisive, and the different view takcn by the Court would, with respect,
be legally irrclevant.
But this, of course, is something different from suggesting that "good
intentions" would in general be a relevant consideration. For the reasons
which I have explained before, intentions are relevant only in so far as
they bear on the question whether or not the prescribed objective is
pursued. Intentions may be good in another sense; the Mandatory might
be thinking it is doing a good thing, but knowing that it is doing a REJOINDER OF MR. DE VILLIERS 507
thing outside the scope of its powers or pursuing a different objective.
The good intentions-whether the intentions are good or bad in that
sense-could not affect the question of legality at all; it could not be
relevant.
On the other hand, Mr. President, if the Court should find that the
practice is so obviously and clearly injurious that there cannot possibly be
any scope for an honest and reasonable difference of opinion, then the
Court would indeed, on the basis of this alternative contention, be
entitled to conclude that Respondent has violated the Mandate. As we
have indicated, this would ahnost inevitably mean that the Mandatory
must have been mala fide, either as at the stage of deciding on the practice,
or at the stage of continuing with it aftcr the injurious effect became
manifest. This in itsclf, thereforc, excludes a possibility of "good inten
tions" relative to the prescribed objective, and "good intentions" in
any other sense would be irrelevant. The mere fact that the Mandatory
must almost inevitably, if the Court arrives at such an extreme finding, be
aware of the illegality of its actions, in itsclf excludes any question of
relevance of "good intentions".
Then we corne to question No. 7, which reads as follows:
"The Respondent has contended that, on the correct interpretation
of Article 2, the Mandatory's obligation does not extend beyond
endeavouring honestly and in good faith to carry out the Article
according to its own judgment of what is required for the purpose.
Admitting that the .Mandatory must possess a certain latitude, can
there be more than an initial presumption in its favour? Suppose
a prima facie case were made out for the view that certain measures
instituted by the Mandatory werc in fact detrimental to well-being
or social progress-would the Respondcnt still maintain that the
Court was incompetent to assess or pronounce on the mattcr,
except on the basis of the Mandatory's good or bad faith, and the
nature of its purposes and intentions, or would the Respondent be
prepared to agree, having regard to the language of Article 2, that
it must in such an event rebut the allegations on their actual
merits?" (VIII, p. 32.)
Mr. President, here again, for reasons which we have indicated, the
rendering of Respondent's contention in the first sentence of this question
may perhaps be said to elevate the subjective element higher than was
intended in our contention, and I respectfully refer in this regard to the
formulation which I gave in reply to question No. 5. But in regard to the
actual question, we find that it refers to the possibility of a prima facie
case "for the view that certain measures are in fact detrimental to well
being and social progress".
We respectfully submit, Mr. President, that the same distinction arises
here as in our answer to the previous question, No. 6. If a prima facie
case were made out for the view that the measures are so clearly and
obviously detrimental to well-being and social progress that there could
be no room for an honest and reasonablc difference of opinion as regards
the effect of the measures, Respondent would agree that it must then
rebut the case on its merits. But "on its merits" then has a peculiar
meaning. In rebutting that case on its merits it is not neccssary for
Respondent to persuade the Court to agree with its views on the merits
of its particular action. It is not necessary for it to walk out in the end508 SOUTH WEST AFRICA
and to say, well, the Court agrees entirely now; that is also what the
Court would have decided if it had to takc the decision in the first
instance.
Wb.en weighing the matter in the end, namely the prima facie case
together with the rebutting or answering material which the Respondent
has put before the Court, the Court would then again have to apply the
same basic legal criteria which I mentioned before. Only if the Court is
then satisfied, having regard to ail the evidence before it, that no rcason
able mandatory could possibly have adopted the policies or practices in
·question, may the Court, with respect, adjudge that there has been a
brcach of the Mandate.
In the light of our contentions as to the legal situation we do not, with
respect, perceive that there could in any other scnse be a prima fade
-case on facts for us to meet.
\Ve hope, Mr. President, that what we have stated will serve as a
full answerto Sir Gerald Fitzmaurice's questions Nos. 5, 6 and 7, together
with the introductory remarks bearing thereon, and clear up any mis
understanding that may have existed or may have arisen from our
previous expositions. If any further lack of clarity should exist, and if
we could assist in clearing it up, we should gladly do so.
Then, Mr. President, that leaves questions Nos. 8 to ro, but before we
proceed to answer those therc are one or two comments of the Applicants
which have a bearing on the same subject-matter as questions Nos. 5
to 7, and I think it would be convenient first to revert very briefly to
·those.
On several occasions the Applicants professed surprise at the fact that
·weused the words "intentions, or purpose, or good faith" in one breath,
so to speak, or in the Applicants' own words, "in juxtaposition". \Ve can
refer the Court to the following verbatim records on this point: on
28 April, at page 37, swpra; on 13 May, at page 253, supra; on r8 May,
at page 3n, supra. On 28 April, at page 38, the Applicants insisted on
.a distinction; saying that-
"... intention or purpose, on the one hand, is clearly astate of mind,
a fact, whereas good faith, on the other hand, is a legal character or
quality, attributable to a state of mind or intention in a given
context".
Mr. President, we do not quarre! with that distinction. What causes us
-some surprise is the apparent failure on the part of the Applicants to
w.-aspthat we use these concepts "in juxtaposition" precisely because,
'in a given context", good or bad faith, as the case might be, is "a legal
character or a quality attributable" to Respondent's intentions or
purposes. It is precisely for that reason that we use them in juxta
position, where a particular intention would almost inevitably mean also
·bad faith; or a particular intention to the other effect, viz., directed at an
authorized purpose, would mean good faith. Certain intentions or
purposes would amount to bad faith in relation to the known objective or
·purpose which Respondent is obliged to pursue, and I need not spend
any further time on that point.
This, Mr. President, really also disposes of the Applicants' suggestion
that the Respondent uses the term "good or bad faith" in three different
senses: firstly as synonymous with intentions or purposes, secondly in the
sense of an authorized purpose, and thirdly in the sense of pursuing an REJOINDER OF MR. DE VILLIERS 509
authorized or unauthorized purpose. We find that contention advanced in
the verbatim record of 28 April, at pages 37 and 38, supra.
That, of course, is an entirely erroneous rendering, :Mr. President.
We simply say that in particular circumstances intent directed at an
unauthorized purpose would amount to bad faith, and in other circumstan
ces intent directed at an authorized purpose would amount to good faith.
Ali the other comments by the Applicants to the effect that we use
"purpose" in diffcrent senses are, in our submission, as simply answerable
as this particular one and I need not take up any more of the Court's
time in following up ail those.
What is more serious, Mr. President, is that apparently on the basis of
such word games the Applicants proceeded to attribute to the Respon
dent a thcory which we never propounded, and the Applicants then tried
to turn that theory to their own advantage in the advancement of their
case, as it is now put before the Court. They attributed tous a contention
that the purpose of the Mandate should be ascertained by looking at
Respondent's purposes or intentions. That is what is attributed to us.
The Applicants say this is wrong only in so far as one should not look at
Respondent's purposes or intentions, but one should look at the purposes
or intentions of the competent organs of the organized international
community. Therefore, Mr. President, by misrepresenting what our
argument was the Applicants associate themselves with it and then on
that basis they find some support for the argument which theyadvance in
regard to a suggested competence on the part of the organs of the
organized international community.
In the verbatim record of 28 April, at page 4r, supra, we find the
suggestion that according to Respondent's theory,
"The objectives of the Mandate would become, in effect, whatever
Respondent, in the exercise of its full power of discretion, defines
them to be ... "
That is what the Applicants attribute tous.
In the verbatim record of r8 May, at page 3rr, supra, the Applicants
said:
"... according to the conception which appears to be advanced and
which underlies the Respondent's case, the objective of the Mandate
is appraised and evaluated in light of the Respondent's intention
or purpose or good faith ... ".
And they say in the same verbatim record, at page 322, that Respon
<lent-
"... construes the position which leads to a construction of Mandate
purposes in terms of the Mandatory's purposes. The purposes of the
Mandate becomc what the Mandatory says they are, subject only to
the outrageous Mandatory test."
Needless to say, Mr. President, these and similar statements contain a
wholly unfounded representation of our contention. We never said
anything of that kind. The effect of what we said was that the purpose of
the Mandate, the purpose for which discretionary powers were conferred
upon Respondent, was tobe found quite clearly in the Mandate itself and
in the Covenant. The purpose is, of course, the promotion of the well
being and progress of the inhabitants of the Territory. No difficult
,questions of construction or of any kind enter into it: the prescribed510 SOUTH WEST AFRICA
purpose stands there plain and alive for everyone to see-the purpose of
promoting to the utmost the well-being and progress of the inhabitants.
That is, of course, the purpose of the Mandate.
We said further that the enquiry was whether Respondent had, in
fact, exercised its powers for that purpose, in other words, whcther
Respondent's purpose corresponded v.'lth the purpose stated in the
Mandate. Now surely, Mr. President, nothing in that contention suggests
that the Court should determine the purpose of the Mandate with
reference to Respondent's purposes, or that the purpose of the l\Iandate
could change in accordance with Respondent's decisions as to what the
purpose ought to be.
It is small wonder, Mr. President, in our submission, that the Appli
cants should grope around for support for the rather amazing contention
that somcbody unnamed, at some stage or anothcr, conferred a discre
tionary power on a mystic entity, the organizcd international community.
\Ve shall say more about that contention latcr, but for the moment I am
merely pointing out that that contention certainly does not derive
support from anything which has been said by us.
l can now revert to Judge Sir Gerald Fitzmaurice's questions 8 to 10.
By way of introduction we can say that the questions relate to specific
aspects of the wording of Article 2.We have already explained that our
argument is based upon and emanates from that wording. In developing
our argument we referred to a possible ambigui ty arising from the wording
atone. The wording, purely as a matter of language, could be read either
as enjoining that a certain result must be reached, namely the result of
promotion to the utmost, or it could be read as enjoining that a certain
purpose or objective should be pursued, namely that of promotion to the
utmost. Although the language of the Article may be capable of bearing
either of these meanings, Mr. President, the latter meaning was, in our
submission, the only practicable one, apart from being in accordancc with
a general trust concept, and being supported by the context of the instru
ment as a whole, by general principles of law and logic applying all over
the civilized world, and by strong authority which we cited to the Court.
All those led to the conclusion that what was meant here was not a
judgment of the Mandatory's conduct by result, in order to determine
its validity or invalidity, but a judgment of its conduct on the criterion
of ascertaining whether the purpose or objective corresponds with the
prescribed purpose or objective.
Now we find that questions 8 to ro draw attention to further aspects of
the wording of Article 2, aspects which in some instances also involve a
possible ambiguity but which in other instances amount to possible
indications of intent on questions which may be relevant to the issues as
they originally came before the Court. We are therefore, with respect,
grateful for the opportunity of replying to these questions bccause, in
our submission, the factors to which thèy draw attention in many ways
serve to support our basic argument, and to refute Applicants' case as
based on the norm and the standards.
In question No. 8 we find the differences between the English and the
French text of the Mandates referred to. In substance we find that the
question has two aspects, namely first, what approach should in law be
applied towards any differences which might exist in the two texts; and
secondly, what is the result, in the case of the Mandate, of following that
approach? REJOINDER OF MR. DE VILLIERS SII
Now, Mr. President, the Applicants dealt with these questions on
13 May, at pages 264 and 265, supra, of that verbatim record, and again
on 19 May, at pages 364 and 365; and they, if I have understood them
correctly, contended that the English text alone is authentic and authori
tative, but that in any event, there are no differences of substance or
meaning between the two texts. For convenience we shall deal with the
two aspects of the question separately.
Ta takc the first aspect then-the general approach in a case where two
texts exist:
It seems to be conceded by the Applicants and it seems ta be established
by the record, with respect Mr. President, that both texts were embodied
in the League resolution of 17 December 1920 and both texts were in
League practice treatcd as official. I can refer to the verbatim of 19 May,
at page 364, supra, where the Applicants dealt with this matter. That
would seem ta be common cause. We are, therefore, not quite sure what
the effect is of the Applicants' contention that the English text is "au
thentic" or "authoritative". It clearly cannot mean that no regard at
all may be had to the French text. Indeecl, Mr. President, the attitude of
the Permanent Court was directly contrary to any such suggestion.
In the Mavrommatis case (1924), P.C.!.]. A/2, at page 19, the Court
stated as follows with regard to Article II of the Palestine Mandate:
"The Court is of opinion that where two versions possessing equal
authority exist one of which appears to have a \vider bearing than
the other, it is bound to adopt the more limited interpretation
which can be made to harmonise with both versions and which, as
far as it goes, is doubtless in accordance with the common intention
of the Parties. In the present case this conclusion is indicated with
especial force because the question concerns an instrument laying
down the obligations of Great Britain in her capacity as Mandatory
for Palestine and because the original draft was probably made in
English." ·
It will be noted, Mr. President, that the Court attached relatively
limited weight to the fact that the original draft was, as it was put,
"probably made in English". We may refer also to comment on this
point by Schwarzenberger, International Law, 3rd Edition, 1957, at
pages 503-504.
The emphasis falls rather on the desirability of attempting first to
reconcile any apparent inconsistencies, which is the normal approach of
interpretation. This necessity of attempting to reconcile the two official
versions of atreaty appears also from the case of the German Reparations
under Article 260 of the Peace Treaty of Versailles (1924), 1 Reports of
International Arbitration Awards, page 429 at page 439, where the
follO\vingwas said:
"The situation is consequently as follows: there is a clear text
the English text-and a text which is not clear and the meaning of
which must be ascertained by an interpretation-the French text.
The two tcxts are authentic. Both have been submitted to the
Parties for signature. In such a case, it does not seem permissible to
ignore the English text and interpret the French text as if the
English text does not exist. On the contrary, the clear text, the
English text, furnished the better means for the interpretation of512 SOUTH WEST AFRICA
the French text. The two texts are evidently intended to express the
same ideas. If there are two equally clcar texts, which do not agree,
one could support the view that the text which carries lessobligations
for the party bound merits preference. But if one of the texts is
clear and the other is not, the solution to be arrivcd at is that of
interpreting the less clear text in the light of the other text and in
conformity with the meaning resulting from the terms of the latter
text."
We can refer also, Mr. President, to the Advisory Opinion on the
Competence of the International Labour Organisation in the records of the
Permanent Court Series B 2/3, page 35, and further to Lord McNair on
The Law of Treaties, 1961, at pages 434-435. I may say, Mr. President,
with respect, this is a diffi.culty which arises also in South African law,
due to the existence of the two official languages and due to the pro
mulgation of Statutes and other official measures in both languages.
There is an Interpretation Act to the effect that where thcre is an irre
concilable conflict between Statu tes, then preference is to be given to the
one which was officiatly signed by the Governor-General, now by the
State President. They are signed in one or the othcr language alternatively
but that interpretation clause is treated by the courts as a measurc of last
resort only. It is only in the case of an irreconcilable conflict that
it is applied. Before one reaches that stage, one sees frrst whether the two
texts can be reconciled and then it does not matter whether it is the
unsigned version or the signed version which assists in the reconciliation.
Both are made at the same time, both are intended to be authentic and
even if one does not speak of being authentic in a technical sense in a
particular instance, one at Ieast finds the same considerations as would
apply to any contemporanea expositio or subsecutus observatiae. There
is an authoritative attempt made, a detailed interpretation given in this
translation of every aspect of the official trcaty or the official instrument,
given at the very same time when ail concerned can see whether it is a
proper one or not, a factor which applies with particular force in the case
of the League practice where the League organs dealing with mandates
had to deal with them from day to day and where the practice was of the
nature that the French text was regarded as authoritative or the one to
be used in respect of French territories and the English text in respect of
the British Mandatory Territories.
So, Mr. President, whatever technical weight, whatever technical
significance one attaches to authenticity or lack of authcnticity, one has
this factor: that the two tcxts at least form an aid in the interpretation,
the one of the other. l\Iy submission is, therefore, that the correct ap
proach would be to have regard to both texts and, in the event of
differences, to reconcile them with a view to ascertaining the true
intention of the parties.
And it remains to apply that approach to the provisions of the Man
date, particularly to the differences referred to in the question by the
honourable Judge. The two differences as we understand them are the
following. Firstly, the French version speaks of "increased well-being,
etc.", or words having that meaning as against the English version of
"to promote well-being", and so forth. Secondly, the French text
contains an expression meaning "by all means in its power" or "by all
available means" instead of the English "to the utmost".
Mr. President, in comparing the two texts one cannot trcat these REJOINDER OF MR. DE VILLIERS 513·
two differences separately; they, after all, have a bearing upon one
another, they run into each other as it were. It would seem that the
French text is, in these particular respects, clearer and more explicit
than the English text. The vital element which is emphasized by the
French text is the subjective nature of the Mandatory's obligation.
The expression "by ail available means" or "by ail the means in its
power" clearly negates any suggestion that the Mandatory's endeavours
or results should be measured by any absolute criterion or yardstick.
When 1 say "the subjective nature of the Mandatory's obligation"
perhaps that is not a very apt expression. I should perhaps say "the
manner in which the performance of the Mandatory is to be seen in
relation to its own peculiar circumstances".
That, Mr. President, is a reason why we say that the French text
indicates there was no question of applying an absolute criterion on the
basis of results, and saying "this is the optimum which could have been
achieved by way of promotion and independently of your peculiar circwn
stances, independently of your particular situation, your resources,
your means" and so forth, this is the stage of promotion to the utmost
which is required of you by law. The French text makes it clear that in
deciding whether the Mandatory has or has not promoted to the degree
required of it, regard is to be had to the Mandatory's peculiar situation,
its peculiar circumstances, the means at its disposai and the peculiar
situation of the mandated Territory itself.
The English text, on the other hand, is in that particular respect,
merely as a matter of language, perhaps ambiguous. I stress "mercly as
a matter of language" because it seems inconceivable to me that one
could even, without the aid of the French text, have proceeded to a
construction of the English text to the absolute effect that I have men
tioned. The words "to the utmost" are even in their immediate context,
but merely as a matter of language, capable of more than one meaning.
They can either mean "to the utmost of the Mandatory's power or
available means" or they can mean "to the utmost degree to which the
well-being of the inhabitants could possibly be promoted regardless of
the resources, power, available means or other special circumstances of
the Mandatory. It is, in our submission, to say the least, unlikely that
the words were intended to have this latter meaning. Not only is the
first-mentioned meaning, namely "to the utmost of the l\fandatory's
power or available means", the more likely to have been intended, and
therefore one which could have been arrived at in the context purely on
the basis of the English text alone, Mr. President, but the correctncss of
that interpretation is, in our submission, confirmed by the French text.
On the basis of the legal approach which should be followed in cases
of this kind with which I have dealt, we accordingly submit that the
English text should be interpreted to have the same meaning as the
French text; in other words, the Mandatory is obliged to promote well
being by "all the means in its power" or "at its disposai" or "by all
available means".
That finishes my answer to question 8, Mr. President.
[Public hearing 0/9 June I965]
Mr. President and honourable Members, I corne to question No. () of
the series put by Sir Gerald Fitzmaurice on 7 May. It reads: "Supnose
that certain measures instituted by the Mandatory have had a beneficial SOUTH WEST AFRICA
effect but that others have not. In these circumstances, would it be
correct to say that if on balance there has been a promotion of, or increase
in, the sum total of well-being and social progress viewed as a whole, then
the provisions of the Mandate have been complied with, or would it be
correct to say that, irrespective of any total increase in well-being and
even if there has been such an increase, any particular measures which
are or prove to be detrimental constitute protanto a breach of the i\Ian
date ?"
· Mr. President, the question postula tes again the testing of the validity
of measures, or of ail measures constituting a policy, as the case might
be, on the basis of the effect which the measures in fact have-whether
or not they have, or have had, a beneficial effect.
In the light of the narrowing down of the Applicants' case in the
manner which I attempted to describe yestcrday, it follows that our
answers to questions put on the basis of such a postulation are now
really, to a largeextent, academic in these proceedings. I may point out
in passing that the Applicants made that position abundantly clear in
respect of this very question; in giving their answer to this question they
said the following in the verbatim record of 19 May, at page 363, supra:
"... the Applicants have sought to make clear by the arguments
now concluding the reasoning which underlies their distinction be
tween the qualitative and quantitative aspects of Article 2, para
graph 2,obligations. If this case were brought on the theory, which it
is not, that the Mandatory had built too few schools or hospitals in
the Territory, then it might be appropriate to adopt a balancing ap
proach to determine whether the duties with regard to the promotion
of material well-being or other kinds of well-being were upheld. But
this case is brought on the premise that Article 2 contains a qualita
tive element, violation of which is a breach of the Mandate."
As I say, with respect, that makes it clear that the case the Applicants
bring is not one of judging by effect, and they make that clear in this
passage, inter alia, with reference to this particular question. They make
it clear with respect to their case as a whole in other passages, to which
we shall later refer. But, nevertheless, for the same reasons as I indicated
in regard to other questions yesterday, we propose to answer the question
as best we can.
The question visualizes a situation in which it can be said, as a matter
of fact, that certain measures instituted by the Mandatory have had a
beneficial effect, while others have not, and the question then suggests
two methods of determining whether there has been a breach of the
Mandate in such circumstances.
I should like to deal first with the factual situation visualized, and
particularly with the basis upon which it can be conceived that a particu
lar measure has had a beneficial effect or not. In a territorv such as
South West Africa, which is inhabitated by different population groups
standing at different stages of development, good government requires
the adoption of policies which take due cognizance of these particular
circumstances. Consequently, legislative and administrative measures
may then have, as they in fact do, different effects upon the different
groups, or even on different members within the group. That applies,
Mr. President, whether one applies an approach of differentiation in the
measures themselves or not. Even if one applies a non-differentiation REJOINDER OF MR. DE VILLIERS
approach in the measures adopted-in the legislative and the administra
tive practical measures-one will find that the cffects would be different
for different inhabitants of South West Africa and, particularly, for
different groups of the inhabitants of South \\lest Africa, and, also, for
individual persans within those groups. Let us take an example. Suppose
one should have a law which permits anybody to prospect anywhere
within the whole Territory. Such a measure, Mr. President, would, under
present circumstances, mainly benefit the Europeans, and perhaps also
some members of the colourcd community who are interested in pros
pecting and who have rcached a stage of development where they have
tecluücal appreciation of what is involved in those operations. One would,
on the whole, then, have the situation that, whereas there would be
large-scale prospecting within the Native areas by others from outside
those Native areas, i.e., by Europeans and, perhaps, by some members
of the Coloured community, one would have very little, if any, prospecting
by Natives within what is now caHed the Europcan area, or the \Vhite
area. Uncler the system of differcntiation which applies there is, however,
a special protection of interests of the Natives as far as their own arcas
are concerned. Thercfore, if one takes away that differentiation which
applies-if one has a non-diffcrential measure applying throughout the
Territory-the operation would be on balance against the interests of the
Native population and not in their favour.
If one wcre to take the samc position in regard to, say, farmland, if the
whole area-the whole Territory-were thrown open to farming enter
prise, so as to allow the purchase of land by anybody anywhere within the
Terri tory for fanning purposes, the result would probably be that within
a very short while the whole Okavango would become a Europcan
farmed irrigation area, because it is admirably suited for that purpose.
But, Mr. President, converscly, one would find that very few Natives
would be able to avail themselns of the opportunity of buying land
within what might now be called the White or the European area.
One finds, therefore, that an approach of non-differentiation in the
measures could, equally within the approach of differentiation, have
different results for different population groups and for members within
those different population groups.
A law prcscribing compulsory educa tion for cverybody would certainly,
for reasons pertaining to stages of development, stages of interest taken
in education, and so forth, result in many more prosecutions amongst the
indigenous groups than amongst the European, the Coloured, or the
Baster groups.
Now, let us take an example going the other way-an example of a
differential law, or a differentialdy of laws-namely the example of the
influx control laws in South West Africa, the laws contrnlling the influx
of Natives--of members of the indigenous groups-into the cities. It is
true that they operate gencrally in respect of the .Native people, and not
in respect of Europeans and Coloureds, but even amongst the Natives,
Mr. President, one finds that the way in which the interests of various
people-or the position of various people-may be affected is different.
Sorne of the Natives are settled in Native urban areas and these laws also
protect their interests against a flooding of the labour market, against the
creation of overcrowded conditions, sium conditions, and associated
evils of crime, dîsease,and so forth. Other Natives are outside the urban
areas. Though they may want to enter, the facilities for them arc re-516 SOUTH WEST AFRICA
stricted, and the way in which their position is affected is, therefore,
different. On the whole, however, the restrictions are beneficial cven for
them, because it obviates the situation arising where they would corne to
stay in a city where there may be no livelihood for them, or no housing, or
neither of these two.
But no doubt, Mr. President, when one has control measures of this
kind it must happen in some instances that there are hard-luck cases
which are affected by them. That is why we say that it follows that any
particular measure which requires to be scrutinized with a view to its
validity, with its compliance or otherwise with Article 2 of the Mandate,
might, although it may be intcnded to have, and in fact has an over-all
beneficial effect,have in a particular respect, or with reference to particu
lar persons, a negative, or even a contrary effect. That is the situation
which one necessarily finds in a territory Iike South West Africa where
the legislation largely has to take into account a balancing of opposing
interests,daims and aspirations.
Now, .Mr. President, assuming for purposes of argument that a legal
criterion for validity of a particular measure can be the actual effect of
that measure, as is postulated in this particular question, it seems to
stand to reason that when applying that criterion regard cannot only
be had to the negative effect which the particular measure has for some
persons, while the positive or beneficial effect which it has for others, or
in the over-all picture, is ignored. A weighing-up process is, therefore,
probably necessary in respect of every single measure. Ifthat weighing-up
process has been undertaken in respect of a particular measure, and if the
result should be that the measure is not conducive to progress but has an
opposHe effect, then, Mr. President, stiH postulating that one tests on this
basis, I should find it very difficult to justify a proposition that one could,
nevertheless, say that such a measure is in conformity with Article 2
because over-all there has been a promotion of a total amount of well
being and progress. That seems to be one of the incidents of the question.
But I say that is a situation which arises if one approaches the matter on
this basis of testing according to effect, and if one can find that one
measure can be isolated from the whole, and having been weighed as to
its possible beneficial, its various, effects in diffcrent ways, one then
cornes to the conclusion that there is nothing to be said for it, i.e., that it
is detrimental and not beneficial. It is only on that basis that I say this.
lmmediately I have to add that a very important attendant factor
arises, and that is that a particular measure in itself may, if viewed in
isolation, appear to have no beneficial effect but only a negative or a
detrimental effect. But still, it may be unsound to condemn that measure
by itself, for the simple reason that it may fonn a necessary part of a
total complex of measures, governing the life of the inhabitants of the
Territory, which total complex may have an over-all beneficial effect as
compared with the only available alternatives. So that is also a factor
alwavs to be borne in mind if one is to test in accordance with effect. One
may "have to see whether that particular measure for which, if taken in
isolation, it might seem that nothing can be said, does not play an
important role of linking, a necessary link in the chain of a total complex
of legislation which, on the whole, has a beneficial effect.
The field of inquiry would, for purposes of such testing, naturally be a
very wide and a complex one, but it seems that it would be one that
would necessarily have to be covered on the postulation of testing REJOINDER OF MR. DE VILLIERS 517
according to effect. The very wide ambit of the inquiry which would have
to be undertaken by the Court is further demonstrated by the answer
which we shall give to Judge Sir Gerald Fitzmaurice's question No. 10,
which deals, amon·gst others, with the power which the Respondent
possesses of administering the Territory as an integral portion of South
Africa, and of applying the laws of South Africa to the Territory.
It becomes possible, Mr. President, that in the complex of legislative
measures which apply to South Africa and the Territory viewcd together,
the Territory being govcrned as an integral portion of SouthAfrica-in
that whole complex-a particular measure might forma necessary and an
interlocking part of the whole. That particular measure might possibly
have adverse effects in South \Vest Africa, but it might appear that it
could not be severed from the complex which, as a whole, has a beneficial
effect forthe Territory.
Those are some of the problems which arise when one postulates a test
of validity according to result. In view of these considerations it would,
in our respectful submission, seem impossible, even on the basis of an
effects test, to find that any particular measure constitutes a violation of
Article z without embarking on an inquiry into the whole complex of
laws which are applicable in South West Africa, having regard, further,
to the fact that South West Africa is a territory administered as an inte
gral portion of South Africa. The object of that inquiry would be to
determine whether the mcasurc, having regard to its part in the whole,
has a benefi.cialeffect or not.
This, l\lr.President, would in itself seem to be an enormous and an
almost impossible task for any court of law to embark upon, particularly
when it is borne in mind that that difficulty is complicated and increased
by a further factor. Even if itwere possible to separate the good from the
bad on the basis of the effects which different measures have, or the
different effects which the same measure may have, the question arises,
how does a court weigh the good against the bad, in an exact manner, in
order to determine where the balance lies? What weight is to be given to
the effect which the differcnt measures have, or to the different effects
which a particular measure may have, in attempting to determine
whether on balance there has, in fact and in effect, been a promotion of,
or an increase in, well-being and social progress?
The mere posing of these difficulties, Mr. President, as I have stated
them thus far on the basis of the postulate that one tests according to
effect, demonstrates, in our submission, or goes to support, our contention
that a testing on the basis of effect could not have been intcnded; that
apart from our main contention which is also considerably supported by
these considerations, viz., that the Court was not intended to adjudicate
upon such questions under Article 2 at all. These considerations afford
support also for our alternative contention as to the more limited basis
upon which a court can test in accordance with what I might call the test
of purpose, in the sense which I explained yesterday.
There is in regard to a test on the basis of purpose also a balancing
process, a similar balancing process to be taken into account by a court,
and then it becomes a feasible proposition. The balancin15 process is one
which is, in the first instance, to be applied by the admimstering author
ity, the mandatory: it seems obvious that that is part of its duty. It is,
indeed, necessary and essential for it to take those balancing factors into
account in the measures which it provides. SOUTH WEST AFRICA
Therefore, Mr. President, if a court tests on the basis whether a
particular measure could have been decided upon by a reasonable manda
tory, i.e., whether it could conceivably have been decided upon by that
mandatory as one which was likely to promote well-being or progress,
then naturally the same basis of approach is adopted by the court. If a
court then, on the basis of tlùs approach, condemns a measure, or decides
·that it cannot condemn a measure, the court would do so after taking that
balancing process into account. But then one will find that only if the
result is an extreme or an obvious one, unfavourable to the mandatory,
then the court will intcrfere-if it is extrcme in the sense that the court
cornes to the conclusion that no reasonable manda tory honestly applying
its mind to the situation could have corne to the conclusion that this
measure could possibly be conducive to well-being and progrcss. If,
however, the court finds that the matter, having regard to the need for
balancing, falls in a category where there could be differencc of opinion,
where it cornes into a sphere in which exact balancing becomes necessary
in order to see where the balance lies, then it becomes obvious thatthat is
a case where the court in law cannot interfere, and the exact balancing
process is rendered unnecessary for the court. I may refer again to the
wording of one of the authorities on French law to which we refcrred
yesterday, which is so very apt in its description of this type of situation.
It appears in Hamson's Executive Discretion and ]1tdicial Control, at
page 197. There he said that if the administration has acted on a ground-
"... which might on some rational view possibly be supposed to be
a justification for the exercise, the court will not further inquire
into the matter: ... ".
Applying the logic of that, Mr. President, if the court then finds that
on applying the ba!ancing process, it bccornes a rather neat rnatter of
deciding where the balance lies, then the court will decide: "\Vell, there is
no further fonction for me; that is the function of the mandatory; the
rnandatory had to decide that and there was a reasonable basis upon
which the manda tory could have decided in the way that it did, whether
I agree with it or not." Therefore, that is the difference in principle, in
its practical aspects and in its technical aspects, between testing on the
basis of effect and testing on the basis of purpose.
If the court were to attempt to weigh in the exact manner which would
be required if it were to test on the basis of effect, then it would run
counter to the proposition which I read to the Court earlier from the
Judgment of the Permanent Court in the Lighthouses case (it is mentioned
in our Counter-1\lemorial, Il, at p. 387), where the matter is so aptly
expressed. That fonction, l\lr. President, of weighing exactly and of then
deciding where the balance lies, of according exactweight to the counter
parts of a situation, would seem to accord entirely with what is said in the
Lighthouses case. I quote from the saicl passage in the Counter.Memorial,
Il, at page 387:
"It is a question of appreciating political considerations and
conditions of fact, a task which the Government, as the body
possessing the requisite knowledge of the political situation, is atone
qua/.ified to undertake."(Italics added.)
Mr. President, that is readily to be understood with reference to the
practical situation with which one has to deal. One may have to weigh in REJOINDER OF MR. DE VILLIERS
the realm of education the factor of children being separatcd in schools
according to membership of a race or an ethnie group. One may have to
balance that factor against the factor of the total number that may
become educated, or of the standards to which they could become
educated, by one system as opposed to the other.
The mandatory's appreciation of the situation may be, or the facts of
the situation, the demonstrable facts, may be, that by applying a system
of separation in education one can educate more efficiently and to a
higher standard a much larger number of Native children than would be
possible in an integrated school system. That is then a bcnefit which
would accrue from applying a differential system, whereas, on the other
hand, the idea may be that one ought not to separate at all; that in itself
is a factorto which weight is to be given. But how does one weigh those
two factors, the one against the other? Is not that a matter for apprecia
tion of the political implications, political in a broad sense, by the
governing authority? And how does the court substitute its judgment as
a matter of law for that of the goveming authority by saying: "I put
more weight on this factor than the goveming authority does. I think the
factor of separation in itself must weigh more heavily than the factor of
educating more children and to a higher dcgrce"?
Let us take another example from those quoted by my leamed friend
-the mining legislation in South West Africa. Herc we have a weighing
process, Mr. President, on the one hand of the fact that possibly a few
Natives may be affected, may be deprived of an opportunity of employ
ment in certain positions in mines: how many is a matter for evidencc.
Let us assume it can be shown that the number is relatively small bccause
that is in accordance with the facts as we shall present them to the Court.
Mr. President, then we have to weigh on the other side, or the Respondent
Governmcnt finds it has to weigh on the other hand, certain political and
sociological considerations which could arise if that type of legislation
was not applied in the mining sphere-difficulties which could arise in
the labour force in the mines-difficulties which could affect the whole
possibility of having mines running effectively at all. Those are factors of
a politicalnature-again in a broad sense of the word "political"-which
have to be taken into account and have to be weighed. Again, Mr.
President, how does the Court say "l weigh that in a different way from
that in which the Govemment has donc"?
I have taken these examples to show the criteria to be considered, and
perhaps they have gone somewhat beyond answering this particular ·
question, but I think it has been important to get to the real basis-the
real foundations-as to why we say that not only in a legal sense, but also
practical considerations demonstrate that it would not be a feasible
proposition and it would not be correct in law, for a court to attempt to
test on the basis of effects, the test could at most be a test on the basis of
purpose. If one tests on the basis of purpose then this exact balancing
becomes unnecessary for the reasons I have indicated. Then a Court need
merely go so far as to say whether a mandatory could or could not
reasonably have corne toits conclusions. If the result is an extreme one
then obviously no exact balancing is required to find that. As soon as
exact balancing is required, then the Court finds that its fonction ceases.
That concludes our answer then to question No. 9 and 1t brings us to
question No. ro.
This question concerns the relationship between the first and the520 SOUTH WEST AFRICA
second sub-paragraphs of Article 2 of the Mandate. After referring to the
respective provisions of the two sub-paragraphs, the honourablc Judge
Sir Gerald Fitzmaurice stated "neither sub-paragraph is specifically
subordinated to the other", and he then raised the following questions:
"Should either nevertheless be read as being so subordinated, and
if soin what sense and to what extent? If not, and if the twoclauses.
are independent of one another, what is the resulting legal situation?"
(VIII, Minutes, p. 34.)
Now, Mr. President, as we conceive the position, it is easy to state
initially that the two sub-paragraphs are not independent of one another.
In terms of sub-paragraph (r) the Mandatory is vested wi~h "... full
power of administration and legislation over the Territory ... as an
integral portion of the Union of South Africa" and it is empowered
"... to apply the laws of the Union of South Africa to the territory
subject to such local modifications as the circumstances may require".
(1,p. 201.)
Sub-paragraph (2), on the other hand, states an obligation, it states the
purpose. or the objective, which the l\fandatory is ob1igedto pursue in the
exercise of its powers. Sub-paragraph (2), therefore, serves to qualify the
powers mentioned in sub-paragraph (r) by refcrence to a specific purpose
which the Mandatory is obliged to pursue, namcly that of promoting the
well-being and the progress of the inhabitants. In a sense sub-paragraph
(r) can, therefore, be said to be subordinate to sub-paragraph (2), but we
would prefer to say that it is qualified by sub-paragraph (2) in the sense
which I have stated. The word "subordinate" may, perhaps, just as a
matter of shade of meaning, create a wrong impression.
In the event of an absolute clash between the power granted in sub
paragraph (1) and the obligation stated in sub-paragraph (2) I suppose
the power would have to yield to the obligation-there is that qualifying
relationship between the two-but the possible area of clash would appear
to be, in our submission, relatively small.
The resulting legal situation, is therefore, that while Respondent is
entitled to administer South West Africa as an integral portion of its
own territory, and white it may apply its own laws subject to such local
modifications as circumstances may require, it is obliged to exercise these
powers with a view to achieving the prescribed purpose or objective.
Mr. President, in saying that we agree that in this sense sub-paragraph
(1) can be said to be subordinate to sub-paragraph (2),that wc prefer to
say that it is qualified by sub-paragraph (2), we agree substantially with
a conclusion also stated by my learned friend in argument on bchalf of the
Applicants. He dealt with the matter in the verbatim record of r3 .May,
pages 265-268, supra, and 14 May, pages 268-278, supra. He used a
number of arguments in order to bring him to this conclusion and when
I say that we, to this extent, agree with the conclusion, it does not
necessarily mean that we agree with all or any of those arguments. There
are some with which we do not agree but it is unnecessary to pursue that
question, since the matter really affects only the conclusion at which we
arrive.
The obligation of promotion to the utmost, and of having regard ail
the time to that objective and purpose, is to be observed both in framing
separate laws for the Territory-laws, policies and other measures-and
in extending the Respondent's own laws to the Territory. But, Mr_ REJOINDER OF MR. DE VILLIERS 521
President, there are very important practical aspects bearing upon this
obligation as a result of the provisions of sub-paragraph (r) of Articl2.
F1rstly, there is the element of discretion in the sense already described,
that is, with regard to the particular methods to be adopted in promoting
well-being and progress. 1 need not deal with the significance of that
again, I have stressed that before.
Secondly, and this I want to stress on this occasion, there are the
implications flowing from the provision and the contemplation that
Respondent could and would administer South West Africa as an integral
portion of its own territory. Not only does Article 2 of the Mandate say
that Respondent may do so, but Article 22 of the Covenant, the Court
will recall, inparagraph (6) stated explicitly that the Territory could
"best" be so administered. That was the formulation used in the Covenant
and that is what is referrcd back to in Article 2 (r).In other words, the
intent and the contemplation of the founders of the mandates system
thcmselves were that the Territorv could best be administered as an
integral portion of the then Union of South Africa.
Doing so would necessarily involve certain inherent advantages for
the Territory, it might also necessarily involve certain inherent dis
advantages for the Territory as compared with what its situation might
have been if it had not to be treated or administered as an integral
portion of South Africa. The weighing up of the pros and cons in that
regard was already clone by the founding fathers when coming to this
conclusion that the Territory could best be administered as an integral
portion of South Africa.
Trcating the Territory as an integral portion of South Africa visualizes
a situation in which a whole body of laws, not the whole but a whole
body of laws, of South Africa would be operative in the Territory and it
would be for the Respondent to decide to what extent circumstances in
South West Africa required local modification of such laws. It may well
be that in extending the over-all benefits of the integrated system to
South West Africa certain aspects of, or provisions in the system could
be Jess beneficial in themselves than might have been the position if
South West Africa were not, for administrative purposes, integrated with
South Africa, but it may also be that those provisions could not practi
cably be modified in the framework of the integrated system without .
detrimentally affecting the whole svstem. One can surely then not look
in isolation at a particular measuré or a provision which in itself has a
less beneficial effectthan could possibly have been achieved for South
\Vest Africa outside of the association with South Africa and then say
that Respondent has failed in its duty merely because, in that respect,
South West Africa is now less well off that it would have been outside
the association.
It is again a matter, Mr. President, of a taking of the rough with the
smooth. A balancing process was necessary there too and, as 1 said, that
balancing process was already completed, was already taken into account,
by the founding fathers. Soto require the Respondent to eliminate such a
particular measure could sometimes mean that the Respondent should be
precluded from treating the Territory as an integrated portion of South
Africa, in whole or in particular respects, which would have the result
that the progress and the well-being of the inhabitants could not on the
whole be promoted as it was contemplated that it should be clone or, on
the other band, it could mean that the Respondent should, in order to522 SOUTH WEST AFRICA
continue to administer the Territory as an integral portion of South
Africa, adapt its laws for application in South Africa itself---one would
then have a case of the tail wagging the dog.
If there should be a requirement, as I have said, that a particular
measure should be eliminated from the whole complex merely because
that measure, when viewed in isolation, might be less advantageous for
South West Africa than the position would have been if South West
Africa had not been in this association, whereas that measure might well
be a necessary link in the whole chain and it might be something which
follows essentially from the fact that South Africa isapplying its approach
and its body of laws, with the necessary modifications, to South West
Africa-if that requirement is to be put, Mr. President, then as I have
said, one might find one of these two situations: either not treating the
Territory as an integrated portion which is contrary to the original
contemplation and which would not produce the necessary measure of
progress, or otherwise South Africa might be forced to do something in
the adjustment of its own laws in order to comply with what it thinks it
ought to do in South West Africa.
That this latter position could arise, Mr. President, is well illustrated
by the very attitude which the Applicants now adopt in this case.
They rely on a norm, or standards, said to have bcen created by the
organized international community and with which, upon the Applicants'
argument, the Respondent would be obliged to comply in South West
Africa. Respondent must then either apply the norm in South West
Africa as well as in South Africa in order to be able to continue to ad
minister the Territory as an integral part of South Africa, or it must
cease to administer the Territory as an integral part of South Africa if
this approach were to be followed.
This in itself, inour submission, shows how completely untenable it
is to suggest that the Mandatory can be ordered by the organized
international community to comply with general norms or standards
said to be applicable to all mandated territories without variation and
without regard to the peculiar circumstances either of the particular
territory or of the mandatory itself.
It would be contrary, Mr. President, to the statement by M. Orts
at a relatively early stage in the application and operation of the man
dates system, which statement as it appears in the Counter-Memorial,
reads-
"The development of primitive peoples could be carried on by
different means, and these means would be such as were proper to the
native genius, traditions, and the political and philosophical
conceptions of each manda tory State ... The mandatory States
would fail in their task if a system and method foreign to their
mentality were imposed upon them." (II, p. 388.)
That endorses, Mr. President, the significance of the fact that there is
this relationship between sub-paragraph r and sub-paragraph 2 of
Article 2 of the Mandate; that in adjudging whether the mandatory has
complied with its duty of pursuing the prescribed objective, one is not to
lose sightof the peculiar implications which arise from the contemplation
that that territory may be administered, and was contemplated that it
could best be administered, as an integral portion of the Union of
South Africa. REJOINDER OF MR. DE VILLIERS
That, lvlr. President, complctes our reply to the questions put by the
honourable Judge Sir Gerald Fitzmaurice, subject to any further elucida
tion we may be able to give, if that should be required, and wc would
naturally do that with pleasure. That also concludes. subject to the same
reservation, our further survey in explanation of our contention as to the
true basis of justiciability of Article 2 (2) of the Mandate, if at ail, and we
now proceed to a further consideration of the case of the Applicants-a
more detailed consideration of the case of the Applicants as now brought
by them and based upon their suggested norm and/or standards.
First, it is neccssary to devote some attention to an exact analysis of
what that case is and how it has developed up to the present. That part
of the argument, if it plcases you, Mr. President, will be addressed to the
Court by my learncd friend Mr. Grosskopf. 18. REJOINDER OF MR GROSSKOPF
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA AT THE PUBLIC
HEARINGS OF 9 AND 10 JUNE 1965
Now, Mr. President, as my learned senior said, I sha11commence the
argument dealing with the Applicants' case.
As a convenient point of departure, reference may be made to their
Submissions 3 and 4 as they are now formulated. ln these submissions
the Applicants now ask the Court to adjudge and declare that:
"3. Respondent, by laws and regulations, and official methods
and measures, wlùch are set out in the pleadings herein, has prac
tised apartheid, i.e., has distinguished as to race, colour, national
or tribal origin in establisbing the rights and duties of the inhabitants
of the Territory: that such practice is in violation of its obligations
as stated in Article2 of the Mandate and Article 22 of the Covenant
of the League of Nations; and that Respondent has the dut y forth
with to cease the practice of apartheid in the Territory;
4. Respondent, by virtue of economic, political, social and
educational policies applied within the Territory, by means of laws
and regulations, and official methods and measures, wlùch are set
out in the pleadings herein, has, in the light of applicable inter
national standards or international Iegal norm, or both, failed to
promote to the utmost the material and moral wcll-being and social
progress of the inhabitants of the Terri tory; that its failure to do so
is in violation of its obligations as stated in Artic2eof the Mandate
and Article 22 of the Covenant; and that Respondent has the duty
forthwith to cease its violations as aforesaid and to take all practi
cable action to fulfil its duties under such articles;". (Supra, p. 374.)
On the same day, at page 375 of the verbatim record, Applicants'
Agent presented what he called "formai interpretations and explanatory
comments with respect to the foregoing submissions". These formai
interpretations read as follows, as they are set out at pages 375 and 376:
"1.The formulation of Submission 4 is not intended in any manner
to suggest an alternative basis upon which the Applicants make or
rest their case, other than the basis upon which the Applicants
present in Submission No. 3 itself ... the distinction between Sub-
missions 3 and 4 being verbal only, .. .
2. The reference in Submission 4 to 'applicable international
standards or international legal norrn, or both' is intended to refer
to such standards and legal norm, or both, in the sense described and
defi.ned in the Reply, IV, at page 493, and solely and exclusively as
there described and defi.ned ... "
The case now brought against Respondent is, consequently, only that
of an alleged contravention of this norm and/or standards. Although in
their current usage Applicants mention only one "norm", in the singular,
otherwise than in the pleadings where they referred to "norms", in the
plural, they still retain this reference to "standards" in the plural.
However, Mr. President, reference to the Oral Proceedings herein clears REJOINDER OF MR. GROSSKOPF
up any ambiguity which might otherwise have existed. Thus, Applicants
explamed in the verbatim record of 13 May, at page 259, supra, that
they rely on-" ... an international legal norm of the same scope and
content as the standards in question ... ", and they said, on the same
day, ~t page 261:
"When the Applicants speak of standards governing Article 2
they refer to rules of conduct having a content similar to, but not
an equivalent degree of legal authoritativeness of a legal norm."
The same point is made later, on the same page, where they also
emphasize that the content of the standards is exactly the same as that
of the norm.
So, l\lr. President, in effcct,e Applicants have now rendered it quite
clear: firstly, that both their Submissions 3 and 4 are based upon the
existence of a norrn and/or standards; secondly, that the content of the
norm and standards is identical; but that, thirdly, the norrn and the
standards differ as regards lcgal effect.
Itwill consequently be convenient to consider first the matter which
is common ground between the norm and the standards-that is, the
alleged content of the rule of conduct which Respondent is alleged to
have violated. Thereafter, in the later part of the argument, we shall
deal with the manner in which rules of conduct canin law become legally
binding upon Respondent, and the manner in which such rules can
become justiciable in these proceedings.
Finally, Mr. President, as the final part of our argument, which will
be an enquiry which will encompass certain factual elements as well,
we shall consider whether any rule of conduct of the nature relied upon
by Applicants can be said to have arisen, either as binding upon Respon-.
dent, or at ail, or as being justiciable in these proceedings.
That brings me, Mr. President, to the first leg of the argument, and
that is the contents of the norm and standards, and, as l have noted,
they are said to have an identical content. In deterrnining what this
content is, the authoritative statement is, of course, that which one
finds in the Applicants' submissions. In this regard, reference may be
made to Submission 3 as it is now formulated and which objects to
Respondent's policy on the ground that the policy "... has distinguished
as to race, colour, national or tribal origin in establishing the rights and
duties of the inhabitants of the Territory". I emphasize, Mr. President,
the word "distinguished".
The norrn and/or standards on which this submission is based must
consequently be one which prohibits, at least, distinctions as to race,
colour, national or tribal origin in establishing the rights and duties of
the inhabitants of the Territory.
That, then, as regards Submission 3, and, of course, any norm, the
content of any norm which relates to Submission 3, must be the same
as that which relates to Submission 4, because we are told they are both
based upon the same norm entirely-the same norrn and/or stan-
dards. ·
In Submission 4 they are referred to merely as "applicable international
standards or international legal norrn", which, in terms of Applicants'
formai interpretation, to which I referred earlier, are described and
defi.ned in the Reply, IV, at page 493. There the norrn is referred to as
one of "non-discrimination or non-separation", terms which are defi.ned SOUTH WEST AFRICA
on the same page. The definition has been quoted to the Court before,
but for completeness I may repeat it just once again:
"... the terms 'non-discrimination' or 'non-separation' are used
in their prevalent and customary sense: stated negatively, the terms
refer to the absence of governmental policies or actions which·allot
status, rights, duties, privilcges or burdens on the basis of member
ship in a group, class or race rather than on the basis of individual
merit, capacity or potential: stated affirmatively, the terms rcfer to
governmental policies and actions the objective of which is to pro
tect cquality of opportunity and equal protection of the laws to
individual persons as such". {IV, p. 493.)
Now, Mr. President, in view of the decisive i~portance ,vhich the
normand/or the standards have now attained as the basis of the Appli
cants' whole case regarding aHeged violation of Article 2 (2},the defini
tions referred to above, in our submission, merit close scrutiny.
Starting with the definition embodicd in Submission 3, one notes that
the alleged incompatibility betwecn Respondent's policies and the norm
and/or standards would appear to result from thrce elements in Respon
dent's policies, namely:
(a) The fact that such policies distinguish between different persons.
That is the first element.
(b) The fact that such distinctions relate to the establishment of rights
and duties of such persans.
(c) The fact that such distinctions are based upon race, colour, national
or tribal origin.
Those are the three elements which one finds in the submission in
question.
Now, the feature to which we would draw particular attention at this
stage is that the first and basic element in Applicants' contention, as
here analysed, is that it relates to the act of distinguishing-that is the
word used in the submission-that is, the act of treating people differ
ently, or of diffcrentiating between them. And the only respects in which
this act of distinguishing is said to be wrong, are that this act relates
to the establishment of rights and duties, and that it is based upon race,
colour. national or tribal origin. In particular, Mr. President, the con
tention, thus derived from the submission, does not involve that the act
of distinguishing possesses any qualitative features.
In other words, it does not involve that the act of distinguishing was
well-intentioned or ill-intentioned, that it was realistic or unrealistic,
that it was wcll-considered or arbitrary, that it was advantageous or
disadvantageous, or that it was good or bad. It would follow that the
norm and the standards themselves must, then, also prohibit the act of
distinguishing in the respects in question whether or not any of these
qualitative elements are present.
Mr. President, this feature of the norm and/or the standards as we
read them namely that they allegedly prohibit absolutely the act of
distinguishing in the respects in question,appears also from the definition
at page 49~ of the Reply, IV, which definition, as I have noted, is in
corporated by reference in Submission No. 4. This definition, when read
in its ordinary sense, would appear to prohibit firstly, the allotment of
status, rights, duties, privileges or burdens and, as a second element, on
the basis of membership in a group, class or race. Thosc are the only two REJOINDER OF MR. GROSSKOPF
elements contained in the definition reading it in its ordinary sense.
Once again, thercfore, Mr. President, the basis of the norm and also,
of course, of the standards, consists in the alleged prohibition on the
differential allotment of status, rights, dutics, privilcges or burdens
where the difference is based not upon individual qualities, but upon
membership in a group. And, once again, Mr. President, there is no
suggestion that the norm prohibits this differential allotment only
where the differentiation is inspired by improper motives, or is in its
nature unfair, or oppressive, or gives rise to undesirable results, or has
any other qualitative aspect of that sort.
So, by reason of the foregoing, this definition having already been
found or been inserted in the Reply, we understood the so-called "norm
of non-discrimination or non-separation" as there dcfined as allegedly
prohibiting any form of differcntial allotment of rights, duties, burdens,
etc., on the basis of group membership. As a convenient term, we
sometimes refer to it as a norm of non-differentiation-a term which,
inour view and submission, is not only less clumsy than the one coined
by Applicants, but which more appropriately conveys the essential
meaning of the nonn as it is defined. And we pointed out in the written
pleadings, and also herein that no such absolute norm could possiblv
~~. .
As we shall show, Mr. President, Applicants now indignantly deny
that their norm docs prohibit differentiation as such. However, for a
proper understanding of Applicants' attitude in this connection, it will
be necessary first to have brief regard to the practical reasons which
apparently induced Applicants to introduce thcir norm theory at the
Reply stage and which, in our submission, still providc the key also to the
subscquent changes in their case which have now finally culminated in
the situation with which we are presented.
It will be recalled, Mr. President, that Applicants' case as initially
presented was, largely, a factual one. ltdealt with, and I quote from the
M.emorialsat I, page 16!, "apartheid ... as a fact and notas a word, as a
practice and notas an abstraction ... as it actually is and as it actually
has been in the life of the people of the Terri tory ... ". This is a quotation,
as I said, at page 161 of the Memorials, in fact, it cornes from para
graph 189, which was originally incorporated in Applicants' Submission
No. 3. And, in'an carlier reference in the Memorials, Applicants said:
"Since this section of the Memorial is concerned with a record of
fact, it deals with apartheid as a fact, not as a word. It deals with
apartheid in practice, as it actually is and as it actually has been in
the life of the people of the Territory and not as a theoretical
abstraction. A sober and objective appraisal of the factual record,
as hereinafter detailed, compels the conclusion that apartheid, as
actually practised in South West Africa, is a deliberate and system
atic process by which the Mandatory excludes the 'Natives' of the
Territory from any significant participation in the life of the Terri
tory except insofar as the Mandatory fmds it necessary to use the
'Natives' as an indispensable source qf common labour or menial
service." (1,pp. ro8-ro9.}
That is the end of the quotation, and the aspects upon which I wish to
place particular emphasis are that bath these referenccs refer to the
factual element, the factual condemnation which the Applicants were528 SOUTH WEST AFRICA
asking the Court to make. And thesc passages, being of an introductory
nature in the Memorials, set the note for the whole general theme which
one found in the Memorials themselves and which was to the effect that
apartheid, as a fact, was a deliberately oppressive policy designed to
benefit the European members of the population at the expense of the
Natives. I may refer the Court to passages where we deal with this aspect.
They are in the Counter-Memorial, Il,pages 392 to 395, the Rejoinder,
V, pages roo to ro7 and the verbatim record of 22 April, at VIII,
pages 640 to 652.
In answer to these factual avcrmcnts, we set out, in the Counter
Memorial, full details of the facts and circumstances in South West
Africa, and, Mr. President, sincc then, in our submission, Applicants
have been attempting to escape the factual enquiry which they themseh·es
set in train in the Memorials.
Now, in the Reply, various methods were employcd in attempting to
prevent a full cxamination of the facts by the Court. The first attcmpt,
the first method, was the introduction of the norm of non-discrimination
or non-separation. As we have shown, in the verbatim record of 23 April,
VIII, at pages 655 to 66r, Applicants relied in the Memorials upon norms
said to be derived from the Charter, but that those norms really only
represented aims to be pursued by Respondent, and consequently did not
materially assist Applicants. This new norm of non-discrimination or
non-separation introduced in the Reply, was clearly designed to eliminate
this weakness. It was designed to establish an objective criterion against
which certain admitted features of Respondent's policies could be
measured and found wanting, without the necessity of any factual
enquiry. And, Mr. President, sincc in Applicants' apparent strategy the
main fonction of the norm was to eliminate any enquiry into the facts, it
follows that also as regards the source and origin of the norm a factua!
enquiry had to be rendered unnecessary, otherwise it would not have
served its purpose. For a proper understanding of subsequent changes in
Applicants' case, these aspects, in our submission, have to be kept in
mind, since they, as we submit, clearly provide the key to the whole
situation. The norm was designed for the purpose of rendering unneces
sary any factual enquiry, and consequently Applicants were constrained to
define the norm in such a manner as to prohibit absolutely certain po]jcies
which were admitted. And, also, it was necessary to exclude circumstances
in South West Africa from the material from which Applicants sought to
derive their norm.
But, Mr. President, in addition to introducing this norrn of non
discrimination and non-separation at the Reply stage, Applicants
retained their charges of deliberate oppression. In this regard, however,
they also attempted to eliminate the need for any factual enquiry. Now,
in our submission, it must be rare in the history of the law that a party
which set out to urge the Court to find that conduct was deliberately
unlawful, at the same time exerted ail its efforts to prevent any reference
to the facts. Nevertheless that is what Applicants, in our submission,
attempted, and the method employed by them was the so-called "... uni
versally accepted axiom that, in the absence of evidence to the contrary,
the predictab!e consequences of conduct are presumed to be intended".
(IV, p. 257.)
This axiom, the Court wil! rccall, soit was contended, would enable the
Court to determine that Respondent deliberately oppressed the Natives, REJOINDER OF I>IR. GROSSKOPF
but without giving the Court the irksome task to have regard to the facts
presented by Respondent, which facts show the charge to be unfounded.
That was the purpose for which this axiom was advanced. In some way
the contention seemed to be that, by applying this axiom, the Court
could have regard only to the facts set out or alleged by Applicants and
admitted by Respondent without having regard at all to any furthcr
facts or explanations or anything of that sort.
Now, Applicants persisted in invoking this so-called principle in the
Oral Proceedings, which was rather strange, since at this stage they denied
that their case involved any allegation of intentional or deliberate
oppression at ail, so that this axiorn, which was designed as a measure of
facilitating proof, was still relied upon at a stage when the fact which it
was said to prove was no longer allcgcd.
\Ve dealt with this matter, and showed that the axiom could never
serve to exclude evidence which is relevant to the question of intent,
where intent is in law a necessary elemcnt in a given case, and we did that
in the verbatim record of 22 April, at VIII, pages 640-652. Now, Mr.
President, it remains only to note one last reference to this axiom, and
that is in the verbatim of 12 May, at page 239, si,pra, where the Appli
cants said:
"It might be desirable at this point to say that the Applicants
have submitted, and will continue to submit, that Respondent's
subjective intent, motive, or purpose, with regard toits performance
of its obligations under the Mandate, are wholly irrelevant factors,
particularly so with regard to Article 2 (2), inasmuch as a per se
violation of the international legal normand applicable international
standards is contended for by the Applicants."
And they then contînued:
"With respect to the question of design or plan for use of military
installations,or of methods of association between the Territory and
the Respondent, here, as in the case of the sacred trust itself, in
Article 2, intention, purpose, or plan, is to be inferred on a basis of
the Respondent's conduct."
So, Mr. President, wc have these two statements; firstly, that the
intent, motive, or purpose are wholly irrelevant factors, and, secondly,
that they are to be inferred on a basis of the Respondent's conduct.
Applicants do not explain why facts which are "wholly irrelevant" are
to be inferred on any basis at ail, or why the Court should consider at ail
whether such facts can be inferred. However, in the light of the changes
in the issues, and of the full treatment of this matter by us in the pleadings
and in these Oral Proceedings, it will not, in our submission, be necessary
to say any more about this at all. The only reason for referring to it in the
first place was to show the various methods by which Applicants,
starting at the reply stage, have sought to eliminate the need for any
factual enquiry. Now, at this stage, apparently realizing that their
universally accepted axiorn cannot assist them for that purpose-for the
purpose of eliminating a factual enquiry-they have entirely abandoned
their previous effort to persuade the Court to find that Respondent's
conduct was intentionally oppressive. The quotation which I have just
read is apparently to be explained as a failure to keep up with the changes
in argument.
1\1.r.President, a particular facet of evidence which the Applicants53q SOUTH WEST AFRICA
expressly sought to cxclude was that relating to comparisons betwcen
circumstances in South West Africa and thosc in other territories, and in
particular with the circumstances in the Applicant States themselves.
It may be convenient at this stage to clear up an apparent misunder
standing betwcen the Parties. On 3 May 1965 we said:
"It is perfectly obvious that the Applicants cannot face up to this
factual enquiry, they cannot face up to a comparison of standards of
well-being and progress in their own countries and those in South
West Africa. They had to find a formula to rule out the whole
proposai and, in doing so, they emphasized the fundamental weakness
of their case in law, in fact,nd in morals." (Supra, p. 108.)
This comment, the Court will recall, was made when we were dealing
with the application for an inspection, and the "formula" referred to in
the quotation related to the attitude adopted by the Applicants as
regards that application, that is, the application for an inspection.
In reaction to this statement which 1 have quoted, on 4 nfay, at
pages 132-133, wpra, of the verbatim record, the Applicants brought
certain aspects of the pleadings to the Court's attention which showed
that even at the Rcply stage the Applicants attempted to exclude any
comparison between circumstances and standards in South West Africa
and those in the Applicant countries and other territories in Africa.
Of course, Mr. President, we did not mean to suggest, when we were
dealing with the inspection proposai, that it was only then that the
Applicants had to adapt their case in order to exclude comparisons with
their own States. If they understood us in that sense, then we must say
that that was not intended at al!. We did not suggest that it was only
when the inspection proposai was raised that they attempted ta eliminate
any comparison between the various tcrritories. In fact wc concede
readily that they were quite correct in painting out that this had already
commenced in the Reply, a feature to which we drew pertinent attention
in the Rejoinder, V, at pages IIS-II6.
Another method which the Applicants also already introduccd in their
Reply and whereby they sought to prevent an independent appraisal of
the facts by this Court, was to enhance the significance to be attached to
reports and resolutions of the United Nations, its organs, and its agencies.
In the earlier pleadings, that is, in the Memorials and the Observations,
the history of cvents in the United Nations and the various resolutions of
its organs and agencies were adduced as proof of the Applicants' conten
tionthat there was a dispute between the Parties and that such a dispute
could not be settled by negotiation. I may refer the Court to our treat
ment of this tapie in the Rejoinder, V, pagesII2-n5.
In the Reply, howcver, Applicants sought to elevate the importance of
these resolutions, although, I may add, not to the height to which they
have done now. There they said:
"Applicants respectfully submit that the reports and resolutions
of the United Nations and its agencies and organs, in and through
which Applicants have sought to settle their dispute with Respon
dent, are highly relevant to the Court's judicial fonction in adjudging
the legality of Respondent's administration of the Territory, and are
entitled to great weight and respect as authority thereon." (IV,
p. 259.)
I shall deal later with the change in significance which has now in the REJOI:-.DER OF MR. GROSSKOPF 531
Reply stage been attributed to such reports and resolutions. At present
we are concerned only to show that, already at the Reply stage, there was
a very apparent desire to avoid any independent factual enquiry by this
Court-a desire which also led to the changes in the content of the
Applicants' allegcd norm, which is really the topic directly in issue at the
moment.
In the light of the above features in the Reply, to which I have just
drawn attention, we said as follows in the Rejoinder, V, page nS:
"To summarize, Applicants ask this Court to detemiine an issue
offact by-
(a) ignoring ail evidence tendered by Respondent in respect of the
said issue;
(b) giving consideration solely to the evidcnce tendered by Appli
cants; and
(c) giving effect to the reports and resolutions of a political body
which (apart from any other criticism) admittedly has not
attempted or had an opportunity for a judicial enquiry into the
facts.
In short, Applicants ask this Court for a complete abdication of
its judicial functions."
l\lrPresident, before the adjournment I noted briefly how the Appli
cants' charge, which in the Memorials was a factual one relating to alleged
oppression, as from the Reply stage became in various ways changed, and
I pointed out in particular that at that stage they introduced a norm
with the abject of avoiding a factual enquiry, that, in so far as they still
reliedon the allegations of oppression, they tried to establish them by
applying the so-called universal axiom, and that they attached more
significance to reports and resolutions of the United Nations organs and
agencies than had been attached to them in their earlier pleadings. And
I submitted that the purpose of all thcse changes was to eliminate the
need for any factual enquiry, and, as a particular aspect thereof, to
remove the necessity of the desirability of comparing standards in South
\Vest Africa with various other territories, and, in particular the Appli
cant States themselves. Just before the Court adjoumed I quoted a
certain passage from the Rejoinder in which we summarized these
various aspects, and pointed out that the Applicants' purpose apparently
was to ask this Court for complete abdication of its judicial fonctions.
Now, in reacting to this line of argument, the Applicants increased the
efforts directed at avoiding a finding of fact by this Court and they did so
particularly in the context of trying to eliminate the necessity or desirabil
ity of any comparison between circumstances in South West Africa and
the Applicant States themselves. This issue, of course, achieved increased
importance as a result of our inspection proposai which, as a part thercof,
the Court will recall, involved a suggestion that also the territories ofthe
Applicant States should be visited.
Now, right at the outset of the oral presentation, Applicants made it
clear that they did not allege any improper or oppressive motives on the
part of either Respondent or any of its officiais, an attitude which they
have since then often repeated. They have now sought to make it
abundantly clear, they have said often and repeatedly and explicitly that
they do no long-cr allege any improper motives on the part of any of
Respondent's officials or of Respondent itself.532. SOUTH WEST AFRICA
Also, Mr. President, they made it clear, in a lengthy piecemeal process
which culminated in the amendment of these submissions and in the
formai interpretation thereof, that they now rely only and solely on the
norm and the standards and that these norm and standards possess an
identical content; that they no longer rely on any standards or principles
or theories outside or bevond this norm or standard of non-discrimination
or non-separation, as they have called it, and in the manner in which they
have defined it. For present purposes it is not necessary to dwell at length
on each of the changes in the case-with each part of this lengthy process
which finally culminated in the amendment and in the formai interpreta
tion to which I have referred. Nevertheless, something requires to be said
regarding the various submissions that have been advanced as to the
content of the norm.
Now, Mr. President, as we have noted, the norm was first introduced in
the Reply. \Vhen I say that, I mean that is the first occasion certainly
when Applicants called the norm, or any norm, a norm of non-discrimina
tion or non-differentiation, or the first occasion on which they defined
any such norm. It is true that they say, and they said in the verbatim
record of 17 May, at pages 281-282, supra, that they already had this
norm in mind when they drafted the Memorials, and they referred to a
paragraph in the Memorials which reads as follows, and I quote from the
Memorials, 1, page ro7:
"It is submitted that the terms of the second paragraph of Article
2 of the Mandate and Paragraph r of Article 22 of the Covenant and
their stated purposes, rcad in the light of the terms and stated
purposes of Chapters XI, XII and XIII of the Charter, establish
clear,,and meaningful norms marking the duties of the Manda
tory.
Now, Mr. President, Applicants say that in this paragraph somehow
there is comprehended the norm of non-discrimination and non-separation
which they then subsequently formulated in the Reply. Sornehow, by
sorne process of second-sight, one should have read into this paragraph
such a norm on which they now rely. Ail we can say, Mr. President, is
that if Applicants intended by these words to allcge the existence of a
norm with a scope, content and origin of the subsequently mentioned
norm of non-discrimination and non-separation, they certainly concealed
their intentions vcry well indeed, even to the extcnt of disguising the
norm by referring toit in the plural, and, of course, of saying nota word
about non-discrimination, non-separation or non-differentiation, in the
Jist of duties which they said were rnarked by this norm. That is in the
Memorials, 1, pages ro7-ro8.
The only reference to anything even resembling non-discrimination or
non-separation to which they could point, was the quotation of Article 76
of the Charter which was included in some articles frorn which they
purported to cxtract very clear and meaningful norrns, as they then
called them.
But Article 76 was only one of the sources, one of a nurnber of Articles
upon which they relied and to which they apparently attached equal
weight in sceking to derive the norms on which they relied at that stage.
Now, Mr. President, as regards the overriding importance which
Applicants now say their reference to Article 76 must be given, some light
is perhaps cast thereon if one has regard to the Observations. I should REJOINDER OF MR. GROSSKOPF 533
like to quote from page 462, I, of the Observations where this matter was
also dealt with. There the Applicants said the following:
"The words used in Article 2-'material and moral well-being',
'socialprogress'-are akin .to other words such as 'due process' and
'equal protection' which national Courts are frequently called upon
to interpret. Such words are broad in scope, but in the context of the
society to whlch they pertain they embody meaningful norms. 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 Members of the
United Nations. They include the following principle and doctrine."
And, then, Mr. President, follows a quotation from Article 73 of the
Charter, which, as the Court is aware, does not deal with any non
discrimination or non-differentiation, or anything of that sort. And, after
quoting Article 73, Applicants continue:
"And in the exercise of Trusteeships which in essence reflect the
same international concem as Mandates, Members of the United
Nations have agreed that Trust Territories shall be administered so
as 'to encourage respect for human rights and for fondamental
freedoms for all without distinction as to race, sex, language, or
religion, and to encourage recognition of the interdependence of the
peoples of the world. ·
It cannot be said, therefore, that the Court in interpreting Article2
of the Mandate would be engaged in an essentially 'political activity,'
whatever Respondent may intend to connote by use of that undefined
phrase." (1,p. 462.)
As the Court will sec, with respect, Mr. President, Article 76 is relied
upon only as one of the sources from which a number of meaningful
-clear and meaningful-norms were said to be derived in the earlier
pleadings. In particular, there was no suggestion at ail that in some way
Article 76 was to be read as providing the key, or the background, of the
purpose against which all the other norms, or ail the othcr duties, which
the Applicants quoted or relied upon, were to be reacl. I shoulcl like, in
this connection just to reacl briefly from the verbatim of 17 May, at
page 281, supra. There the Applicants said, referring to the Memorials,
that:
"The purport, the intention, as would seem clearly to be indicated
by the context, and particularly in the light of the introductory
paragraphs to which I have referred-the purport and intent of
these eight enumcrated duties [those are the duties, the Court will
recall, which were set out in the Memorials relating to various facets
of administration] is to set forth for convenience sake in categories
eight general ranges of duties, each of which must be carried out in
accordance with the normand the standards for which the Applicants
contend."
I repeat the last words "each of which must be carried out in accordance
with the normand the standards for which the Applicants contend".
Now, Mr. President, if it was the intention of the Applicants to make a
suggestion in the Memorials that each of those eight duties was to be read
subject to any norm of non-discrimination or non-separation, all we can
say is that they certainly concealed the intention very well indeed.534 SOUTH WEST AFRICA
But, be that as it may, Mr. President, the purpose of the norm in its
present form is to exciude the necessity for this Court to conduct any
independcnt factual enquiry as to conditions in South West Africa and,
in particular, on a comparative basis, which would also involve the
Applicants' own States. It follows that ih ordcr ta serve such a purpose
the normand/or standards must be so defined as to prohibit Respondent's
admitted policies without requiring any further factual examination by
the Court. Ifthe norm does not serve to cxclude factual examination by
the Court, it would not have scrved the purpose for which it was obviously
introduced.
On the other hand, the normand/or the standards must not be dcfined
so as to render illegal certain forms of differential allotment of rights,
burdens, etc., which are of unquestionable legality and morality. Those
are the two cxtremes between which Applicants' norm has to fit in if it
were to serve their purpose. If, on the one hand, the norm were to be
defined so as still to rcquire a factual cxaminationby the Court, it would
not have served its purpose, but, on the other hand, if the norm were
defined in such a manner that it would, if applied, also affect othcr forms
-0fdifferentiation than those practised by Rcspondent, and, in particular,
if it were to be so defined as to prohibit forms of dîfferentiation which
everybodywould accept and which nobody could condemn, then it would
also not have scrved their purposc. So, it is between these two extremes
that Applicants were forced to go and these then representcd their
Scylla and Charybdis between which they had to steer their course. The
<::0ursewhich they steered we shall trace briefly.
Now, :Mr. President, as we have said, the norm as defined by the
Applicants at page 493 of the Reply, IV, prohibited absolutely the
official allotment of rights, duties, privileges, etc., on a group basis, and
it will also be recalled that in Submission No. 3 the word used by them
was "distinguish", which is a neutral word which does not connote any
qualitative element of oppression, or discrimination, or anything having
a bad connotation in that sense. Neverthcless, after we had in the Re
joinder pointcd to the anomalies to which this formulation would lead,
the Applicants repeatedly in these Oral Proceedings sought to exclude
certain forms of differential allotment of rights, privileges, burdens, etc.
They sought to show that although in other instances, in other examples
which we quoted, or which they quoted, one could also find a differential
allotment of rights, duties, privileges, burdens, etc., on the basis of
group membership, in some way such differential allotment was not
covered by the norm, whereas, in terms, it of course was.
Now, this matter was brought to a head as a result of a question from
a Member of this Court. On 28 April, Judge Sir Gerald Fitzmaurice put a
question to the Agent for the Applicants, the first part of which rcad as
follows:
"... was the Applicants' contention about 'apartheid' to be
understood in the sense that a policy of group differentiation is in ail
circumstances, necessarily and in itself, contrary to Article 2 of the
Mandate, irrespective of any other steps taken by the Manda tory for
promoting the welfare of the inhabitants of the Mandated Terri tory?"
(VIII, Minutes, p. 22.)
Mr. President, this is of course the very nub of the problem as far as
the content of the norm and the standards is concemed. To what extent REJOINDER OF MR. GHOSSKOPF 535
and in what way does it prohibit differentiation? Is it absolu te, or is it
qualified? If qualified, what are the qualifications? And since this is to
such a large extent the central problem with which l am dealing, 1 shall
unfortunately have to quote at some lcngth from the answer, which was
in the same verbatim record. It rcads as follows:
"... a policy which differentiates among individuals as such, or as
members of indentifiable groups, would be permissible and indeed
desirable in appropriate circumstances. \Ve have in that connection
cited the i.\finorities Treaties, among other examples, in which it is
just, prudent, wholly desirable for governments to take account of
differences between individuals and between individuals as members
of groups, thereby leading to the conclusion that differences are
permissible with respect to the treatment of groups as such. There
are instances known to ail of us in ail of our countries of such exam
ples of differentia tian ·of groups, the protection of minors, the
protection of other segments of the population, arrangcd in accor
dance with their choice, normally-somctimes by reasons of other
considcrations, in which their choice were possible, plays a vcry
important and, indeed decisive role-their choice as individuals.
The problem, therefore, in the Applicants' respectful submission,
is not sumrnarized in terms of, or is it answerable in terms of, the
expression 'group differentiation' except in a sense which is
mutually understood between the questioner and the responder.
There is, in this case, no submission on the part of the Applicants
which condemns or attacks, or criticises, differentiation between
individuals as such, or as members of groups, in, for example, the
aspects which I have mentioned as illustrations." (Supra, pp. 44-
45.)
If I may pause there for a moment, Mr. President, the learned Agent
for the Applicants merely refers back to certain examples which were
given. As yet, he does not essay any attempt at definition.
IfI may then continue the quotation:
"Respondent has paraphrased, ostensibly for the convenience of
itself or for the convenience of the Court, the characterization of the
legal norm for which the Applicants contend as a norm of non
differentiation, in Respondent's phrase.
The Applicants' formulation does not rest upon the use of that
word at ail. The Applicants' formulation relates to the policy of
discrimination and separation and the distinction is more than a
verbal one b~tween those words and the general concept of differen
tiation." (Supra, p. 45.)
If I may pause again for a moment, Mr. President; the distinction is
sought to be drawn between, on the one hand, discrimination and separa
tion and, on the other, a general concept of differentiation.
I continue the quotation:
"Members of churches, organizations of \·arious kinds-1 have
mentioned minors, those of non-age and so forth, as groups, are
differentiated among and within themselves frequently, in terms of
the protection which they are offered as a matter of good govern
ment and decent society. This is just part of the human condition
and human cxperience." (Ibid.)536 SOUTH WEST AFRICA
Now, again interrupting the quotation, Mr. President, this part of the
answer which l have read up to now, although it does make clear that
mere differentiation perse is not contrary to the Applicants' aUeged norm
.and standards, nevertheless does not seem to provide any assistance in
showing which are the elements which allegedly render differentiation
either legitimate or illegitimate. Certain examples are quoted, which the
Applicants say are quite in order even although they involve differentia
tion and the differential allotment of rights and burdens, but, apart
from the quoting of examples, no formulation is given, no criteria are
suggested, no elements are laid down which would bear on the distinction.
ln particular, very little,ifany, guidance is furnished as to what arc
the appropriate circurnstances-to use the Applicants' phrase-in which
it would be "just, prudent, wholly desirable for governments to take
.account of diherences between individuals and between individuals as
members of groups". Also, Mr. President, very little, if any, guidance is
provided as to what are the elements in the distinction between, on the
one hand, differcntiation and, on the other, discrimination or separation.
In the passage just quoted no answer at all is given to this question. AU
that is done is that certain examples are supplied of instances in which
the Applicants say it would be in order, it would be desirable, it would
be just, to differentiate.
However, these examples may be read as supplying certain hints as ~o
the features which might distinguish between official discrimination,
which is not permissible, and official differentiation, which is. And in
particular, in that answer the following formulation may have been
mtended to be of general application as defining the elements which
rendered differentiation permissible. I quote the words which I have
.already read to the Court:
" ... the protection of other segments of the population, arranged
in accordance with their choice-normally, sometimes by reason of
other considerations, in which their choice, where possible, plays a
ver~, important and, indeed, decisive role-their choice as individ
uals .
Now, Mr. President, if this formulation was intended to be a definition
of what is permissible, then I would only wish to point out that the two
elements which it comprises are the element of choice and the element of
protection. Those are the two elements which my learned friends ap
parently suggest could, in a fit case, make differentiation legal or legiti
mate, or even desirable. At a later stage we shall make further reference
to those two elements.
First, however, I should like to complete the quotation which the
Applicants gave to Judge Sir Gerald Fitzmaurice's question, because in
the next part of the answer they purport expressly to define the essential
elements of lmpermissible discrimination or separation. This is actually
the part where they set out to explain what are the elements which
distinguish between permissible conduct and impermissible conduct in
the field of allotment of rights, burdens, etc., on the basis of group
membership. Thus they say, at page 45, supra, of the same verbatim
record:
"A policy of differentiation, however, which allots rights, burdens,
status, privileges, and duties on the basis of membership in a group
by reason of race, colour or other circumstance of a similar nature, REJOINDER OF MR. GROSSKOPF 537
whether called ethnie, tribal or otherwise, on such a basis, which does.
not pay regard to the individual quality, capacity, merit or potential
is, in the Applicants' view, an impermissible premise and an im
permissible policy at all times, under all circumstances and in all
places."
Reading this passage at its face value, it would appear that the
important element in the Applicants' case is the fact that the distinction
is on the basis of membership in a group by reason of race, colour, or
other circumstances of a similar nature, whether called ethnie, tribal, or
otherwise. Those appear to be the essential elements in this definition
which the Applicants gave.
In other words, this passage would appear to indicate at its face value
that the distinction between permissible forms of differentiation and
impermissible forms thereof does not lie in the quality of the differentia
tion, but in the nature of the groups between or among which the dif
ferentiationtakes place. That would appear to be the prima /acie meaning
of this passage.
Therefore, if we read this passage correctly, it would mean that a
government would be entitled to allot rights on the basis of membership
of, say, for example, age groups, sex groups, income groups, or religions.
groups, but not on the basis of racial groups, colour groups, ethnie
groups, or tribal groups.
However, l\Ir. President,if this is rcally the element on which the
Applicants rely in their case, it would follow, for instance, that the
minorities provisions which were concluded after the First \Vorld War
and which allotted privileges and rights on an ethnie or a tribal basis,
would be unlawful in terms of this definition. It would also mean,
Mr. President, that provisions in the Mandates regarding the supply of
Jiquor to Natives or the protection of Native land, would also be unlawful
because they allot rights, burdens, privileges upon the basis of member
ship in an ethnie, or a racial, or what-have-you, group, and not on any
other group.
And, of course, finally, such a formulation would be much narrower
than the wide ambit of the norm of non-discrimination or non-separation
as it is defined in the Reply at IV, page 493, and on which the Applicants
still rely intheir submissions. There the words used are, "the basis of
membership in a group, class or race"-the wide terms "group, clas5 or
race"~not limited to groups based upon circumstances of race, colour, or
tribal origin.
So that, summing up, Mr. President, the answer to the question put
by Sir Gerald Fitzmaurice would clearly not solve the Applicants'
problem of properly defining the norm so as to make it applicable to
Respondent's policies, and only to Respondent's policies.
ln their oral reply, the Applicants again indignantly denied that their
norm of non-discrimination or non-separation could appropriately be
referred to as a norm of non-differentiation. Thus, right at the outset of a
portion of their argument dealing with what they call-
"... certain potentially misleading aspects of Respondent's repeated
imputations to the Applicants of positions which do not in factor in
law reflect the Appiicants' contentions or theories" (supra,p. 246},
in dealing with these "misleading aspects of Respondent's ... imputa
tions", the Applicants say (I quote from the same page):538 SOUTH WEST AFRICA
"A cardinal, though by no means exclusive, misinterpretation of
the Applicants' theory of the case is implicit in Respondent's
repeated references to the norm and standards under the designation
of 'norm of non-differentiation'. This is, of course, more than a mere
matter of semantic distinction. On the contrary, it strikes at the
very heart of the truc significance of the Applicants' designation of
the nonn and standards."
The Applicants abject vcry violently to the norm being callcd a norm
of non-differentiation, because they say in truth it is one of non-dis
crimination, or non-separation, and the distinction is more than a merely
verbal one.
Later they say, in the verbatim record of 18 May, at page 338, supra~
"... the misconception which arises from the false equation of
differentiation, as such, with discrimination or separation which, of
course, are forms of differentiation but happen to be impermissible
forms of differentiation".
Again, Mr. President, the distinction between diffcrentiation as a
wide concept, and which includes as part of it separation or discrimina
tion, which are impermissible parts of the whole, but there again, no
attempt-is made to define the distinguishing line. However, Mr. President,
when they do make an attempt at distinguishing betwecn discrimination
or separation, which is impermissible, and differentiation, which is not,
Applicants remain, in our submission, completely obscure. Thus, they
say in the verbatim of 13 May, at page 247, supra:
"... prudent and fair governments, as well as international institu
tions, often recognize the need for protection of individual persans
in their quality as rncmbers of a class or group. Civilized social
orders obviously and necessarily differentiate minors orincompetents
from adults or competents, and accord them protection as individ
uals on tha t basis.
The question at issue is much more fondamental than so axiomatic
a prem1se of the social order itself. The legal issue is whether the
differentiation in question is based upon, or dctermined by, an
official policy which allots burdens, privileges or status on the basis
of membership in a group, class or race, rather than on the basis of
individual quality or capacitv. This type of differentiation is
impennissible." •
Itmay be noted in passing, Mr. President, that here Applicants revert
to the wide formulation of group, class or race, which would suggest that
the conclusion reached earlier-that the nom1 is limited to racial,
colour, ethnie or tribal groups-was not correct, but that indced the
norm has a much wider effect. Herc the distinction again appears to be
between, on the one hand, the allotment of rights, privileges, duties, etc.,
on members of a group and, on the other hand, the protection of members
of the group. The allotment of rights is wrong, the protection of members
is right,but, as we have had occasion to mention previously, these two
concepts are, of course, not opposites. On the contrary, it is difficult to
imagine how any form of group protection would be possible without the
allotment on a group basis of rights, privileges, duties, and so forth, on
members of the group to be protected, as well as the group against which
the protection is to operate.
\Ve have quoted various examples, for instance, the prohibition on the REJOINDER OF MR. GROSSKOPF 539
supply of liquor, which one finds in the Mandate. It clearly is a burden,
it may be a right, it may be a privilege, but all these things are allotted
on a group basis. For the man who would Iike to buy liquor, is notable to
do so, and the man who would want to supply him, may not, and ail this
on a group basis regardless of the individual qualities of the persons
affected one way or the other.
Now, Mr. President, this confusion which is inherent in distinguishing
between concepts which are clearly not distinguishable appears also
from a further passage of the same verbatim, where the Applicants say:
"The minorities treaties, for example, of course involve permissible
differentiation on the basis of ethmc, [and I emphasize the words
'on the basis of'] linguistic, national or religious groupings. The
minorities treaties do so, however, not upon the basis of allotting
rights, privileges, burdens on the basis of group classification but for
the reason-the essential reason-of protecting the individual
member of a group, which normally he chooses to adhere to, from
suffering adverse conscquences by reason of his membership in the
group, which, as I say, he is normally free to quit." (Supra, p. 247.)
If I may summarize it, it involves permissible differentiation on the
basis of grouping, it does so not on the basis of allotting rights to dif
ferential groups. but for the reason of protecting. ln other words, the
distinction lies between the basis of allotment, on the one hand, and the
reason for allotment, on the othcr, which, of course, are entirely different
things-they are concepts which are not comparable. An allotment of
rights on a group basis does not ccase to be such because the reason for
the allotment is of a particular nature; it is still an allotment. The reason
for the allotment could possibly, in an appropriate case, affect its
morality, its legality, its justifiability, but it could never affect the nature
of the allotment as being based purely on group membership. Similarly,
the fact that the group is a voluntary one does not affect the question
whether as a fact certain rights, burdens, privileges, what have you, are
allotted to members of such a group purely on the strength of their
membership. So that, whether the group be voluntary, whethcr the reason
be a laudable one or nota laudable one, whatever thesc features may be,
the fact still remains that the allotment is on the basis of the group, and
that is the element that Applicants continually say is wrong, is im
permissible-it is that allotment which, they say, renders differentiation
discrimination, which is an illegal policy.
Mr. President, it is not necessary to quote more examples. The Court
will recall that throughout the oral reply the Applicants insisted that
their norm prohibits discrimination and separation, as a distinct type of
differentiation, whilst at the same time, they still clung to definitions
which in terms would prohibit any group differentiation in the official
allotment of rights, burdens, privileges, etc. Awkward examples, such
as the minorities, or the provisions in the Mandate, or the position of
minors or women, such awkward examples are simply brushcd away, in
the manner which we have noted, by pointing to the laudable reasons
which may exist for differentiation, or by pointing to the normally
voluntary nature of such grouping.
However, Mr. President, although Applicants did not appear in the
oral argument to appreciate the difficulties which they had in that
regard, it is now clear that they must have been aware of the weakness540 SOUTH WEST AFRICA
of their position and have now altered their argument in conforrnity, or
rather, altered the argument to eliminate such weakness. The concession
that there may, in suitable cases, be sound reasons for the official allot
rnent of rights, etc., onthe basis of group rnernbership, and that in such
cases the allotrnent would be legitimate, naturally presented very
difficult problems. Such a concession necessarily affected the absolute
nature of the norm and the standards which, for the reasons we have
said, they could not afford to abandon. As soon as they formally aban
doned the absolute nature of the norm, they would in effect be back
where they were-they would have either to define it in such a way,
with some exactitude, which would then affect or might not affect
other forms of differentiation, or to define it in such a way that it would
not affect other forms of differcntiation, and then they would be back at
a factual enquiry, which they want to avoid. lt is extremely difficult,
I should imagine, and as appears from the course which the proceedings
have taken, to define discrimination in such a wav that it does not affect
also provisions such as the minorities provisions,"while at the same time
excluding a factual enquiry by the Court. If they were to define discrimina
tion as being something oppressive, sornething unequal, something
having oppressive intent, or having undesirablc consequences, then they
would be right back whcre they started and they would still have to
persuade this Court that Respondent's policy is, in fact, discriminatory
in that sense. On the other hand, as was made clear, if thev define it
as prohibiting any form of differential allotment, purely differential
without any of the other undertones or overtones, then they strike at
all sorts of differential practices which exist in every State in the world.
And, in partîcular, as we have seen, Mr. President, the minorities pro
visions presented them with great difficultics. Frequent reference was
made to the minorities provisions, and they wcre then distinguished
in the manner which I have demonstrated above.
This commenced already early in the Applicants' oral prcscntation,
when they atternpted to cxplain away these rninorities provisions and
to distinguish thcrn on the basis that they entailed "protection as
distinguished frorn coercion". (VIII,p. 263.) In our oral argument, on
'23April, at vm, pages 664-666, we showed that this formulation in fact
did not assist Applicants; if one were to adopt the general principle that
one may protect without coerdon, it still left unresolved the question as
to who would decide as to the need for and the methods of protection.
There would stiU have to be· a discretion sorncwhere in somebody to
decidc that a particular group needed protection, to decide upon ap
propria te measures of protection for such a group, and as against whom
or against which other group, or even whethersuchagroupdid not require
protection against its own weakness. Also, we showed that protection
and coercion are not mutually exclusive concepts, that the former
that is protection-very often required Sorne form of coercion, particu
larly either where a group is protected against its own weakness or its
own backwardness, or in other circumstances where therc are various
groups to be protected one against the other.
During the argument on the application for an inspection, the Appli
cants attempted to explain more fully why the minorities provisions
would not be covered by the terms of the norrn. They did this, however,
not by contrasting the minorities provisions with the terms of the norm,
but by showing what the difference was between apartheid, as they REJOINDER OF MR. GROSSKOPF 541
understood it, and the minorities provisions, and their argument in this
regard and which may be found in the verbatim record of 3 May, at
page 87, supra, and the following pages, may be summarjzed as follows:
(a) Applicants regard the individual as the basic social unit, whereas
Respondent regards the group as the basic social unit.
(b) The minorities treaties were perceived as a means of assuring that
the individual does not suffer by reason of his membership in a
group.
(c) Under the minorities treaties, a mernber of a group can, as an
individual, normally quit his group.
(d) Under apartheid, on the other hand (Applicants say, and 1quote from
p. 88, supra, of the verbatim of 3 May) "the individual person
is subject to burdens ... be~ause of his rnernbership in a group-a
group, moreover, of which he is made an irrevocable life member",
and this position is not altered even if the burdens are irnposed for
the protection of the group or groups. (That is also at p. 88 where
Applicants render it clear that even if such burdens were imposed
for the protection of the groups, that would not answer the objec
tion.)
Now, ail this is sumrncd up in the following passage:
"Under the minorities treaties, as has been said ... an individua
may daim protection of his individual rights, if they are thwarted
by reason of his membership in an ethnie, religions, linguistic or
other group, which he normally is free to disclaim. Under apartheid,
by definition, the individual's membership in a group largely
determines his rights ... " (Supra, p. 89.)
Now, Mr. President, it must be borne in mind that, although the
purpose of this argument was to show why the minorities provisions did
not fall within the terms of the norm, the method whereby it was pre
sented was by comparing the minorities provisions with apartheid, and
in the result, the differences between the minorities provisions and
apartheid, as appreciated by Applicants, would appear to be: firstly,
that the purpose of the minorities provisions was to protect the individ
ual, whereas the purpose of apartheid is to protect the group; and,
secondly, that under the minorities provisions, an individual is normally
free to quit his group, whereas under apartheid he normally is not.
\Vhether or not, however, Mr. President, these propositions indeed
accurately reflect the differences between apartheid and the minorities
provisions, the important point is that, for present purposes, they could
not serve to take the minorities provisions out of the wide terms of
Applicants' norm, so that even if there are these differences between the
minorities provisions, on the one hand, and apartheid, on the other,
which we do not concede, that does not assist Applicants because that
still does not show why these differences would have the effect that the
one would be covered by the normand the other not.
They are differenccs which do not bear upon the definition of discrimi
nation as given by Applicants at ail; they would appear to be entirely
irrelevant to the questions whether and why the minorities provisions are
covered or are not covered by the definition, because, Mr. President, the
terms of the norm as defined do not permit the differential allotment of
rights, duties, privileges, etc., even wherethe purpose of such al!otment
is the protection of the rights of the individual member of the group.542 SOUTH WEST AFRICA
There is nothing in the definition which says that allotment of rights
would be in order if it were imposed for protection: that is not a part of
Appiicants' definition. It is also no part of their dcfinition that diffcrential
allotment of rights, burdens, etc., would be uniawful only if it related to
grnups which were not voluntary. There is no element of voluntariness or
lack thereof in Applicants' definition, and, indeed, the Applicants
usually use the phrase "a group which an individual is normally free to
quit", so that even when giving examples they do not suggest that the
ability of an individual to quit his group must necessarily be present
before an allotment of rights to such a group could be justified. They
always qualify it by the word "normally".
So that in the result, Mr. President, our submission is that even if
Applicants were to be correct in their analysis of the basic differences
between apartheid and the minoritics provision, that does not assist them
to show that the latter are not covered by their norm. lt may also, in
passing, be noted that many groups do not possess the qualities claimed
for the minorities and yet are the subject of permissible, or at least
widespread, differentiation. One thinks, for instance, of minors, or
women-one could hardly say that women are normally free to quit their
group, or that minors are normally free to quit their group; ncvertheless,
there are protective measures and differentiating measures in many or
most countries of the world. And of course, 11fr.President, we do not
concede that our policy is aimed only at protecting the group. We say
that it is designed to protect the individual as muchas, or more so than,
the group of which the individual forms a part, so that that distinction
which Applicants seek to draw between apartheid and the minorities
provision is, in our submission, a false one.
That Applicants' norm did in terms cover the minorities provisions,
and that it was impossible for them to re-define it so as to exclude these
provisions without at the same time excluding Respondent's policies,
was apparently realized by the Applicants, because after painting to the
above alleged differences between apartheid and the minorities provisions,
which Applicants said also reflect differences between the Parties, they
continued to say, at page 88, "accordinglv, Mr. President, the perspec
tives ofthe Parties to these Proceedings clash, attempted legal definitions
blur". That seemed to be the basic problem with which the Applicant&
were faced, viz.. that the attempted legal definitions always included
things they did not want included and excluded others that they wanted
to include, so that, as a result, in the oral reply, Applicants have now
finally abandoned ail attempts to find a general definition which would
distinguish between the forms of differentiation which are permissible
and those which they term discrimination and separation.
After repeating the definition of the alleged norm of non-discrimination
or non-separation, as set out in the Reply, IV, at page 493, the Applicants
said. in the verbatim record of 13 May:
"However, the Applicants attach no particular significance
either to the designation or to the precise words used in the defi.nition
of the norm and of the international standards having the same
content and scope. \Vhat is relevant, and what is essential to an
understanding of the Applicants' case, is the submission that such
international standards and such an international legal norm exist;
that they have been found and declared by those responsible for its
creation as being applicable to Respondent's policies of group REJOINDER OF MR. GROSSKOPF 543
separation in the Territory. Respondent's policy of apartheid,
indeed, has outraged the organizcd international community to an
extent which has generated its unanimous-but for Respondcnt
itself-repeated and authoritative use of all normative processes at
its disposai to bring the standards and the legal norm into being.
In view of so indisputable a reality, there is no reasonable basis for
Respondent's denial that such standards and norm are of uncertain
application to the Territory. Almost any standards or legal norms
have instances of uncertain application, but that fact does not
provide a basis of attack upon their validity so long as they clearly
caver the phenomena to which they are addressed.
The Applicants have tried to exclude this extraneous issue by
their contention that the minimum content of the norm is the
prohibition of apartheid; that if a norm of non-discrimination or
non-separation exists,it applies, and clearly so, to the policies of
group separation or apartheid applied by Respondent in the Terri
tory." (Supra, p. 246.)
I may just for emphasis repeat two parts of this quotation, Mr.
President. The first is the following:
"... the submission that such international standards and such an
international legal norm exist; that they have been found and
declared by those responsible for its creation as being applicable to
Respondent's policies of group separation in the Territory".
And later in the passage there is the proposition that "the minimum
content of the norm is the prohibition of apartheid". So that, Mr.
President, when analysed, this passage would appear to say, firstly, that
the organized international community has created a norm and/or
standards which it is not necessary to defme in precise terms because the
organized international community has itself declared that this norm
and/or these standards apply to Rcspondent's policies, and indced that
the organized international community created this norm and/or these
standards specifically for the purpose of rendering Respondent's policies
illegal, so that in effect, Mr. President, there is no longer any norm,
there is just a specific prohibition or, putting it in anothcr way, there
is this undefined norm which has been declared applicable to Respon-
dent's policies, by a purely ad hoc process. ·
But, Mr. President, the Applicants went even further than that. In a
passage following on the one just quoted they said:
"An analogous consideration likewise should be noted, lest it
confuse the central legal issue undcr discussion. The Applicants do
not rest their case upon the degree to which the norm-crcating
process at work in international society has been correct or fair in
its appraisal of the incompatibility between apartheid as practised
by Respondent and the material welfare of the inhabitants of the
Terri tory." (Supra, p. 246.)
And later they said in the same verbatim record:
"Standards relevant to interprctation of legal instruments or
institutions are not to be attacked as based upon faulty appraisal of
the underlying facts; once the standards are established by the
competent organs, then in the Applicants' view the Court shoul<l544 SOUTH WEST AFRICA
accept them as part of 'the legal given' and notas themselves subject
to judiciaI redetermination." (Supra, p. 255.)
This argument was illustrated by Applicants' Agent by referring to
our contention that this Court should make its own detennination
whether Respondent's policies are, as has been alleged in international
circles, based on a concept of racial superiority or racial hatred. Appli
cants' comment was, in our submission, illuminating. Applicants' Agent
said, at page 256, supra, of the same verbatim record, "the Applicants
respectfully disagree", that is, Mr. President, they disagree with our
contention that this Court should itself determine whether racial hatred
is the motivating force behind Respondent's policy. With this proposition
the Applicants say they respectfully disagree, and they then continue:
". . . the competent organs have perccived and characterized
Respondent's policies of group separation as based upon a concept
of racial superiority or racial hatred, and have done everything
within their competence to indicate the incompatibility of apartheid
with international standards governing the Mandate and with inter
national law itself.
What more could the organized international community do by
way of characterizing Respondent's policies and practices as
impermissible under the Mandate and as illegal under international
law? What more could they have donc or said?" (Supra, p. 256.)
And that, Mr. President, is now the central theme of Applicants' case
which they repeat time and again. The theme is that the organized
international community has laid down a norm and/or standards; it is
not necessary to define this norm and/or standards because the organized
international community has itself declared that they apply to Respon
dent's policies. In so far as such declaration involves a factual inquiry,
Applicants say that the organized international community has spoken
the last word about the facts.
In short, Mr. President, the organized international society is, in
Applicants' argument as now presented, legislator, witness, judge, jury,
rolled into one, and it does not need any charge sheet because it convicts
purely by fiat. What then, Mr. President, is the rote of the Court in this
process which·Applicants have described to the Court?
Applicants themselves assign the following role to this Court in the
verbatim record of r3 May, where they say:
"Although the Applicants have no doubt that the norm-creating
process was fair and correct in its evaluation of the policy complained
of, the Applicants do not ask the Court to say so. Nor do they
suggest that the Court undertake the task of second-guessing the
competent international organs responsible for the dcvelopment of
the nonn. There is no question of the Court rubber-stamping the
judgments of the competcnt international organizations, in Respon
dent's phrase, any more than the Court can properly be expected to
veto such judgments, even though they are explicitly directed at
conduct complained of in these cases.
If the standards and the legal norm for which the Applicants
cnntend do exist, as a matter of law, then they should be applied by
thP. Court as part of its duty to decide this dispute in accordance
with international law, and in accordance with the international rule
regulating the mandate institution itself." (Supra, p. 246.) REJOINDER OF MR. GROSSKOPF 545
And they said later, l\fr.President, in the verbatim record of 18 May:
"... there is.a structural and functional interrelationship between
administrative supervision on the one hand and judicial protection
on the other; that the applicability of criteria in the judicial form
necessarily depends upon and presupposes their formulation in the
administrative organ; that this Court, and no court, by reason of the
very nature of the judicial process, has the facilities or the responsi
bilities to reach judgments, to formulate standards, of the sort which
are uniquely within the competence of administrative organs and
which reflect political and moral and social considerations of which
they are specially competent to judge and evaluate". (Supra, p.326.)
So that, Mr. President, summarizing, it would appear that, on the
Applicants' latest theory, the Court has only a Jimited, if not, indeed, an
insignificant, function. lts duty, according to the Applicants, is to apply
the norm and/or the standards as formulated by the organized inter
national community. The norm and/or the standards, as we have
attempted to demonstrate, do not consist only of objective legal prin
ciples, or of one objective legal principle, which could be applicd to facts
determined by the Court, but these norms and standards also already
include the determination that Respondent's policies violate the legal
principles which are applicable, and the Court is not entitled, in Appli
cants' phrase, to "second-guess" such a determination.
Itfollows, Mr. President, that the Court's only function, according to
Applicants, is now to determine whether the administrative organ,
whether the organized international community, has spokcn, and then to
record such a fact. Thereafter, in Applicants' view, the organized inter
national community will take over again.
Once the Court has recorded the facts that the organized international
community has spoken, the Court will be /unctus offeciand on Applicants'
theory the organized international community would once more take
over the future process. .
In this regard, Applicants said in the verbatim of 12 May, at page 232,
supra: "... effectuation and implementation of such an adjudication and
declaration [that is, by the Court] ... evidently would necessitate the
effective functioning of a competent international administrative organ,
vested with powers adequate to the purposes". So that, the Court once
having spoken, the mattcr should be returned to the organized inter
national community to give effect toit.
Consequently, as we have said above, the organized international
community in Applicants' contention would now combine the functions
of legislature. witness, judgeand jury, and to this we should perhaps add,
in view of this last passage, also that of executioner. The Court is inter
ested only in the mechanical function of signing the warrant. Needless to
say, Mr. President, this insignificant mechanical role which the Appli
cants now ascribe to the Court, represents a very major change in their
whole case and it is instructive to note how Applicants' views in this
regard have changed.
In the Memorials, Applicants did not fully set out their submissions
regarding the role to be played by the Court and its relationship with
administrative supervisory organs. However, they clearly contemplated
that the Court would have some sort of a role of judicial supervision.
ln this regard they said in the Memorials: SOUTH WEST AFRICA
"Judicial supervision is an indispensable feature of the Mandates
System, since, ifadministrative supervision should fail, as in this case,
there is no other method of enforcing the sacred trust which
the mandatory power has assumed on behalf of civilization." (1,
p.91.)
That is the end of that quotation and a forther one at the same page
reads: "If the Mandate is in force, judicial supervision must likewise be
in force, since the former is empty without the latter." Of course, Mr.
President, the supervisory role which was then ascribed to the Court was
tied up with the nature of the finding which the Applicants requested the
Court to make-a finding which, at that stage, was to the effect that
Respondent's policies amounted, as a fact, to intentional oppression.
Clearly, as long asthcy ask the Court to make a finding of that sort, they
must contend that the Court would have the capacity to make such a
finding. However, if the Court's only fonction is to ascertain whether, in
fact, the administrative supervisory authorities have condemned a
particular policy and if the Court were then to be asked only to declare
that such a condemnation has occurred, it is difficult to see how such a
fonction could be appropriately described as involving supervision of
any sort at all. One can hardly imagine that a fonction of that sort can be
supervisory in any sense of the word; i.e., if the Court were only to have
regard to what has been said by the administrative organs and then only
to declare that that has been said. And also, of course, one does not
appreciate how such a fonction of the Court could be of any importance
and I quote "... if administrative supervision should fail ... ", which was
what Applicants said at that stage. Moreover, it is difficult to see why
such a fonction should be an indispensable feature of the system or why
the Mandate should be empty without it.If the Court's fonction is a
purely mechanical one of this nature, a purely formai one, why then
should the Mandate be empty without it? Why should it be an indispens
able feature of the system? Exactly the same effect could, in our sub
mission, have been achieved simply by the direct method of rendering
pronouncement of administrative supervisory authorities binding upon
the Mandatory in the same way as Orders of Court. If that were the
position, then one would not have had to go to court at all; and that
would certainly have been a preferable course than to give the Court
powers which amount only to the fonction of recording whether something
has or has not been said by administrative organs. .
That then, Mr. President, was the position as it existed in the Memo
rials. The whole question as to the fonction to be exercised by the Court
and its relationship with administrative supervisory organs has, however,
more pertinency as the result of the· Preliminary Objections. In their
Observations the Applicants were at pains to emphasize the important
role played by the Court and, of course, this emphasis was part of the
argument which they employed towards persuading the Court that the
compromissory clause must have survived. Prior to this approach,
Applicants stated explicitly that the compromissory clause could clearly
exist in the absence of any supervisory authority at all and consequently,
of course, that this Court could exercise its fonctions even if there werc
no supervisory administrative authority at al!.
Thus they say, in their Observations:
"Respondent does not appear to make the argument that because, REJOINDER OF MR. GROSSKOPF 547
in its opinion, Article 6 is not in force, Article 7 is not in force.
Indeed, such an argument would be untenable." ll,p. 428.)
There, Applicants said it would be untenable to argue that because
administrative supervision had lapsed therefore the fonctions of the
Court would also have ceased. It was an argument which they then
considered to be entirely untenable. Nevertheless this would appear to be
exactly the effect of their present argument, at any rate, as far as alleged
violations of Article 2 are concerned. As regards such allegations, they
now say that the Court must depend on the judgments which the ad
ministrative organs have already pronounced.
In a later passage in their Observations Applicants showed a specific
contemplation of the possibility that the Court might be asked to corne
to a diffcrent fmding than that reached by the administrative super
visory authorities. The Court will recall that that sort of problem was
considered quite extensively at the Preliminary Objection stage. The
question was then asked what would happen, for instance, if a Member
of the League werc to bring an action against the manda tory in respect
of a matter on which the Council had already expressed an opinion?
And, in terms of Applicants' present argument, such a problem would,
of course, present no difficultyat ail. In terms of the present argument,
once the organized international community had spoken, this Court
would be bound by it, so that in that hypothetical case which exercised
the minds of the Parties and the Court at the Preliminary Objection
stage, ifanother I\Iember of the League wcre to corne to Court after the
Council had sanctioned certain conduct, there would have been no
problem. The Court would simply have had to say "We are obliged to
apply the law as declared by the Council, by the organized international
community". But that, of course, was not the answer which Applicants
gave in 1962. At that stage it suited them to ascribe a much wider
significance to the fonctions exercised by the Court. Then they said in
their Observations:
"Respondent expresses concern that hypothetically a Mandatory
might 'satisfy'the Mandates Commission, yet be attacked judicially
on the same point. This argument rnerely underlines the importance
of judicial jurisdiction inorder to obviate unresolved disputes be
tween the Mandatory, on the one hand, and member States on the
other. If the Mandatory's position in such a dispute were to be based
upon decisions or policies ofthe Council and Commission, the Court
would no doubt give due weight to such a record." (1,p. 461.)
At that stag0::,Mr. President, the Applicants said the Court would only
give due weight to such a record. According to the present argument the
Court must ;i.ttach decisive significance to such a record and may not
depart from any such decision or finding or policy expressed by the
Council and Commission.
So that, at that stage, no suggestion was made that any binding
standards were laid down by administrative supervisory organs. Indeed,
the standards which the Applicants relied upon at that stage were of
quite a differcnt order and arose in quite a different way. Then they
said, in their Observations:
"Article 7 empowers the Court to adjudicate cases relating to the
interpretation and application of all of the provisions of the Mandate;
it makes no distinction between Article z and other Articles. \Vhile SOUTH WEST AFRICA
Article2 is broad in scope, it must be remembered that in interpreting
and applying it the Court would have the advantage of the particular
standards set forth in other Articles of the Mandate and in the
Covenant. These standards were the distillation of a century or more
of experience in colonial administration and were included in the
constitutional documents of the Mandates System because the ideals
they expressed were being put into practice by the System itself.
The Court, therefore, would have in interpreting and applying the
Mandate, a framework of law, doctrine, and practice upon which
to rely." (I, pp. 461-462.)
Mr. President, I would emphasize that the standards then relied upon
were the standards set forth in other Articles of the Mandate and in the
Covenant. Those were the standards which Applicants then said the
Court could apply in exercising its judicial functions. For the rest,
Applicants relied only on certain norms, saidto be embodied in Articles 73
and 76 of the Charter, in the light of which, the Court will recall, they
asked this Court to interprct the Mandate. But at no stage did they
suggest that the administrative supervisory organs possessed any com
petence to lay down norms or standards which would bind the Court.
That was not their case, and they did not suggest it at any stage.
[Public hearing of ra June r965)
Mr. President, during yesterday's hearing I pointed out that the
Applicants' Submissions Nos. 3 and 4, as now formulated, rest upon an
alleged norm and/or standards, both having the same or the identical
content, and the question with which I was dealing is, what the content
of this norm and/or these standards is.
ln this regard I submitted, Mr. President, that, fi.rstly, no norm or
standards of this type werc relied on at ail in the Memorials. Although
the Applicants attempted in these Oral Proceedings to show that they
did indced rely on such a norm, my submission is that such a suggestion
is clearly untenable, even if regard is had only to the Memorials them
selves, and that its untenability appears even more clearly by reference
to the Observations, in which this topic was also dealt with. And indeed,
Mr. President, our submission is that the case of the Applicants as initially
presented to this Court was purely a factual one alleging oppression
deliberate oppression by the Mandatory.
However, Mr. President, as from the Reply stage_ this case was
gradually changed: although at first Applicants retained thcir charges
of oppression, they sought to establish them by an axiom, by legal
fiction, which would in some wav have eliminated reference to the
evidence which Respondent had adduced--or at any rate, that was the
contention of the Applicants. And the evidence which they apparently
particularly sought to exclude was comparative evidence regarding the
circumstances, on the one hand, in the Applicants' States and, on the
other band, in the Tcrritory of South West Africa. Howevcr, when it
became apparent that this contention, this universally accepted axiom
as they called it, would not serve its purpose, that it could never serve
to exclude consideration of ail relevant evidence by this Court, the
charges of oppression by Applicants were completely abandoned. REJOINDER OF MR. GROSSKOPF 549
The norm with which we are concerned at the moment was introduced
in the Reply. By its terms, and according to its definition, it entailed
an absolute prohibition on the differential allotment of rights, burdens,
obligations, etc., on the basis of group or class or race. As we showed,
this leads to ridiculous results and consequently various attempts were
made by Applicants to define the norm in tcrms which would exclude
such ridiculous consequences. However, Mr. President, these attempts
at definitions, as I sought to show yestcrday, invariably failed and as a
last resort Applicants have now abandoned their attempts to define the
norm, and now they contcnd that the norm, although undefined, exists
and that it is applicable, so that now its applicability to the case before
the Court depends not upon its definition and an application of such defi
nition to facts established to the Court's satisfaction, but purely on the
basis that the norm has allegedly been declared applicable by the
organized international community.
This attitude, Mr. President, is in sharp contrast to the attitude
expressed by Applicants earlier, and in this regard I should, with the
Court's permission, like to refer to a passage which I did not quote
yesterday and which, in my submission, clearly points to the contrast
between the attitude adopted cartier, the approach adopted earlier, and
the submissions which are now presented to the Court. The passage
occurred during the argument on the inspection application and one
can find it in the verbatim record of 3 May. It reads as follows:
"The Applicants are aware that the nature, scope and content of
such an international legal norm and international standards must
be defined by them to the satisfaction of the Court if their sub
missions are to prevail. The argument is still in progress on legal
issues, Mr. President, in which the Applicants are anxious to
address themselves to these very questions and this phase of the
proceedings has been suspended by reason of Respondent's injection
for the proposa! of inspection. The Applicants accordingly confront
some difficulty in addressing themselves to Respondent's query for
clarification concerning the nature, scope and the content of the
international legal norm and the international standards, for which
the Applicants contend.'' (Siipra,p. 91.)
So that even at the stage of the inspection proposai, Mr. President,
the Applicants expressly acknowledged that it was encumbent upon them
to define the nature, the scope and the content of this international legal
norm and the international standards to the satisfaction of the Court if
their submissions were to prevail; and they then clearly indicated that
they were still busy with that process of defmition. However, Mr. Presi
dent, we have now reached the stage where these attempts have been
abandoned; there is no attempt any more to define the norm in general
terms at all, and the only contention which the Applicants put before
the Courtis that the applicability of the norm has already been decided
by the organized international community, and that this Courtis bound
by such decision.
By the same stages in which the content of the norm was changed,
as I have indicated, the Applicants necessarily enhanced the significance
of United Nations resolutions. In their first pleadings these resolutions
were relied upon as showing that negotiations had taken place between
the Parties, that there existed a dispute between the Parties and that550 SOUTH WEST AFRICA
such dispute could not be solved by negotiation. In the Reply stage these
resolutions were said to constitute authority entitled to great weight.
Now, however, Mr. President, we have reached the stage whcre they have
been upgraded to the position where they possess normative capacities,
where thcse resolutions establish legal norms, or legal standards, which
are binding upon the Court. They are not only authority but are actually
binding rules from which the Court, as Applicants contend, would not
be entitled to depart.
These arguments naturally led to the question as to what the role of
the Court would now be, and our submission is that the role which the
Applicants now assign to the Court, is that of merely recording what the
organized international community has already decided. It merely
records that a norm of undefined content has ·been crcated, and that
such norm has been declared applicable to the circumstances of the
Territory. And then Applicants say that after that the Court is /unctus
officioand the organized international community must take over again.
Just before the adjournment yesterday I was showing that this
conception of the Court's function was entirely different from that
previously contended for. 1 pointed out that in the Memorials and in the
Observations no suggestion was made that where the Council had ruled
upon a particular matter that would be decisive. The Court will recall
that that formed the subject of some debate during the Preliminary
Objections proceedings. Also, I showed that the standards which the
Applicants relied upon at that stage were entirely different ones. They
were standards which were said to be contained in the Charter and in
the Covenant. They were said to be a distillation of a century of colonial
experience, and were standards said to be existent as at the stage when
the Mandate was conferred. They were not the present standards, which
are said to have arisen subsequently.
I also showed that in the Memorials the Court's fonction was described
as one of supervision, and that this supervisory function was said to be
an essential part of the Mandate. But Mr. President, that could hardly
be said of the function which is now being attributcd to the Court.
Also in the Observations, in keeping with the relationship suggested
then by the Applicants as existing between the administrative super
visory organs and the Court, Applicants still emphasized that the Court's
function was essentially a supervisory one, and they still emphasized
that that was an essential part of the Mandate and an essential fonction
for the Court to perform. Thus they said, inter a!ia, the Respondent's
contention, and I quote from the Observations at I, page 440, "... mis
conceives the purposes of Article 7 and the importance of judicial super
vision in the scheme of the Mandates System ... ".
And_later in the Observations, at page 443, they said the following:
"Administrative and judicial supervison 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 of the
Covenant of the League of Nations. Necessarily, the framers of the
Mandates System entrusted such supervision to the appropriate
international institutions created at the time the System itself was
devised. Thus administrative supervision was entrusted to the League
of Nations and judicial supervision was entrusted to the Permanent
Court of International Justice. The judicial supervision was to be REJOINDER OF MR. GROSSKOPF 551
accomplished through the invocation of the compromissory clause
of the Mandate instruments by States which had become Members
ofthe organized international community by joining the League ... ''
Again, Mr. President, the emphasis is on supervision as an essential
part of the Mandate, and the same feature can be found in the Obser
vations at 1,pages 458 to 459 and at page 471. This whole concept of
juclicial supervision was also clcfended and argued in the 1962 Oral
Proceedings. At page 324 (VII) of the Oral Proceedings Applicants said:
"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'.But, as we attempt to show, at pages 49
to 55 of our Observations, judicial and scholarly authority combine
to refute this inference."
Again, Mr. President, this theme, which in the early stages was found
in the whole of Applicants' argument, that one has a system of judicial
supervision which necessarily, of course, implies some considerable
power, or authority, or jurisdiction, on the part of the Court.
But even in the Reply, Mr. President, the Applicants did not advance
the contention that binding norms and/or standards could be laid clown
by the organized international community. Even in the Reply thcy did
not seek to reduce the Court's fonction to a merely mechanical one as
they have now done.
Then, again, turning their minds to the bearing of decisions of the
administrative supervisory organs on the Court's fonction, the Applicants
said:
"Respondent argues also that ifits obligations toward the inhabi
tants were covered by the clause [that is the compromissory clause],
the Permanent Court would have been in a position to overrule
decisions of the Council approving the manner in which the Man
datory performed its obligations; the drafters could not have
intended this result. This also begs the issue. It assumes that the
obligations of the Mandatory were not legal in nature, hence that
they were for the Council to decide rather than for the Court."
(IV, p. 545-)
This argument, which had been raised before Applicants say, "begs the
issue because itassumes that the obligations of the Mandatory were not
legal in nature, hence that they were for the Council to decide rather
than for the Court".
Now, as we noted in the Rejoinder, Mr. President, in V, page 96, this
line of reasoning is not particularly clear. One does not understand
exactly what the Applicants mean by it. It may be read as suggesting
that since the Respondent's obligations were legal in nature, therefore
only the Court and not the Council could decide disputes arising from
such obligations. That is a possible reading, in our submission, of this
passage. On the other hand, it may be read as suggesting that the legal
nature of the obligations necessarily entailed that the Court should be
entitled to overrule a decision of the Council on allegations of violations
of such obligations. In one way or another, the Applicants sought to
attach importance to the fact that the obligations were of a legal nature,
and the fact that they were of a legal nature, in their submission, gave552 SOUTH WEST AFRlCA
the Court some fonction; either a fonction of alone deciding whether
there had been a violation or elsc, on an alternative reading of this
passage, the fonction of overruling the Council if and when the Court
thought that the Council had made a mistake. But, Mr. President, the
important point for prescnt purposes is that whichever of these two
constructions may be correct, this passage is in direct conflict with the
contention now advanced, namcly not only that the Council was em
powered to decide upon allege~ violations of the Mandate, but that its
decisions created standards binding upon the Mandatory and the Court.
The attitude in the Reply was that the Court must either be entitled or
able to overrule the Council or, alternatively, that it alone can decide.
\Vhichever of those two meanings was intended by the Applicants, they
certainly did not say, and neither of these meanings would be compatible
with any contention, that the Council was empowered not only to decide
but finally to lay down binding standards from which the Court would
not be able to depart under any circumstances. Certainly that contention
would be entirely inconsistent with this passage from the Reply.
Now, in consonance with the quotation I have just given the Court,
Applicants, in the Rcply, also suggested a wide field of material from
which the Court could derive standards or bases for adjudicating on
alleged violations of Article 2 (2).ln tlus regard they said:
"... courts have found no difficulty in dealing with political,
economic or humanitarian issues. even when formulated in general
tenus.
\Vhen passing upon issues of this character, courts-both inter
national and national-customarily apply knowledge extracted from
expericncc, from social, physical and political sciences, and from
all other sources from which man derives guidance in the conduct
of his lifend rclationships with others .
. . . international tribunals have often derived theirjudgments from
sources, and upon the basis of considerations, which Respondent
would characterize as 'social, ethnological, economic and poHtical'."
(IV, p.485.)
And also in the Reply they said:
"It is, of course, in the highest traditions of courts in all civilized
systems to draw upon humane, moral and political standards in
deriving the sources of law." (Ibid., p. 487.)
If I may quote one further passage from the Reply, Applicants listed
what they called "relevant evidence" in support of a proposition "That
Respondent's policy and practice of apartheid fails to promote the well
being and social progress of the inhabitants". (Ibid., p. 277.)
The evidence which they listed, and which they presented to the Court
in support of such a proposition, consisted of four categories, including
the judgments of qualified persons, the official views of govemments in
all parts of the world, and "expressed, inter alia, through the United
Nations, ... as well as through findings and resolutions of the United
Nations itself". (Ibid.) Further evidence adduced by them included the
weight of scientific authority and the history and character of homelands.
Now, Mr. President, in this regard we wish to place particular emphasis
on the fact that these official views of govemments, which they said
were "expressed, inter alia, through the United Nations, as well as
through findings and resolutions of the United Nations itself", that REJOIXDER OF MR. GROSSKOPF 553
these views were then not regarded as laying down standards which
were binding upon the Court or norms from which the Court could
never depart, even though the Court might feel that they are wrong.
Then ail this was adduced only in support and only as relevant evidence
for, the proposition that Respondent's policy and practice of apartheid
fails to promote the well-being and social progress of the inhabitants.
What was then purely evidence bas now, in Applicants' submission,
become the sources or the manifestations of bmding standards and
norms, and I have already referred to the further submission presented
in the Reply to the effect that the resolutions of the United Nations, its
organs and agencies, were merely authority possessing great weight.
In sum, therefore, Mr. President, in the Reply the Applicants were
still concerned to offer the Court a wide scope of enquiry. They invited
the Court to have regard to a wide range of topics in deciding the case
before it, and, Mr. President, this attitude persisted even up to the
Oral Proceedings. In their main argument-in their first argument
in these Oral Proceedings Applicants contended that the Court was
intended to exercise a type of review jurisdiction-that was the word
they used-and they likened it to the activities of tribunals applying
the minimum international standards to the treatment of aliens; they
also comparcd it to the activities of the Permanent Court in regard to
the minorities treaties, and to the Court's position in regard to the
International Labour Organisation Constitution and the Conventions.
I may in this regard refer to the verbatim record of 24 March, VIII,
page 240, wherc the Applicants, when describing the fonction which
they submitted the Court should exercise, said the following:
"The concept of judicial review of international obligations was
familiar to the founders of the mandates svstem. One illustration
among many is to be found in the area of ·state responsibility for
denial of justice.
This legal doctrine often·had been applied to policies and practices
of executive and legislative authoritics, as well as to decisions of
judicial tribunals.
Inasmuch as the doctrine of dcnial of justice applies to treatment
of aliens, international statal responsibilities often are involvcd in
the application of the doctrine. International judicial r.eview of
governmental policies and actions with respect to aliens involves
consiclerations of law and justiciability analogous in important
· respects to governmental policies and practices affecting inhabitants
of mandated territories."
And also as regards minorities, reference may be made to the same
verbatim record at page 241 and as regards the International Labour
Organisation to the same verbatim record, at page 242.
After referring to ail these examples, Applicants summarized their
contentions regarding the role assigned to the Court and the basis upon
which the Court should adjudicate the disputes now before it in the
following words:
"In the premise then, Mr. President, it is not at all surprising,
giving the numerous examples and wide knowledge and acceptance
of the principle of international judicial review of govemmental
policies, including those encompassing political, economic and tech
nical aspects, that the authors of the mandates system, not only554 SOUTH WEST AFRICA
should have bestowed a like power upon the Permanent Court,
but that they did so without objection and even without discussion."
(VIII, p. 243.)
Now, Mr. President, it hardly needs argument to show that this
fonction of judicial review which the Appl.icants attributed to the Court
at the inception of these Oral Proceedings has nothing in common with
the fonction which they now assign to ît, of merely recording condem
nations by the organized international community and nothing more.
As to the sources which the Applicants contended should be applied
in exercising such a power of review, they also on the very first day of
the argument cited the Brown case in the United States of America
and other authorities as-
"... confirming that the judicial process in civil law systems, as
well as other systems, draws upon humane, moral, political and
scientific standard·s as sources of law, and does so particularly
where legal rights and duties are broadly forinulated". (Ibid., p.I19.)
Later they said :
"It is our submission, M:r. President, that Respondent's legal
obligations under Article 2, paragraph 2, of the Mandate, are to
be measured by Jegal norms which arc derived, inter alia, from
political, socialand scientific sources and standards. This is the
correct relationship in the concepts of standard and norm, in the
appreciation of the Applicants.
Among such sources of legal nonns are the standards establishcd
by competent organs of the United Nations and by the International
Labour Organisation.
As I have pointed out, the Applicants likewise rely upon the
views of authorities, including those of govemments, of social and
political scientists and other experts, as and among the sources
contributing to and illuminative of the generally accepted inter
national human rights norm ... " (Ibid., pp. 259-260.)
The point to be emphasized here, Mr. President, is that the standards
established by the competent organs of the United Nations are here
included in a whole mass of material from ail of which the Court was
then asked to derive sources for its judgment.
In an earlier refercnce, in the same verbatim, the Applicants said:
"The Applicants conceive that legal principles and legal norms
arc based upon, and reflect, human expcricnce and the human
condition. In the celebrated maxim: 'experience is the life of the
law.'
The standards rcferred to in the Reply are of course of a political,
moral and scientific character. They are set out with numerous
illustrative examples in the Reply, in the following contexts."
(VIII, p. 247.)
Applicants then proceed to refer to views of governments and to
contemporary scientifi.c authority. The point here again we wish to
emphasize is that the standards in Applicants' submission were, of
course, of a political, moral and scientific character.
Now, Mr. President, in the light of the above propositions, and in the
light of the Applicants' case thus presented, we submitted that the
Applicants had made it clear- REJOINDER OF MR. GROSSKOPF 555
"... that, when they speak of standards in that regard, they
dcrive those standards from the spheres of the political and social
sciences-from the weight of scientific authority, from the practices
of governments and from the standards currently operative in
modern society in regard to methods of government, fairness, equity
and so forth ... ".(Supra, p. rnz.)
That, Mr. President, is how we understood their case, and I submit
that that is what their case actually was.
Now Applicants no longer want the Court to venture on to all these
terrains, they only want the Court to give effect to the judgment and
the condemnation already reached and given by the organized inter
national community. Consequently, they no longer agree with this
summary of what we said the argument was. The now say:
"Such a misunderstanding of the Applicants' position arises from
a confusion between the evidence used to demonstrate the existence
ofstandards and the content of the standards themselves .... Theo
ries ofexperts and views of governments are indicative of the social
facts which give rise to the standards but they do not constitute
the standards themselves." (Supra, p. 260.)
Now, Mr. President, what is the explanation of this change of attitude
on the Applicants' part? ln our submission it may well lie, inter alia,
in the following passage in our argument, which we presented to the
Court on the application for the inspection, where we contended that if
Applicants wished to avoid a factual enquiry, Applicants' Agent would-
"... have to rnake clear ... that in support of his norm he no longer
relies upon what he calls the 'ovcrwhelming weight of scientific
authority', because that is an aspect upon which again, ... there
is a vital dispute of fact between the Parties on the record as to
what is the overwhelming weight of scientific authority in this
regard". (Supra, p. 81.)
Mr. President, we pertinently drew attention to the fact that Applicants
could not rely upon norms having a factual basis or being derived from
factual material unless they were prepared to enter into a consideration
and an examination of the facts.
We continued to say:
"If my leamed friend relies on factual justification for his norm,
then obviously we would like to bring in that evidence on our side
and that evidence may well be very vitally illustrated by examples
and by what one can see in South West Africa and in other parts
of Africa." (Supra, p. Sr.)
Mr. President, painting out that featurc to the Applicants may well
have been one of the reaons why they have now discarded ail this other
material as sources of the norm and standards.
In addition, of course, once the Applicants contend that the normand
standards need not be defined because they have been declared applicable
by the organized international community-once that becomes their
attitude in order to escape the difficulties of definition, then they are
obviously also forced to the contention that the organized international
community can in law lay down legally binding standards. The one
necessarily involvcs the other, and that contention again logically leads556 SOUTH WEST AFRICA
to the position that there would be no necessity, and that there would
even be no justification, for looking at any other possible sources of the
norm or standards. If the organized international community can say
the last word,' and if its judgments are final and decisive, then clearly
the Applicants are forced to the position that nothing else is relevant~
that one does not have to have regard to anything else, and that all
other sources or norms or standards, that ail this other material which
they invited the Court to have regard to, becomes entirely irrelevant.
It is interesting to note, Mr. President, that by this circuitous route,
which I have sketched above, the Applicants have now substantially
reached the same conclusion as that consistently contended for by
Respondent, namely that this Court was not intended to adjudicate at
all on alleged violations of Article 2 (2) of the Mandate. They now
use words and express themselves in ways which are almost identical to
what we have been saying ail along. I may refer to a passage in the
verbatim record of 17 May, the Applicants say:
"For ifthe Respondent is upheld in its daim of inherent discretion
of a breadth for which Respondent contends, or appears to contend,
the only way the Court could pass judgment on asserted breach of
Article 2, paragraph 2, would be to make a choice between the
Respondent's conception of well-being, moral and material well
being and social progress, and that of the Court's.
Such a decision, whatever the outcome, could not rest upon
authoritative or objective criteria. It would not possess the juridical
attributes properly to be associated with the tradition of this
honourable Court." (Supra, p. 299.)
I may say, of course, Mr. President, that the glass or the interpretation
which the Applicants place upon our argument is entirely erroneous.
As my learned senior pointed out yesterday, our contention involves
quite different considerations altogether, but the point I wish to em
phasize is that Applicants now concede that to make a choice between the
Respondent's conception of moral and matcrial ,vell-being and social
progress, and that of the Court's, is not a fonction which a court can
assume; that "Such a decision, whatever the outcome, could not rest upon
authoritative or objective criteria" (in their words), and that such a
decision, such a comparison between the Court's conception of well-being
and Respondent's conception of well-being "would not possess the juridical
attributes properly to be associated with the tradition of this honourable
Court". This is a contention, of course, Mr. President, which we have
advanced all along,but it is interesting to note that Applicants themselves
have now reached the same situation and the same position.
Later. Mr. President, they contended in the verbatim record of
18 May:
"... that this Court, and no court, by reason of the very nature oi
the judicial process, has the facilities or the responsibilities to reach
judgments, to formulate standards, of the sort which are uniquely
within the competence of administrative organs and which reflect
political and moral and social considerations of which they are
specially competent to judge and evaluate." (Supra, p. 326.)
Mr. President, I would emphasize their contention that it is especially
within the competence of administrative organs and not the Court's to REJOINDER OF MR. GROSSKOPF 557
reach judgments and formulate standards which reflect political, moral
and social considerations.
Now, tlus attitude stands in sharp contrast to the attitude adopted in
the Reply, to which reference has been made, and even to the attitude
adopted in the early stages of these Oral Proceedings. I would just refer
to one passage in the Reply, IV, at page 485, where the Applicants said
that-
". . . courts have found no difficulty in dealing with political,
economic or humanitarian issues, even when formulated in general
terms".
They "found no difficulty".
At page 49r of the Rcply, IV, the Applicants said:
"The second fallacy is [in Respondent's contention] that, for
reasons unexplaincd, Rcspondcnt appears to assume that it is not
as difficult for a political body to deal with a generally stated
obligation, or with one based upon economic, social or political
considerations, as it is for a court. Human cxpcrience, bath in
respect of national and international parliamentary bodies, belies
such an assumption."
In the Reply, courts found it easier to deal with these things than
administrative bodies. Now, in the oral reply in these procccdings, courts
eannot deal with these at ail, only administrative bodies can doit. I may
also refer in this regard,]\Ir.President, to the separatc opinion of Judge
Jessup in 1962 as an indication, not only of the view held by the learned
Judgc, but alsq of the light in which he saw Applicants' case as then
formulated, particularly for the latter purpose. He said, at page 429 of
the I.C.]. Reports I962:
"There is no reason whv this Court should be unable to determine
whether varions laws and regulations promote the 'material and
moral well-being and the social progress of the inhabitants' of the
mandated territory.
If courts can pass on such questions, there is no reason why two
governments should not discuss them (and such discussion would
constitute a negotiation) and reach agreement that the measures
were improper; or that the deficiencies allegcd to cxist were not
established; or failing agreement, resort to this Court."
Herc is a clear indication, l\Ir. President, of the light in which the Appli
cants' argument was seen and the view held by the learned Judge as to
the issues which were then before the Court.
Now, Mr. President, thcse varions contrasts in attitudes are not shown
for any derogatory purpose, they are in fact, in our submission, significant
as emphasizing that the Applicants no longer rely on any supervisory
fonction or any right of review which should be exercised by the Court,
and, indeed, that they now concede that such a fonction or such a power
could not have been intcnded for the Court. They now concede that the
Court was not intcnded and would not have becn intended to exercise
such a power.
It would follow that if their contentions were now taken to their
logical conclusion, the only basis on which the authors of the Mandate
could have intended the Court to adjudicate on alleged violations of
Article 2 (2) would be if the League organs were empowered to lay down558 SOUTH WEST AFRICA
legislative standards or norms binding on the manda tories and the Court.
If Imay amplify that for a moment, Mr. President, their case now is,
apparently, that a court has no general power, no general fonction to
consider and weigh up humanitarian, social, politica], economic factors
in order to corne to a decision thereon. They say that the Court cannot
express a view as to what does or does not promote well-being and pro
gress. Ali that the Court can do, they say, is to giYe effect to the norms
and the standards, the judgments and the condemnations which have
already been reached by the organized international community. If
that is the function of the Court now, then surely that must always
have been the function of the Court. And that must also have been the
function of the Court in 1920-the function which the authors of the
Mandate must have considered or intended the Court to exercise. That,
in turn, necessarily entails that the authors of the Mandate must then
have intended the expressions of view or the expressions of opinion of the
organized international community to be binding on the mandatory
even then, because if they were not binding then, if the Court did not
have jurisdiction for such purpose then, how could the Court's jurisdiction
have been increased in the meanwhile? It is a position which, in our
submission, logically follows from the attitude which the Applicants now
adopt. It logically follows that the Court would have had no jurisdiction
unless the intention was that the supervisory organs, the administrative
supervisory organs could, even in 1920, have laid down binding standards
and binding norms which would bind the exercise of the Court's function.
If,Mr. President, no such power was intended for the League organs,
if the League organs were not intended to possess power to lay down
such binding standards, it follows, in our submission, that no jurisdiction
as regards breaches of Article 2, paragraph 2, was intended for the Court
at ail, which, of course, accords of course with our main submission on this
point. And, since, as we have already demonstrated and we shall again
show the Court, the legal position was indeed that the League organs
possessed no power to lay down binding standards or binding norms or
binding interpretations of Article 2,paragraph 2, it clearly follows that
the Court was indeed not intended to possess such a jurisdiction. That,
in our submission, must necessarily be so, Mr. President. ·
As soon as one accepts the position, which we submit to be clear, that
the organs of the League were not empowered to Jay down such standards
or norms which could bind the Court, as soon as that position is accepted
and also, in the light of Applicants' admission which they now make,
that the Court cannot decide on the facts whcther provisions promote
or do not promote, then what possible jurisdiction could have bcen
intended for the Court in 1920 as regards Article 2, paragraph û In
our submission, none at ail. And if no jurisdiction as regards Article 2,
paragraph 2, was intended as at that stage, how could such jurisdiction
have arisen subsequently? Certainly, Mr. President, not without the
consent of the Party bound thereby, namely the Respondent.
No subsequently arising norms, standards or customs could have
altered this basic fact. The onlyhing that couId have effected anal teration
or a change or an enhancement of the Court's jurisdiction in that regard
could have been the consent of the Mandatory and no case whatsoever is
made by Applicants on the basis that the Mandatory, that is, the Respon
dent, ever consented to accept an increased obligation or ever consented
to an increased jurisdiction of that sort. REJOINDER OF MR. GROSSKOPF 559
Now, in conclusion, Mr. President, to summarize briefly what I have
said, the Applicants commenced with a case based upon deliberate
oppression. After receipt of the Counter-Memorial, they realized that
they could not succecd on that basis, or on any other basis which would
involve an independent enquiry by the Court as to the circumstances in
South West Africa and, particularly, as to the circumstances in South
West Africa compared wlth those in other territories in Africa, so that,
by degrees, they abandoned these charges of deliberate oppression.
First, they went half-way and sought to establish them by some sort
of legal fiction which woulcl eliminate the necessity of looking at facts,
but when they saw that that one would not run, they abandoned the
charge altogether. So that, consequently, by dcgrecs and as a result of
practical necessity, the App1icants were forced back on to their norms
and standards. However, difficulties in defining these norms and standards
so as, on the one hand, to avoid a factual enquiry but, on the other hand,
to exclude unassailable forms of official differentiation, have now forced
them to the contention that they need not define the norms and stan
dards-that the organized international community has not only estab
lished the norm but dcclared it applicable to the circumstances of
South West Africa.
This contention entails, of course, that there is, at the moment, no
definition of the norm. The definition which the Applicants said, during
the inspection proposai, that they were obliged to furnish in order to
establish their case, has not been forthcoming. Ail that there is, is a
general formulation which applies to a wide variety of subjects, somc of
which are entirely unassailable on any basis and then, in addition,
certain exceptions conccded by the Applicants which they explain on an
ad hoc basis without, however, taking them out of the wide ambit of the
norm. Therefore the net effcct, i\Ir. President, is that we really have no
proper definition of the norm. And the only basis on which it can be
dcclared applicable, the only basis on which they seek to declare it
applicable to South West Africa, is to say that it has been declared so by
the organized international community.
Following on this change of the content of the norm, Applicants
naturally also were obliged to limit the sources from which the normand
standards are sought to be derived, and such limitation of sources also
serves the useful purpose for them of eliminating any factual enquiry
which might have been required for proper consideration of the sources
originally relied upon. The wide field, the wide nature, the wide class of
sources which they originally suggested, has now fallen by the wayside.
In conclusion, r1Ir.President, I might Just say that the purpose of this
argument is not to criticize the Applicants or their legal representatives
or to be derogatory in any other sense; the purpose is purely to show the
bearing of all this on the merits of the Applicants' argument as now
advanced. It must, in our submission, be unique, Mr. President, in the
annals of this Court that an Applicant has, at so late a stage as its oral
reply, raised and propounded and advanced an entirely new case to
this Court. If that is not unique, Mr. President, they must at least have
set a new precedent by presenting a new case every time they expressed
themselves-firstly in the I\Icmorials, then in the Rcply, then in their
oral statements and then in thcir oral reply-a new case on basic aspects
each time.
Where, as we shall show in more detail Jater, their case now rests largely560 SOUTH WEST AFRICA
on international custom, it is, in our submission, at least worthy of
comment that it has taken them five years and four expressions of view,
before they decided to back this particular horse. It has taken thcm five
years to realize that this international custom, this consensus, of which
they speak with such enthusiasm now, exists. If it exists, the Court may
well ask why did not the Applicants realize it earlier? \Vhy do they only
present it now? And also, Mr. President, it must be significant, in our
submission, that these changes in their cases, this raising of a new case
at the vcry last stage of the Oral Proceedings, was occasioned not by a
new insight or a new view or a new idea which the Applicants have
suddenly obtained, but that, as I have shown, these various changes and
this final change culminating in the amendment of their submissions,
have been induced only by considerations of expcdiency; that it has been
only for practical reasons, for practical reasons of drafting, of dcfinition
and of truth, that they have been forced to change their case to this very
narrow basis on which they now rest.
Ithank you, Mr. President, my learned senior will continue. 19. REJOINDER OF MR. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA AT THE PUBLIC HEARINGS
OF IO-I5 JUNE• 1965
Mr. President, honourable Members of the Court, before I proceed to a
more detailed consideration of the mcrits of the Applicants' case as now
advanced, there are, I am afraid, certain further aspects of analysis
which have still to be putto the Court. I am afraid it is a long drawn-out
process and parts of it may be tedious but it secms tous to be absolutely
necessary, in the circumstances which have arisen, whcre, as my learned
fricnd, l\lr. Grosskopf, has just stressed to the Court again, we are faced
with a substantiall:y new case----one which developed by degrees from
sornethîng else wh1ch was earlier bcforc the Court. lt is nccessary,
therefore, to obtain absolute clarity as to what this case now is and
what it is not.
I promised, in that respect, in my opening addrcss to the Court on
Tuesday, to furnish references to the record which make it perfcctly clear
that the Applicants now rest their case only on the contentions in regard
to an allcged norm and/or standards, and that they do not bring a case
on either of the only two alternative possible cases that could have been
brought on the basis of Article 2, paragraph 2,of the Mandate-the only
two other possibilities that have been mentioned in the discussions at ail,
namcly either a case on the basis of purpose or on the basis of the
effccts of the Mandatory's policies.
We have already drawn the Court's attention to the Applicants
formai Submissions, numbers 3 and 4, as they are now reformulated and
redefined. My lcarned friend, Mr. Grosskopf, rcad them again to the
Court yestcrday and I do not intcnd to rcad thern out to the Court in
detail now, but I should like to refcr to certain salient aspects of the
wording as it now stands as distinct from what the wording was before.
The original wording of Submission No. 3, the Court will recall, in
both cases contained a reference to "the respects set forth in Chapter V
of this Memorial and summarized in Paragraphs 189 and 190 thereof ... ".
Those were the words of Submission No. 3. And then in Submission No. 4
we found something similar, although not identical, "by virtue of ...
[varionsJ policies ... , which are describcd in detail in Chapter V of this
Memorial and summarized at Paragraph 190 thereof ... ". In both
cases, these words I have quoted have now been omitted from the
reformulated submissîons. As Submission No. 3 is reformulated, it is now
said that Respondent, "by laws and rcgulations and official methods
and measures which are set out in the pleadings herein has practised
apartheid . .. ". And then there is a definition of apartheid, concurring
entirely with the content of the norm and of the standards now relied
upon. In other words, it reads "... i.e., has distinguished as to race,
colour, national or tribal origîn in establishing the rights and duties of the
inhabitants of the Territorv", making it clear, Mr. President, that that
is the sole basis upon which this adjudication is now asked for.
It is significant, I might point out, with respect, that in this context
the expression apartheid itself has now changed its significance. It was SOUTH WEST AFRICA
formerly defined in consonance with the Applicants' case as it was appar
ently then scen. It was defined in the l\Iemorials in terms which attributed
deliberate oppression to the Mandatory government. It is now formulated
in terms which relate only to one aspect, viz., to the allotment of rights
and obligations, privileges, and burdens, on the basis of membership in a
race, group or class.
So that position has been made clear even by the wording, quite apart
from the official explanation wliich followed and which emphasizcd that
aspect.
Again, in Submission No. 4, where formerly the reference was to
"the economic, political, social and educational policies applied within the
Territory", and as more particularly set out in Chapter V and summarized
in paragraph 190, we now fmd omission of the word "the". 1t is now
"by virtue of cconomic, political, social and educational policics applied
within the Territory"; and then these words arc inserted, "by means of
laws and regulations, and official mcthods and measures, which are set
out in the pleadings herein"; and then further words are inscrted, "has
in the light of applicable international standards or international legal
norm or both failed to promote to the utmost ... ".
Again, this is wording which is on its face designed to narrow clown
the case merely to the basis of the standards and the norm, except that
this wording does not explicitly say which standards or which norm is
being relicd upon. .
The Applicants, however, make that explicitly clear in the forma!
interpretation provided by thcm. I refertopage 375, supra, of the verbatim
record of 19 May where Applicants provide: "... the following forma!
interpretations and explanatory comments with respect to the foregoing
submissions ... ".It is made perfectly clear there that "... Submission
No. 4 is not intended in any manner to suggest an alternative basis upon
which the Applicants make or rest their case other than the basis upon
which the Applicants present in Submission No. 3 itself"; and it is said
further, specifically:"the distinction betwcen the two Submissions 3 and
4 being verbal only, for rcasons which have bcen set out in the cited
section ofthe verbatim record".
Then, in the next paragraph of this forma! interpretation and ex
planatory comment, the norm and the standards referred to in Sub
mission No. 4 are unmistakably indentified. lt is said that "The refcrence
in Submission 4 to 'applicable international standards or international
legal norrn, or both' is intended to refer to such standards and legal
norm, or both, as described and defined in the Reply at IV, page 493,
and solely and exclusively as there described and defined ... ".
So, Mr. President, that is made very clear in the re-forrnulation of the
submissions by itself and reacl with this formai interpretation and ex
planatory note.
Now, the Court will recall that the allegations in the pleadings related
to improper motives, to wrongful intent or purpose on Respondent's part,
to oppressive conduct towards the Natives, and failure to promote well
being or progress in any significant degree whatever. We now find that
the submissions as now defined, and particularly in the light of the
significance of the amendments as compared with what they referred to
before, make positively clear that the Applicants found their case purely
and exclusively on the basis of the norm and/or the standards, and
negatively, that these earlier bases, or possible bases, of their case, REJOINDER OF l\lR. DE VILLIERS
:,uggested by the wording of the pleadings, are not relied upon by the
Applicants any more. That is made clear by these submissions and ex
planatory interpretation or official explanation.
But it is made clear also in another way, Mr. President. It is made
clear by specific and explicit statements bearing on both those aspects,
both on the positive aspect that that is the Applicants' only case, and
on the negative aspect that no case whatsoever is being brought any
longer on the basis of either motives or effect of the policy. I say "any
longer"; that accords with our interpretation of what the position was
before, since we submit to the Court that there very clearly was a case to
that cffect before. The Applicants say, of course, that in fact their case
has always rested, and has always been intended to rest, on the norm
and the standards alone, and that they have now only sought to avoid
misunderstanding by the amendment of their submissions, coupled with
the explanatory note.
Be that as it may, we find these statements, wc find them in the
record, and they make that position in our submission abundantly clear.
Now, l begin by referring the Court to the verbatim record of Tuesday,
27 April. I shall take these in chronological sequence as far as possible.
If I remember correctly, this was at the stage oïdebate on the proposai
for an inspection. At page 17, supra, of the verbatim record for 27 April,
my learned friend, Mr. Gross, statcd:
"The Applicants' contention that such policies and practices
violate Respondent's obligations in accordance with and pursuant
to the relevant provisions of the Covenant and of the Mandate does
not place at issue Rcspondent's motive or statc of mind and such
submissions do not, explicitly or implicitly, request the Court to
take such motive or state of mind into account, nor to adjudge and
declare with respect thereto. On the contrary, as the Applicants
repeatedly have sought to makc clear, the basis of their case with
respect to the alleged breaches and abuses of these articles renders
any such considerations irrelevant and foreign to the cause ofaction
truly embodied in their submissions."
It hardly seems that one could be more explicit in making clear that
the submissions, the contentions, do not rest on any case brought with
reference to purpose or motive.
At page 20,supra, of that same record we find this:
"The Applicants have made clear that their purpose of setting
forth in considerable detail the facts conceming the measures of
implementation, the laws, regulations, administrative practices
none of which is in dispute, and if any is in dispute, the Applicants
do not rely upon them-that these facts, systematically applied, in
the Applicants' submission, do establish a violation of the inter
national legal norm, for which the Applicants contend, if the
Applicants' views in that respect are not correct, if the Applicants'
case upon its own theory is not made, the rcsult must be obvious."
That is not what we said, Mr. President. That is what the Applicants
said.
Then, at page 23, supra, of that same record of 27 April we read:
"The Applicants Iikewise repeat and reaffirm that neither their
Submissions 3 or 4, nor the legal conclusions, which I have just
quoted from the Memorials, nor any other statements or arguments SOUTH WEST AFRICA
made by Applicants, that neither Submissions 3 or 4, nor the legal
conclusions which flow from the undisputed facts of record, directly
or indircctly, explicitly or implicitly, place in issue Respondent's
motive, purpose, objectives or state of mind or that of any of
Respondent's officials from time to time in office."
Even more extensive and explicit, if that were possible, the Applicants
contend at page 28. supra, of that record-
"... that ail facts relevant or necessary to adjudication upon its
submission are not only in the record of the proceedings but are,
indeed, undisputed. That I have sought to make clear."
I proceed to give some quotations (I could give more but I think
these should suffice) from the record of the next day, 28 April 1965:
"It is the Applicants' case [my learned friend stated], rightly or
wrongly, that the policy and practices complained of as a matter of
the international legal norm, and the universally accepted standards
upon which that legal norm is based and which it reflects, that such a
policy cannot inherently promote the welfare of individual inhab
itants of the Terri tory. Any contention to the contrary is an attack
upon the norm itself. Of course it is permissible for the Respondent
to question the validity, existence and content of the legal norm,
that is a principal issue joined in these proceedings. But any con
ception that would lead to a doubt or an inference or an assumption
that promotion of the welfare and progress of an individual is
compatible with the allotment of the rights, burdens, dutics and
privileges, upon the basis of his membership in a group rather than
upon bis quality, merüs and potential as an individual persan is
impermissible, inconsistent and such a policy is repugnant to the
lcgal norm which we assert covers the situation.
The condition of the individual's health, his happiness, ostensible
happiness, or other factors which are frequently referred to, do not.in
these circumstanccs, have a relevance to the validity and content
of the norm if it exists, as the Applicants respectfully submit that
it does.
In view of the fact that the practice and policy complained of is
inherently incapable of promoting the welfare and progress of the
inhabitants, that it inherently and per se is repugnant to and
violates the international legal norm; this makes it necessary to
conclude that the phraseology 'irrespective of any other steps taken
by the Mandatory for promoting the welfare of the inhabitants
of the Territory' does not, in our respectful analysis, have any
bearing." (Supra, pp. 45-46.)
If I may pause there for a moment, the quotation of the words "irre
spective of any other steps taken by the Mandatory for promoting the
welfare of the inhabitants of the Territory", it will be recalled, was
taken from a question in this regard by the honourable Member of the
Court, Sir Gerald Fitzmaurice, and it was in response to that question
that the Applicants stated that that consideration could not, "in [their]
respectful analysis, have any bearing".
I proceed with the quotation:
''It [in other words, that phraseology] would seem to rest on the
assumption that considcrations of the promotion of the welfare REJOINDER OF MR. DE VILLIERS
of the inhabitants of the Territory must be and can be evaluated in
some manner other than against the admitted conduct as applied
to the norm contended for."
Again, Mr. President, this makes -it clear in another way how this
"norm contention", as it was then called (the Applicants have since
made it clear that they include standards in that connection), is the only
basis upon which they bring a case-that anything falling outside of
that would not be relevant to the case at all.
Then at pages 47-48, supra, of that record of 28 April 1965, we find
the following:
"No standard of achievement anywhere in the world would be
high enough or low enough, as the case may be, to justify and
extenuate the policy of apartheid, in the Applicants' submission.
The international lcgal norm and standards which exist are not
subject to, or conditioned by, or affected in any manner by, any
question concerning standards of achievement. A contention to the
contrary does not and cannot be asserted in extenuation or explana
tion of the policy and practice of apartheid. Rights, duties, burdens,
obligations,cannot be allotted on the basis of race, tribe or member
ship in a group, without regard to individual mcrit, capacity or
quality."
The words I want to cmphasize, Mr. President, are "the international
legal norm and standards ... are not subject to", and not "conditioned
by, or affected in any manner by, any question concerning standards of
achievement". In other words, results also are foresworn as being the
basis upon which the violation of Article 2 is said to have occurred.
At page 56 of that record we read:
"The Applicants arc either correct or incorrect, they are either
right or wrong, in thcir submissions with regard to what the inter
national legal norm applicable to this case stands for, what its
content is."
I proceed to page 57 of that same record:
"There can be no question of promotion of.welfare that could be
relevant to the practices and policies which are complained of and
which are the subjcct of the undisputed factual content of this.
record." ·
May I pause, Mr. President? It seems that the Applicants almost came
tu a point of despair in these following words:
"How many times is it necessary to repeat that is the hcart and
soul of the Applicants' case, and if the Applicants are wrong, they
will be told so, of course, by this honourable Court in due course?"
I pause again: that which "is the heart and sou] of the Applicants' case"
is this contention: that "no question of promotion of welfare could be
relevant to the practices and policies which are complained of and which
are the subject of the undisputcd factual content of the record. And the
next sentence in this record makes it clear why that submission is
advanced, because here the Applican ts said:
"The Applicants have confidence in the legal propositions upon
which they rest their submissions and will, it goes without saying,
Mr. President, endeavour to clarify those submissions to the fullest566 SOUTH WEST AFRICA
extent of their capability to do so. But on the basis of the sub
missions, as the Applicants intend and respectfully present them-on
the basis of the undisputed facts of this record, the Applicants
respectfully submit, and accordingly through the Court advise the
Respondent, that the Applicants rest their case upon the proposi
tions asserted, and that the acceptance of these propositions would
make irrelevant, unneccssary, for ail the reasons the Applicants have
endeavoured to expia.in, the introduction of further evidence, either
at the seat of the Court or elsewhere ... "
That takes us to the next stage, the record of 30 April.
Mr. President, proceeding then with these extracts from the verbatim
records indicating the scope of the Applicants' case as they themselves
conceived of it and explained it to the Court, I refer to the verbatim
record of 30 April, at pages 64 and 65, supra. There they quoted a passage
from our Rejoinder and they stated that it "removes any vestige of
doubt that Respondent clearly understands the basis of the Applicants'
case" (p. 64). They proceeded to quote this passage from the Rejoinder
and the crucial portion of it as it stands in that quotation is found at
page 64 of that record, and it reads as follows:
"If indeed Article 2 of the Mandate must be read as containing
an absolute prohibition on 'the allotment, by governmental policy
and action, of rights and burdens on the basis of membership in a
"group" ', Applicants would sufficiently establish a violation of the
Article by proving such an allotment, irrespective of whether it was
intended to operate, or does in fact operate, for the benefit of the
inhabitants of the Territory."
There again, they were indicating in another way how the issue is now
confmed.
Going to the record of 3 May, we read:
"... Applicants have statcd explicitly that the ... laws and regula
tions, the official methods and measures by which they are effectua
ted, ... constitute a per se violation of the relevant provisions of
the relevant Article of the :Mandate. It necessarily follows that the
Court is not requested by the Applicants to pass an adverse 'value
judgment' either as to the purpose or as to the effcct or as to both,
of the Respondent's policies in South \Vest Africa." (Supra, p. 92.)
Again, Mr. President, one could hardly have it more explicit.
Then at the samc page of that record, the following passage appears:
"If the phrase 'an enquiry whether such a norm is a factually
valid and a justified one' is intended to suggest that the Court
should conduct an enquiry, or hear expert testimony, as to whether
the normand standards are 'justified', then the Applicants, respect
fully, disagree."
I could quote many more passages, Mr. President. J do not want to
overload the record with these quotations but I think they are important.
J have a few more to show that this line was consistently taken right up
to the end, leading up to the amendment of the submissions on the final
day, 19 May. First I quote an cxtract from the verbatim of 12 May:
"lt might be desirable at this point to say that the Applicants
have submitted, and will continue to submit that Respondent's
subjective intent, motive, or purpose, with regard toits performance REJOINDER OF MR. DE VILLIERS
of its obligations under the .Mandate, are wholly irrelevant factors,
particularly so with regard to Article 2 (2),inasmuch as a perse viola
tion of the international legal norm and applicable international
standards is contended for by the Applicants." (Supra, p. 239.)
The verbatim of r3 May has some relevant passages. First, there isone
at page 248:
"... as the Applicants have sought to make clear repeatcdly, they
do not seek to_establish improper motives on Respondcnt's part;
they regard the subjective intentions of Respondcnt's officiais who
may be in office from time to time as irrelevant to the basic legal
proposition presented to this Court by the Applicants". •
Again at page 253 of that verbatim record, Mr. President, there is the
following passage:
"As the Applicants have sought to make clear ... the Applicants
suggest that the intentions or purposes of Respondent's officiais,
who may be in office from time to time, are irrelevant to the question
of the legal ... [validity] of the administration of the sacred trust."
Then at the same page we read:
"The Applicants have ... insisted and do now reaffirm [their]
insistence that they rcject the good faith test, notwithstanding
Respondent's warning that the Applicants cannot hope to prevail in
this litigation unless they follow the road indicated by the passage I
have quoted from Il, page 391, of the Counter-Memorial."
Again at page 299 of the verbatim record of 17 M.ay 1965 it is stated
that:
"The Applicants contend that international standards and an
international legal norm of an a priori character exist which provide
authoritative criteria of an objective nature for the interpretation
of Article 2, paragraph 2, of the Mandate and of Article 22 of the
Covenant. This theorv of the case, if sustained, eliminates extra
judicial considerations. It has never been part of the Applicants'
case that the Court makc a subjective evaluation of Respondent's
policies of discrimination and scparation."
On 14 May in the verbatim at page 273, it is stated: "As was said
yesterday, the good faith test in any cvent is irrelevant legally in the
Applicants' view ... "
\Ve corne now to the last three days. I quote from the verbatim of
17 l\fay, at page 299:
"It has never becn part of the Applicants' case that the Court
make a subjective evaluation of Respondent's policies of discrimina
tion and separation. ''
I proceed to r9 l\fay, the very last day. There are just two passages.
The first is at page 363 of the verbatim:
"Nevertheless, it is the view of the Applicants that the nature
of their legal theory and the sole basis upon which it rests. and has
always rested from the earliest pleadings to the present time,
renders irrelevant the calling of witnesses or the adducing of other
forms of evidence designcd to show the so-called 'actual effccts' of
Respondent's policies in the Territory. Factual evidence of this sort
would not, in the Applicants' view, have any relevance to or legal568 SOUTH WEST AFRICA
bearing upon their submission that apartheid, inherently and perse,
constitutes a violation of the standards or the norm governing the
interpretation of Article 2,or both."
And the other is at the same page:
"It suflices here, it would seem, to say in summary form that
Respondent's submissions concerning the scope of its discretion, the
realities of good faith and the character of the so-called actual
cffects upon well-being secm to the Applicants to be irrelevant to
an assessment whether international standards and/or legal norms
of 1ton-discrimination and non-separation exist, and whether they
govern the obligations of the sacred trust cmbedded in Article 2 of ,
the Mandate ... "
So, Mr. President, that was the basis upon which the Applicants
proceeded to state their submissions and the formai interpretation of the
submissions, in the terms to which l have alreadv referred, on that same
day, at the conclusion of their argument before ihey rested their case.
Mr. President, when a party makes it so clear that that is his case
and nothing else, then however inconsistent that might be with what he
.has said before it would seem that the other party, being called into
court in order to answer a case made against it, has no alternative but to
accept that that is the situation. That, in practicc, is now the dispute
betwcen the Parties which the Court is called upon to adjudicate.
Article 38 (1) of the Statute, as the Court will rccall, rcfers to the
Court's fonction as one which is "to decide in accordance w:ith inter
national law such disputes as are submitted to it". As the honourable
Judge Morellipointedout in his dissenting opinion in the 1()62 proceedings
-concerning the Preliminary Objections, the question whether there is in
such a practical sense a dispute between parties can be said to be one
that is even more fundamental than jurisdictional questions. And in truth
it must be so.
If one looks purcly at the submissions and, in so far as may be neces
sary. at the official interpretation given to them, it becomes manifest
that the Applicants have at least made clear, whatever othcr uncertainty
there may be in their case, that thcy do not rest their case on either of
the two other possibilities that have been raised in discussions as to the
basis upon which a case could possibly have been made under Article 2,
paragraph 2,namely a case on the basis of either Respondent's purposes
or the effects of the Respondent's policies.
That was already made clcar in the formai expositions, and if we
further rcad the repeated explanations given in differcnt contexts and
for different purposes, we find that the Applicants absolutely confirm
·that in what they say to the Court. It would seem to us-we considered
the matter very carefuJJy-that that attitude of Applicants now defines
the limits to the dispute which we are called upon to face in this Court,
whatever the dispute may have been initially. And that is the basis upon
which we intend to proceed.
We shall proceed on the assumption that the dispute is now so limited.
I know that there is no way in which the Court can give us advice on this
subject and that we shali have to read the situation as best we can.
ln a municipal court I may have asked the court for what we call "ab
-solution from the instance", which is a testing, at the stage where an
•:applicant or a plaintiff rests his case or closes his case, of the position REJOINDER OF MR. DE VILLIERS
whether there is any case at all which the respondent or defendant is
called upon to meet at all. lt does not seem tous that there is provision
for that type of procedure in the Rules and the Statute of the Court, and
the Court has already given a general ruling as to the manner in which the
case is to proceed.
No doubt if we proceed on a mistaken basis as to what the dispute
really is then there is some way of informing us of that, even if it is by
way of questions put to the Parties. But, i\frPresident, that is the way
in which we see the situation at the moment, and that is the way in which
we intend to proceed.
We shall direct our further argument and evidence to the merits or
otherwise of this case, which we understand to be the sole one which the
Applicants are making against us now. The Applicants are the domini
litisthey control what is to be the scope of the dispute. We assume and
we submit that the view which will be taken of the matter will be a
practical one, and that regard will be had both to the submissions and
to the formal explanation given for the submissions. These really suffice
for this particular purpose, whatever other uncertainty there may be as
to the case which the Applicants are actually bringing. Those uncertain
ties persist, but there is no longer, it seems tous, any unccrtainty on the
question that the sole case is as there defined that outside of the suggested
norm and standards as now dcfincd the Applicants do not bring any case
against us regarding Article 2,paragraph 2, of the Mandate.
And so we corne to an analvsis of the merits of the contentions re
garding the norm and/or standards, and we begin with the standards.
Herc again, I am afraid that some further initial analysis is necessary,
in order to see what exactly the Applicants' case is or appears to be
before we can properly answer it on its merits. But in that way we shall
gradually be coming to grips with this contention as to its suggested
merit.
\Vhen we consider a concept of standards, the Applicants immediately
start with this disadvantage, that they have to admit that standards
as an ordinary concept would not perse have any binding effect in law.
That they realize this is made clear by certain portions of the record.
They themselves distinguished between the standards on which they rely
and upon the norm for which they contended in the following terms in
the verbatim record of 13 May, at page 261, supra. Therc they spoke of
standards as "rules of conduct having a content similar ta, but not an
equivalent degree of legal authoritativeness of a lcgal norm". And then at
the same page they said that the standards differ from the legal norm-
"... only in the respect that adherence to them may not itself
be a matter of independent legal duty pursuant to an international
legal norm".
So at least, Mr. President, that fondamental consideration seerns to be
common cause between the Parties.
Obviously, if the standards are not general Iegal rules of conduct,
as is very clearly the case, they cannot in themselves have any binding
force. Itwas therefore necessary for the Applicants to find some formula
-some basis-upon which to contend that the standards, not being legal
rules in themselves, could nevertheless be said to be legally binding upon
Respondent in the circumstances of this case. The Applicants did this
by importing the standards into the mandate instruments by a process570 SOUTH WEST AFRlCA
which they called "interpreta tion". But, as we shall show, this process
(called "interpretation" by them) un<lerwent a remarkable change from
the stages of the written pleadings and the Applicants' opening oral
argument to the stage of their oral reply.
The Court will recall that both in their written Reply {the plcading
called the Reply) and in their oral argument in chlef in these proceedings,
the Applicants stressed the following (I quote from the Reply, IV, at
p. 515, a passage which was taken over in the verbatim record of r8
March, at VIII, p. n8):
"... the judicially perceived necessity to interpret broadly-formu
lated, constitutional-type obligations, on the basis of current
standards, rather than on the basis of the presumed 'intentions
of the parties' at the time the obligations were conferred and
accepted".
The Court secs that a contrast was here drawn-a distinction was
drawn and a contrast postulated-between interpreting these obligations
on the basis of current standards, and interpreting them on the basis of
the preswned intentions of the Parties. There was an antithesis postulated
and advanced thcre between those two concepts. Thls is, as I say, at the
stage of the written Reply and of the opening oral argument.
At page SI4 of the Reply, IV, the Applicants said the following: "The
obligations crcated by Article 22 of the Covenant and the Mandate must,
accordingly, be construed in the light of current standards ... "
We pointed out, Mr. President, in the Rejoinder, V, at page 135, that
in these contentions. as then advanced by the Applicants (that was at
the stage of the written Reply), there was a basic confusion between the
concepts of interpretation and application. We also demonstrated, in
principle and with reference to a number of authorities-amongst others
with refercnce to the principle of contemporaneity, or the more general
principles of inter-temporal law-that an instrnment is to be interpreted
to bear the meaning which it would have borne as at the stage of its
execution and that that meaning never changes-the meaning of the
norm as distinct from the way in which it is to be applied to facts that
may be changing as time goes on. We dcalt with that in the Rejoinder, V,
pages 120 and following.
However, Mr. President, the Applicants advanced exactly the same
contention as before in their oral argument in chief in this Court, virtually
ignoring in effect what we had said in that regard in the Rejoinder, and
so jtwas necessary for us in our own oral argument in chief to corne
back to this subject and to revert to these basic principles concerning
interpretation and application of written documents, and in particular
also of the so-called broadly formulated constitutional type documents.
In doing so, Mr. President, in our oral argument in chief we cited
further authorities which, in our submission, offered more than convin
cing support for our arguments and refuted the suggested approach of the
Applicants. We can rcfer the Court to the argument put by us on that
subject in the verbatim records of r3 April, at VIII, pages 584-594, of
r4 April, at VIII, pages 594-595 and of 22 April, at pages 634ft.
It is not necessary for us to go into the details again, Mr. President.
It is sufficient to reiterate our basic contention, namely that by no valid
process of ihterpretation----certainly no process of that kind relied upon
by the Applicants up to the stage of the oral argument in chief-can the REJOINDER OF MR. DE VILLIERS 571
Mandatory's obligations be said to be governed by current standards.
Interpretation, properly so-called, cannot lead to that conclusion, and
there was no process of interpretation, properly so-called, on which the
Applicants in fact, on analysis, relied up to that stage, which coulcl be
said to lead to such a rcsult.
The standards referred to by the Applicants, in the way in which they
refcrred to them up to that stage, could, however, in terms of the con
tention as we addressed it to the Court, conceivably have been considered
as part of evidence bearing upon the question of fact, whether a specific
measure or a complex of measures could have been intended to enure,
or could possibly in fact enure, to the promotion of well-being and
progress. In other words, such standards may, in this sense, be relevant
as regards the application of the Mandate, having regard to the fact
that the duty of promoting well-being and progress has to be complicd
with over a period of time in which circumstances may change. Conse
quently new methods and new approaches may possibly be required, as
time goes on, in the application of a Mandatory's duty because of
changcd circwnstanccs or changes in the gcneral factual situation in
which the duty is to be complied with. This does not, however, mean
that the duty itself in any way changes.
ln their oral reply, Mr. President, the Applicants did not sec fit to
deal with the authorities which we had cited in support of our arguments.
The Court will recall that these authorities included extracts from
articles by Sir Gerald Fitzmaurice, a discussion by Schwarzenberger, an
Opinion of the Permanent Court, a judgment of the Privy Council, and
an cxtract from the separate opinion of the honourable President in the
Expenses of the United Nations case. And in the Rejoinder we had also,
in addition to some of these, referred to various other judgments and
opinions of this Court, for instance, those in the Morocco case, in the
Minquiers case and in the Right of Passage case.
The Applicants did not refer to these at ail. Instead, in the verbatim
record of 18 May, at page 321, supra, they professed to have becn
completely "baffied" by the "purported distinctions sought to be drawn
between interpretation and application", and, as a reason for being so
"baffied", they merely cited a passage from Judge Cardozo's The Nature
of the Judicial Process. When one looks at that passage, Mr. President,
one finds that the learned Judge dealt with the so-called "mighty phrase"
of Chief Justice Marshall that "it is a constitution we are expounding".
And the central theme of Judge Cardozo seems to have been found in
these words "A constitution states or ought to state ... principles for an
expanding future"-,Principles for an expanding future. ln this way then
he contrasted a constitution with an ordinary type of statute, which
may have exact mies, which may have to be changed in different circum
stances. A constitution's fonction, however, is to state these broad
principles which can find altered application in accordance with altered
facts, and it was in this context that the learned Judge proceedcd to
speak of what he callcd "interpretation" "adopted to modern conditions".
He referred, for instance, to a French Chief Justice who had spoken of
such interpretations in relation to what was, apparently, as far as we can
make out, the Napoleonic Code. As the Court would know, these codes
of Continental Europe are perhaps even more broad in their formulation
of gcneral principles than one finds in constitutions, and it is of course
a task of application, as one goes along, of broad principles to new and -572 SOUTH WEST AFRICA
ever-varying circumstances. That is the task of the law and of the
,courts.
Itseemed perfectly clear what the Judge meant in speaking of "inter
pretations'" in this context. He used that word, in my submission, with
the greatest respect, in a somewhat loose sense but which was not mis
leading whatsoever in that context. What really alters is, as we have
.submitted, the application of the basic principle to the changing facts,
and that is the point which was made so clear in these various authorities
to which we referred and to which the Applicants offered no reply
whatsoever.
Why, therefore, Mr. President, this reference to the passage from the
writings of Judge Cardozo should have baffied the Applicants, in the
light of the very clear expositions in the authorities which we cited, is,
in turn, somewhat puzzling to us-unless, of course, our learned friends
preferred to be baffied.
But it seems unnecessary for us to go again into this very real distinc
tion between interpretation and application because we find that perhaps
even that argument has now become academic in that the Applicants
here also have brand new contentions about the type of interpretation
on which they rely.
Let us go back to the Rejoinder, V, at page 140, where we stated the
following:
"The only basis upon which interpretation of the relevant texts
could produce a result whereby current norms govern the content
of the l\fandate, would be if Article 2 was ab initio subject to some
qualification such as: 'The l\Iandatory shall, when exercising its full
power of administration and legislation, give effect to such standards
or nonns as may at the time of such exercise be generally applied by
other States'."
That, we suggested, would have to be found by a process of inter
pretation as having formcd part, right from the start, of Article 2 of the
Mandate. That would have been a broad principle, then, which would
have bccn capable of this type of ready application to the facts of a
changing situation. The original obligation, the law or the norm, as
originally prescribed in the mandate instrument itself, would provide in
advance for the binding nature of standards as they may corne into
force in future time, and the Mandatory would, by his consent to the
. mandate arrangement, bind himself in advance, then, to having such
standards binding upon him. But that would, thcrefore, in our submis
sion, have been the necessary basis upon which a contention of this kind
would have to rest. Applicants would have to get such a qualification
into the Mandate in some way or other-by normal processes of inter
pretation or implication.
We then proceeded to state, still at the same page of the Rejoinder:
"Inasmuch as no such qualification was included in the express
tcnns of the Mandate instrument, Applicants would then have to
contend that it must be ·read into the Mandate as a necessary
implication.''
\Ve then pointed out, Mr. President, that it was unthinkable that the
authors of the Mandate would have decided upon, and that the Manda
tories would have consented to the imposition of such an obligation, and
we concluded: REJOIXDER OF MR. DE VILLIERS 573
"Since Applicants do not rely on such an implication, and no
material has been adduced to suggest the existence thereof, Res
pondent will not devote any further consideration thereto."
\Ve rcverted to this matter in our oral argument in chief in the verbatim
record of 22 April, at VIII, page 638, and there we pointed out that the
Applicants in their opening oral argument had declined to state whether
or not they contended that the mandate instrument did contain such an
implied obligation. '\/Vepointed out further that, in the verbatim record
of 24 March, at VIII, page 261, the Applicants had quoted thisstatement
for the Rejoinder, and they had then said that they found it unnecessary
to comment further on it.
In the oral reply of the Applicants, Mr. President, this however,
became another story. In the verbatim record of 18 May, at page 319,
supra, the Applicants once again quoted this statement from the Rcjoin
der, and they said that "Except for the last clause" the statement was
precisely what the Applicants contended for. They proceeded to say:
"in essence, that Article 2, paragraph 2, must be interpretcd and
rcad as if it did cxplidtly state abinitio and include the qualification
that 'The Mandatory shall ... give effect to such standards or norms
as may at the time of such exercise be generally applied by other
States'-! would substitute for 'other States' the 'competent inter
national organs' ".
That is the way my learned fricnd then put it: that that was precisely
what they contcnded for with only the one altcration. To get it pcrfectly
clearthen let us read it ail in one piece as now intended by the Applicants:
their contention is then that, on a proper interpretation of the Ilfandate,
Article 2 is subject to this qualification:
"The Mandatory shall, when excrcising its full power of ad
ministration and legislation, givc effect to such standards or norms
as may at the time of such exercise be generally applied by the
competent international organs."
That seems, on the basis of what the Applicants themselves said, to be
what they contend for, as something to be found in the Mandate by
intcrpretation, as they say, of the mandate instrument.
Now, l\fr. President, such a so-called interpretation can obvious1y be
based only on the intentions of the authors of the Mandate, and indeed,
we find that the Applicants say that it is their contention, that it is
based on what they call the presumed intentions of the authors of the
Mandate. They started with ·this topic right at the beginning of the
record of r8 May. On the very first page of the text of the argument,
which is page 3II, supra, of that record, my leamed friend, Mr. Gross,
stated this:
"Mr. President and Members of the honourable Court, the
Applicants will commence discussion of the relevant international
standards with certain general observations."
So he was commencing the subject of the standards now, as distinct
from the norm. He continued:
"These observations are designed to demonstrate why accepted
canons of interpretation, especially as applied to treaties and
conventions, support the Applicants' basic contention that the
international standards generated by the competent organs of the574 SOUTH WEST AFRICA
international community govern the interprctation of Article 2,
paragraph 2,of the Mandate by provlding authoritative, objective
and relevant criteria which should be accepted and applied by this
honourable Court."
So, Mr. President, we find that in this argument interpretation plays
a role in three ways. First there is the interpretation of the basic mandate
instrument so as to contain a qualification of the nature I have just
referred to. Then on the basis of that intcrpretation, effect is given to
such standards as might corne into existence by intcrpretation of the
mandate provisions by the organs of the organized international com
munity. That is the second stage of interpretation. Those organs interpret,
and their interpretation becomes authoritative. Then we corne back to
the Mandate, and when we again interpret the mandate instrument, the
authoritative interpretation is saidto apply, to govem the interpretation
of Article 2 of the Mandate.
lt all rests, as the Court will see, on this basis of first getting this initial
qualification into the basic instrument, the Mandate itseH.
At pages 315 and 316, supra of the record of 18 May, the discussion
on this point, the discussion which had started off from the accepted
canons of interpretation in this context, was further developed. There
was further reference to the presumed intentions of the authors of the
mandates system; and then at page 317 of that record the Applicants
stated the following:
"The founding fathers of the mandates scheme, the Respondent
itself as mandatory in undertaking the obligation, must con
clusively be presumed to have undertaken the obligation of a content,
scope and nature which the Applicants contend for."
At page 318 they proceeded:
"The mandate instrument must, as I say, be intcrpreted in
accordance with the intentions of the Parties in 1920 but it must
be interpreted thus in the light of its nature, spirit and purpose.
When Respondent undertook in r920 the obligation to 'promote to
the utmost' the well-being and 'the social progress' of the inhabitants.
of the Territory of South West Africa, Respondent thereby under
took an obligation to apply evolving and developing standards in
the light of modern conceptions and knowledge with regard to the
well-being and dcvelopment of dependent peoples, as appreciated
by the international organs vested with the duty of supervision as a
safeg11ardto effectuatc the purposes of the sacred trust."
The Court will recall this quotation is from page 318 of this record.
It then runs on, until wc corne to page 319, where the qualification to
which I have refcrred as one sought to be read into the Mandate by so
called interpretation is explicitly formulated, and where the Applicants
explicitly say that that is exactly what they contend for.
Now, l\fr.President, the passage which I have just read is a long one.
Perhaps I should stress again certain features of the passage which I
submit are significant. The emphasis is very definitely on the intentions
ofthe Parties in 1920, as being the basis on which the Mandate must now
be interpreted.It must be interpreted thus in the light of its nature, spirit,
anGlpurpose, the Applicants said, but basically in accordance with the
intentions of the Parties in1920. The interpretation then is that Respon
dent undertook this peculiar type of obligation which would render REJOINDER OF MR. DE VILLIERS 575
binding the standards to be laid down in future by organs of the organized
international community.
Now, may I point out in the first place that in that respect the Appli
cants are very far removcd from the stages which lasted up to the oral
address in chief in this Court, when they spoke of the necessity of inter
preting the mandate instrument on the basis of current standards rather
than on the basis of the presumed intentions of the Parties a.tthe time
of the execution of the instrument-where they stated those two things
as standing in antithesis to one another.
The two concepts are now linked, and it seems, l\fr. President, that the
Applicants have corne around to accepting that it is necessary for their
contention to link them in this way, and that the only way in which they
could make those standards binding would be first to Jay the foundation
by way of ordinary interpretation of the mandate instrument.
ln the second place, the reference in this last passage to the "inter
national organs vested with the duty of supervision" seems to give
specific content to the phrase "the competent international organs"
which the Applicants used in their re-formulation of the qualification
which we suggested they would have to read into Article 2 of the Man
date.
The Court will recall that in that qualification, as re-worded by the
Applicants, it was stated that the Mandatory must give effect to such
standards or norms as may at any particular time be generally applied
by "the competent international organs". Now, in the passages J have
just read to the Court, there the reference is to "the international organs
vested with the· duty of supervision as a safeguard to effectuate the
purposes of the sacred trust".
Ittherefore seems that these two concepts are intended to be equated
with one another, that by speaking of the competent international
organs the Applicants mean the organs vested with the duty of super
vision of the Mandate. I emphasize that that seems to be the position,
because we run into difficulties later if our assumptions about questions
of that kind are too absolute.
There are other statements made by the Applicants during the course
of their oral reply, which also appear to confirm this understanding of
their latest contention. So, in the verbatim record of r7 May the Appli
cants said this:
"There must be applied to the process of interpretation of the
mandate, treaty or institution, the current body of intcrnationally
binding and valid rules, crystallized in the overwhelmingly accepted
judgments of the competent supervisory international organs
and embodied in what the Applicants have called 'international
standards'." (Supra, p. 307.)
So there again, the concept is the competent supervisory international
organs.
At page 310 of the samc record is the following:
"The standards which, likewise of course, have the samc content
which similarly relates to non-discrimination and non-separation,
govern the interpretation and application of Article 2 of the Mandate
as authoritative interpretation by the competent international
organs responsible for supervision of the Mandate, and which form
a part of the network of protection of which the principal links are SOUTH WEST AFRICA
the administrative organ and the judicial body in this honourable
Court.''
Again. "competent international organs ~csponsible for supervision of
the Mandate" are mentioned.
Then, in the verbatim record of 18 May, at page 315, supra. the
Applicants submitted that Respondent, as the so-called "agent of the
international community ... is obliged to defer to international stan
dards". The Applicants immediately proceeded to make it clear what
they meant by "international standards". They said, stiU on page 315:
"In particular, the Applicants contend that the organs of the
United Nations, the supervisory agency, if the Applicants' legal
theory is sustained-which is based upon that of the Court's
holding in 1950 and, in our submission, reaffirmed by nccessary
implication in 1962-the organs of the United Nations, with such
supervisory authority, have competcncc to dcfine the standards of
well-being which provide authoritativc criteria for the interpreta
tion of Article 2."
So, again, there is mention of the United Nations as the supervisory
agency. Now, I further draw attention to the expression here "competence
to define the standards". The Court will recall that, in the reformulation
of what we suggested the Applicants would have to read into Article 2,
the word used was "applied" in the phrase "standards applied by the
competent international organs", but here the word is "competence to
define the standards". lt is interesting to see what other terms the
Applicants use in this regard to indicate what this competence of the
organs in fact amounts to. In the record of rS May they stated:
"... it is imperative that international supervision is able to translate
itself into obligations of the Mandate by means of the standards
fonnally set forth by the competent international organ and the
capacity of the competent international organs to do so, under the
scheme of the Mandate, rests in this Court's hands". (Supra, p. 319.)
This is a statement which perhaps requires some examination on its own,
but it would take us off at a tangent if I were to pursue that now, so
I shall corne back to it at a Jater stage.
For the moment I refer to the concept of international supervision
being "able to translate itself into obligations by n:i.eansof standards
formally set forth by the competent international organ".
Then at page 325, supra, of the same record, the Applicants spoke of:
"... the judicial role in applying the standards and judgments
evolved by the competent administrative organ to which the
1\fandatory is accountable and upon which the sacred trust is laid".
The same tenor we find in the following passage, from the same
record, at page 317:
"The very concepts of moral well-being and social prngress
demand and cry out for objective detennination on the part of the
competent international organs whose responsibility, rather than
whose right, is fixed by the mandate itself ... "
So, Mr. President, it seems that this qualification, which one would
have to read into the mandate instrument, is to be read in the light of
these various expressions as ta what was the nature of the compctence
which was intended by the mandatory and by the founding fathers at REJOI~DER OF MR. DE VILLIERS 577
the time when the mandate arrangement was arrived at. It was variously
described as a competence to apply currently applicable standards, as
a competence to define those standards, of translating supervision into
obligations for the mandatory, of setting forth thosc standards formally,
of evolving standards and judgrnents, and of objective determination of
the obligations of the mandatory. AH those concepts, in their various
differences of meaning, the mandatory must be taken to have agreed to
in advance as being functions of the competent organs, whose exercise of
these functions would then be binding upon the mandatory and upon
this Court.
Thesc passages make it clear then that the Applicants' contention is
that on a proper interpretation of the Mandate, based on the intentions
ofits authors, the Respondent is bound to give effect to standards defined
or prescribed {orany of these other verbs), by the competent supervisory
organs.
Now, in support of this contention, and I am not sure whether it is an
alternative or just a supporting argument, the Applicants would seem to
rely also on the so-called "quality of the Mandate as a constitutional
type document". It would, however, seem, Mr. President, that this
contention is also based upon the presumed intentions of the authors
of the mandates system, and that it is therefore just an additional
argument proceeding on that same basis. I can refer to a few passages
which would seem to indicate tlus position.
In the verbatim record of 18 May the Applicants said the following:
"It is not only from the expressed terms of the Mandate that
Applicants derivc the Respondent's duties to conform to modern
standards, as objectively determincd, in promoting to the utmost
the well-being and social progress of the inhabitants, it is also because
of the quality of the Mandate as a constitutional type document, ... "
(Supra, p. 320.)
Then, at that page of that verbatim record, there is a passage which
reads as follows:
"For if, as the Court said in its 1962 Judgment, at page 329,
the mandates system involves, inter alia, 'the recognition of a
"sacred trust of civilization" laid upon the League as an organized
international community', then it necessarily follows that that
community requires the competence and possesses the responsibility
for specifying the dynamic content of well-being and moral and
social progress by the establishment of authoritative standards
how else could it carry out its competence?"
Mr. President, I am not sure that I fully understand Applicants' con
tention, but it would seem to amount to one of two things-either it is
purely a legislative argument~legislative in the sense that it depicts
what would be a desirable position and then asks the Court to find that
such a position exists. Otherwise it means that, on the basis of the original
intentions of the founders of the system, as interpreted by the Court in
1962 (i.e., as amounting to a recognition of a sacred trust of civilization
laid upon the League as an organized international communit_y), it
follows by way of implication, that there must have been an intent10n to
bestow a competence and à responsibility on the supervisory organs, the
competent organs, to specify the dynamic content of well-being and
progress, and to establish authoritative standards. SOUTH WEST AFRICA
So it would seem that either the argument is purely legislative and
therefore not intended for this Court at al!, properly speaking, or it
must relate also to the basic question of interpretation or implication,
based upon intentions, presumed or otherwise, of the founders of the
system.
At page 322 of the same record we find this further passage:
''In summary then, whethcr one interprets the Mandate agreement
in accordance with the intentions of the Parties at the time when
the agreement was entered into, or whether the Mandate is inter
preted and/or applied in accordance with contemporary standards,
the result is identical. Respondent's obligations under Article 2,
paragraph 2, are to apply and to carry out the recognized and
accepted minimum international standards of non-discrimination
and non-separation, ... "
That cornes as a summary towards the end of this discussion of r8 May,
which started off on the premise of applying the accepted traditional
canons of interpretation to the situation.
So, Mr. President, in both these two variants of the argument whether
one regards this reference to the constitutional-type document as
somcthing alternative, or as something just in support of the main
argument, it all does seem to rest on the same basis.
It seems, therefore, that the Applicants now accept the necessity of
relying basîcally upon the intentions-real or supposed-of the authors
of the mandates system for the interpretation, and the ultimate result
contended for by them. That, in our submission, could hardly be other
wise. How else, Mr. President, could standards which, by the Applicants'
own dcfinition, could not be binding perse, how else could they be said
to be binding upon the Mandatory unless one finds by some construction
that the l\fandatory consented to be bound? There is no allegation that
the l\fandatory consented specially at the stage when the standards came
into existence or thereafter-in fact it seems to be common cause that
therc was no such consent on the Mandatory's part~so how else could
they be binding upon the manda tory qita standards unless the Mandatory
were found by a process of interpretation to have agreed initially to be
bound in that way?
The only other alternative would be that there has been a law-creating
process operating independently of the Mandatory's consent and that the
Mandatory is, nevertheless, bound by the results of that law-creating
process. That argument, however, in so far as it is relied upon by the
Applicants, would seem to fall under their norm contention and not
under their standards contention because, if I understand them correctlv,
they say that their contention as to standards is the one at which thëy
arrive via the mandates instrument, while the contention as to the norm
is one at which they arrive independently of the mandates instrument.
And the latter involves, by definition, also the creation of a norm which
is perse binding on us and upon others, independently of an instrument
like a mandate or something similar-it is different in concept in that
regard from standards. May I refer the Court in that regard to the ver
batim record of 17 May, where my learned friend stated:
"The only difference between the two kinds of governing objective
criteria,standards on the one hand, the legal norm on the other,
arises from whether they would be binding on Respondent in- REJOINDER OF MR. DE VILLIERS 579
dependently of the Mandate or because of the Mandate .. .'' (supra,
p. 305),
and, as he went on to explain, if I understood him correctly, the stan
dards became binding because of the Mandate, the norm became binding
independently of the Mandate.
Now, Mr. President, ifthe understanding of Applicants' standards
contention is correct, i.e., that they find it necessary to rely on the
intentions of the founders of the mandate system, including the Man
datory, three issues would crisply arise.
The first is, doesthe mandate instrument contain an implied or tacit
provision to the effect that the 1-.fandatory is bound to give effect to
standards to be defined or prescribed by supervisory organs? Secondly,
have such organs defined standards of non-discrimination and non
separation with the content ascribed to them by Applicants? And,
thirdly, are Respondent's policies and practices in conflict with such
standards as may have been laid down? These would be the clear crisp
issues arising if one could, inan unqualifi.ed way, understand the Appli
cants' contentions in the manner which I have been expounding them
thus far.
Mr. President, perhaps it was hoping for too much to think that there
could be so much clarity about the position because, when one starts
having regard to the implications of the contention of the Applicants
and the sources from which the standards are said to emanate, the
apparent clarity which we have obtained rather disappears again in
somewhat of a smokescreen. If the position was, as I have just put it,
that the Applicants rest basically and exclusively for the standards
contention on the presumed intentions of the authors of the Mandate,
then two implications would neccssarily follow. The first is that the
whole case regarding standards would fall to the ground if this honourable
Court were to hold that Article 6 of the Mandate has lapsed and that it
was not replaced by any similar obligation to report and account to any
supervisory organ at al!. That is an implication which would follow from
the whole way in which the contention was formulated as we have
understood it thus far.
The second implication would be that only the General Assembly of
the United Nations Organisation which, according to the Applicants,
possesses the supervisory jurisdiction over the Mandate would have,
at prescnt, the competcnce to prescribe new standards. To this could,
perhaps, be added subsidiary organs of the General Assembly acting on its
specific authority for that purpose, as distinct from merely acting in an
advisory capacity, subsidiary organs which report back to the General
Assembly so as to acquire its sanction. That would seem to be the total
ambit of competent supervisory organsin this context. Standards to be
defined by other organs, any other international organization or organ,
would therefore be complctely irrelevant in this context. Standards
defined by such other organs and organizations might, of course, con
ceivably be relevant as evidence of the existence of the norm for which
the Applicants contend but, as I have said, we are concerned for the
moment only with the standards. And that is where we are truly baffied.
How do these other organs corne into the picturc in respect of the stan
dards argument? And yet the Applicants bring them into the picture in
that regard. They bring them into the picture and it is in both of the
respects I have just mentioned that we arrive at confusion as soon as we580 SOUTH WEST AFRICA
look at the sources from which the standards are alleged to emanate.
In the verbatim record of 18 May, at page 326, supra, the Applicants
announced that they were turning to ''... an elaboration of the processes
by which the relevant standards have evolved ... " and then they went
on to say this, at page 327:
"The standards by which Respondent's obligations should be
measured are the authoritative judgments which have evolved
principally within the context of the United Nations Charter on the
one hand and the Constitution of the International Labour Organisa
tion on the other, of both of which organizations the Respondent has
been a member."
And in the discussion following on these remarks, the Applicants went
on to cite or to refer to, inter alia, provisions of the United Nations
Charter and the LLO. Constitution, and resolutions and Conclusions of
the General Asscmbly, the Security Council, the Committee on South
West Africa, the Trusteeship Council and the Committee on Non-Self
Governing Territories,as well as conventions of the International
Labour Organisation, resolutions of the Goveming Body of the Inter
national Labour Office and the reports of the Committee on Questions
concerning South Africa. Ail those are referred to.
Now, Mr. President, on the basis of a contention so explicitly and
repeatedly stated, that Respondent is legally bound to give effect to
standards prescribed by the competent supervisory organ, namely the
General Assembly, what can the relevancy be, of, for example, the
resolutions of the Security Council or the Governing Body of the Inter
national Labour Office?
As far as we know, Mr. President, nobody has ever suggested that
either of these organs, the Security Council or the Governing Body of the
LLO., enjoy supervisory authority in respect of the Mandate. Even the
Applicants, which have been most ingenious in bringing startling pro
positions to the Court, have, as far as we know, not suggested that. But
Applicants do not even stop at resolutions, decisions, reports and so
forth of organs of the United Nations and the International Labour
Organisation. In the verbatim record of 19 May, at page 341, supra, the
Applicants said that further sources of their standards are set out in the
Reply, IV, at pages 493 to 5ro, that is, the written Reply, the pleading.
On reference, Mr. President, to those passages, we find that these sources
include, amongst others, a number of regional treaties and declarations
such as the Charter of the Organization of American States and a draft
declaration prepared by the Inter-American Juridical Committee. But the
Applicants failed to explain the link between these regional organizations
and the competent supervisory organ, or any link making any such non
binding standards specially binding upon the Respondent (apart, of
course, from the norm contention with which I shall deal subsequently).
Surely the Applicants could not have had such organizations in mind
when they spoke of the applicability of," ... standards ... prescribed by
the organized international community, which is vested with the respon
sibilityand which bears the burden of supervision and safeguarding
the sacred trust ... " as they did in the record of 13 May, at page 363,
supra, or when they said that the standards govem the Mandate:
"as authoritative interpretation by the competent international organs
responsible for supervision of the Mandate ... " (Supra, p. 3ro.) REJOINDER OF MR. DE VILLIERS 581:
Now, l\Ir. President, how must one explain this, the reliance of the
Applicants on all these various sources as regards the existence and
applicability of their standards, which are said to be binding upon the
Respondent as standards and without having attained the status of a
norm? It seems to us that there is only one possible basis upon which
they could all be brought under the umbrella and that is, by assuming
that the Applicants' contention means that the Mandate bound the
Mandatory to give effect from time to time to such standards as may be
prescribed or defined by the so-called organized international community
in general.The standard-creating body would then be, not the competent
supervisory organ as such, but the so-called organized international
community in general, which could apparently be just as wide as the
Applicants choose to regard it.
After ail,Mr. President, the organized international community in the
sense in which the Applicants want to use that expression in their
argument (i.e., not by way of general reference which is quite justifiable),
has no Charter; it has no constituent instrument other than the concep
tion of it which happens to suit the Applicants' contention for the
moment. Mr. President, whether the Applicants indeed intended to
advance such a contention as to what is to be read into the Mandate,
alternatively and/or cumulatively or otherwise as they said, we, of course,
do not know. They have not told us, nor have they told the Court, but
this would seem to be the only basis which would make sense whereby the
reference to all these resolutions and all these organizations could be
brought under the same umbrella of the Applicants' contention in regard
to standards.
[Atblic hearing of II June r965}
Mr. President and honourable Members of the Court, before the ad
journment yesterday I was analysing the Applicants' contention in
regard to standards, and we concluded that the Applicants were relying
upon reading into the Mandate, by applying ordinary principles of inter
pretation (they said traditional principles of interpretation) a basis
whereby standards to be laid down by organs of the so-called organized
international community would be rendered binding upon the Respon
dent as Mandatory.
On analysis, it seemed, on the one hand, that the Applicants were
relying in this regard on something relating to standards to be laid
down by competent organs, competent in the sense that they were to
exercise supervisory jurisdiction. But, then, again, having regard, on
the other hand, to the various organs of the so-called international
community, of which it was said that they played arole in laying down
these standards which are now to be applied, one finds that organs are
brought into the picture of which it is not even suggested that they
exercise or have any supervisory jurisdiction at all.
Soit would seem that this qualification which the Applicants attempt
to read into the mandate instrument is to be taken as relating to standards
to be laid down, either by competent supervisory organs and/or by the
organized international community generally. That is the basis on whlch
we shall deal with their submission, although of course we cannot be SOUTH WEST AFRICA
absolutely sure that as regards this latter part we are interpreting it
correctly.
The Applicants do say sometlùng which !ends colour to this under
standing of their submission, in the verbatim record of 17 May, at
page 304, supra. There they said that it was in the context of the legal
criteria "wh1ch apply in governing the interpretation of Article 2 of the
Mandate" that they invoked "the judgments of the competent organs
of the international community with respect to the practice of apartheid
in the territory". The Applicants proceeded to state that "the judgment
of the competent organs which are moreovcr endowed, in the case of the
United Nations, in the Applicants' Jegal theory, with the supervisory
responsibility over this particular Mandate". One sees there, therefore,
Mr. President, that the general phrase "the competent organs", is used
apparently in the context of the organized international community, of
which, in the case of the United Nations, they are moreover endowcd, in
the Applicants' theory, with supervisory responsibility, so that "com
petent" would appear, on the one hand, to relate to an organ cndowed
with supervisory authority, but, on the other hand, not necessarily so.
So, Mr. President, as I say, we shall deal with the Applicants' sub
mission as if it were relatcd to two alternatives in this respect: the
competent organs in the sense of supervisory organs and/or the organized
international community generally. Even on this basis, it is very difficult
to see how they bring in some of the declarations or resolutions or
organizations to which they refer, such as, for instance, the American
Declaration on the Rights and Duties of Man. The Conference of Amer
ican States which produced this declaration may conceivablybe described
as an organized Amcrican community, but surely not as the organized
international community.
Nevertheless, before we conclude this analysis of the Applicants' case
on standards, and before dcaling with it further on its merits, there is one
further aspect to note.
In the verbatim record of 13 May the Applicants contended as follows:
"... Respondent's consent to the organic law of the United Nations
and the International Labour Organisation Constitution likewise
entail consent to the processes of such institutions for giving
authoritative, evolving and dynamic content to the provisions of a
constituent charter, or ordinances, of such institutions". (Supra,
p. 262.)
Now, this passage, Mr. President, was linked with a discussion of the
norm contended for by the Applicants, in this particular place where it
occurs, but its relevancy to standards is shown by other passages-for
instance, this one in the verbatim record of 17 May:
"Both the norm and standards ... are derived from the same
sources and identical contexts. Both emcrge, inter alia, from the
authoritative interpretations given to the United Nations Charter
and to the constitution of the International Labour Organisation by
the memberStates thereofby an overwhelming consensus approaching
unanimity. Both the standards and the legal norm contended for
likewise emerged from authoritative interpretations of Article 2 (z}
of the M:1ndate itself by the competent organs of the international
commumty over the years." (Supra, p. 309.)
So one sees this argument, Mr. President, based on the membership REJOINDER OF MR. DE VILLIERS
of the Respondent. Respondent's consent to the constitutions in question,
is applied specifically alsoto the case on standards. And in the verbatim
record of 18 May the Applicants said that reports, resolutions and con
clusions of the International Labour Organisation- ·
"... form authoritative interpretations of the Constitution and, as
has been said, if they are authoritative interpretations of a conven
tion or constitution to which the Respondent has adhered-an
organization of which it has been a Member-then such interpreta
tions provide an authoritative basis for ·the interpretation and
application of the standards embodied in the mandate instrument
itself ... " (Supra, p. 340.)
So, Mr. President, on analysis of these contentions I have just referred
to, it would seem that the Appiicants contend that the Respondent is
bound not only by standards emcrging from so-called authoritative
interpretations of the Mandate itself, but also by standards emerging
from so-called authoritative interpretations of the United Nations
Charter and the Constitution of the I.L.O.
\Ve have already note<l on what basis, according to the Applicants,
so-called interpretations of the Mandate by the supervisory organ or by
the organized international community are relevant. But, illr. President,
why should these authoritative interpretations of the Charter and the
l.L.0. Constitution be binding on the Respondent as Mandatory? Why
must we go so far afield to see what the mandate instrument means, and
what its legal effect is? The Applicants say: because Respondent, by
becoming a Member of these Organizations, consented to be bound by
the provisions of the Charter and the Constitution in question, and also to
authoritative interpretation thereof as regards Respondent's obligations
as a Mandatory. Or, to put it in another form, they say Respondent has
consented to regard the provisions of the Charter and the Constitution,
and authoritative intcrpretations thereof, as governing the interpretation
of the Mandate. So why, therefore, l\fr. President, must one read the
consent to the qualification being read into the mandate instrnment?
The argument seems to amount to this: that Respondent became a party
to, firstly, the Mandate, secondly, the Charter, and, thirdly, the Con
stitution of the International Labour Organisation. Now, ail of these,
the Applicants say, are interpreted (so-called interpreted) by attitudes
taken by majorities in these bodies from time to time. That, they say,
is to be secn as interpretation and itdoes not matter whethcr jt is on the
basis of political or similar views that thesc majority attitudes are taken,
or whether they are really and genuinely attempted as scrious legal
interpretations of what the provisions of the constitutions may be.
ln the end, Respondent's obligation under the Mandate is then to be
ascertained by looking not at that instrnment and seeing what it means
by ordinary processes of interpretation in its context, but at this long
subsequent history of what has happened in these various organs of the
organized international community, as my learned friends put it, and
secing to what Iengths they have gone with their so-called processes of
interpretation. Mr. President, if that is the law, then it would indeed be a
strange law which this Courtis asked to apply.
ln regard to the United Nations Charter the Applicants have another
trnmp card up their sleeve. They say that the resolution of the League
of Nations of 18 April 1946, which referred to Chapters XI, XII and SOUTH WEST AFRICA
XIII of the Charter, "... is in itself a clear indication of the relevance
to and applicability of Charter provisions to the mandates scheme".
That we find in the verbatim record of r8 May, at page 329, supra. And
they say that this resolution made it clear that the Mandate was to be
interpreted in the light of the provisions of the Charter, whatever that
phrase might mean, and on this basis they speak of-
"... the interpretation ... and application of the terms of the
obligations under the Mandate which must be read in Iight of the
Charter ... ". (Supra, p. 336.}
Mr. President, after all this it seems to us that we could reasonably
and safely summarize the Applicants' basic contention in regard to their
case on standards in these terms: firstly, that on a proper interpretation
of the Mandate, Article 2 is subject to the qualification that Respondent
is obliged to give cffect to standards that may be defined or prescribed
by firstly, the competent supervisory organ, and/or secondly, the
organized international community in general. Sccondly, that by be
coming a Member of the United Nations and the International Labour
Organisation, the Respondent consented to be bound by the Charter and
the International Labour Organisation Constitution and so-called
"authoritative interpretations thereof", and somehow these are to be
seen as governing authoritatively also the interpretation of the Mandate.
And thirdly, the Mandate is in any event to be interpreted in the light
of the Charter. So at last we can begin to corne to grips with these
contentions and we intend to deal with them in that order.
In regard to this first contention, as to the basic qualification to be
read into the mandate instrument, we propose to deal first with the
competence sought to be assigned to the alleged supervisory organ, and
thereafter with the competence sought to be assigned to the so-called
organized international community in general. Our arguments addressed
to the first of these aspects, l\Ir. President, will, in our submission, be
more than sufficient to cover also the whole of the Applicants' contention
in regard to the second of these alternatives, but we shall in regard to that
second alternative advance additional grounds which, in our submission,
further show conclusively that the contention is a completely untenable
one.
Now, it will be recalJed, Mr. President, that this contention rests, as
the Applicants say, upon an interpretation of Article 2 of the Mandate,
an interpretation apparently sought to be based on the intentions of
the authors of the mandate instrument. This is the attitude they now
take in contrast to what their attitude was before-that they first came
with this attitude in the oral reply in this Court. The development of
this argument is to be found in the verbatim record of r8 May, particu
larly as from page 316, supra, onwards. The Applicants commenced by
saying that the determination of the presumed intentions of the authors
of the Mandate could most convincingly be appraised by the application
of the traditional concept of giving words their natural and ordinary
meaning: that basic canon of interpretation the Applicants said they
were applying to this argument.
And they went on to say, in that verbatim record:
"ln this case, it would seem that the normal and ordinary and
natural meaning of the words used in the Covenant-in paragraphs
rand 2 of Article 22, in the concept of the safeguards in paragraphs REJOINDER OF MR. DE VILLIERS 585
6, 7 and 8 of Article 22, in the words of the mandate instrument
itself, inhe language of Articles 2 through 5, which constitute the
core, of course, of the sacred trust-would exclude a good faith
test. But the spirit, the purpose and the context of the instrument
imperatively lead to the judgment that these words mean what they
say." (Siipra, p. 316.)
Now, Mr. President, that contention somewhat puzzled us. One sees that
the first long sentence is directed at the proposition that the Articles
and provisions referred to would exclude a good faith test; in other
words, it is directed at our contention which we advanced to the Court,
itis not directed at furthering the Applicants' contention at all.
The last sentence in that quotation is dirccted at the furthering of the
Applicants' contention and it simply tells us that these words mean
what they say. So we are still left entircly in the dark as to the assistance
which the Applicants seek to derive from this canon of construction.
They do not tell us what it is that these words say, and which words
mean what they say-which words the Applicants say, are in any way
helpftù at all to thelf suggested qualification which is to be read into the
mandate instrument. Instead of quoting and analysing the words of the
instrument itself, Mr. President, the Applicants proceeded to quote
certain words used by the Court in 1962, where the Court spoke of "a
régimeof tutelage for each of such peoples to be exercised by an advanced
nation as a 'Mandatory' 'on behalf of the League of Nations' ". That is
in the same record at the same page as before, page 316. And the Appli
cants said that that was the context in which the Court further said the
following:
''The rights of the Mandatory in relation to the mandated terri tory
and the inhabitants have their foundation in the obligations of the
1fandatory and they are, so to speak, mere tools given to enable it
to fulfilts obligations."
That is ail perfectly correct; that is what the Court said, but one
wonders what bearing it has on this particular contention advanced by
the Applicants, which is sought to be founded on the principle of giving
to words of an instrument their ordinary and natural meaning.
Parenthetically, the Applicants went on and asked:
"Is the Respondent to be heard to say that the purpose of the
tool is to be dctermined by its intention as to how the tool should be
used?" (Supra, p. 317.)
Mr. President, we, of course, never advanced such a contention, that
the purpose of the mandate instrument or of the powers given to the
Respondent are to be determined by the Respondent's intention as to
how the tool should be used. I dealt with that matter earlier; I need not
go into the detail of that again.
But leaving that aside, it is very difficult to see how this line of reason
ing supports the Applicants' contention whatsoever-the Applicants'
contention here under consideration-that the Mandate authorized the
supervisory organ and/or the international community to lay down
standards binding upon the Mandatory as to the manner in which the
tool is to be used. As we shall see, Mr. President, to that question the
Applicants give no answer. They never answer the question as to what
words they rely upon which bring them anywhere as far as this contention
is concerned.586 SOUTH WEST AFRICA
They proceed, Mr. President, at the very same page, to cite further
from the Court's Judgment in 1962 the following:
"The factis that each mandate constitutes a new international
institution, the primary overriding purposc of which is to promote
the well-being and development of the people of the territory under
mandate." (Supra, p. 317.)
These words, the Applicant said, mark "the spirit, the purpose and the
context of the clause or instrument in which the words are contained,
as the Court said in 1962", and the Applicants proceeded "... 'the spirit,
purpose and context' is one of the highest standards of fiduciary re
sponsibility toward the inhabitants of the Territory, on the one hand,
and toward the organizcd international community, on the other".
(Supra, p. 317.)
So,Mr. President, what have we got so far, along this process of giving
a meaning to words of an instrument? \Ve find that the Court said that
the overriding purpose of tlus new international institution, the mandate,
is to promote the well-being and development of the inhabitants. That
is obviously true; secondly, that the Court said that these words marked
the spirit, purpose and context of the clause or instrument in which
they arc contained. Again this is an obvious statcment, but still the
relationship with the argument under considcration is obscure. Finally,
Mr. President, the point is made that this spirit or purpose is one of the
highest standards of fiduciary responsibility towards the inhabitants of
the Territory and the organized international community. Now, Mr.
President, again it would be perfectly true to say that by assuming the
obligation to promote to the utmost the Respondent indeed assumed
what may broadly be termed a fiduciary responsibility towards the
inhabitants of the Territory. \Vhether the rcporting obligation, the
obligation of reporting to the Council or, as my learned friend says, to
the organized international community, could also be fitly described as
a fiduciary responsibility towards those institutions, that is a different
question, but still it is a matter of words as far as this argument is
concerned, Mr. President. Assuming that, for the moment, that could
also be regarded as a fiduciary responsibility-and I shall have more to
say about that at a later stage-the point is that one still does not see
how it established the Applicants' contention that it was the intention
of the authors of the mandate that the supervisory organ and/or the
international community should have any competence, exclusive or
otherwise, to make a binding determination as to what methods the
Respondent should adopt in its administration of the Territory. Even
if the relationship is fiduciary, as is that of a trustee towards the bene
ficiariesunder a trust (the beneficiaries under a trust in ordinary muni
cipal law may be major persons perfectly capable of looking after their
own interests, but still the trustee does not take orders from these
beneficiaries unless therc is some specific provision ine trust instrument
to that effect), one does not know even by giving that label to the
situation how this helps the Applicants at all, especially on the basis of
seeing what the words of an instrument mean, because we do not yet
know which words of the instrument are the worcls on which the Appli
cants relv.
But, 1Ïr.President, that this factor leadsto the Applicants' conclusion
of such a competence on the part of supervisory bodies or competent REJOINDER OF MR. DE VILLIERS
bodies, that is exactly what the Applicants go on to say, that leads to
the result. The words in which they put this argument require sorne close
scrutiny for lmust say that we find them somewhat mystifying in more
ways than one.
We find that passage, which seems to be an important one, in the
verbatim record of 18 l\Iay at page 317, supra, and I should like to
invite the Court's attention to the contents so as to give them close
scrutiny and to sec, with respect, whether they could in any way be said
to relate to the Applicants' contention, or to assist it or to support it,
because we find the connection extremely obscure. The passage reads:
"And the presumed intentions of the authors of the Covenant and
of the Mandate, must, it seems to the Applicants, be read in this
light. 'The international regime' was the way this Court has de
scribed the Mandate itself."
One does not know, Mr. President, whether the word "regime" was
the one fastened upon by the Applicants, perhaps in a literai sense
conveying that the regime must import into itself some concept of being
able to order, or authority which can be enforced upon somebody elsc.
Of course, ifthat wcrc to be soit would be interpreting the word "regime"
as used by the Court and not any word uscd in the instrument at ail
and it would, with respect, be taking that word "regime" entirely out of
the context intcnded by the Court because the Court never, anywhere,
indicated that it intended that word to have a meaning or a connotation
of that kind. But be that as it may, this is mere speculation because
the Applicants nowhere suggest that it is on the word "regime", as
such that they fasten for an implication of this kind. The quotation
proceeds:
''The character of such a regime must conform to the changing
needs of international life, as objectively determined, not as de
termined by the wishes, the "-111,or the whim of administrators or
governors, who may be in office from time to time. This would be
an intolerable standard for application by the international com
munity. It would be inconceivable."
Now, Mr. President, here again, what do we find? The character of
the regime must conform to the changing needs of international Jife, not
those of the population of the mandated territory-the changing needs
of international life. Mr. President, where do we find anywhere in the
instrument any words which suggest a concept of that kind, any words
of which it could be said that their ordinary and natural meaning leads
to a conclusion of this kind?
Then the passage goes on to say that those "changing needs of inter
national life" must be objectively determined, "not by the wishes, the
will, or the whim of administrators or governors, who may be in office
from time to time" because that would be an "intolerable standard for
application by the international community. It would be inconceivable".
Mr. President, the Rcspondent, as far as I know, never claimed the right
to interpret the changing needs of international life for the organized
international community and then to tell the organized international
community, those are your changing needs, and I tell you so. .
But even taking that element out of it, let us assume that the Apph
cants really intended to speak here of the changing needs of the popula
tion of the mandated territory. Then it is still a caricature of the Re-588 SOUTH WEST AFRICA
spondent's argument to say that we contended that those changing needs
are to be determined by the wishes, or by the will, or by the whim, of the
administrators or governors who may be in office from time to time.
It is perfectly clear, Mr. President, that in giving full effect to the
discretionary element in the Respondent's powers, an action on the
basis of mere wishes, or a mere will, or a mere wlùm, would surely rank
as an arbitrary one if not, under particular circumstances, as a mata fide
one, and would therefore be a violation of the obligation undertaken by
the Mandatory. It would clearly be so, on our own construction. Whether
that violation is one which was intended to be determined by a court, or
whether it was one to be determined solely by the supervisory organs
then contemplated, Il.fr. President, that of course is a matter dealt with
in our first contention, our main contention, as regards the justiciability
or otherwise of Article 2 and it is a matter which I need not take any
further. But the fact of the matter is, whlchever of those two views we
take, viz., that it was for the Court to adjudicate or only the administra
tive supervisory organs to do so, the fact remains that in law an action
mercly by way of a wish, or a will, or a whim, would be a violation of
obligation. Yet this appears to be attributed tous as the argument, and
then it is said that tlus would be "an intolerable standard for application
by the international community. It would be inconceivable". Still,
Ilfr. President, we see no connection whatsoever with words used in an
instrument of wlùch it is said that the ordinary meaning is being given
to them.
The statement proceeds: "The concept of moral well-being and social
progress involves the determination and the protection of internationally
determined criteria and objectives."
Mr. President we are not told where this cornes from-why the concept
of moral well-being and social progress involves the detcrmination and
the protection of internationally dctermined criteria and objectives. It is,
as far as we can see a pure ipse dixit; there is nothing by way of argument
or supporting materia1 which goes to support it at ail.
Then this part of the statement follows:
"Each man's notion of moral well-being and of social progress is
a reflection of his own subjective attitude toward life, toward the
role of the individual, toward the role of the group, and the relation
ship of both to the social order. How could an individual's state of
mind, or purpose or intent, be marked in any other manner than
by his persona! appreciation and evaluation of his own role toward
the social order. The very concepts of moral well-being and social
progress demand and cry out for objective determination on the
part of the competcnt international organs whose responsibility,
rather than whose right, is fixed by the mandate itself ... "
Mr. President, again one is puzzled. How can this be said to be
interpretation of anything at ail? Is it not rather something in the nature
of an address in a body which considers what would be desirable in the
international order, rather than one which is to determine what the
Iaw is?
My learned friend seems to be entirely at large with these arguments
which he uses, whatever their merit may be. They are not arguments
directed at the determination of an intent of authors of an instrument
or directed at seeing what the instrument says. They seem very much REJOINDER OF MR. DE VILLIERS 589
more to be arguments which might have been appropriate in an address
to, say, astudy group, on the need for reforming the international order.
Nevertheless, let us see what they amount to, Mr. President, whether
they could have any bearing on a process of interpretation or construc
tion.
The steps in the argument seem to be these: firstly, the Court has
described the Mandate as "an international regime"; secondly that being
so the Mandate must conform to the needs of international life; tlùrdly,
the Respondent not being the international community cannot objec
tively determine these needs of international life, and fourthly, the needs
can, on the contrary, be objectively determined only by competent
international organs. From these steps the jump is taken to the quod est
demonstrandum, Mr. President, viz., the Mandate must be taken to have
bestowed on the competent organs the exclusive power to make an
objective determination of these needs, and consequently to prescribe
standards with which the Mandatory is obliged to comply.
I have pointed out already, Mr. President, that why one has to refer
to theneeds of international life instead of to the needs of the inhabitants
of the Territory, I do not understand. Even if one makes thiscorrection,
even if one regardsthe contention as being intended to be directed at the
needs of the inhabitants of the Territory rather than at the needs of
international life, then one still finds, Mr. President,that there are no
words whatsoever in the instrument to be considered as going to support
any such notion that it is the organized international community or
any international organs rather than the Mandatory itself which has to
determine what those needs are.
The mandate instruments, 1\ir. President, on the contrary, contain
words which very clearly confer a full power of government and legis
lation upon the Mandatory and they say that the Mandatory is obliged
to promote the interests of the inhabitants. Article 2 says so very
specifically.If the words used in the Article have any meaning at all,
they oblige the Mandatory, not any supervisory body, to have regard to
the needs of the inhabitants, not to the needs of international life; for
obviously, ifthe Mandatory does not have regard to such needs, it can
hardly promote the interests of the inhabitants. But according to the
Applicants' argument, the Respondent's primary obligation is to have
regard, not to the needs of the inhabitants, but to the needs of inter
national life as objectively determined by the supervisory organs.
Presumably, Mr. President, this must be so even if the needs of inter
national life as "objectively determined", clash with the needs of the
inhabitants, and that may be a very important consideration. And why
do the Applicants say so? Simply because the Court in 1962 spoke of
"the international régime" which, as I have said, was a perfectly fit
description in the context of what the Court was describing, but is taken
out of its contex_there in the way in whichthe Applicants seek to apply it.
In any case, the1r argument does not relate to any words or language used
in the instrument which, it is said, is being construed.
Now, Mr. President, as I have said, even if one nowtakes the argument
as relating to the needs of the inhabitants of the Territory rather than
the needs of the organized international community or of international
life, lets see whether there is anything in the words, or in logic or in
probability, which could be said to support this argument that the
standards for dealing with those needs are to be laid down internationally590 SOUTH WEST AFRICA
by international organs and are not to be determined by the l\fandatory
itself inthe exercise of its discretion in determining what the needs are
and how it is to deal with them.
The argument, Mr. President, as I have said, does not rest on words
in the instrument but it seems to rest on this notion that different people
have different ideas as to how social progress especially, social progress
and moral well-being are to be achieved, and that seems to lead my
learned friend to the conclusion that there must therefore be international
determination of the approach and not determination by a particular
l\fandatory.
Mr. President, is not the logical inference directly the opposite when
we look at the presumed intentions of the authors of an instrument?
Is not the inference this-that just as individual persons may differ
in their outlook as to how the problem of moral well-being and social
progress is to be dealt with, just so different States would <lifterin their
outlook as to how such a problem is to be dealt with? Nowthose different
States constitute the international bodies-thcy are the members of
those international bodies. They corne there with their different, their
opposing, ideas as to how the problem is to be tackled. Must they now,
in debate and with one another, must they now decide how the problem
is to be dealt with in mandated territories generally or in a particular
mandated territory? What if they cannot agree, Mr. President? What if
they are so divided amongst themselves that no answer can be obtained
according to the voting procedures in the particular organisation?
What, Mr. President, if they are substantially divided but there is a
majority one way or the other? Must the majority then decide? Or what
if, as so often happens in international life as a constructive feature of it,
they arrive at a compromise between different ideas-a compromisewhich
now satisfies everybody? Can one under those circumstances be satisfied
that that is the most effective way of dealing with the needs of particular
people in a particular territory? \Vould not the approach rather be the
other way? That one says, here is a Mandatory which I, the international
organization, trust-! trust it as a trustee. He can report to me from
time to time so that I see what he does and so that I can criticize him
ifhe does not do his work, but the manner in which he is to doit, that I
leave ta him, because I think that he is the most suitable mandatory for
this particular task, so that I do not have this possibility of a complete
clash of views as to how these problems are to be tackled. I know that
I have entrusted it to that particular trustee and he, or that nation, in
accordance with its particular outlook, will tackle those problems.
I shall not interferewith the manner in which it exercises that discrction
even if I might feel that in some way or other I might have dealt with it
differently. I shall certainly make suggestions to the Mandatory-1 shall
certainly indicate to the i\landatory that I should like it ta do this or
I should like it to do that. But, I cannot say to the Mandatory that I am
to enforce my will upon it-I, being an international organization
composed of these various States with their various possible views upon
the mattcr.
The analogy, Mr. President, is complete with the situation of a trustee
in ordinary municipal law, a trustee which may have to report to some
governing body from time ta time, as in the case of church congregations
which, as very commonly happens, organize their affairs in such a way
that their business matters, i.e., property transactions, financial trans- REJOINDER OF MR. DE VILLIERS 591
actions and so forth, are handled for them by a trustee or by a board of
trustees, two or three of them. Let us suppose that that trustee or board
of trusteesmust report, as would very commonly be the position, from
time to time on their administration to the governing body of the
congregation, which may be the Church Council or the general meeting
of the congregation itself.
Then surely, Mr. President, that exact situation obtains. The purpose
of the reporting is to enable the supervisory body to see whether the
trustee is doing his work, whether he is setting aboutit properly, whether
he is setting aboutithonestly, whether the wholc situation appears to be
in order, and whether he keeps within the limits of whatever instrument
there may be defining his powers and his obligations. If, for instance,
that instrument would say to him "you may invest surplus fonds only
on first mortgage and in shares of building societies", then Mr. President,
the supervisory body would sec to it that there is no investment, for
instance, in the shares of an ordinary company, other than a building
society, or that there is no other form of investment of a type not
authorized.
But, Mr. President, whcn that trustee exercises his discretion in
deciding that he is to invest with building society "A" and not with
building society "B", then surely this governing body does not interfere
with his discretion and tell him "you should have acted otherwise".
Ifitdid he would turn round and say "No, that was a matter for me to
appreciate". There may be suggestions to him, of course, but there could
not, in this situation, be a suggestion of a binding power in law on the
part of the supervisory organization-not ordinarily. There may be
exceptionally a particular stipulation of that kind but that would not be
the ordinary position. And that, Mr. President, is surely the analogy
which applies here, and if one gives such force, as my learned friend
does, to the fact that different people would have different approaches as
to dealing with this problem. then I submit, ~fr. President, the logical
answer is that that supports the conception that the task would have
been left to one trusted trustee rather than being assigned to an inter
national supervisory body composed of different elements where there
may be opposing and clashing views on the subjcct.
That, Mr. President, is indeed what the words of the instrument
indicate. The words of the instrument do not, in any way, assign any
fonction or any power to a supervisory body to lay down standards in
this respect which would be binding upon a Mandatory. Nowhere is
anything said of that kind. On the contrary, the grant of power and of
discretion is to the Mandatory-the obligation of the trust nature is laid
upon the i\Iandatory and it is said that the Mandatory has to report
once a year, as to the manner in which it has actcd in regard toits trust,
to a supervisory body.
Those words, for the reasons I have endeavourecl to indicate, makc
sense. And therefore, Mr. President, when one has regard to words used
in an instrument, and gives to them their natural and their ordinary
meaning, and has regard also to the question whether they do make
practical sense, whether they could or could not have been so intended,
then the argument goes all one way, Mr. President. The argument for the
Applicants is not even based on any words on which they can rely.
N"owwe fi.nd, Mr. President, that the Applicants do seek to place
reliance on some particular words which they extract from the instru-592 SOUTH WEST AFRICA
ment. So, for instance, the words "social progress" in Article 2, are relied
upon as denoting something fluid, since they say society itself evolves
and changes constantly, while progress is, again in the Applicants' words,
"... by its terms ... nota constant but a variable, and predicates the
natural processes of dynamic change ... ''.That we find in the record of
18 11fay1965, at page 317, supra.
The Applicants then proceeded to cite a passage from the Reply, IV,
at page 5rz, where they said (that is in their written Reply in the
pleadings):
"discharge of the obligation to promote well-being and social progress
necessarily involves continuons dynamic and ascending growth".
(Supra, p. 318.)
That is the end of the quotation. Now, ;\fr. President, admitting ail
this, it is still very difficult to understand, it is completely obscure how
this can be said to indicate that the dynamic aspect is to be taken into
account and to be given effect to by organs of an international body,
rather than by the Mandatory itself which is charged with the task of
promotion, of well-being and social progress. Nothing relied on in this
argument indicated that there is tobe that preference. But the Applicants
say that Article 22 of the Covenant speaks of a safeguard, and they
suggest that that solves the problem. That, at any rate, is how we
understand their argument as they put it, in the verbatim of 181\Iay 1965,
at page 318, supra, and I quote this passage to the Court:
"When Respondent undertook in 1920 the obligation to 'promote
to the utmost' the well-being and 'the social progress' of the in
habitants of the Territory of South West Africa, Respondent
thereby undertook an obligation to apply evolving and developing
standards in the light of modern conceptions and knowledge with
regard to the well-being and development of dependent peoples, as
appreciated by the international organs vested with the duty of
supervision as a safeguard to effectuate the purposes of the sacred
trust. The stress, Mr. President, is on the word 'safeguard'-that is
embodied and embedded in the Covenant itself."
So, Mr. President, the word "safeguard" in the Covenant is apparently
now fastened on as being the word to which effect is to be given in its
ordinary and natural meaning in the context. What is that meaning in
the context l\fr. President? We have, of course, never denied, if I may
go back to this passage which I have just rcad, that the !lfandatory is to
have regard to ever-changing and evolving circumstances and so forth,
changing with the times, in the exercise of its discretionary power, and
in complying with its obligation. That we have never denied, but Mr.
President, why the word "safeguard" in Article 22 should mean that the
Mandatory is in that respect to be bound by standards prescribed by
supervisory bodies, that is something which again we do not understand.
Let us see where that word occurs in Article 22. It occurs, Mr. President,
in paragraph 6 dealing with the C Mandate. That paragraph reads:
'There are territories such as South \V'est Africa and certain of
the South Pacifie Islands, which owing to the sparseness of their
population, or their small size, or their remoteness from the centres
of civilization,or their geographical contiguity to the territory of
the l\Iandatory, and other circumstances, can be best administered
under the laws of the Manda.tory as intcgral portions of its territory, REJOINDER OF MR. DE VILLIERS 593
subject to the safeguards above mentioned in the interests of the
indigenous population."
So we look back, Mr. President, to see where there is a previous
reference to "safeguards". And we fi.nd that previous reference in the
immediately preceding paragraph 5, dealing with the B l\fandated
territories, in terms which are well known to the Court, where it was
said that:
"... the Mandatory must be responsible for the administration of
the territory under conditions which will guarantee freedom of
conscience and religion". [I am sorry, I said the word "safe$uards"
is found there. The word is not found there, but the concept 1sfound
there.]
And it goes on about the prohibition of abuses, such as the slave-trade,
the arms traffic, the liquor traffic, and so forth.
So those, obviously, Mr. President, in this context, are the "safeguards
above mentioned in the interests of the indigenous population". There is
nothing else which conforms to that concept whatsoever, anywhere, in
what has gone before. And what is important, Mr. President, is that in
what has gone before, in Article 22,no concept of reporting whatsoever
cornes in, no concept of reporting or accountability to a supervisory body
or of any power on the part of a supervisory body, because after all the
reference is to the "safeguards above mentioned", and as I say in the
above-mentioned portion there is nothing of the kind. It is only in the
next paragraph following on this one, namely paragraph 7, that provision
is made for a report to be rendered by the Mandatory to the Council, an
annual report in reference to the territory committed toits charge.
So, l\lr. President, again, in so far as my learned friend seeks to rely
on the word "safeguards" as supporting his argument, it would seem to
have nothing whatever to do with it.
These, as far as we can see, are the only essential arguments produced
by the Applicants in attempted support of the proposition which is now
under consideration, the proposition that the Mandate itself is to be seen
.as being subject to the qualification that the Mandatory, in the exercise
of its fonctionsto promote progress and well-being, is bound to comply
with standards to be laid down by either supervisory bodies or by the
organized international community in general. There are, of course,
certain passages of repetition, there are certain assumptions stated
sometimes, certain ipse dixit, but Mr. President, on a close search of the
record, we could fi.ndno other arguments which seemed to be intended to
serve the purpose of advancing this proposition.
In the result we fi.nd that not a single one of these arguments which
we have now very closely scrutinized, nota single one of them, can bear
any scrutiny whatsoever. The plain fact is that there are no words which
could possibly bear the meaning of such a qualification. There are no
words which can be construed as bearing that meaning. Applicants could
not possibly rely upon an interpretation, properly so-called. They would
have to rely on an implication, and as we have indicated before, a
qualification,or any term or provision can be implied into an agreement,
particularly a written document, only if it is a necessary inference, to
the exclusion of all other reasonable inferences which one can draw, that
the parties to the document, in fact, intended that such a provision was
to govern their relationships. It must have been a case, we as indicated594 SOUTH WEST AFR!CA
before, where the understanding between them was so clear that they
did not trouble to express it.
Now, Mr. President, one finds that the App!icants do not evcn address
themselves to an enquiry of this kind with a view to seeing whether
they could justify this suggested qualification to be read in the mandate
instrument; and that is small wonder, because when one does approach
the matter along the lines necessary for such an enquiry, one finds that
all the available evidence as to the probable intent of the founders of the
system goes one way, and that is certainly not in favour of the Applicants'
contention; it is in directly the opposite direction.
Let us turn first, Mr.President, to the actual provisions of the relevant
instruments read in their contcxt. The first question which strikes one,
then, is that if the authors of the Mandate did indeed have the intention
attributed to them by the Applicants, why didn't they give explicit
effect to their intention? \Vhy didn't they say so, instead of mercly
sayingthat therc is to be a report to the Council of the League? Woulcln't it
have been a natural thing for them to say that the Council is here, quite
exceptionally in international life after al!, that the Council is to have
a special and a peculiar power in respect of the Mandatory. Surely it
would have been the most natural and the easiest thing in the world to
have inserted an appropriate clause in the mandate instrument. Perhaps
it would even have had to be foreshadowed in the Covenant itself in
order to have been taken up in the mandate instrument; but nevertheless
the nature of the clause, or the wording of the clause, could have been
somewhat along these lines:
"The Mandatory will be obliged to give cffect to decisions of or
to standards prescribed by the Council, either by a majority vote
or by a unanimous vote save for the Mandatory, in regard to
methods to be adopted for promotion of the well-being and progress
of the inhabitants of the Territory."
That, ·Mr. President, would have been a very casy clause to have
inserted if there had indeed becn any intent of that kind.
If we look at the provisions of the Covenant in order to sec to what
extent any provision whatsoever is made for States to be bound, in
depcndently of their consent, to decisions or resolutions that might be
arrived at by League organs, we find, 1\Ir.President, that that matter is
treated as being one of an exceptional character. In the whole of the
Covenant it occurs very sparingly, and if it does occur, and where it does
occur, very explicit words are used with a view to giving expression
thereto.
ln the first place, the Court may recall that the outstanding example
of this type of provision was in Article15 of the Covenant, with reference
to that most important consideration of peace-keeping, the Article
dealing with a reference to the Council of disputes likely to cause a
rupture. Thcre, the Court will recall, provision was made for a report to
be drawn up by the Council in certain circumstances, and the relevant
portion of Article 15 provided:
"If a report by the Council is unanimously agreed to by the
members thereof, other than the Representatives of one or more of
the parties to the dispute, the Members of the League agree that
they will not go to war with any party to the dispute which complies
with the recommendations of the report." REJOINDER OF MR. DE VILLIERS 595
That, Mr. President, is one of the exceptional cases where a decision
of the Council could also bind other Members of the League, although
those ~Iembers of the League had not given their assent to the particular
decision; but that was explicitly provided for in these tenns, as we see.
We find in Article 5 there is the other well-known exception, the one
relating to procedure. There it is provided:
"Ali matters of procedure at meetings of the Assembly or of the
Council, including the appointment of committees to investigate
particular matters, shall be regulated by the Assembly or by the
Council, and may be decided by a majority of the Members of the
League represented at the meeting."
So there was an exception to the unanimity principle; a majority could
bind a minority, but purely on questions of procedure.
Then, in regard to the Secretariat, the expenses of the Secretariat,
there was the basic provision in Article 6, of course, wherc the Members
undertook that "The expenses of the Secretariat shall be borne by the
Members of the League in accordance with the apportionment of the
expenses of the International Bureau of the Universal Postal Union".
That in itself was an agreement between ail the Members of the League,
but the Council was given a power in respect thereof in Article 24,
referring to International Bureaux, wherc the last portion of the provision
was to this effect: "The Council may include as part of the expenses of
the Secretariat the expenses of any bureau or commission which is placed
under the direction of the League."
The power is, again, very circumscribed, Mr. President. Only in the
cases where those bureaux were placed under the direction of the League
could the Council take the decision that their expenses were to be
included in the total pool to be apportioned.
Then there was one other provision; I think Article 7 provided that
"The Council may at any time decide that the Seat of the League shall be
cstablished elsewherc", elsewhere being elsewhere than at Geneva.
Finally, there is one portion of Article 22 itself, namely paragraph 8,
which may be construed-there may be possible differences of opinion
as authorizing the Council to takc a decision which may be binding even
on States that have not agreed thereto. That is the well-known one, 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". The
question is whether even that could be made binding upon Mandatories
without their consent. There arc various possible views about it, but
there is the possible view that herc was authority in advancc given to
the Council to make a binding determination of that kind, but again,
closely within the framework of the substantive provisions of Article 22
which had gone before.
By way of contrast we find, in the very important mattcr relating to
armaments in Article 8 of the Covenant, that provision is there made
for plans for production of armaments to be drawn up by the Council,
and then cornes this provision:
"After these plans shall have becn adopted by the several Govern
ments, the limits of armaments thcrcin fixed shall not be exceeded,
without the concurrence of the Council."
So here, J\rr. President, in this very important matter, even though596 SOUTH WEST AFRICA
the Council was given the function and the power to draw up these plans
after taking all the factors into account, the plans were yet fi.rst to be
submitted to the several governments concerned, to be adopted by them
before there was to be any binding nature in the determination made by
the Council in respect of these plans.
That, i\Ir.President, was obviously the general basis upon which this
Covenant was drafted. It was a basis of proceeding by consensus, con
sensus in the proper sense of the term, i.e., there was to be unanimity.
Where an exception was intended, where a State was to be bound by a
decision of any organ of the League, by any particular voting procedure
which would make it possible for that State to be bound without having
given a further consent, there were these explicit and very careful
provisions in these exceptional cases.
Mr. President, I was dealing with the argument that aHthe indications
afforded by the wording of the relevant basic instruments-the mandate
instruments themselves and the Covenant of the League-militate very
strongly against any suggestion that mandatories were to be bound,
against their will and independently of their consent, by any instructions
that might be given them by a supervisory body, or by any standards
to be laid down for them by a supervisory body-if there was any
suggestion of anything of that kind. I had just dealt with the strong
indications afforded by the Covenant itself in that regard.
I turn to the provisions of the instruments themselves-the mandate
instruments:..._but, let me turn, first, more particularly, to Article 22
of the Covenant under which the mandate instruments were issued.
The whole scheme which one finds there, Mr. President, again re
futes entircly the idea which is suggested here, of a power being
conferred upon a supervisory body to take decisions binding upon a
Mandatory, against the will of that .Mandatory and without its co
operation.
Paragraph I of Article 22 of the Covenant speaks of the principle
that the well-being and development of peoples of the colonies and
territories concerned form a sacred trust of civilization. And, then,
paragraph 2 proceeds to state:
"The best method of giving practical effect to this principle is
that the tutelage of such peoples should be entrusted to advanced
nations who, by reason of their resources, their experience, or their
geographical position can best undertake this responsibility, and
who are willing to accept it, and that tlùs tutelage should be exer
cised by them as l\fandatories on behalf of the League."
That is where the League cornes in, Mr. President-that the tutelage
is exercised by these advanced nations "as mandatories on behaif of the
League", but the tutelage itself is entrusted, according to these express
words, not to the League; it is entrusted to the "advanced nations"
themselves, and for specific reasons: by reason of their resources, by
reason of their experience, by reason of their geographical position
those reasons which bring about that they, in the words of this provision,
"can best undertake tlus responsibility". The words could hardly have
made the situation more clear.
We go on, Mr. President. In paragraph 4 of Article 22, we see that,
where the A mandated territories are dealt with, the role of the Manda
tory is seen as that of "the rendering of administrative advice and REJOINDER OF MR. DE VILLIERS 597
assistance by a Mandatory until such time as they [the communities] are
able to stand alone".
Again, Mr. President, the advice and assistance are to be rendered
by a Mandatory. There is no suggestion here that the Mandatory in
rendering that advice and assistance is to comply, in its turn, with
instructions to be given toit by a superior body, in the form of standards,
or in whatever form it may be-that the Mandatory is to be bound in
that respect.
Then we go on to the much more explicit wording, in this context, of
paragraphs 5 and 6, relating to B and C Mandates.
First, paragraph 5 reads: "Other peoples, especially those of Central
Africa, are at such a stage that the Mandatory must be responsible for
the administration of the territory under conditions ... " Again, there
are the explicit words ''the Mandatory must be responsible for the
administration of the terri tory", and the same is contemplated in the
wording of paragraph 6, even to a further degree. There the position is
stated to be that, owing to the various considerations mentioned with
respect to particular territories, including South West Africa, these "can
be best administered under the laws of the Mandatory as integral portions
of its territory, subject to the safeguards above mentioned ... ".
So, Mr. President, again the position is rendered so absolutely clear:
it was the Mandatory that was to exercise this task, this function of
government, or administration, and not a council or any other body
superimposed upon it to give it instructions.
The provision which gives rise to the situation of accountability to
a supervisory organ is in paragraph 7 of Article 22, which simply says
that "In every case of Mandate, the Mandatory shall render to the
Council an annual report in reference to the territory committed to its
charge".
As we have said before, if that was to carry with it the contemplation
that the Council could, on receipt of such reports, deal with them in
such a way that it could, without the concurrence of the Mandatory,
give instructions to it or lay down binding standards for it, then one
would surely have expected that to be said.
Mr. President, the wording is given added significance if recourse is
had to the history leading up to the compromise which went into Article
22 of the Covenant. We dealt with that at length in our argument in
chief and it is unnecessary for me to enter into that matter in any detail
at ail at this stage. I can refer the Court to the record of r April which
deals with it over a number of pages, but, particularly, at VIII, page 351
of that record we summarized the situation with reference to the records
of that time on this particular point~that the original ideas, which
existed on the part of certain of the leading personalities and States that
took part in the discussions of the Peace Conferences, the idea which
related to the possibility of control or anything of the nature of powers
of government being vested in the League; that the League was to give
out the Mandates on that basis (revocable mandates, revocable at the
pleasure of the League); that the Mandatory could, for instance, be a
national agency and need not necessarily be a State, and that sort of
thing, all that gradually developed into a new concept during these
discussions and because of the practical objections raised to notions of
that kind. It developed into a new concept, namely that the Mandatories
would be responsible and the League's fonction would be one of super- SOUTH WEST AFRICA
vision, the control would, however, be in the Mandatories, as such. The
supervision would be of the relatively lesser kind, it would be confined
to the questions whether the legal obligations laid clownin the mandates,
or the legal limits to powers, had been observed, and, further, it would
merely be a matter of co-operating with the i\Iandatory, of giving it
advice and assistance, but not of instructing a Mandatory how it was to
exercise its discretion.
As I have said, that portion of the record deals with the matter very
clearly and explains the compromise, and all that evidence goes to refute
the Applicants' suggestion that there was to be read into the instruments
this contemplation of a power of laying down binding standards on the
part of a supervisory organ.
The mandates. themsclves, l\fr.President, are of course to be read in
the light of Article 22 of the Covenant and many of the features which
appear in Article 22 of the Covenant apply to the mandate instruments
themselves. \Ve find that there is an express grant of power to the
Mandatory, but no express grant of power, whatsoever, to the League
or to an organized international community or to anybody other than
the Mandatory.
There is an express obligation placed upon the Mandatory "to promote
to the utmost", but no obligation placed upon anybody else in that
regard. The discretion is to be that of the Mandatory, as flows from the
wording, and the Applicants' suggestion is reaJiy that one is to read
the grant of power and the grant of discretion as being subject to a
further limitation, one which is not exprcssed at ail and one which runs
counter to the whole tenor and the whole scheme of the instrument.
Let us have a look at that scheme again as one finds it, for instance,
in the Mandate for South \Vest Africa. Apart from the grant of power
and the laying down of the broad obligations "to promote to the utmost",
we find Articles 3-5 containing those specific obligations, which we noted
before, Article 6 containing the obligation to report, and Article 7 (r)
contemplating a consent as between Mandatory and the Council of the
League with a view to modification of the terrns of the Mandate.
The wording of Article 6, Mr. President, indicates that what is con
templated by way of a supervisory function is something which looks
backward at what the Mandatory has done, not forward at what is to be
done by the Manclatory in the future, which, after all, is laid down in the
basic instrument. The Mandatory's powers and obligations have been
defined. It is not for the Council to define them again. It is for the Council
to see, in terms of this contemplation, this particular wording, what
measures have becn taken to carr\' out the obligations assumed under
Articles 2, 3, 4 and 5. -
Article 6 contempla tes that:
"the Mandatory shall make to the Council of the League of Nations
an annual report to the satisfaction of the Council containing full
information with regard to the tcrritory, and indicating the measures
taken to carry out the obligations assumed under Articles z, 3, 4
and 5".
Now, l\fr.President, let us test the scheme of the Mandate, taking
Articles 3 to 5 into account in conjunction with Article 7, paragraph r,
on the basis of the Applicants' contention. the contention that therc was
intended for the Council arole of determining standards as time goes on, REJOINDER OF MR. DE VILLIERS 599
those standards then to be binding upon the ~Iandatory and to be applied
for the benefit of the population.
If that was so, Mr. President, the question arises, why was it necessary
to have Articles 3 to S at all? \Vhy was it then necessary to have a
specific provision of this kind,that the supply of intoxicating spirits and
beverages to the Natives shall be prohibited? l choose that one, Mr.
President, because it relates in practice to something about which con
ceptions might very easily change as time goes on. Why docs the Council
in dctermining the terms of this Mandate, tie its own hands as well as
that of the Mandatory-tie its own hands in the sense that if it wants
to alter that provision, because it is now specifically stipulated here, it
would have to act under Article 7, paragraph r, and obtain the Manda
tory's consent? Why does not the Council simply reserve to itsclf the
position of dealing with that matter by way of a standard being laid down
and being adapted and altered as the Council pleases as time goes on?
One could cite other examples here of matters in respect of which
conceptions could change with time, as time gocs on. Take, for example,
the whole scheme of prohibition against militarization except to the
limited extent allowed for by Article 4- One knows that by the time when
it came to a question of trusteeships those conceptions had already
changed. But the same argument applics here, Mr. President. Why did
the Council tie its own hands as well as those of the i\fandatory? And
one could cite various other examples from Articles 3 to 5 which dem
onstrate that same point. ·
Looking at mandates in general, Mr. President, and looking at their
wording against the background of the compromise history, surely the
suggestion of the Applicants would destroy the whole basis of that
compromise. In line with the argument I have just addressed to the
Court, the Court will recall the history of the concern on the part of
France to have a special stipulation in regard to the training of Natives,
in particular those of the mandated terri tories. If there was a contempla
tion that the Council could chop and change as it wished in regard to
laying down standards and so forth, why was France so meticulous about
this? Why did France insist, in terms of what it said was a prcvious
compromise idea, that that should go explicitly into some of the mandate
instruments, as in fact it did, in order to make her position perfectly
clear for the future?
:1\fr.President, the suggestion of a Council which could overrulc all
that by further standards to be laid down, simply does not fit in eithcr
with the history or with the wording.
Now let us look at cvidence which is virtually contemporary, evidence
as to how the matter was viewed in practice in the League circlcs. I should
like to refer the Court to the report by M. Hymans, which has been
referred to so often for varions purposes in these Oral Proceedings, the
report of September 1920. This was even before the mandate instru
ments had been completed and issued. One finds the report as a whole in
the League of Nations Official ]oiirnal of September 1920, No. 6, as from
page 334. The heading given to this portion of the Official Journal con
taining this report is a very significant one. The heading is this, "Obliga
tions falling upon the League of Nations under the terms of Article 22
of the Covenant (Mandate}". So, Mr. President, the name already
indicates, by referring to obligations falling upon the League undcr the
terms of Article 22, that if there was any contemplation of a competence600 SOUTH WEST AFRICA
on the part of the League of the nature contended for by my learned
friend,this would be the place where it would be dealt with: bccause this,
as the Court will recall, was a very comprehensive report, indicating to
the organs of the League what was considered necessary, what steps were
to be taken, in order to bring this mandates system into operation,
how it would operate, and what the respective roles would be of different
organs of the League and of the mandatories themselves. So one would
certainly expect that that very important contemplation of a function on
the part of supervisory organs, to lay down standards as time goes on,
would at least be mentioned in this report.
But, Mr. President, one not only finds that it is not mentioned, one
finds the very opposite contemplation indicated, as I shall show. The
first page is introductory, referring to the provisions of the relevant
articles of the Treaty and of Article 22 of the Covenant. Then the
question is put in paragraph 2 at page 335 of this Journal: "What are
the measures to be taken to ensure the observance of Article 22 and to
apply the mandatory system?", again indicating the broad scope of
this report.
At page 337 of this Journal M. Hymans then dealt with stcps to bring
the system into opcration. There we corne to a section headed "Deter
mination of the terms of the l\fandates", and in that we find this passage:
"The degree of authority, control or administration is so far as 'B'
or 'C' Mandates arc concerned, a question of only secondary im-
portance. ·
In the former case, as in the latter [that is, as I understand it,
in the case of Bas well as of C mandates], the Mandatory Power will
enjoy in my judgment a full exercise of sovereignty, in so far as
such exercise is consistent with the carrying out of the obligations
imposed by paragraphs 5 and 6 [paragraphs 5 and 6, of course, of
Article 22]. In paragraph 6, which deals with 'C' Mandates, the
scope of these obligations is perhaps narrower than in paragraph 5,
thus allowing the Mandatory Power more nearly to assimilate the
Mandated territory to its own. I, therefore, concludc that it is not
indispensable that 'B' and 'C' should contain any stipulation
whatever regarding the degree of authority or administration."
M.r. President, of course the learned author of the report indicated
later, as I shall quote to the Court again, that it was a controversial
matter as to where the full concept of sovereignty in the traditional sense
of the word would lie, and his remark about sovereignty here is to be read,
of course, subject to that observation. But even then he says that in his
judgment the mandatory power will enjoy "a full exercise of soverei1;11ty"
-the concept of the exercise of sovereignty, that is to be vested in the
mandatory. If there had been any contemplation on the part of this
author that in regard to the exercise of sovereignty there was to be a
reservation or a qualification, in the sense that part of that would be
vcsted in the Council, as the supervisory body, which could Jay down
binding standards for the mandatory as to how it was to set about its
civilizing mission, then surely, Mr. President, that would have been said
and this statement would not have been made in this unqualified form.
But the matter does not end there. I turn over a page or two and I
corne to the section headed "The Extent of the League's Right of
Control", control here in the context, as commentators have indicated, REJOIN'DER OF MR. DE VILLIERS 601
clearly meaning supervision, used in that sense. Let me refer to the actual
wording here. But before I do so, Mr. President, here again, if there had
been any contemplation of the type of fonction seen for the Council by my
learned friend's contention, surely one would have expected it to have
been dealt with here. But we find that in the very first paragraph the
very opposite is indicated:
"I shall not enter into a controversy-though this would certainly
be vcry interesting-as to where the sovereignty actually resides.
We are face to face with a new institution. Legal erudition will
decide as to what extent it can apply to this institution the older
juridical notions. In the same way, whether the League of Nations
is responsible in respect of the 1Iandatory Powers appears to be a
moral rather than a legal question. For there is no legal respon
sibility exccpt in respect of another person."
I pause there for a moment. It seems that that sentence is intended to
indicate that one cannot speak of a legal responsibility, a legal obligation,
unless it is an obligation in respect of another person. The theme appears
to be that that is a factor which indicates that, as far as the League was
concerned, one could speak only of a moral obligation and not of a legal
obligation. In fact, the author proceeds to make that point explicitly.
I quote again:
"Now, the responsibility of the League of Nations could only
occur in respect of the populations who are under Mandatory rule.
But it is difficult to see in what way this responsibility would be
organised or what measures could enforce it. Quis wstodiet ipsos
custodes? The responsibility of the League before the public opinion
of the civilised world will in point of fact be a moral one."
So, Mr. President, here is direct refutation of this suggestion that the
real trust obligation in law was conferred upon the League as an organized
international community or as the organized international community.
The author specifically says in his contemplation, "the responsibility
of the League l:>eforethe public opinion of the civilized world will in point
of fact be a moral one".
We proceed and corne to a passage which has often been quoted to the
Court, in these proceedings also, for different purposes, but the passage is
significant for present purposes and therefore I should like to refer to
aspects of it. The author states:
"The practical and positive question appears to me to be the
following:
What will be the responsibility of the Mandatory Power before the
League of Nations, or in other words, in what direction will the
League's right of control be exercised?"
Here, especially, we corne to the stage where, if that relationship between
the League and the mandatory power would involve for the League this
standard-creating competence, this is where one would expect it to be
stated. But what does the author procccd to state? He conccrns himself
only with the two questions referred to before, namely-
"Is the Council to content itself with ascertaining that the
Mandatory Power has remained within the limits of the Pov.;ers
which were conferred upon it, or is it to ascertain also whether the
Mandatory Power has made a good use of these powers, and whether602 SOUTH WEST AFRICA
its administration has conformed to the interests of the native
population?
It appears tome that the wider interpretation should be adopted.
Paragraphs r and 2 of Article 22 have indicated the spirit which
should inspire those who are entrusted with administering peoples
not yet capable of governing themselvcs, and have determined that
this tutclagc should be exercised by the States in question as
Mandatories and in the name of the League [an interesting way of
expressing that concept 'in the name of the League'). The Annual
Report stipulated for in Article 7 should certainly inclucle a state
ment as to the whole moral and material situation of the peoples
under the Mandate. It is clear, therefore, that the Council also should
examine the question of the whole administration. In this matter the
Council will obviously have to display extrcme prudence so that the
exercise of its right of control should not provoke any justifiable com
plaints, and thus increase the difficulties of the task undertaken by
the Mandatory Power."
This is wording, ?llr. President, indicating that what is spoken of here
as a right of control, or a right of supervision, is to relate to the whole
administration-to the question of what the Mandatory has done
whether it has remained within the limits of the powers, and also whether
it has made a good use of these powers, and intimating in this latter
respect that extreme prudence is to be exercised by the CounciJ in the
exercise of its function.
So, i\Ir. President, that, I submit, is the most pertinent cvidence one
could have, almost exactly contemporaneous, indicating the total absence
of any such contemplation as is contended for by the Applicants, and,
indeed, a very opposite contemplation, viz., that there was to be no
legal responsibility on the part of the League.
Shortly afterwards, M.r. President, in the League time, we find the
practice of the actual supervisory organs again throwing further very
significant light on the contemplations in this particular respect. The
matter is dealt with by the well-known commentators Quincey Wright,
Duncan Hall, and Norman Bentwich, but wc did not find the Applicants
referring to any of these, or any single authority, in support of this
contention, :Mr.President, for the simple reason that, as far as we could
ascertain, there is none which even contains a vestige of support for what
the Applicants are urging upon this Court.
We dealt fully with an earlier attempt which the Applicants had made
to rely upon a passage in Quincy Wright, in our argument in chief in
the verbatim record of 26 April, at VIII, pages 684-685, and we pointed
out there that what emerges very clearly is that the author quoting
what had been said by the varions organs of the League, spoke of the
fonctions of supervision consisting of two parts-one of criticism by law,
in which no hesitancy was shown at all-in other words, seeing whether
the l\fandatory complied with the spccific provisions and obligations
laid upon it~and, secondly, the other function of co-operating with the
Mandatory; there the field of possible action was a much wider one,
but the attitude displayed was a much more reticent one, and we find
that the author specifically states that for that purpose standards were
laid down from time to time, but purely as non-binding suggestions
in other words, standards in the ordinarv sense of the term-standards,
as the author himself stated, for the gu{dance of the organs themselves REJOINDER OF MR. DE VILLIERS 603
and subject to modification by experience. That, I think, Mr. President,
is a very fair reflection-as fair as we can make it-of what Quincy
Wright explicitly states in this regard, and wc have had no answer to that
in the oral reply.
Our main addition now, seeing the nature of the contention which has
now been advanced to the Court in the oral reply, will refer to Duncan
Hall, Mandates, Dependencies and Trusteeshi'p,and I refer to the following
passages at pages 48-49, to commence with:
"4. The Mandates Commission and its Proccdures
An effective international supervision over the working of the
mandates was secured largely though the Permanent Mandates
Commission. An important feature of this supervision was that it
was exercised long after the event, through it could affect, and
often did, the existing and future action and policy of the administra
tion of a territory."
If I may break there, Mr. President, the author went on to explain
how it came about that the report might cover a particular year and it
might be a long period, six to twelve months, which might clapse before
the report was considered and he mentioned extreme cases that might
occur:
"... in the extreme case the Commission might not actually examine
a situation which occurred in January, 1935, until June or October,
1936".
He proceeded to sta te:
"By the time it had received and examined answers toits questions
in the next annual report a further six to twelve months might have
elapsed. Therefore the supervision exercised by it was essentially
supplemeiitary; since during the actual course of the year super
vision had already been exercised by the national government and
parliament of the mandatory power as in the case of any normal
dependency.
Not even the outbreak of a world war could deflect the Commission
from its rule that it was precluded from enquiring into the events
of the current year unless the accredited representatives chose to
supply data in advance of the annual report. The Commission's report
to the League Council on its last (thirty-seventh) session in De
cember, 1939, under the hcading 'The Mandated Territories and the
War', stated:
'The Commission has deliberately refrained from anticipating
the events of 1939 by examining the situation created by the
present war in connection with territories placed under the
mandate of belligerent Powers. lt will do so in the light of the
information with which these mandatory Powers supply it when
they give an account of their stewardship during 1939.' "
Thcn, Mr. President, at page 51, after further discussion upon these
fines,towards the bottom of the page and running on to the next page,
the author stated a conclusion, as follows:
"In practice its main rôle [that is the main rolc of the Commission]
tended to be of an Old Testament character. Itwas the keeper of the
Ten Commandments of Article 22 of the Covenant. It looked on
itsclf as charged with bringing to light breaches and urging their SOUTH WEST AFRICA
rectification.Itwas zealous, though very diplomatie, in the exercise
of its legal powers.But it was reluctant to step outside these powers
and to offer positive suggestions to the mandatory powers as to how
the territories should be administered and developed. In short, its
attention was fixed mainly on judging past events and particular
situations, rather than upon prescribing future action."
The practical importance of this attitude, Mr. President, is stressed
further by these remarks, which run on to page 52:
"Its reports to the League Council (as Lord Hailey, one of its
members, has pointed out) usually consisted of 'requests for further
information, or in expressions of hope that the next annual report
will indicate an improvement in an unsatisfactory situation'. Thus
few, if any, ofthe many important positive developments that took
place in Africa in the way of increasing self-government, health
measures, sanitation, education, the application of science to the
problems of the African environment, labour legislation, and many
others that are chronicled in An African Survey, were due to any
direct initiative on the part of the Mandates Commission."
These remarks are entirely in keeping, Mr. President, with the
submission I stated to the Court before-a contemplation. that the
Mandatory was to be trusted with tasks of that kind. The Mandatory
was to see what the needs of a particular people and a particular terri tory
were. The Mandatory was to minister to those needs thus ascertained.
This is something entirely in conflict with the suggestion of the nature
made by the Applicants that there are to be general standards laid down
by international bodies which are sitting overseas, as far as the manda tory
territories are concerned, making general rules of an a priori character
to be applied to the administration of mandatecl territories generally.
Then, in the same work by Duncan Hall, a further reference to the
attitude, not only of the Commission, but also of the Council of the
League, is macle at page 206. There the author referred to a reaction
which came about in the Council in 1926, when it was thought that there
were signs that the Permanent Mandates Commission might be assuming
to itself too many powers, or powers of a too far-reaching nature, in respect
of supervision of mandatory administration. I quote from page 206:
"Warnings given from time to time in the Council that it must not
seek to enlarge its powers and play a political rôle culminated in the
storm over the enlarged questionnaire when the latter came before
the Council in 1926."
The Court will recall the suggestion of an enlarged questionnaire
which came from the Permanent Mandates Commission itself. The
quotation proceeds:
"The Council on that occasion not only had before it the new
questionnaire, wruch increased the number of questions put to
governments from 60 to nearly 300, but also the suggestion of the
Commission {in its report on Syria) regarding the possibility of
hearing petitioners in persan. Sir Austen Chamberlain (Great
Britain) objected in the Council that the questionnaire was 'in
finitely more detailed, infinitely more inquisitorial',than the pre
vious one and that there was a tendency on the part of the Com
mission 'to extend its authority to a point where the government REJOINDER OF MR. DE VILLIERS 605
would no longer be vested in the mandatory Power but in the
Mandates Commission'."
May I break off there for a moment. That tendency, which was
thought to be perceived in the actions of the Permanent Mandates
Commission, was firmly resisted in the Council. The passage proceeds:
"The South African representative, M.r. Smit (who again rep
resented his country at the trusteeship discussions at San Francisco
in 1945), said that 'the jmpression had grown in the mandated
territory ... that the more it developed constitutionall:y the greater
the assumption by the Permanent Mandates Commiss10n of power
to direct the govemment in the territory'. Ali the representatives
of the mandatory powers at the Council opposed the enlarged
questionnaire, and their governments, to whom the question was
referred by the Council, supported them."
Now, the next passage is a significant one. It reads this way:
"This episode in some ways marked a turning point in the history
of the Commission. The continuity of its membership gave it ample
time to store up and reflect upon its experience. The rcsult was that
it settled down to a steady line of policy well calculated to giv_ethe
maximum results. That policy was one of collaboration with the
governments, combined with a firm adherence to the principles of
the mandates system. The classical passage in its proceedings, in
which it laid down this line of policy at its eighth session, reads as
follows:
'The task of the Commission is one of supervision and of co
operation. It is its duty, when carefully examining the reports of
the mandatory powers, to determine how far the principles of the
Covenant and of the Mandates have been truly applied in the ad
ministration of the different territories. But at the same time it is its
duty to do the utmost that lies in its power to assist the mandatory
Governments in carrying out the important and diffi.cult tasks
which they are accomplishing on behalf of the League of Nations,
and on which they rendcr reports to the Council'.'' ·
We pause there for a moment to stress the author's reference to the
same dual aspect of the fonction as referred to by Quincy Wright.
The quotation from the report of the Permanent Mandates Commission
itself, continues to read as follows, and this part seems to me, with
submission, to be particularly significant:
"Supervision and co-operation are fonctions which, though
neither incompatible nor in conflict with one another, may yet be
accompanied with genuine diffi.culties when they have to be carri"ed
out simultaneously. If the task of the Mandates Commission were
mcrcly to supervise the administration of the mandated territories,
it would be natural that, in ail diffi.cult cases, it should propose to
visit these territories itself, or should recommend the holding of
enquiries on the spot. If, on the other hand, the rôle of the Mandates
Commission were merely to facilitate the task of the mandatory
Power, it should offer it lavish encouragement and abstain from
passing any critical judgments which, ifconveyed to the population
under mandate, might create embarrassment and render the task of
the Government more diffi.cultof execution."606 SOUTH WEST AFRICA
Mr. President, if I may pause there again for a moment, this inter
relationship which the Commission saw bctween the two aspects of its
functions, seems to be of the utmost importance. Even in its fonction of
criticizing in accordance with law, supervising in that respect, the
Commission saw that it was to exercise tact and discretion; but the
Commission said that if it were to folfil that fonction in all detailed
aspects, it would probably have to do more than it was doing at this
stage; it might have to visit the territory and conduct enquiries on the
spot. But that, Mr. President, would milita te against what was seen as the
fonction of the l\1andatory Power in which this Commission was supposed
to co-operate. The Mandatory Power might then be embarrassed in its
relationship to the population of a territory; and therefore, even in that
respect, this Commission was to exercise reticence. If it was exercising
that reticence even in regard to its admitted fonctions of seeing whether
the provisions of the mandate instruments and the obligations laid
down by the Covenant were properly complied with, if it was exercising
reticence in that respect, Mr. President, how much more would it not
have exercised reticence in respect of a suggested fonction, such as
underlies the Applicants' contention-a fonction of ordering the Man
datory as to the way in which it was to proceed in its discretionary field
a fonction of laying down standards intended to be binding in that
respect. One could just imagine what the reaction of the Mandatory
Powers would have been.
The author proceeds to discuss, at page 207, the manner in which the
Commission proceeded:
"It felt its way forward cautiously and with restraint; working,
as the Covenant intcnded it to work, on the basis of the annual
reports; trailing therefore necessarily six to eighteen months after
events; keeping up a steady pressure of skilful questions; rarely
criticizing, and where it criticized, not failing to commend the action
of the manda tory powers where commendation seemed called for;
and still more rarely making recommendations which had a bearing
on the future. So carefully had the Commission succeeded in avoiding
political rôlesthat when in r939 it was called upon to express an
opinion on the British White Paper on Palestine (which it proceeded
to do), Professer Rappard drew the attention of the Commission to
the significance of the request. The Commission was asked, he
pointed out in substance, to give its views on a political intention, on
a program of future action."
I think that is sufficient from Duncan Hall, Mr. President, to emphasise
the limit which was set to the supervising functions in practice; a very
far cry from the extension to the wording of the instruments contended
for by my learned friend.
In the last place I should like to refer just to a brief passage from
Bentwich's The Mandatory System, at page n6. He states:
'The Commission, however, has been at pains to make it clear
that it is not concerned itself, and that the Council of the League is
not concerned, with the administration of the mandated territory,
which is the exclusive fonction of the Mandatory Power. Thus, in
dealing ",;th a report on Samoa in 1927, after there had becn trouble
in the island due to an agitator who aroused the people with staries
that the Council of the League would interfere on their behalf, REJOINDER OF MR. DE VILLIERS
the Commission stated emphatically that the Mandatory alone is
responsible for law and ordcr."
So, :Mr.President, that givcs a picture-clearer I submit it could hardly
be-of how the matter was viewed and put into practice in the time of
the Lcague, entirely contrary to this submission of the Applicants.
That being so, Mr. President, surely the whole bottom falls out of this
contention of the Applicants. Where can they go beyond the League
time, in the absence of finding that the law and the practice as at that
stage showed support for their contention?
\Ve submit, of course, that with the dissolution of the League the
supervisory fonction-the supervisory powers-the obligation of ac
counting at all to a supervisory authority-fell away and if we are
correct in that respect, Mr. President, as we submit we are, then it seems
that the whole basis upon which the Applicants still argue, that the
Respondent is standing in some relationshlp to an organized international
community which would require it to take orders from that community,
would fall away altogether.
But let us for the moment, for purposes of argument, view the matter
on the basis upon which the Applicants put it, namely that there is
accountability now owed to the United Nations. They rely in that respect
on the finding of this Court in the 1950 Opinion, and they ask the Court
for reaffirmation of that Opinion.
Now, the Court will recall that, towards the end of dealing with this
question of supervision, at page 138 of the 1950 Opinion, there occurs
a statement which led to two further requests in the 1950s for advisory
opinions. That statement came in this passage at page 138:
"It follows from what is said above that South-West Africa is
still to be considered as a territory held under the Mandate of
December 17th, 1920. The degree of supervision to be exercised by
the General Assembly should not therefore exceed that which applied
under the Mandates System. and should conform as far as possible
to the procedure followed in this respect by the Council of the
League of Nations. These observations are particularly applicable
to annual reports and petitions."
That is the whole passage in its context. One secs, Mr. President, as
far as that middle sentence is concerned, the two idcas: "The degree of
supervision to be exercised by the General Assembly should not therefore
exceed that which applied under the Mandates System." This relates
back to the previous sentence to the effect that South West Africa is still
to be considered to be a tcrritory held under the Mandate.
So the basic idea here appears to be this, Mr. President, that this was
a continuation of a situation which had existed in law under the mandates
system. There was a differencc of opinion later whether it related to the
actual practices in some respects or to the legal situation as it stood then,
but for the purposcs of my argument that difference of opinion is not
relevant. I am only concemcd with that idea of continuing with a situa
tion as under the Mandate.
Now, Mr. President, we analysed the situation as under the Mandate,
and as it is necessary for my learned friend to take tha t as his basis for
moving from the Mandate to the new rcgime of the United Nations, how
could he possibly hopc to contend for this power on the part of suggested
supervisory organs within the United Nations?608 SOUTH WEST AFRICA
So, Mr. President, the argument I have just addressed to the Court,
in my submission, conclusively shows that there is no justification
whatever for reading into the Mandate the suggested implications, even
only in respect of supervisory bodies and a fortiori in respect of an
organized international community or the organized international com
munity in generaL
I turn nevertheless, l\fr.President, to the United Nations regime in
regard to trusteeship, because it is significant in furthering the refutation
of the Applicants' suggestion. Do we there find the powers contended
for by the Applicants on the part of the supervisory bodies, even in
respect of trusteeship? The answer, Mr. President, is again-having
regard to the wording of the relevant provisions and the practice and
comment in that respect-very clearly in the negative-that is, despite
the fact that these trusteeship agreements ail contained a provision in
terms of which the administering authority bound itself "to collaborate
fully with the General Assembly of the United Nations and with the
Trusteeship Council in the discharge of ail their fonctions as defined in
Article 87 of the United Nations Charter".
That is an innovation, of course, which did not find its place in the
mandates system and nevertheless, there was no suggestion in practice,
which I could find or on the part of commentators or authorities, that
there was any binding authority given to supervisory organs in respect
of their supervision of trust territories.
On the contrary, the commentators emphasizcd that there was no
binding nature in the resolutions which could be taken by the supervisory
authorities in that regard. We fmd the relevant provisions of the various
trusteeship agreements cited by Kelsen, in the Law of the United Nations,
at page 630, in footnote 8. The author specifically addresses himself in
the text to the question of the precise effect of actions of the General
Assembly and the Trusteeship Council in the sphere of trusteeships, and
he states at that page, 630:
"As pointcd out, the supervision of the trusteeship administration
is exercisedby actions of the Organisation determined-with respect
to those within the competcnce of the General Assembly and the
Trusteeship Council-by Articles 87 and 88 of the Charter. What is
the nature of these actions relating to the administering authority?
Do they have the character of mere recommendations or are the
unilateral acts binding upon the administering authority? Chapters
XII and XIII do not contain a provision referring to this question
which can be answered only in accordance with a trusteeship
agreement by which the respective competence is conferred upon
the Organisation."
Having examined the varions agreements, Mr. President, the author
then concludes as follows, at the same page: "None of the trusteeship
agreements establishes a strict obligation of the administering authority
to comply with a unilateral decision of an organ of the United Nations."
That is the end of the quotation from Kelsen.
An occasion on which judicial consideration was given to this matter
was when the opinion was requested of this Court in the Voting Procedure
matter in regard to South West Africa in 1955. There, this very same
view as was expressed by Kelsen, which I have just read to the Court,
was expressed very forcibly by Judge Lauterpacht in his separate REJOINDER OF MR. DE ·VILLIERS
opinion, and with reasoning and quotation of relevant material in support
of that view. He concluded that resolutions of the General Assembly
normally referred to recommendations: "... whose legal effect, although
not always altogether absent, is more limited and approaching what,
when taken in isolation appears to be no more than a moral obligation."
That is in the I.C.]. Reports I955, at page n6. Then follows, Mr. Presi-
dent, this significant passage at the same page: ·
"This, in principle, is also the position with respect to the
recommendations of the Ge~eral Assembly in relation to the ad
ministration of trust territories. The Trust Agreements do not pro
vide for a legal obligation of the Administering Authority to comply
,vith the decisions of the organs of the United Nations in the matter
of trusteeship. Thus there is no legal obligation, on the part of the
administering authority to give effcct to a recommendation of the
General Assembly to adopt or depart from a particular course of
legislation or any particular administrative measure. The legal
obligation resting upon the Administering Authority is to administer
the Trust Territory in accordance with the principles of the Charter
and the provisions of the Trusteeship Agreement, but not necessarily
in accordance with any specific recommendation of the General
Assembly or of the Trusteeship Council. This is so as a matter bath
of existing law and of sound principles of government. The Ad
ministering Authority, not the General Assembly, bears the direct
responsibility forthe welfare of the population of the Trust Territory.
(May I pause there for a,moment, still basically the same position
as in the case of the League with regard to the Mandate.] There is
no suffi.dent guarantee of the timeliness and practicability of a
particular recommendation made by a body acting occasionally
amidst a pressure of business, at times deprived of expert advice
and information, and not always able to foresee the consequences
of a particular measure in relation to the totality of legislation and
administration of the trust territory. Recommendations in the
sphere of trusteeship have been made by the General Assembly
frequently and as a matter of course. To suggest that any such
particular recommendation is binding in the sense that there is a
legal obligation to put it into effect is to run counter not only to the
paramount rule that the General Assembly has no legal power to
legislate or bind its Members bv wav of recommendations, but, for
reasons stated, also to cogent conside"rations of good government and
administration." (I.C.]. Reports 1955.)
Therein is an exact endorsement, with respect, Mr. President, of the
argument I have addressed to the Court this morning with reference to
the League System. The quotation proceeds:
"In fact States administering Trust Territories have often asserted
their right not to accept recommendations of the General Assembly
or ofthe Trusteeship Council as approved by the General Assembly.
That right has never been seriously challenged."
Examples are then given, Mr. President, which are rather interesting,.
at pages n6-II7 of this report. There was one concerning Tanganyika,
a British Mandate where there had apparently been a suggestion that
"... the existing tribal structure in Tanganyika is an obstacle to the
political and social advancement of the indigenous inhabitants ... ".6ro SOUTH 'WEST AFRICA
The Administering Authority rejected tlus on the ground that-1 quote
at page u7-"the great mass of the people everywhere are strongly
attached ta their tribal institutions and in most cases offer strong
resistance to any suggestions of serious modification". One might say,
Mr. President, there is a suggestion there of an application of something
like a standard of non-differentiation seriously opposed by the adminis
tering power.
Then there was an example in regard to \Vestern Samoa where there
was a recommendation for the introduction of a system of universal
suffrage applicable to all inhabitants of Western Samoa. 'The Adminis
tering Authority informed the Council that-
"it would be entirely wrong to force on the Samoans any radical
change in their customs since the introduction of universal suffrage
at this stage would be incompatible with that respect for Samoan
culture to which it and the Government of Western Samoa are
equally urged by the Trusteeship Council".
The next example related to a case in Nauru where the Australian
Government, as the Administering Authority, explained that it was
unable to act upon a recommendation regardfog investment of funds;
and the last one concerned the Pacifie Islands Trusteeship Agreement
in respect of which the United States was the Administering Authority.
There, the recommendation was the reconsideration of a head tax in the
Pacifie Islands. The Administering Authority explained why, in its
opinion, this was a satisfactory and desirable form of tax under the
economic and political conditions prevailing in the Trust Territory.
Mr. President, having referred to these examples, the leamed judge
proceeded to state that while administering authorities are not bound
to give effect to a resolution or recommendation, they are at least bound:
"to give it due consideration in good faith" (p. n9). The relevant
passage thereafter reads as follows:
"Bath principle and practice would thus appear to suggest that
the discretion which, in the sphere of the administration of Trust
Territories or territories assimilated thereto, isvested in the Members
of the United Nations in respect of the Resolutions of the General
Assembly is nota discretion tantamount to unrestricted freedom of
action. It is a discretion to be exercised in good faith ...Although
there is no automatic obligation to accept fully a particular re
commendation or series of recommendations, there is a legal obliga
tion to act in good faith in accordance with the principles of the
Charter and of the System of Trusteeship. An administering State
may not be acting illegally by declining to act upon a recommenda
tion or series of recommendations on the same subject. But in doing
so it acts at its peril when a point is reached when the cumulative
effect of the persistent disregard of the articulate opinion of the
Organization is such as to foster the conviction that the State in
question has become guilty of disloyalty to the Principles and
Purposes of the Charter. Thus an Administering State which con
sistently sets itself above the solemnly and repeatedly expressed
judgment of the Organisation, in particular in proportion as that
judgment approximates to unanimity, may find that it has over
stepped the imperceptible line between impropriety and illegality,
between discretion and arbitrariness, between the cxercise of the REJOINDER OF MR. DE VILLIERS 6rr
legal right to disregard the recommendation and the abuse of that
right, and that it has exposed itself to consequences legitimately
following as a legal sanction." (J.C.J. Reports r955, p. 120.)
Again, Mr. President, I may just say by way of comment, that that
concurs completely, in our submission, with the argument we have
addressed to the Court on situations of this kind~a difference between
acting illegally automatically and an element of fact which can be taken
into account in order to see whether a discretion has been used lawfully
or whether it has been abused.
[Public hearing of r4 June r965}
Mr. President and honourable Members, the Court will recall that at
the conclusion of my address on Friday I had just finished quoting to
the Court a rather lengthy extract from the separate opinion of Judge
Lauterpacht in the Voting Procedure case in 1955. The context of it, the
Court will recal1, was that of our answer to the Applicants' contention
relating to standards as distinct from nonns. The Court will recall that
the Applicants' "standards" contention is to the effect that standards
could be laid down either by the organized international community in
general, or by specific supervisory organs in respect of mandatory
administration, and that those standards would then be binding upon
the Mandatory in its administration of the territory; they would consti
tute authoritative interpretations binding upon the mandatory and
binding upon the Court in regard to the interpretation and application
of Article2, paragraph 2,of the Mandate.
The Applicants started with a basic difficulty in that standards, as a
matter of notion or as a matter of concept, are in themselves never
binding rules. The Applicants therefore had to find a basis for saying
that standards could in this context nevertheless be said to be binding
in law upon the Mandatory, and they attempted to find that by reading
a qualification intothe mandate instrument itself, a qualification to the
effect that in its administration of the Territory the Mandatory would
be bound by standards laid down either by the organized international
community or by specific supervisory bodies. We pointed out, Mr.
President, that that contention was said to rest upon an interpretation
of the mandate instrument, but that, in truth, it could not rest upon
interpretation because there were no words, no provisions whatsoever,
in the mandate instrument or in the attendant, basic instrument,
Article 22 of the Covenant, which could !end any colour whatsoever to
that contention-no words which could be interpreted to that effect.
Therefore the argument had to rest upon an implication in the basic
instruments, an implication based on necessary inference from all the
relevant evidential material as to the probable intent of the founders
of the mandates system. We dealt with the whole field in that regard,
and indicated that the evidence and the relevant indications all tend
one way and one way only, and that is not in favour of the Applicants'
contention; it is directly contrary to that contention. We dealt with
the wording of the relevant instruments and the indications afforded by
them and, also by the Covenant of the League as a whole. We dealt,
Mr. President, with the relevant antecedent history, with the compromise
history of Article 22 of the Covenant and with the pertinent indications
that it afforded. We dealt with the virtually simultaneous, or contem- SOUTH 'WEST AFRICA
poraneous exposition in the report of Mr. Hymans. We dealt with the
indications afforded by the actual practice of the League supervisory
organs, as stressed by those organs themselves according to the relevant
records and by commentators upon their activities. That brought us,
then, to the end of the League period.
We came to the regime of the United Nations relative to the trusteeship
system, and also relative to possible supervision of the Mandate for
South West Africa on the basis of assuming, for purposes of argument,
as the Applicants do, that the Opinion of the Court in 1950 on that
question was correct. And we pointed out that there also the contempla
tion of the commentators and the relevant instruments very clearly
tended directly against the Applicants' contention, and in no way lent
any colour to it whatsoever. It was in that context that we cited the
extracts from the separate opinion of Judge Lauterpacht in 1955, in the
Voting case---extracts which, as the Court will recall, also referred to
very pertinent attitudes taken up by various administering authorities,
States administering trusteeships under the rcgime of the United Nations
trusteeship system, that is, instances where the administering authorities
very firmly took up the attitude that they were not bound by recommen
dations made by the supervisory bodies, and that they would, in the
particular instances, decline to follow them because they did not regard
them as being in the best interests of the inhabitants of the respective
terri tories.
I proceed then, Mr. President, to the separate opinion of Judge
Klaestad in those same proceedings and in the same context. If anything,
his view to the sarne effect was stated even more emphatically. I quote
from the I.C.J. Reports I955, at pages 87-88:
"Article 18 [that is, of the Charter] does not make any distinction
between 'decisions' and 'recommendations'. It refers to 'decisions'
as including 'recommendations'. These decisions of the General
Assembly on 'important questions' are of different categories. Sorne
are de.cisions with a finaland binding effect, such as, for instance,
the election of members of the various organs of the United Nations
or decisions approving the budget of the Organization by virtue of
Article 17. Sorneother decisions are recommendations in the ordinary
sense of that term, having no binding force. Recommendations
adopted by virtue of Article ro concerning reports and petitions
relating to the Territory of South-West Africa belong in my opinion
to the last-mentioned category. They are not legally binding on the
Union of South Africa in its capacity as Mandatory Power. Only
ifthe Union Government by a concurrent vote has given its consent
to the recommendation can that Govemment become legally bound
to comply with it."
Mr. President, in the other opinions given in those proceedings-the
Opinion of the Court, and, I think, the only one other separate opinion,
that of Judge Basdevant-there werc no vicws in conflict with these
expressed by the two learned judges whom I have cited, Judge Lauter
pacht and Judge Klaestad. It was apparently, on the view which the
other judges took of the situation, unnecessary for them to enter into
this aspect of the matter in any detail at all. The Court will recall that
ail the judges came to the same conclusion ultimately in the matter which
was put to the Court for its advisory opinion. I may refer the Court to REJOINDER OF MR. DE VILLIERS 613
a passage in the Opinion of the Court itself, at page 76, which indicates,
without going into th..ismeasure of detail, a broad concurrence of view
in this particular respect. The passage begins by stating:
"lt is to be recalled that the Court, in its previous Opinion,
stated that 'The competence of the General Assembly of the United
Nations to exercise such supervision and to receive and examine
reports is derived from the provisions of Article ro of the Charter,
which authorizes the General Assembly to discuss any questions
or any matters within the scope of the Charter and to make
recommendations on these questions or matters to the Members of
the United Nations'."
That is the end of the quotation from the previous Opinion, and the
passage proceeds:
"Thus, the authority of the General Assembly to exercise super
vision over the administration of South-West Africa as a mandated
Territory is based on the provisions of the Charter. While, in
exercising that supervision, the General Assembly should not deviate
from the Mandate, its authority .to take decisions in order to effect
such supervision is derived from its own constitution.
Such being the case, it follows that the General Assembly. in
adopting a method of reaching decisions in respect of the annual
reports and petitions conceming South-West Africa should base
itself exclusively onthe Charter."
The general statement of principle is then specifically directed to that
question which was in issue before the Court, namely the question of
voting procedure, but I submit, Mr. President, the Court made the
general contemplation perfectly clear-that what the Assembly would be
doing here would be acting exclusivcly, as far as its authority was
concemed, as an organ of the United Nations; it would be acting in
terms of the authority given to it in Article ro of the Charter, which
is an authority to make recommendations and nothing more.
So, Mr. President, having regard ta all the evidence stretching over
a period of 45 years and more of the history of the basic instruments, of
practice within the time of the League in the League organs, of comment
on tha t practice, of practice within the Unit cd Nations thereafter, and of
comment on that practice, we find that after ail this time there isnot one
shred of evidence or of comment which favours this suggestion of the Appli
cants, of an implication to be read into the basic mandate instrument.
Surely if there was any suggestion of even a possibility of a tacit
agreement on that point, of a general understanding which was so
clear that the parties toit did not trouble to put it in writing because it
was too clear, somebody ovcr all these years would have raised that point,
and said: "But these powers of the supervisory organs are not so limited
at all: after all, we ail perfectly understood tacitly, although we did not
say so, that these supervisory organs would be able to lay down binding
standards upon the mandatory". We do not find a word, Mr. President,
over all these years. Surely if a party is driven to these lengths in an
argument which was not just putto the Court in passing, but was putto
the Court repcatedly over a number of days-this argument of the
Applicants based on standards and based on this suggested interprctation
of the mandate instrument-if a party is driven to such lengths and
there is nota shred of evidence of supporting material for that contention. SOUTH WEST AFRICA
and that is the position in a case which started off on a note of being
beyond argument, then surely there is only one conclusion and that is
that the writing must be on the wall.
One must, then, begin to expect, as one indeed finds, that ail the
alternative arguments on this theme about standards and a norm have,
in truth, no greater merit than this one, because this one is stretched to
its greatest possible limits and yet one finds nothing in support of it.
I proceed,Mr. President, from this contention, relative to the standards
part of the Applicants' case, to consider an alternative. The contention
which I have considered thus far has been specifically directed to the
role to be played by supervisory organs as such. As I pointed out, the
Applicants had an alternative in that very contention, the alternative
relating, on the one hand, to the supervisory organs as such, and, on the
other hand, to a so-called organized international community in general,
or theorganized international commuùity, as it was put by the Applicants.
Now, Mr. President, since I demonstrated that there is nothing whatever
in the contention with reference to the supcrvisory organs as such,
then a fortiorthere can be nothing in it with reference to this nebulous
concept, the organized international community.
If it was unthinkable, Mr. President, that the authors of the mandates
system could bestow upon the supervisory organ the exclusive competence
to bind Respondent by defining or prescribing standards, then surely it
would be absurd to suggest that it could have been their intention to
bestow such competence upon a vague concept such as the organized
international community.
As far as we have been able to ascertain, this expression "organized
international community" was one which was not used or known in the
League time at all, even in non-legal connotations. \Ve may be wrong,
but we never came across it as having been used in that period at all.
It seems to have first reared its head in the United Nations time, towards
the end of the 1940s, as far as we could ascertain. It may be that we over
looked something somewhere. But be that as it may, the documents to
be intcrpreted speak only of specific supervisory organs. We have shown
to the Court before that the wording of the documents in that respect is
in entire accord with the practical contemplation of the parties at the
Peace Conference, before the documents were drafted, and that it was
a matter of practical importance for them that those specific supervisory
organs should be the supervisory organs, and no other.
We have shown, Mr. President, in the argument which I have just
concluded, that it could not have been the intention of the authors of
the Mandate to bestow the competence under consideration on this
specific supervisory organ. How could it then seriously be suggested
that they ncvertheless intended to bestow this competence on an unde
fined international community, which would not receive reports, which
would not consider reports, which would not be in possession of ail the
relevant facts?
We might ask, i\'Ir. President, what is comprised in this concept
"the organized international community"? The Court will recall that
we had occasion to deal fully with the mattcr in the Rejoinder, V, at
pages 49 to 53, in the light of the contention which was advanced by the
Applicants in their written Reply regarding the question of the survival
or otherwise of international accountability, as they put it,after the
dissolution of the League. The Applicants appeared to attach (for the REJOINDER OF MR. DE VILLIERS 615
purposc of that contention of theirs) legal significance to this concept
about which they were talking, viz., the organized international com
munity, and we pointed out in tlùs portion of the Rejoindcr that such
legal significance could not possibly be attached to such a concept. We
pointed to the contradictions and the inconsistencies in the Applicants'
attempt to give some lcgal content to this contention-that we find in
the passage to which I have referred-and we concluded, Mr. President,
especially at V, pages 52 to 53, by showing how absurd it was in a
practical scnse to speak of what happened in the time of the League as
being supervision by an entity to be called "the organized international
community", on the one hand, vis-à-vis manda tory powers, on the
other hand.
!Ilay I cite from page 53:
"In fact, Applicants' whole concept of the 'organized international
community' is in conflict with the most basic principJes of Jnter
national Law. In order to argue that the 'organized international
community' possessed legal rights and interests, and granted legally
effective commissions or Mandates, Applicants would be constraincd
to contend that it was a legal persona."
That is, Mr. President, in so far as they contended that this organized
international community held rights distinct from the rights of the
Members comprising the Organization, and that that Organization as
an entity could then grant Jegally effective commissions, impose obliga
tions, and so forth. I now proceed with the quotation:
"However, it is still an open question whether even the League of
Nations, a specific international body with a constitution and with
defined corporate fonctions, ever possessed legal personality. A
fortiori the 'organized international community', an undefined and
amorphous concept, could hardly, at any rate at the time of creation
of the 1\fandate System, have been accepted as a legal persona."
IfI may interrupt there, we proceeded then to deal with this practical
aspect of the matter to which I have just rcferred:
"Finally, the picture of an 'organizcd international community'
acting as something distinct from the Mandatories and imposing its
will on them, is an entirely unrealistic one. In fact, on any conception
of the 'organized international community' (including that of the
Applicants), the Mandatories largely dictated the policy pursued by it
with respect to :Mandates. Thus, whether as Allied Powers, or as
Members of the Council of the League, or as Mandatories, France;
Japan, Belgium and Great Britain and its Dominions played vital
roles in the creation and operation of the Mandate System."
We then referred, Mr. President, to a quotation from Duncan Hall
about the conferences, the debates, in which the various Dominions
stated their attitudes on the proposais regarding the future of the
Gem1an colonies. The quotation reads:
"It was the governments taking part in this debate that, by their
agreement, created the mandate system. Jt was they that drafted
the self-imposed limitations of the mandate charters. It was they
that put the system into operation, wcakened though it was by the
absence of the United States."616 SOUTH WEST AFRICA
Duncan Hall continues by stating that it was these government&-
"... that sustained it [i.e., the Mandates System] and made it
effective by their loyal cooperation with the central organs of the
League during the twenty-six years of the League's life'·.
The text of the Rejoinder proceeds at V, page 53:
"For the whole period of the League's existence, the learned author
points out, the relationship between the Lcague and the Mandatory
Powers remained as described by Mr. Balfour in the Eighteenth
Session of the Council, when he said [again a quote from Hall]:
'... " mandates were not the creation of the League, and they
could not in substance be altered by the League". He further
pointed out that "a Man.date was a self-imposed Limitation by the
conquerors on the sovereignty which they exercised over the con
quered territory. In the general interests of mankind, the Atlied and
Associated Powers had imposed this limitation upon themselves, and
had asked the League to assist them in seeing that this general
policy was carried out, but the League was not the author of
it ... " '."
Mr. President, after that demonstration in the Rejoinder, the Appli
cants, if I understood them correctly, desisted in their oral argument in
chief in thls Court from again attempting to assign legal significance to
this phrase "an organized international community" or "the organized
international community", although still using it for certain descriptive
purposes. But now, when it cornes to thcir oral reply, and in this new
and novel formulation of their case, we find that this concept "organized
international community" creeps in more insistentJy and it p1ays an
ever-increasing and a more and more important part of the suggested
legal significancc inthe statement of the Applicants' case, both in regard
to standards and in regard to the norm contention to which I shall corne
later. That is why I think it worth while to devote some attention toit at
this stage in connection with the standards contention.
Mr. President, let us analyse these various concepts "an organized
international community" and "the organized international community' '.
The Court in 1962 used the expression "an organized international
community" with reference to the League of Nations; if I may say so,
with respect, that is a perfectly Jegitimate description, provided one
bears in mind that it is a description and nothing more. lt has no particu
lar legal significance apart from indicating that here is a community of
States-a group of States-forrning an international organization with a
constituent instrument and, therefore, Mr. President, having an institu
tional existence, and, as such, being able to act as a unit-institutional
either in the sense of being a Iegal persona or in the sense of being an
association of subjects of international law of the nature of an unin
corporatcd association, but, nevertheless in that sense, forming a unit,
an institution, and being capable of acting as such.
Granted that an organized international community is a fit descrip
tion, then, of the League of Nations, and granted that that may also be a
fit description of the United Nabons, what brings my learned friend to
the length of saying that both of these represented the organized inter
national community, and that, in fact, the real institution (that seems to
be the suggestion of the argument), the real entity with which we are
dealing, has remained the same, having merely a different manifestation REJOINDER OF MR, DE VILLIERS
now from what it had in the League time? How does my leamed friend
come to that?
The League and the United Nations are examples of organized inter
national communities in that sense, contractually established, as I have
tried to describe. The organized international community has never been
contractually established, it has no institutional existence, it has no
constituent instrument, it can never be said to be something of the
nature of an artificial persan, or an unincorporated association of
persans. It could, perhaps, be said to be something in the nature of a
social concept; perhaps one could speak of it as a sociological phenomenon,
and in that scnse speak of it as being something rcal, but if it is not some
thing real in that sense, Mr. President, then it must be either just a dream
or nothing. It certainly is not something lying in bctween being nothing
and being a sociological phenomenon. It is certainly not, legally speaking,
either an artificial persan or an unincorporated association of persans,
something having an institutional existence in that sensc and being able
to act as an institution, as is possible in the case of an organized inter
national community such as the League and the United Nations.
When writers like the late Judge Lauterpacht speak of the inter
national community-we find that is a phrase very often used by
writers-then they are speaking metaphorically of the aggregate of
sovereign States; they are not speaking of something in an institutional
sense. I should like to refer the Court, in that regard, also to comment,
first,that on the part of an author, Karl Strupp. lt is in the Hague
Academy Recueil, Volume 47 (1934 1), at pages 323 and 324, and the
following is our translation of the passage from the French. He States
that as regards the international community of nations or similar
concepts-
"If one is content to speak about the community of nations in
the political sense it can only be applauded ...
But, if one runs through the literature, one easily finds that the
definitions are not dear and that they lack juridical precision. That
is not surprising, in view of the absolute lack of precision of the term
and the absence of a real legally tangible international community.
[I skip some lines and the learned author proceeds} But at the
moment that one passes, as is done, from the notion of the political
domain to that of law in order ta infer consequences as to the
problem of sources of international Jaw, one ought, in the actual
circumstances (1 repeat this) to protest against such alteration of
facts, whether one calls it community of nations or rather, which
reminds one of the famous European concert with its permanent
disagreements, family of nations, nothing can mislead as to the fact
that, juridically, a community which has not been organized can
never create valid juridical nonns. The contrary notion is no more
than a pious vow." ·
I wish to refer the Court also to the work of the honourable Member of
the Court, Judge Morelli, Nozioni di diritto internazionale, at pages 3-4,
that is in its sixth revised edition, and the following is our own translation
into English of the relevant passage under the heading International
Community:
"The co-existence of several similar entities, which find themselves
in relationship one with another-a relationship resulting from the618 SOUTH WEST AFRICA
link (whether of conflict or of solidarity), between their respective
interests-constitutes what is called a society [that is, then, the co
existence of the several entities which find themselves in relationship,
that constitutes a 'society'J. The recognition of the existence of a
nwnber of States possessing interests, arnongst which there developed
the relationships that have been analysed, thus leads to the notion
of a society of States, or an international community.
This society had, during the medieval epoch, a hierarchical
structure. The so-called Republic of Christian Peoples (the Holy
Roman Empire), was, in fact, the result of a complex of political
units which, in addition to being bound one to another by relation
ships of a feudal character, were ail subordinate to two supreme
authorities: on the one band, to the authority of the German
Emperor, the successor to the Roman Emperors and the temporal
head of Christianity, and, on the other band, to the authority of the
Pope, the spiritual head of Christianity. But, later, this twofold
relationship of subordination disappeared. On the one hand, the
States asserted their independence of the Emperor (civitates supe
riorem non recognoscentes}; and, on the other hand, even the authority
of the Pope declined, above ail as the result of the Protestant
Reformation, which shattered religious unity. There thus occurred
a profound transformation in the structure of the international
community-a transformation which it is the custom to trace back
to the Thirty Years War (1618-1648), and more precisely to the
Treaties of Münster and Osnabrück (1648), commonly known as the
Treaties of Westphalia, which put an end to that war. The inter
national community assumed, that is to say, the structure of a
society no longer hierarchicaI1y organized but paritative, th,;
members of which, not being subordinate to any power superior to
them, found themselves one towards another in a simple relation
ship of co-ordination. This is the structure which the international
community still retains, notwithstanding the current and ever
growing tendency towards the organization of groups of States."
Again, here, Mr. President, the contrast-the distinction-is drawn
between, on the one band, the international community in that sense,
with no hierarchical structure superior toit, the units in a relationship of
parity, of equality to one another, a simple relationship of co-ordination
without being organized by any constituent instrument into an institution
and being able to act as such, and, on the other, to the notion of the
organization of groups of States.
So, Mr. President, that brings us back then to the way in which my
leamed friend in his contention juggles around with these notions of an
organized international community, the international community, and
the international society. If one does not keep these distinctions very
clearly in mind, from a legal point of view, this juggling may create a
misleading impression, and it may involve what one might call a mystifi
cation with all kinds of unforeseeable consequences.
Let us apply that in a practical sense to the way in which my learned
friend seeks to advance his contention.
My learned friend refers, in effect, not to an organized international
community, nor to the organized international community, nor the
community as a unit, or as an entity. He appears to refer to an aggregate
of what might be called organized international communities in the REJOINDER OF MR. DE VILLIERS
sense of institutions, or organizations having an institutional existence.
And, so, he refers, Mr. President, to the United Nations, he refers to
Specialized Agencies, he refers to the International Labour Organisation,
he refers to Regional Organizations such as the Organization of American
States, and so forth. One wonders where the line is to be drawn. Should
one refer also to other international organizations, such as the Inter
national Lawn Tennis Federation, or the Olympie Organization? Should
one refer to scientifi.c organizations?
Mr. President, this last question is not entirely facetious. Scientific
international organizations can and do Jay down standards, or attempt
to lay down standards in their particular spheres of scientific knowledge.
Does my learned friend suggest that those are also part of the organized
international community, that they can also Jay down standards, and
that those standards would be binding upon the Mandatory? If not,
why does he exclude those? Does he say that the organized international
community is to be seen mercly as a politically organized international
community, and, ifso, Mr. President, why are the political forces in the
world to be so much stronger in the normative processes of law which
are to be binding upon the Mandatory and upon this Court than the
other forces creating standards in the world?
The whole contention, l\lr. President, makes no sense, and, as I have
said, if one concludes, as I submit we have conclusively shown that one
must, that there was no contemplation whatsoever of a laying down of
binding standards by the supervisory bodies, as such, then a fortiori
this whole suggestion of a nebulous body like the organized international
community being endowed with that power must have even Jess sub
stance.
That brings us, then, to the Applicants' second contention in regard to
standards. The Court will recall the first one merely rested on these two
legs, the organized international community and specific supervisory
bodies. We corne to the second one which is advanced in the alternative,
and that is to the effect that by becoming a Member of the United
Nations and the International Labour Organisation, the Respondent
bound itself to give effect to standards embodied in the Charter and
in the Constitution of the International Labour Organisation, and,
Mr. President, to authoritative interpretations of the Charter and of the
International Labour OfficeConstitution-authoritative, soit is suggested
by reason of having been given by organs of those associations, very
often by a mere majority vote, although my Jearned friend suggests that
the majority vote oftcn approached unanimity. \Ve corne to those
degrees of refinement at a later stage.
Iwant to make plain, first, that we are not now dealing with a sugges
tion that we are to look at particular treaty obligations defined for the
Respondent in the Charter and in the International Labour Organisation
Constitution-obligations which the Respondcnt accepted conventionally
by becoming a member of those two organisations. These obligations are,
of course, the basis of a contention upon which the Applicants rely; they
rely upon them, if I understand them correctly, in regard to their norrn
contention particu1ar1y-they say that there are certain provisions in
the Charter and in the I.L.O. Constitution which impose relevant
obligations upon the Respondent whcn they are properly interpreted;
that they in themselves must be taken as establishing standards or a
norm of the kind contended for by the Applicants.620 SOUTH WEST AFRICA
That is a matter, Mr. President, which goes to the particular content
of the norm and the standards and the suggested content of specific
provisions of the Charter and of the 1.L.O. Constitution. I do not propose
to deal with those now. I shall deal with those in relation to the norm
contention, although what I shall say in that respect will be equally
applicable to the extent that the Applicants regard this as relevant to
their standards contention.
For the moment, I am concerned with the more general question of
how, assuming any content, it does not matter, what any content for
particular provisions of the Charter and of the I.L.O. Constitution,
are those provisions and authoritative interpretations of them brought
into relationship with the obligations of the Respondent under the
Mandate? That is the question to which I want to address myself first,
because that is the important bridge which the Applicants also had to
cross for the purposes of their standards contention.
If one supposes, Mr. President, that there were certain provisions of
the Charter and of the I.L.O. Constitution that were interpreted, applied
in practice, by the organs by majority resolutions and so forth, how do
the Applicants see those as being related to the Respondent's obligation
under the Mandate? If we understand them correctly, they say that those
authoritative interpretations are to be seen as laying down standards
which, in their turn, are then governing and are authoritative with
regard to the interpretation of the Mandate.
I can read from the verbatim record of r8 May, at page 340, supra.
There the Applicants saicl that reports, resolutions and conclusions ofthe
International Labour Organisation-
"... form authoritative interpretations of the Constitution and, as
has been said, if they are authoritativc interpretations of a conven
tion or constitution to which the Respondent has adhered-an
organization of which it has been a Member-then such interpreta
tions provide an authoritative basis for the interpretation and
application of the standards embodied in the mandate instrument
itself ... ".
Mr. President, that is, with respect, rather a mouthful. The whole
argument is a very strange one. Here, the Court is concerned with the
interpretation and application of a particular instrument, call it a
treaty or convention, call it an instrument of a different kind; it is an
international legal instrument. That is the task before the Court; the
Court derives its jurisdiction from a provision which authorizes it to
decide disputes in regard to the interpretation or the application of the
provisions of the Mandate. Now my learned friend cornes in and says
"yes, but there are the provisions of other instruments-vau became a
party to those instruments. Those have been interpretecf and now all
those arc to be relevant to the performance of your obligations under this
first instrument, the Mandate".
Mr. President, surely, unless my learncd friend can bring about, can
establish, that there is some link between the first instrument and these
later ones, which bring the provisions of the later ones, as it were, into the
provisions of the earlicr one, where does that get him-either as a
matter of substance, of saying that the obligations of the mandate
instrument have been violated, or as a mattcr of jurisdiction, of bringing
the matter within the clause which provides for adjudication by the
Court? REJOINDER OF MR. DE VILLIERS 621
Let us take an example, Mr. President. Suppose a Mandatory, having
entered into the mandate arrangement, at some stage or other, sees fit
to enter into a defence pact, another international agreement, with
other States, because it thinks under the circumstances that that would
be entirely in accordance with the interests of the mandated population
it would be a good thing, for the mandated people, for the inhabitants of
the territory it would serve to protect them. The years go by and even
tually the Mandatory finds that circumstances have changed and that
the honouring of this defence pact may indeed imperil the continued
existence of the whole of the mandated population. Under those circum
stances, then, the l\fandatory decides not to honour its obligations under
the later agreement. CouJd it then ever be said that, although that is a
violation of the later instrument, it must also be scen as being a violation
of the obligations of the Mandatory under the mandate itself, when the
very reason for not complying with this later obligation is the desire to
comply with the obligations of the mandate instrument of promoting
well-being and progress to the utmost?
I have taken an example of that kind in order to demonstrate to you
what would seem to be an obvious proposition, l\Ir. President, that if
instruments, in which obligations are accepted, stand in no relationship
to one anothcr, if they do not provide a necessary link whereby the provi
sions of the later ones are, as it were, incorporated into the earlier ones,
then the question whethcr the later one is complied with or not, can have
no bearing whatsoever upon the question whether or not there has been a
violation of the provisions of the first instrument. Itcan have no bearing
upon a question pcrtaining to the interpretation and the application of
. the provisions of the first instrument.
So let us thcn sec whether my learned friend succeeded in establishing
any such necessary link between the mandate instrument and these
later conventions. In regard to the United Nations Charter, the Applicants
did make an attempt to establish such a link. The Court will recall that
in the .Memorials they relied upon a contention of in pari materia.In the
Memorials, 1, at page 106, they stated-
"... that Chapters XI, XII and XIII of the United Nations Charter
are in pari materia with Article 2 of the Mandate and Article 22 of
the Covenant and, therefore, that the terms of the Charter may be
employed in construing Article 2 of the Mandate and Article 22 of the
Covenant".
Mr. President, we dealt with that contention in our Counter-Memorial,
Il, at page 395, and we pointed out the following~we said:
"It is understandable that where a particular conference adopts a
number of similar conventions, the terms of one of them may be of
some assistance in interpreting another. To assert, however, that a
convention conclnded in 1945 can be used as an aid to asccrtain the
intentions of the parties to a convention concluded between different
States in 1920, is, in Respondent's submission, so obviously absurd
as not to warrant serious consideration."
With respect, Mr. President, and with submission, I reiterate that that
is so. If it is a matter of interpreting,of fmding the probable intent of
authors of an instrument, and those same authors made different in
struments more or Jess at the same time and expressed themselves more622 SOUTH WEST AFRICA
or Jessin the same type of language, then of course the one may assist on
a pari materia basis in interpreting the other, either by reason of contrast
or by reason of similarities or the like. But surely when an instrument is
entered into 25 years after the other, how could there be any basis for an
argument of this kind? The Applicants apparently realized this difficulty
because we found that in their written Reply they did not advert to this
matter at all again.
Again, Mr. President, we did not understand them to advance such
a contention in their oral argument in chief in this Court but now, when
it corne? to the oral reply, in presenting the case now in this last modelled
form to the Court, we find there is a reversion to this pari materia
suggestion, although this time it isnot relied upon in itself. The suggestion,
if I understand it correctly, is that it really finds its basis in another
consideration which is really relied upon as the link and that is, the
resolution of the League Assembly on 18 April 1946. The Applicants say,
in the verbatim of 18 May, at page 327, supra, after referring again to
Chapters XI, XII and XIII of the Charter-of their in pari materia
contention in that regard-that the resolution of the League of Nations
of 18 April 1946 noted, inter alia [and they quoted from the resolution]:
"that Chapters XI, Xll and XIII of the Charter of the United
Nations embody principles corresponding to those declared in
Article 22 of the Covenant of the League"-
and they proceeded to contend, at page 329, supra, of that same record,
that this resolution-
"... is in itself a clear indication of the relevance to and applica
bility of Charter provisions to the mandates scheme. Respondent
itselfis not only a party to the Charter of the United Nations, but
supported and voted for the resolution of 18 April 1946, which on
its face establishes the relevance of the provisions of the Charter to
the mandates system".
Now, Mr. President, this is not an entirely new argument either.
It first reared its head in the written Reply, with which we dealt in the
Rejoinder, V, at page 139, and we pointed out there that in the League
resolution-
"The word 'principles'is not synonymous with 'detailed provisions',
and 'corresponding' does not mean 'identical'. The League resolution
consequently did not purport to convey that Article 22 must be
interpreted as containing ail the provisions of Chapters XI, XII
and XIII of the Charter, and such a suggestion would indeed have
been absurd. The resolution did not purport to 'note' any more
than that the basic principles underlying the said Chapters of the
Charter are similar to those found in Article 22 of the Covenant."
The Applicants in their oral argument in chief in this Court, offered
no answcr whatever to this. They completely ignored this passage from
the Rejoinder. Nevertheless, when it cornes eventually to their oral
reply, they simply reiterate the same contention as before, and they still
ignore this passage in the Rejoinder. They do not deal with it; they do not
attempt to meet it in any way. Surely, Mr. President, with respect and
with submission there is no answer to what we stated in the Rejoinder.
By referring to the fact, by noting the fact, that those chapters of the
Charter embody principles corresponding to those referred to in Article 22 REJOINDER OF MR. DE VILLIERS
of the Covenant of the Lcague, what is this that the Applicants are
suggesting that this resolution of the League accomplished? Surely,
principles corresponding to, do not mean provisions identical with.
Surely the mere fact that those were the cautious words he used indicated
that there was no intent whatsoever to indicate that there was to be an
identity-that the provisions as such were being taken over into the
Charter, or conversely, that the Charter was to be read as now being
"a re-definition" of what was originally stated in Article 22 of the
Covenant, which is really the effect of the contention.
If we look at the actua1 provisions of those particular chapters of the
Charter, we find that, in fact, they embody underlying principles of the
same nature as those contained in the mandate system. But their
provisions are very very far from being identical. One finds deviations
in all kinds of respects of which I could givesome examples to the Court.
If one looks at the nature of the supervisory organs, they are completely
different in ways which I have explained to the Court before-I need not
enter into the details again. If one looks at specific things, which may be
done in the course of supervision, one finds that Article 87 of the Charter
makes specific provision that the General Assembly may provide for
periodic visits to the respective trust territories, something which never
occurred in the mandate system, or in any of the provisions relating to
the Mandate.
We find that Article Sr, quite apart from the supervisory aspect,
provides that "the administering authority may, inter alia, be the
organization itself"-not a State, not an advanccd nation, acting as a
Mandatory on behalf of the League, acting as a guardian in tutelage for
the particular population, but an international organization itself
again something entirely foreign to the agreement which cventually
went into Article 22 of the Covenant. ·
So, Mr. President, I still do not understand, with respect and with
submission, how this resolution of the League could in any way be said to
have provided a link to the effect contended for by the Applicants,
which would in order to assist them have had to have the effect that the
provisions of the Charter are now to be read as being incorporated in the
mandate instruments and in Article 22 of the Covenant; and probably
then as governing the mandate instrument itself; a link which would
make them provisions relating to the interpretation and the application
of the Mandate. That link, Mr. President, in my submission, has no
substance whatsoever.
And what other links are there? \Ve find in the oral reply the manner
in which this case has been set out for the Applicants; we find not one
single further reference to any suggested link; this was the only one
relied upon there. Itis true that atone stage the Applicants attempted
to rely on Article 103 of the Charter-that was in the Reply, IV, at
page 517, but, Mr. President, we dealt with that matter fully in the
Rejoinder, V, at pages 138 to 139. And after we dealt with it there,
that point never raised its head again in the Oral Proceedings, or
anywhere in the proceedings. At page 138 we quoted the wording of
Article 103, which reads as follows:
"In the event of a conflict between the obligations of the members
of the United Nations under the present Charter and their obliga
tions under any other international agreement, their obligations
under the present Charter shall prevail." SOUTH WEST AFRICA
We proceeded to state:
"The effect of this Article would be that Article 73 [that was the
Article then relied upon in the Reply by the Applicants], if applicable
to Mandated territories, would prevail over any inconsistent provi
sions of the Covenant, or the Mandate (that is, assuming that the
Mandate is an 'international agreement'). Such inconsistent provi
sions ofthe Covenant or the Mandate wouid then fall away, Ieaving
Article 73 of full force and effect. Article 103 would, however,
not have the effect of amending the Mandate by substituting the
provisions of Article 73 for any inconsistent provisions in the
Mandate.
Since the present action is brought in terms of the compromissory
clause in Article 7 of the Mandate, it would accordingly not avail
Applicants to show that Article 73 of the Charter (which is not
covered by the compromissory clause) is applicable, and not Arti
cle2 of the l\Iandate (which, it is assumed for present purposes, is so
covercd)."
That is the way in which we stated it in the Rejoinder, and, as I have
said, after that the contention never reared its head again. Surely,
Mr. President, it must be as stated. The Charter provision, Article 103,
is an agreement between the parties to the Charter. It provides for what
effect is to be given to their agreement, as contained in the Charter, and
the effect of it is, briefly, that no part of this agreement between the
parties to this instrument will be invalidated by reason of conflict with a
prior engagement by any of the parties under any other instrument.
It affects therefore the position as under the Charter. lt does not
purport to effect the situation as it might obtain under other instruments
which might not even have been entered into between the same parties.
It could not have intended, and in any event it could not assist the
Applicants in establishing a contention to the effect that provisions of the
Charter were now intended to be read into the Covenant or the mandate
instrument. This is what they would have to contend in order to get over
the difficulty already mentioned.
That, then, Mr. President, relates to the suggested links between the
Charter and the mandate instruments. In regard to the Constitution of
the International Labour Organisation, we scrutinized the verbatim
record from one side to the other and from beginning to end, but we
simply could not find that any link whatsoever has been suggested
anywhere in the argument.
To be sure. the Applicants said more than once that the Constitution
of the International Labour Organisation is relevant to an interpretation
of the Mandate, but we are still waiting to hear why that is so, and, we
submit, with respect, that the Court must still be waiting to hear why
that would be so. They never sought to establish any link such as they
would have to establish in order to corne anywhere with this particular
contention. Itwould not, of course, avail the Applicants to say that the
I.L.O. Constitution is relevant because it embodies standards defined
by the organized international community-that would pertain to their
other a gument, which I have deait with and disposed of aiready; I am
dealing with this argument, Mr. President, which takes this form that,
by becoming a party to the International Labour Organisation Con
stitution, the Respondent thereby came to be bound by authoritative REJOINDER OF MR. DE VILLIERS
interpretations of that Constitution which, in some way, are to be seen as
authoritative interpretations of the Mandate itself.
Consequently, Mr. President, this argument-either as pertaining to the
International Labour Organisation Constitution or as pertaining to the
Charter-must fail for this reason, and for this reason alone-the
absence of the necessary Iink, in the sense in which I have been dealing
with it.
As I have said, there are other reasons why we submit that those
provisions of the two Constitutions do ,not assist the Applicants at all
reasons going to the real substance of the Applicants' case, as a matter of
fact~reasons which pcrtain to the actual suggested content of the
Applicants' standards and norm, and, as compared there, with the actual
content of the particular provisions of those Constitutions. We submit,
and we shall later elaborate on that submission, that, in truth, the
Applicants' case in that respect is also totally unfounded. There is
nothing in those provisions which supports the Applicants' contention as
to the content of their standards and the content of their norm-a
content which is then posed as in conflict with the Respondent's obliga
tions under the Mandate, as contendcd for by the Respondent. But that,
as I said, is a different matter with which I shall deal later; it is common
to the Applicants' case both on the norm and on the standards, and I
shall deal with it when we corne to the norm.
Surnmarising then, Mr. President, in regard to the standards we say
that, quite apart from these further considerations, which we shall deal
with when wc corne to the norm contention, the considerations which
I have advanced so far are abundantly sufficient to indicate that the
Applicants' case on standards is without any substance: firstly, because
on a proper interpretation of Article 2 of the Mandate, read in the light
of Article 22 of the Covenant, and having regard to all factors bearing
on the intent of the authors of the mandates system, express or tacit, it is
abundantly clear that neither Article 2 of the Mandate nor any corre
sponding provision of any of the other mandate instruments was intended
to be subject to any qualification that the mandatory would be legally
obliged to give effect to standards prescribed or defined by either a
supervisory organ or by the organized international community, whatever
that term might signify. That, Mr. President, as we stressed, is further
confirmed by the analagous position which applies under the Charter in
respect of trusteeship. This revolutionary innovation, which the Appli
cants contend for, of a power on the part of supervisory organs to impose
binding standards upon a Mandatory or an administering authority,
would therefore if accepted, not, hit at South Africa alone, it would
also hit at the remaining administering authorities under trusteeship
agreements with the United Nations.
Secondly, Mr. President, we contend that, in so far as provisions of
the I.L.0. Constitution and provisions of the Charter are relied upon,
whatever their content may be, they cannot assist the Applicants'
contention in regard to standards, for the simple reason that no link has
been established between those instruments and the Mandate which
could make those provisions themselves or, a fortiori, interpretations
thereof binding upon the Mandatory, or authoritative for, or even rele
vant to, the interpretation of the Mandatory's obligations under the
basic mandates instrument.
That then, Mr. President, subject to arguments which are common to626 SOUTH WEST AFRICA
both the norm contention and the standards contention, concludes the
portion of the argument in reply to the Applicants' case on standards,
and I proceed to deal with the case relied upon in regard to the alleged
norm.
It may be useful to begin by referring again to the distinction which,
as we understand it, the Applicants sought to draw between their
standards contention and their norm contention. They sought to render
their standards binding upon the Mandatory via the mandate instrument,
via a peculiar relationship which they said was created through the
mandate instrument between the Mandatory and either the supervisory
organs or the organized international community. That was the manner
of seeking to make usually non-binding standards, binding upon man
datories.
In the norm contention there is again an argument to the effect that
standards are to be taken as binding upon the Respondent, in particular,
and I take it that that would have had to apply to mandatories in
general and to administering authorities under trusteeship in general.
Here, that contention takes a different form: it is to the effect that
those standards have, quite independently of the original instrument,
developed into a norm of general binding application in international
law-binding not only mandatories and administering authorities under
trusteeship but States in international law in general. And, for that
reason, it is said that the norm must be binding upon the Respondent
also in relation to this case.
Mr. President, again it will be appreciated that, quite apart from the
merits of the rather startling contention that, by the processes as de
scribed by the Applicants, these standards have become binding norms
generally in international law, the Applicants have to face the same
difficulty here, that if that contention should be sound, how do they
relate that normand questions pertaining to the violation of that norm
or alleged violation of the norm-to questions pertaining to the inter
pretation and the application of the Mandate, and again, in both respects
to the question whether there has been a violation of the mandate in
strument, as such, or of obligations undertaken under the mandate
instrument, and to the question of the Court's jurisdiction?
I should like to begin again by referring to the Applicants' difficulties
in this regard, and from that I shall go over to the more substantive
aspects of the suggestion that these standards have become a norm to
the question whether they have been crystallized into a norm in inter
national law at ail.
It is significant to note, firstly, that the Applicants do not contend that
this alleged norm existed as at the stage when the Mandate was granted.
They say in the verbatim record of 17 May:
"Forty years ago Respondent's theory that its racial policies lie
within the ambit of its discretion conceivably might have been
arguable, although even then, in the Applicants' view, not con
vincing[ly. The record says 'convîncing', I take it that that is just
an error.] But the proposition is no longer debatable. With respect
to Respondent's policies of racial discrimination and group separa
tion, international standards and an international legal norm of
non-discrimination and non-separation have achieved authoritative
status during the very lifetime of the Mandate, so authoritative,
indeed, that it is appropriate, in the Applicants' submission, to REJOINDER OF MR. DE VILLIERS
make them applicable as a matter of law perse to the interpretation
of Article 2, paragraph 2, of the Mandate." (Supra, p. 302.)
I stress, Mr. President, that it is said herc that those standards and
that norm "have achieved authoritative status during the very lifetime
of the Mandate". So, however grudging the Applicants are in thcir first
admission or qualification that it might have been arguable 40 years ago,
that it lay in the Respondent's discretion to decide this matter, although
"not even convincingly", nevertheless, they are forced to make this full
admission that this norm, upon which they rcly, did not corne into
existence prior to the formation of the Mandate. It came into existence
"during the very lifetime of the Mandate", and then, not of the mandates
system which was operating in the League's time, but of thisMandate,
because, on analysis, one finds that the events upon which my learned
friends really rely for the establishment of their norm occurred even
after the mandates system, as such, in a practical sense, had ceased to
exist. ·
Mr. President, in regard to the Applicants' case based on the suggested
norm, we pointed out that the Applicants do not contend that the norm
was in existence at the stage when the Mandate was granted, and from
the passage I read to the Court it seems that they admit that the highcst
at which they can put it, is that it came into existence during the very
lifetime of the Mandate, but they go on to contend, towards the end of
that passage, that those standards became crystallized into a norm which
obtained authoritative status, so authoritative indeed that it is appro
priate, in the Applicants' submission, to make them applicable as a
matter of Jaw per se to the interpretation of Article 2, paragraph 2, of
the Mandate.
Mr. President, this passage I have just read is presumably intended
to be an answer by the Applicants to a very basic and a very fundamental
contention and exposition which we gave to the Court, first in the
Rejoinder and thcn later, also, in our argument in chief, the oral argument
in chief in this Court. In the Rejoinder, V, page 127, we briefly put the
contention as follows:
"... the Mandate System, by its very terms as well as its underlying
philosophy, according to the contemplation of its authors, the
policy of the Permanent Mandates Commission, and the practical
application of the system by Mandatory Powers, permitted and
indeed required differentiation among various ethnie, linguistic or
cultural groups, and, consequently, among their individual members,
on the very basis of membership in such a group".
In the argument in support of this contention, Mr. President, in the
Rejoinder we indicated that the differentiation there referred to related
to this very field about which the Applicants' standards and norms are
said to be concerned, ·the field of the allotment of rights, burdens,
privileges, and so forth, on the basis of membership in a race, class or
group. We dealt with these contentions fully in support of this contention
in the Rejoinder, V, at pages rr9-r27, and we briefly repeated those
contentions and we elaborated them in some respects in the Oral Proceed
ings, our oral argument in chief-that is to be found in the verbatim
record of 23 April, at VIII, pages 667 to 673, and we need not repeat that
argument. The Court wiU recall its basic substance-the very terms
contained in the mandates system and in. Article 22, in the Mandate SOUTH WEST AFRICA
itself relating to the liquor trade, milHary training, slave trade, trafficin
arms and ammunition and so forth; the terms in the various "B"
Mandates, relating to tribal lands; the differentiation between the various
the mandates system, and so forth, making it perfectly clear that there
was not only contemplated but prescribed a system of differentiation, and
types of mandates; the various types of communities. in Article 22 of
one finds in practice, in the practice of the mandatory powers and of
colonial powers at the time, that differentiation was practised as a
matter of ordinary, current practice to the full knowledge of the super
visory organs and with their encouragement in all the various spheres.
The Applicants, Mr. President, have not attempted to contest this
part of our argument, and, indeed, it becomes quite clear that they
cannot contest it, and that is why we get this admission from them to
which I referred, although it is in these rather grudging terms. They
do not tell us why it might merely have been arguable in 1920 that the
policies lay within the ambit of the Respondent's discretion; why that
could not have been convincingly argued at that stage. That they
certainly do not tell us; they do not try to do so with reference to the
aspect of the matter which we stressed in the contention to which I have
referred. In other words, in substance they have offered us no answer
at ail, but they admit that the highest at which they can put it, is that
the norm originated in the lifetime of the Mandate.
In effect, therefore, Mr. President, their contention must amount to
this: that not only did the Mandatory-the Respondent-not consent
to this norm being made binding upon 1t,but in fact this norm is directly
in conflict with that which was decided upon in agreement between
Respondent and the other founders of the system in 1920; it is in conflict
with certain of the explicit provisions of the instrument, provisions which
required Respondent to act in a manner which differentiated between the
various groups and their members on the basis of membership in the
group, and in many respects contemplated that the Respondent was to
do so.
Now, Mr. President, the contention of the Applicants therefore as
to the existence of this newly arisen norm immediately raises the question
whether, assuming that contention to be valid, assuming that such a
norm did corne about in international society in general, the allegation
that Respondent js contravening that norm amounts to an allegation of
violation of the Mandate, and consequently, whether tlus Court would
possess jurisdictionto determine disputes with regard to alleged violation
of such a norm, assuming it to exist? \Ve have frequently emphasized
that Article 7, paragraph 2, of the Mandate bestows jurisdiction only to
disputes regarding the interpretation or application of the provisions of
the Mandate, and that is why this question arises for pertinent decision
by the Court.
The Applicants again make an ingenious attempt at providing a link
between such a norm, such a suggested norm, and the provisions of the
Mandate, and we find that in the verbatim record of 17 May. The passage
reads as follows:
"lf the standards, for which the Applicants contend, have achieved
the status of an independent rule of international law, an international
legal norm, they, of course, would be controlling, with respect to the
Mandatory, on the simple proposition that the Mandatory, in
undertaking this arrangement obviously must be conclusively REJOIXDER OF MR. DE VILLIERS
presumed to have undertaken and agreed to comply with inter
national law in the exercise of the Mandate ... " (Supra, p. 302.)
And then, finally, we find in the verbatim record of rg May, the following:
"Even as a sovereign State, Rcspondent must govern in accor
dance with international law. lts obligation as mandatory to
promote well-being and social progrcss, in accordance with the
obligations of the sacred trust, do, of course, require that the
international law, the international legal norms pertaining to the
Respondent's obligations as a sovereign State and as mandatory,
apply a fortiorito the Mandate itself. The jurisdiction of the Court
to determinc the obligations pursuant to international law, the
international legalnorm for which the Applicants contend, would
be founded on, and cognizable under, the compromissory clause of
the Mandate." (Supra, p. 342.)
What does this amount to, Mr. President? It would seem to be this:
that although this norm is said to have corne into existence long after
the Mandate, and quite independently of the Mandate for purposes of
this "norm" contention; although the Applicants admit that there was
no agreement on the part of the Respondent at all in respect of this
norm, Jet alone any agreement to bring it into the Mandate, they say
the Respondent must be taken to have agreed initially, in undertaking its
mandate obligations, to administer the mandated terri tory in accordance
with international law, and that in that way an obligation to comply
with international Iaw is now to be seen as an obligation of the Mandate
itsclf.
Mr. President, the fallacy of this contention immediately becomes
apparent on analysis, on two bases. Let us first consider, what does
international law mean in this contcxt? We must remembcr that we
start off on a basis that the Applicants say that this is international law
to which they admit that the Respondent has not agreed specifically;
they admit that the Respondent has, on the contrary, protested against
its coming into existence. Nevertheless, this is international law which
the Respondent is said to be obliged to cornply with in the administration
of the Mandate. l\Ir. President, surely international law, when used in a
context of that kind, becomes ambiguous. One speaks of customary
international law, of binding international relationships in general,
covering the whole field, applying as between ail subjects of inter
national law. But then one also knows that there are international legal
relationships (whether one can or cannot properly call them relationships
of international law is a matter of verbiage, but very often they are
referred to as relationships of international law), although they apply
only between a limited circle or group of subjects of international law. It
could be a treaty relationship between two particular States. It could be a
regional relationship between a number of States in a particular region,
having originated either by custom or by treaty. Itcould be a multipartite
treaty, but again regulating relationships only between the parties to
that treaty, and yet that regulation of rclationships could in a sense be
said to be a regulation in international law.
So, Mr. President, where one could sav in municipal law that if I
undertake a cartage contract for somebod.y and I have to cart things
from outside a town into a town, in terms of my contract, there is a
contemplation that I would, in performing that contract, be bound by630 SOUTH WEST AFRICA
law, but, of course, the law which one contemplates in that respect
would be municipaUaw which would be ipso factobinding upon a subject.
It would not be possible for me to ignore the traffic regulations as I was
going into town; I would have to observe them. If I do not observe
those traffic regulations, ifI drive through a red robot, then I act in
conflict with the law, but that is because that law is binding upon me in
the way it is in a collectivist municipal society where the law is made by a
law-giver which imposes its will upon the subject.
Even then, in that example, one would not say that by driving through
the red robot the cartage contractor is breaking his contract of cartage.
He is offending against the law. He might be doing so because he is in a
hurry to deliver on time, so he is making his best endeavours to comply
with his contract. He could never be sued for a breach of contract
because he does that, but he could of course be prosecuted for breaking
the law.
In international societies it is not so simple and it may be rather
misleading to say that there is a contemplation that a l\Iandatory is to
act in accordancc with international law. \Vhat international law, one
might ask? ls it international law which would in the ordinary course
become binding upon the Manda tory because of its consent, or because of
being such a principle of customary law that it is binding upon all
subjects of international law? If that is so, Mr. President, then why would
it be necessary for the Mandatory to undertake specially to comply with
that law in the mandate arrangement, in accordance with my learned
friend's contention?
If,on the other hand, this expression "international law" relates to
international law which would not in the ordinary sense become binding
upon the Mandatory but would on ordinary principles of international
law be binding only as between other States and other subjects of inter
national law, then it would be a rather unusual contemplation, and an
unusual agreement to enter into at the time of the mandate arrangement,
that the Mandatory would, not withstanding its Jack of consent, not
withstanding its possible opposition, notwithstanding what it may regard
about it, notwithstanding the fact that ordinarily it would not be
bound in international law, nevertheless subject itself to international
law which might corne into existence between other States, between
other subjects of international law. Surely that would be a most unusual
contemplation and one would have to bring a very cogent case in order
to say that necessarily as a matter of inference, that must have been the
contemplation between the parties to the mandate instrument, to the
mandate arrangement.
My Iearned friend has brought no case whatsoever, Mr. President,
apart from an ipse dixit.He says, "of course"-that is the expression he
used:
"Its obligation as mandatory to promote well-being and social
progress, in accordance with.the obligations of the sacred trust, do,
of course, require that the international law, the international legal
nonns pertaining to the Respondent's obligations as a sovereign
State and as mandatory, apply a fortiorito the Mandate itself."
(Supra, p. 342.)
lt sounds very nice, Mr. President, when it is said quickly, but when
its implications are analyscd one finds that it really hidcs an absence REJOINDER OF MR. DE VILLIERS
of any substantiation for the proposition which is actually adduced to
the Court.
Now, Mr. President, quite apart from the fact, that international law
might have a connotation of something which would not in the ordinary
course become binding upon the Mandatory itself, let us take inter
national law of a nature which would become binding upon the Man
datory. Thcn still the contention does not make scnse, as l have said, for
the simple reason that it would be unnecessary to make a special agree
ment about it if it would become applicable to the .Mandatory in any
case. But the differencc would be this; other international law might
become applicable to the Mandatory quite independently of the mandate
arrangement, and in the same way as in the type of example which we
cited to the Court earlier this afternoon in relation to the Applicants'
standards contention.
Let us here assume this set of facts. \Ve assume that the Mandatory
concludes a treaty with State X, which is not a Member of the League.
Upon reconsideration it appears ta the Mandatory and it can be estab
lished as a fact that compliance with that convention would be detri
mental to the interests of the inhabitants. Never1:heless, then, on the
Applicants' contention, the Mandatory would be bound in terms of the
mandate to carry out its obligations under the later treaty. If the
Mandatory were to refuse to carry out its obligations under the later
treaty then another Member of the League which is not a party to that
treaty, but which has an interest in the mandate arrangement, would be
able to invokc the jurisdiction of the Court. The Court then, on the
Applicants' theory, would be bound to compel compliance with the
treaty, with this later treaty, even though the Court might be perfectly
satisfied that such compliance would work to the detriment of the
inhabitants of the territory. That is the effect of this contention of the
Applicants, applied to a case where international law becomes binding in
the ordinary course upon the l\Iandatory at a later stage.
Mr. President, that absurdity. in the Applicants' contention, appeare
from this very case which they are now bringing to this Court, a cass
which asks this Court to hold that a contravention of thcir suggested
norm would constitute a contravention of the Mandate, even if the
Court were to be satisfied on the facts that application of the norm
would lead to disastrous results for the well-bcing and progress of in
habitants of mandated territory.That is the implication which they
accept in this contention which they are advancing to the Court.
Our submission is that it would not be sufficient for the Applicants
to show that there now exists a rule of law which the Respondent has
violated, quite apart from the question which arises a priori, namely
whether a rule of law has corne into existence which is binding upon the
Respondent in international law generally. Assuming that, assuming that
one has corne into existence and is binding upon the Respondent, it is
not sufficient for them to show violation by Respondent of that rule.
In order to bring the matter within the jurisdiction of the Court, they
would have to show that the rule falls within the description "the
provisions of the .Mandate", and this they can do only by showing that
the rule was intended to amend the Mandate or that it has in some way
become incorporated in the terms of the Mandate.
\Vhether or not a rule of law can arise without the consent of a State
which is sought to be held bound thereby, is a point to which we will632 SOUTH WEST AFRICA
ad vert later. It seems clcar in our submiss.ion that no amendment of the
Mandate could have been effected without the Respondent's consent.
That was the contemplation in the mandate instrument itself, in the
whole mandate arrangement, that there could not be an amendment of
the provisions of the i\Iandate without the Respondent's consent. That
is quite independently of the question whether outside of the .Mandate
other rules of law could corne into being-could bind the Respondent.
It was expressly held by the Court in the 1950 Opinion, that the
Mandate could not be amended without the co-operation of the Man
datory. That was in the part of the 1950 Opinion which dealt with the
competence to modify the international status of the Territory. The
Court will recall that that matter is dealt with in the 1950 Opinion at
pages 141 to 143, and the whole discussion was based upon the provision
in Article 7, paragraph 1. relating to amendment or modification of the
provisions of the Mandate, and the conclusion eventuallv stated by the
Court at page 143 was in these terrns: •
"On the basis of these considerations, the Court concludes that
competence to detemüne and modify the international status of
South-West Africa rests with the Union of South Africa acting
with the consent of the United Nations." (l.C.]. Reports 1950,
p. 143.)
Mr. President, that is why we say that if the Applicants want to bring
this suggested norm of thcirs into the Mandate they have to show that it
happened by way of an amendment of the provisions of the Mandate.
That could not have happened without the consent of the Respondent,
and for that reason alone we subrnit that there is no basis in law for their
reliance upon such a norm in these proceedings before this Court.
In other words, it would not be enough for the Applicants to show that
the Respondent has consented to the imposition of a new obligation:
they would have to go further and show that there existed an intention
to incorporate that obligation in the Mandate.
Therefore, Mr. President, for these reasons alone, even if the suggested
norrn were to exist, we submit that the Court would not possess jurisdic
tion to adjudicate on alleged violation thereof. That is, however, not
the only basis upon which we want to rest our case in this regard. We
want to proceed, Mr. President, independently and alternatively, to show
that in its substance this case of the Applicants, based on the norm,
cannot succeed; that it is totallv unsubstantiated. We shall deal with
that matter in various phases. ·
We shall deal first with the processes by which the Applicants suggest
that such a norm could have corne into existence in international law so
as to be binding upon the Respondent: that is, on the basis of any norrn,
whatever its suggested content. \Ve shall deal fi.rst purely with the legal
question of the processes which the Applicants suggest were suffi.cient to
bring this norm into being as a binding norm upon Respondent. There
upon, we shalJ proceed to consider the suggested content of th.is norm,
and to see whether, qui te apart from its application to the Respondent or
other aspects of the matter, such a norm can be said to have corne into
existence in international Iaw at ail.
I proceed, therefore, to deal with the matter on the basis first indicated,
i.e., with reference to the processes by which the Applicants say such a
norm could have corne into existence. REJOINDER OF MR. DE VILLIERS
The Applicants approach the matter by stating in the verbatim record
of 17 May, at page 303, supra: ·
"The Applicants' effort will be to demonstrate the existence of the
international lcgal norm in terms of the sources of law enwnerated
in Article 38 (r), paragraphs (a)-(d), of the Statute of the Inter
national Court of Justice."
And then at page 342 of the verbatim record of 19 May they stated:
"The Applicants contend that the international standard of non
discrimination and non-separation qualifies as law, qualifies as a
legal norm, in accordancc with, and pursuant to, the several sub
sections of Article 38,paragraph 1, of the Statute."
They state in general, Mr. President, in regard to their contention, at
the same page of that same record, the following:
"Such demonstration depends upon acceptance by the Court of
the Applicants' contention that formal acts of international in
stitutions in certain circumstances, which the Applicants contend
apply here, may and do possess a law-creating effect within the
meaning of Article 38, paragraph r, of the Statute."
The Court will see this is basic, this is fondamental. Their case, their
successful demonstration of what they contend for depends upon this
acceptance-acceptance of the contention that certain forma! acts of
international institutions in certain circumstances have the law-creating
effect within the meaning of Article 38, paragraph r.
Now, Mr. President, of course, Article 38, paragraph I,does not in
terms list "formal acts of international institutions" as one of the
sources to be applied by the Court. Indeed, as we have pointed out
elsewhere, the Applicants conceded that in making their case they
perhaps rest upon a Jaw-creating process which has not heretofore been
considered or passed upon by this honourable Court.
It is, therefore, significant to note, Mr. President, that the Applicants
commence this demonstration of theirs, not by showing that this law
creating process does exist but by showing why it should exist. This they
do by purporting to show "the relevant international context" (that is
an expression they used in the verbatim of 19 May, at p. 342, supra, and
also "developments in international society, which bear upon the char
acter and the cvolution of international law" (same record, at p. 343,
.supra).Now, they speak of these ''devclopments in intema tional society''
and they list them as follows: Firstly, they speak of "the diversity and
multitude of States comprising the contemporary international order",
and they say that has brought "in their wake new concepts and needs
regarding the normative process itself". (Ibid.}
Secondly, they say "technological development and the spread of
information in the arts of war and of transportation have made inter
national society more inter-dependent". That we find at page 343, supra,
of that same record.
Thirdly, they say "the connection bctween world peace and the
protection of human rights in the international sphere has become
increasingly manifest" (same record, at p. 344).
Fourthly, they say that "within the area of hurnan rights the most
significant developments have focussed upon the evolution of standards634 SOUTH WEST AFRICA
pertaining to matters of racial equality, non-discrimination and non
separation" (same record, at p. 344).
Fifthly,they say "international society lacks legislative organs, and
for this reason it has had to rely on other than legislative procedures to
change and evolve international standards and norms" {same record, at
the same page).
All this culminates in two consequences flowing from this lack of
legislative organs.
Firstly, the Applicants say, and I quote from that record at the same
page: "... scholars have increasingly urged that suitable and, in
appropriate cases, quasi legislative effect be given to official acts of
international institutions".
Then there is the second consequence at the same page: "The absence
of a legislative capacity as such in the international order has an
important bearing, of course, upon the outlook of international judicial
organs."
So what does all this amount to, l\lr.President? The whole discussion
is introduced, not by saying what is the international law, what are the
processes of norm creation in international law, but what they ought to
be in modern circumstances, regard being had to the suggested alterations
and changes which have corne about in international society and its
implications, and it ends then on tlus note that the scholars arc urging
and have increasingly urged-that "quasi-legislative effect" should,
"in appropria te cases", "be given to official acts of international institu
tions", and that courts apparently should now support this notion, this
urging by scholars .
.Mr. President, with respect, whether or not the developing needs of
international society rcquire some legislative or quasi-legislative inter
national organization, or some supra-national parliamcnt, and, if so,
what the composition and the procedure and the powers of such a body
should be, are certainly vcry interesting questions; they are very debat
able questions, they are questions worthy of discussion: and much has
been said about them, much has been written about them, and much
more can be said and can be written. But, surely, with the greatest
respect, that is not a topic for introduction into a court of law whose
fonction it is to decide a case in accordance with international law. It is
an argument about the need for rcform in the international law, rather
than an argument as to what the international law is, the Jawwhich this
Court is required to apply in accordance with its function and in accor
dance with its Statutc.
Assuming, .Mr. President, the need for such an organization, do the
Applicants seriously suggest that the United Nations Organization
should now be considered fit to fill this gap, despite the fact that such a
fonction was never initially intended forthe United Nations Organization?
Do they suggest that the Court is now to regard the United Nations
Organization, although created for different purposes and not for the
purpose of fulfilling such a function, as being capable of fulfilling that
fonction and of being able to do it properly, with a view to its constitu
tion and its manner of functioning? \Ve know that the authors of the
United Nations by delîberate design refrained from bestowing legislative
or qiiasi-legislative powers upon the United Nations. Do the Applicants
now contcnd that by some undefined process. by the need for a quasi
Iegislative body, that that, by itself, has altered the basic nature of the REJOIXDER OF MR. DE VILLIERS 635
United Nations? Surely, Mr. President, such a contention would be
completely untenable. And even more untenable is this suggestion, that
the Court has in some way a quasi-legislative fonction in order to minister
to these needs of international society in the changed circumstances to
which the argument refers.
The Applicants attempt to bolster this aspect of their argument with
reference to an extract from an article by the honourable Member of the
Court, Sir Gerald Fitzmaurice. The extract is to be found in the verbatim
record of 19 May, at page 345, supra. lt is unnecessary for me to read it
again, ilfr. President, because on the most cursory reading it will be
absolutely evident that it does not support the Applicants' contention
whatsoever. The point made by the learned author is, with respect,
perfectly clear.e stresses the desirability that international tribunals, in
giving decisions in particular cases, should not be too reluctant to
pronounce in general upon questions of law-international law-which
require clarification and which are under discussion in the particular
case, even if that might mean going somewhat beyond the Iimits of what
would be strictly necessary for deciding what is"before the Court in a
particular case. And the learned author suggests that that would be an
appropriate fonction for international tribunals to a greater extent than
it would be for municipal tribunals. That is the effect of the point statcd
there. There is no suggestion whatever that in giving such decisions or
any other decisions the Court should apply concepts or draw on sources
other than those traditionally recognized in international law and assign
to itself a quasi legislative fonction of giving effect to new processes of
norm creation in international law.
The reason why the Applicants contend for an increase in the powers
of the United Nations and of the Court has already been mentioned, but
it again appears very clearly from a passage in the record of 19 May:
"The Applicants contend that the Court should confirm the role
of international consensus as a source of international law within the
meaning of Article 38 of the Statute of the Court and within clear,
practical limitations. 'Consensus' is used by the Applicants to refer
to an overwhelming majority, a convergence of international
opinion, a predominance of view; it means considerably more than
a simple majority, but something less than unà.nimity." (Supra,
p. 345.)
This, then, is the purpose of the Applicants' case-to establish the
proposition that international legal obligations may be imposcd upon a
State withont its consent by giving effect to such an "ovcnvhclming
majority", such a "convergence of opinion", such a "predominance of
view", inappropriately, in our submission, called "consensus". The
manner in which they seek to doit is to request the Court to go beyond its
normal judicial fonctions so as to declare that the so-called organized
international community, in particular the General Assembly of the
United Nations, possesses normative capacity which it was not intencled
by its creators to possess. And it is in two respects that the Applicants
contend that the normative capacitics, so-called, of the General Asscmbly
are relevant. They sum them up thcmsclves as follows, both of them
in the verbatim record of 19 May, at page 346, supra:
"First, there has been authoritative definition of the scopc,
character and applicability to Respondent's policies of the inter- SOUTH WEST AFRICA
national legal norm found in Article 55 (c) and Article 56 of the
Charter, read in the light of the overall affirmation in the Charter of
the connection between hurnan rights and obligations of Mernbers.
Secondly, conclusive evidence is to be fonnd in the many judgrnents
of Mernber States that the standards evolved by the organs in the
United Nations do in fact constitute an international legal norm."
Therefore, Mr. President, one sees that those are the elements on which
stress is laid. It is the over-all affirmation of certain aspects of the
Charter-certain suggested aspects and consequences of the Charter;
it is a matter of giving effect to many judgments of member States, that
standards evolved by organsin the United Nations do in fact constitute
an international legal norm. And, therefore, their argument is directed to
the avowed purpose of establishing that the norm relied upon by them
arose without the Respondent's consent because, as they say, the fonda
mental question is-
"the degree to which a single, recalcitrant State, or a small rninority
of States, rnay be permitted to veto or block the ernergence of
authoritative standards, or legal norrns, in international society,
and thus paralyse the growth and developrnent of international law
itself". (Supra, p. 345.)
That, they say, is the fundamental question.
Quite independently of the question which I shall take up later, Mr. Pres
ident, whether this is a truc description in fact-the description of a
single recalcitrant State or a small minority of States-the fondamental
question they say is whether such a small minority may be permitted
to veto or block the emergence of authoritative standards or legal norms
in international society. We have to turn, thercfore, to a revolutionary
contention to the effect that this preponderance of votes could, in itself,
be normative, and we do so on the basis, which I have explained, that
in a sense the whole tapie is purely academic because no legal norm
created in the teeth of our protests could possibly be regarded as falling
within the provisions of the Mandate for the purpose of the compromis
sory clause. In any event, we shall present that argument in two stages:
we shall first consider the general effect of the varions provisions of
Article 38 (r),and thereafter we shall consider their practical application
to this case.
We begin with sub-paragraph (a) of Article 38 (1), which, the Court
will recall, authorizes the Court to apply "international conventions,
whether general or particular, establishing rules expressly recognized by
the contesting States". The particular conventions relied upon by the
Applicants are again the United Nations Charter and the Constitution
of the International Labour Organisation, which we find referred to in
the verbatim record of 19 May, at page 346, supra.
Of course, the Respondent was a party to both these conventions and
would consequently be bound by any Iegal norms created by them. But,
Mr. President, it soon becomes clear that the Applicants do not rely on
the meaning of the conventions as they were originally formulated.
Their case cannot be substantiated from those provisions, and it seems
qui te dear that they realize that. They go further. Their case isbased on
the following propositions which we find in the verbatim record of
19 May:
" ... international practice in conjunction with the human rights REJOINDER OF MR. DE VILLIERS 637
and non-discrimination provisions and purposcs of the United
Nations Charter, and of the Constitution of the I.L.O., have evolved
authoritative standards of non-discrimination and non-separation;
and ... the same evidence, the same materials, the same sources,
support the Applicants' contention that these standard-creating
procedures have eventuated in an international legal norm of the
same content and scope". (Supra, p. 346.)
They go on to say, on the next page, that-
"... the forma! acts of the constituent organs of the United Nations
have produced an authoritative construction of Articles 55 (c) and
56 of the Charter, inter alia, such that the practice of apartheid is
legally impermissible". (Supra, p. 347.)
As I have said before, 1 am dealing with the matter now without
having any regard to the content of the particular Articles cited; I am
dealing with the contention in the light of the normative process here
relied upon, and the normative process here is said to be that the inter
national practice, the formai acts of the constituent organs of the United
Nations, are said to constitute an authoritative construction of the rele
vant Articles. That is the particular matter to which I should like to
direct attention.
The Court willrecall, and we have repeatedly pointed out, that, in the
words of Judge Sir Gerald Fitzmaurice, which we quoted in the Re
joinder, V, at page 121:
"The terms of a treaty must be interpreted according to the
meaning which they possesscd, or which would have been attributed
to them, and in the light of current linguistic usage, at the tirne
when the treaty was originally concluded."
We dealt with the subject of the Principle of Contemporaneity in our
Rejoinder, V, at pages 121-122.
That is the basis upon which the interpretation-the concept of inter
pretation-is, in our submission and in accordance with the regular
practice of this Court, to be understood. But now it is said, Mr. Presi
dent, that an authoritative interpretation evolves from practices of
organs of international bodies.
In a particular sense it could be true that the practices in international
bodies could, to some extent, serve a purpose of interpretation; they can,
theoretically, be of relevance to the extent to which they can bear upon
the meaning of the instruments or the intent of thc1r authors as it
existed at the time of their conclusion. That is soin theory. The question
as to what extent that could happen in particular cases in practice is a
different matter. That is not the scnse in which the Applicants seek to
rely upon the practices of bodies as being a matter of interpretation.
They rely upon those practices, Mr. President, as stating eventually
propositions which run very far away from what was originally con
tained by the clear wording in the provisions of the particular instru
ments. That is, on analysis, the process of interpretationthat they seek to
rely upon.
I suppose that an authoritative interpretation could arise if the parties
to an instrument were to agree that a particular organ was to have the
right to make authoritative interpretations and that, whether the
parties agreed or did not agree with those interpretations, they would SOUTH WEST AFRICA
be binding upon the parties. But, Mr. President, that would be an
exceptional situation and there would have to be special provision to
that effect in the particular organs or in the particular constitutive
instruments.
If we takc the normal position in municipal Jaw-let us take that
first as an analogy or an example. Suppose there is a committee of a
voluntary association which puts a certain interpretation upon the con
stitution-the rules of that association-and that interpretation affects
a particular mcmber. Suppose the large majority of the members of that
association agrees with the interpretation put upon itby the committee
maybe ail of them agree except this particular member, and this member
insists that his interpretationis so and so and if the committee interprets
tlùs constitution the other way, then this infringes the particular mem
ber's rights. Surely, lfr. President, that is a mattcr wlùch may have to be
determined by a court of law if the dispute goes so far, or by arbitration,
in accordance with law, if there is such a provision in that particular
instrument. The adjudicator, be it the court or an arbitrator or an
arbitration court, would have to decide in accordance with law. lt would
have to decide whether l\Ir. A's interpretatiôn is correct, or whether the
committee's interpretation is correct-the interprctation of the large
majority-and if it finds that i\Ir. A is correct, thcn it says so, and it
says that the interpretation of the majority is ultra vires. Alternatively.
it might find that neither of them is correct and that the correct inter
pretation is something else, but the point is that the court is not bound
by these majorities-the court is never bound as a matter of law by what
ever might be the size of the majority on a particular point unlcss, as
I have said, there may be special stipulations to the contrary.
Now, why should the approach in international law be different in the
international organs that have corne about by agreement between
sovereign States? Why should it be possible for organs of those inter
national bodies to run away with a so-called interpretation, which can
bind individual sovereign States although they do not agree with it, and
although, on analysis, one finds that the so-called interpretation is no
longer an interpretation, it is really running into practices which are in
conflict with,and outside the clear limits of the provisions of, a particular
instrument?
It is relevant in tlùs regard to refer to the fact that, at the time of the
framing of the Charter of the United Nations at San Francisco, it was
decided as a deliberate act not to include in the Charter any provision
regarding how the Charter should be interpreted. One finds the refcrence
to this matter in the UNCIO report of the Rapporteur of Committee
IV/2, document 933 IV/2/42 (2). pages 7-8. It isdocument XIII, pages709-
7rn. There was a discussion of the question bv this sub-Committee 2
of Committee IV as to how and by what organ or organs of the Organiza
tion the Charter should be interpreted. But, Mr. President, the final
result was, as I have said, that there was to be no particular provision
on that subject in the Charter.
In the course of the preparation of the relevant provisions of the
Charter, this question was discussed at considerable length and a signif
icant statement was included in the final report of this Committee. This
statement was quoted to the Court in the proceedings preceding the
Opinion regarding Certain Expenses of the United Nations, and one finds
it in the Pleadings, Oral Arguments and Documents of those proceedings, REJOINDER OF MR. DE VILLIERS
at page 221, in a footnote to the written statement of Canada, and the
following passages are relevant in the present case:
"If two Member States are at variance concerning the correct
interpretation of the Charter, they are of course free to submit the
dispute to the International Court of Justice as in the case of any
other treaty."
Then, again, a further quotation:
"It is to be undcrstood, of course, that if an interpretation made
by any organ of the Organization or by a committee of jurists is not
generally acceptable it will be without binding force. In such
circumstances, or in cases where it is desired to establish an authori
tative interpretation as a precedent for the future, it may be nec
essary to embody the interpretation in an amendment to the
Charter. This may always be accomplished by recourse to the
procedure provided for amendment."
This, 11Ir. President, was the final paragraph of the report of the
Rapporteur of Committee IV /2,which was eventually approved by the
Committee, and it contemplates, as the Court secs, that there may be
differences of opinion and that these interpretations made by an organ
or by a committee of jurists wouid not necessarily be generally acceptable,
and if not they would be without binding force, and in such circum
stances it might be necessary to have recourse to proceedings for amend
ment.
The words "generally acceptable", read in their context, here clearly
mean acceptable without dissent-in other words, without a dispute
arising about it between various Members of the Organization. But the
Applicants would appear to contend that the Respondent is bound to
give effect to standards, based upon an interpretation, even if Respon
dent dissociated itself from such an interpretation and without there
having been any formai amendment of the Charter, "accomplished by
recourse to the procedure provided for amendment".
In an article, "The Interpretation of the Charter", in The British
Yearbook of International Law for r946, the author, writing under the
pseudonym of Pollux, referred to this report of the sub-Committee, and
proceeded to make it clear that, in his view, a State would not be legally
bound by an interpretation of the Charter by other States with which it
did not agree. The author stated, amongst others:
"No State can reasonably be expected meekly to accept an
interpretation of the Charter which it considers completely wrong,
however large the majority in favour of such an interpretation
may be."
In a footnote to this passage, the author stated:
"This remark does not apply to an interpretation given by the
International Court of Justice or other bodies which may be au
thorized to give a binding interpretation."
AU that is at page 57 of that Yearbook.
But, Mr. President, the Applicants would appear to say that the
Respondent must meekly accept interpretations of the Charter by organs
of the United Nations and the International Labour Organisation, which
organs have not been authorized, either by the Charter or by the Respon
<lent itself, to give such binding interpretation. The Court will recall SOUTH WEST AFRICA
that thls matter was pertinently discussed and considered in the pro
ceedings in relation to the Advisory Opinion of the Court in Certain
Expenses of the United Nations. In the separate opinion of the now
honourable President of the Court, the suggestion was dealt with that an
interpretation of the Charter by a majority of States is to be accepted as
the correct interpretation, or alternatively, as evidence of the true
meaning of the Charter. Having said that he could not agree with
" ... a view sometimes advanced that a common practice pursued by an
organ of the United Nations, though ultra vires and in point of fact having
the result of amending the Charter, may nonetheless be effective as a
criterion of interpretation",the leamed President continued:
"The legal rationale behind what is called the principle of 'sub
sequent conduct' is I think evident enough. ln essence it is a question
of evidence, its admissibility and value. Its roots are deeply em
bedded in the expcrience of mankind.
A man enters into a compact usually between himself and another.
The meaning of that compact when entered into whether oral, or in
writing, may well be affected, even determined, by the manner in
which both parties in practice have carried it out.
That is evident enough. Their joint conduct expresses their
common understanding of what the terms of their compact, at the
time they entered into it, were intended to mean, and thus provides
direct evidence of what they did mean.
That conduct on the part of both parties to a treaty should be
considered on the same footing is incontestable. It provides a
criterion of interpretation.
It is however evidcnt enough---despite a flimsy and questionable
argument based upon what appears in lranian Oil Company ... -
that the subsequent conduct of one party alonc cannot be evidence
in its favour of a common understanding of the meaning intended
to be given to the text of a treaty." (l.C.]. Reports I962, p. 190.)
And then the opinion proceeded, passing on to multilateral compacts,
to sta te the following:
"In the case of multilateral treaties the admissibilitv and value
as evidence of subsequent conduct of one or more parties thereto
encounter particular difficulties. If all the parties to a multilatcral
treaty where the parties are fixed and constant, pursue a course of
subsequent conduct in their attitude to the text of the treaty, and
that course of conduct leads to an inference, and one inference only,
as to their common intention and undcrstanding at the time they
entered into the treaty as to the meaning of its text, the probative
value of their conduct again is manifest. If however only one or
some but not al! of them by subsequent conduct interpret the text in
a certain manner, that conduct stands upon the same footing as the
unilateral conduct of one party to a bilateral treaty. The conduct of
such one or more could not of itself have any probative value or
provide a criterion for judicial interpretation.
Even where the course of subsequent conduct pursued by bath
parties to a bilatcral treaty or by all parties to a multilateral treaty
are in accord and that conduct permits of only one inference it
provides a criterion of interpretation only when, as has already been
indicated, the text of the treaty is obscure or ambiguous." REJOINDER OF MR. DE VILLIERS
That is at page 191 of the same report. And then, from that page and
continuing on to the next one:
"... it is not evident on what ground a practice consistently followed
by a majority of ;\lember States not in fact accepted by other
Member States could provide any criterion of interpretation which
the Court could properly take into consideration in the discharge of
its judicial function. The conduct of the majority in following the
practice may be evidence against them and against those who in
fact accept the practice as correctly interpreting a Charter provision,
but could not, it seems tome, afford any in their favour to support an
interpretation which by majority they have been able to assert."
That is the end of the quotation. The opinion thcn proceeded to deal
with the alternative contention that the practice followed by organs of
the United Nations Organization in interpreting their fonctions under
the Charter has a certain probative value and it concluded as follows,
at page 195:
"Apart from a practice which is of a peaceful, uniform and
undisputed character accepted in fact by all currcnt Members, a
consideration of which is not germane to the present examination,
I accordingly entertain considerable doubt whether practice of an
organ of the United Nations has any probative value either as
providing evidence of the intentions of original Member States or
otherwise a critcrion of interpretation. As prescntly advised I think
it has none."
Now, Mr. President, on that, with respect, very clear statement of
principles applicable in a situation of thisnature and the analysis of the
difficulties of application of the principles with which one is confronted,
difficulties in face of a contention such as is being advanced by the
Applicants in this case, we find that the Applicants, nevertheless,
advance to the Court the contention that although unanimity has not bcen
reached but only what they call a preponderant view on a particular
situation, that should nevertheless be regarded as being binding upon
those who did not consent. They do not cite a single authority in support
of this contention and. Mr. President, that is small wonder.
It is true that at one stage when discussing their norm, they referrcd
to a passage from a lecture delivered by Dr. Schachter, but this passage
certainlv does not bear out the contention under consideration. This we
find in the verbatim record of 19 l\fay. Dr. Schachter said the following:
"... one might start with the principle that an 'authentic' inter
pretation of a treaty by the parties is lcgally binding on them to the
same degrees as the treaty itself.I belicve that it is generally
accepted that this conclusion would hold for an interpretation of
the Charter adopted by ail the Members (or evcn 'by the over
whelming majority' except for some abstentions) in the General
Assembly; the interpretation would be characterized by inter
national lawyers as having the same legal force and effect as the
Charter itself."(Supra, p. 358.)
Now, Mr. President, it seems quite clear on its face from this passage,
that Dr. Schachter did not have in mind an interpretation adopted
against the will of one or more States when he spoke of "ail the Members
(or even 'by the overwhelming majority' except forsomeabstentions)". SOUTH WEST AFRICA
If he did, it would be difficult to understand his reliance upon the
principle of authentic interpretation of a treaty by, as he himself says,
"the parties" thereto. ln our submission, there can be no doubt that
Dr. Schachter was merely saying that an interpretation of the Charter
adopted by the overwhelrning majority, except for some abstentions,
but without any express dissent, would be legally binding. In those
circumstances, one could, in some situations, look upon a situation of an
interpretation, without express dissent, as if it were an interpretation
by ail the parties concemed, but whether that would be so in a particular
instance, would be a question of fact. That is, it seems to us, the Iimit
to which Dr. Schachtcr takes the situation and he, therefore, does not
bear out the Applicants' contention. There is no authority cited by them,
or any which we could fmd, which in any way bears out their contention.
[Public hearing of Ij June r965]
Mr. President and honourable Members of the Court, we were dcaling
towards the conclusion yesterday with the Applicants' argument about
the creation of a binding norm. We dealt particularly with that part of
their argument which sought to bring their norm under the heading of
Article 38 (r) (a) of the Statute of the Court, namely international
conventions, gencral or particular, establishing the rules expressly
recognized by the contesting States.
We dealt with the Applicants' contention in that regard, and wc are
still in the process of doing so, by having regard to the norm-creating
processes which are said to be involved in that contention, irrespective,
for the moment, of what the content is that is sought to be ascribed to the
particular norm. We assume for purposes of argument that any content
be ascribed toit. Cali it a content X, and then we see whether a norm of a
content X could be generated in law by the processes which the Appli
cants suggest in their argument.
Now, the particular argument with which we were dealing yesterday
was this one, that the norm relied upon by the Applicants was creatcd
by formai acts of constituent organs of the United Nations which, so
the Applicants say, have produced a so-called authoritative inter
pretation of particular provisions of the Charter. The implication in this
contention is quite clear, and the Applicants also make it clear, as I
shall show later,that they realize that they are thus relying upon some
thing which extends beyond the meaning of the provisions as they stand
in the Charter. They do not rely purely upon the provisions as they
stand; they rely upon something more. They realize for the purposes of
this contention that they have to rely on something more, somcthing
which has corne about by a process of extension, and consequently
they rely on these formai acts which, they say, have produced an au
thoritative interpretation that has now to be read as constituting an
obligation on the part of the Respondent-as something falling under the
provisions of Article 38 (r) (a). That would seem to be the effect of the
contention.
Now, Mr. President, we dealt with the history of the Charter relative
to this contention. We pointed out that the founders of the United
Nations deliberately refrained from giving special powers of authoritative
binding interpretation to organs of the Organization, apart, of course,
from the general position which obtains in regard to rulings or inter- REJOINDER OF MR. DE VILLIERS
pretations by this Court which may, in certain circumstances, be binding
and authoritative.
We dealt, further, Mr. President, with authorities on the question
of the power or lack of power on the part of the organs of the United
Nations to give binding interpretations. We referred to authorities on
general principles about subsequent conduct, i.e., in which way the
principles relating to subsequcnt conduct of the parties could or could
not play a raie in this regard. And we referred ta very pertinent passages
from the separate opinion by the honourable President in the Expenses
of the United Nations case, showing how impossible it is for a majority in
organs of an organization, however large or however persistent that
majority may be, to impose its interpretation in a binding way on a
minority which contests that interpretation. That was the stage to
which we came yesterday, Mr. President, and I should like now to give
some further attention to the Expenses of the United Nations case, both
in regard to its antecedents and in regard to what one might call its
aftermath. Its purpose is to illustrate in the vcry practical implications
which have arisen from a tendency, a tendency to which attention has
been called by severaJ commentators, on the part of majorities in organs
of the United Nations to attempt to enforce a so-called interpretation
against the objections of a minority.
When I do so, i'ilr. President, I do so with full realization that the
particular matter at issue in regard to thcse expenscs of the United
Nations is a controversial one, that as far as the merits of the recrimina
tions are concemed it is nota matter in which I should like to take part,
i.e., the recriminations by one State against another, that it has been
responsible, or against this or that group of States, that they have been
responsible for departing from the strict letter of the Charter-from
the provisions of the Charter-which has endcd in a position now which
has created difficulties for the Organization. 1 do not want to enter into
the merits of that kind of dispute. I merely wish to refer to the fact that
in the course of sorting out the difficulties which have now arisen for the
United Nations, of discussing the crisis which is on hand because of this
very question, various speakers, taking various political points of view
in this situation,have emphasized that the important matter is toabide
by the provisions of the Charter and not to scek to depart from those
provisions by these so-called processes of interpretation, which in truth
do not amount to interpretation but amount to the imposition, or
attempted imposition, of new obligations on parties which have not
agreed to them.
I should liketo refer first, Mr. President, to the Pleadings, Oral Argu
ments, Dornments in relation to that case, Certain Expenses of the United
Nations, and I should like to refer to the very pertinent attitude taken
up and expressed on behalf of the Soviet Union in the \vritten argument
and the oral presentation to the Court. I cite first from the written
Memorandum of the Soviet Government at pages 273to 274ofthat record:
"It should be added that the rcsolutions of the U.N. General
Assembly, as it is stipulated in Article ro of the Charter, are of the
nature of recommendations and are not binding upon States. The
U.N. Member States themselves determine their attitude to these
resolutions. Ali measures that follow from the General Assembly
resolutions arc also of only recommendatory nature and cannot
establish legal obligations for the "11Iemrtates ofthe Organization." SOUTH WEST AFRICA
I refer next to the oral statement of Mr. Tunkin, reported as from
page 397 onwards, and I wish to refer only to two brief passages-the
first one is at page 397, about the middle of the page:
"It is universally recognized in international Jaw that none of the
parties to a treaty is obliged to bear more responsibiJîty than was
assumed by it according to this treaty. For the States Members of
the United Nations such a treaty is the Charter within the limits
of which they bear-their responsibility."
Then another brief statement at page 403:
"The competence of each organ of the United Nations is deter
mincd by the provisions of the United Nations Charter. The Charter is
a treaty concluded between States, and no organ of the United
Nations can amend it except according to the provisions described
by the Charter itself."
Next, Mr. President, I should like to refcr to debates in the Special
Committee on Peace-Kecping Operations-dcbates which occurred
from about April to June this year-debates which, as the Court would
know, relatecl particuiarly to this very icsue and concerned the further
conscquences of the Opinion given by the Court and the further attention
in the United Nabons to the issue and to the crisis which has now
arisen. And I should Jike to refer to the attitudes expressed by some of
the speakers exactly on the implications of this matter, of whether there
was to be a so-called dynamic approach to the interpretation and applica
tion of the provisions of the Charter. Sorne took up the attitude that the
approach was to be a static one, some said it was to be a dynamic one;
some said it should not be either, it should be partly one and partly the
other. But from all sides came the waming in very strong language, and
the diagnosis, that this crisis was to a large extent due to a departure
from the provisions of the Charter and to attempted reliance upon
interpretations of this kind which were not binding in law. I should like
to refer first to the remarks of the representative of Venezuela in the
Committee.
They are in a special document of the United Nations General Assem
bly A/ACr2r/PV5, 29 April 1965, at page 36, and rcad:
''Asa point of departure, we must agree that the juridical founda
tion of the United Nations structure is to be found in the multilateral
trcaty signed at San Francisco on 26 June 1945. The United Nations
Charter is thus a treaty that can be revised only through the
special procedures laid down in the Charter itsclf and accep1ed by
ail of the signatories. This procedure is the one outlined in Chapter
XVIII. There is no provision in the Charter for any procedure for
its interpretation, nor is there any organ competent to take final
decisions on questions of interpretation of the Charter. Therefore,
in the event of a fundamcntal divergence of views on the inter
pretation of specific Articles of the Charter, only a unanimous
consensus could provicle a final solution to any problem of inter
pretation.
Obviously the strict application of the legal principles that I have
just set forth would rule out any interpretation that we might
describe as a dynamic interpretation of the Charter and would
require us to accept a static concept which would prevent us from REJOINOER OF MR, DE VILLIERS
shaping and adapting it so as to respond to the rapid changes in
political and economic life that constantly occur in a world which
is undergoing a dizzying process of evolution. We have favoured
['we' apparently meaning the delegation of Venezuela] the accep
tance of a dynamic concept of the Charter, but we realize that when
fundamental divergences of view arise, as in the present case,
only an adequate revision of the Charter in accordance with the
procedure outlincd in Chapter XVIII, as was very wiscly pointed
by our col1eague from Brazil, or else a unanimous consensus on a
spec~~c interpretation of the existing Articles, can salve the prob
lem.
After referring further to attempts at dynamic interpretation and
their value, the representative concluded, at page 37:
"Still we cannot draw from these facts the conclusion that the
General Assembly may legally, on the basis of resolutions, alter
the Charter or impose interpretations which in actual fact would
amount to revision of the Charter. \Ve repeat that in the absence of
unanimous consensus no modification by way of interpretation is
possible.''
These remarks have somehow been quoted out of order, Mr. President.
I am going back to 22 April where we find attitudes stated by the
representative of the Soviet Union, Mr. Fedorcnko.
I read from page 6 of U.N. document A/AC.12r/PV2, 22 April 1965:
"The Soviet delegate believes that it is necessary again to draw
attention to the fact that the Charter of this Organization provides
ail the necessary means for strengthening the effectiveness of the
United Nations as a tool for the preservation of international peace
and security, but in many cases these possibilities have not been
exhaustively used or have not been translated into life. They have
not been used because, as is well known, the line followed by the
United States of America and some other Western Powers generally
consisted of attempting to by-pass the Charter and not at ail to
implement the Charter. It is precisely for this reason that it is
appropria te to say that the real possibilities provided by the Charter
for strengthening the effcctiveness of the United Nations as a tool
for the maintenance of peace and security are far from having been
used exhaustively. Our task is to utilize those provisions and to
translate them into life."
If I may pause there for a moment. As I have said, this type of political
recrimination, or applying the principles to the particular situation,
does not concern me. I do not intend to enter into the merits of that.
The importance of the Soviet representative's attitude lies in remarks
of the following nature, as his statement proceeds:
"To strengthen the effectiveness of this Organization as a tool
for maintaining peace and security means, first of ail, to put an end
to violations of the Charter, to free the Organization from all the
strata which have bcen superimposed upon it in the past, and to
create in the United Nations a proper atmosphere for equal participa
tion and co-operation of ail States."
At page 21 of this report, Mr. President, the representative of Poland
spoke to similar effect. SOUTH WEST AFRICA
Then at page 32 there is a statement by the representative of Mexico
to which I should like to refer briefly.Itreads:
"The acceptance of the facts of life, which without being contrary
to the Charter, become customary rules, can be achieved through
the express agreement of ail parties. Moreover, these customary
rules make it possible for the Member States to take refuge at any
moment behind the written word.
Quite properly, for a number of years now we have been witnessing
the birth of a new kind of international operation which, under the
acgis of the United Nations are destined to maintain peace [the
speaker here taking the opposite political point of viewJ. The
provisions of the Charter are clear and remain inviolate: all actions
provided in Chapter VII and the -primary responsibility of the
Security Council are not called into question. On the other hand, we
have to appraise a new form of customary law which so far has not
received the general acceptance of l\1ember States either in its
formation, execution or even in its meaning.
The work of the Special Committee of Thirty-three cornes down to
ensuring that the new rcalities are accepted by aU Member States
and that the conviction shall prevail that it has been possible to link
the strict provisions ol the Charter with the realities of operations
designed to maintain peace, and that ail Members willingly accept
the idea that in conceiving and carrying out these operations there
is no violation of the Charter but rather that the Charter is even
strengthened thereby."
Here, Mr. President, was an attitude desiring an opposite result in the
political or practical sense, but realizing the need for co-operation on the
part of aU concerned in order to achieve that, because otherwise it would
be, in the words of the speaker, a case of relying on something which
has "not yet received the general acceptancc of Membcr States, either in
its formation, execution or even in its meaning".
Then, I may just mention the fact that there were statements by the
representative of Hungary, at pages 51 and 52 of this record, which also
bear on the subject. I need not read them.
J corne to 23 April-a statement bv the represcntative of France,
Mr. Seydoux, at page r6 of U.N. docùment A/AC. 121/PV 3, 23 April
1965:
"... in"Ouropinion, it would be illusory to try to attain that objective
by combining ideas borrowed from various theses accepting the
views of some on one point and views of others on another point,
building up out of the whole cloth, in the guise of a compromise, a
new theory ... as if in this respect our hands were completely free.
There is one common denominator [the speaker talks of a 'common
denominator' with a view to solving the difficulty] on which the
Members of the United Nations can reach a meeting of the minds
beyond any question, it is the United Nations Charter ... the
Charter which we have signed or to which we have adhered, the
Charter which, until it has been amended or revised in accordance
with the procedures that it provides for that purpose, remains
hinding law for us ail. It is because there has been a departure from
the Charter that the difficulties and conflicts wcighing today on the
Organization have arisen; it is only by reverting to that incontestable REJOINDER OF MR. DE VILLIERS
source, and not by the invention of new artifices, that we can put
an end to the differences of opinion wlùch are paralysing us."
And, yet, my learned friends urge upon the Court, apparently, the
adoption of exactly such "new artifices".
I refer next to the record A/AC.121/PV4, 27 April 1965, to a statement
therein by the representative of lndia. I cite two very brief extracts, the
first at page 2:
"Past experience has proved beyond doubt that a resolution of the
General Assembly which does not conform to the provisions of the
Charter cannot solve a problem. This would be true even if such a
resolution were to be supported by all the great Powers."
Another one at page 3/5:
"Much of the difficulty has, howcver, ariscn because of an attempt
to extend the provisions of the Charter through reso1utions of the
General Assembly."
I may refer, further, Mr. President, to a statement by the represen
tative of Brazil, at pages 28/30-34/35, which is pertinent. It was along
much the same lines as the previous statement by the representative
of Mexico.
Then, there is a statement by the representative of Australia, from
which I would like to read a brief extract, at page 37:
"On the further realitics which we conceive to be involved,
I would now like to refer to somc of the observations which were
made by the Foreign Minister of Australia, the Honourable Paul
Hasluck, in the General Assembly on II December last year. He
referred to the fact that while the text of the Charter has not been
revised, it has been interpreted and the interpretations have been
more often politicalthan juridical. We all turn to the Charter as the
basis for our efforts here, but where there are points of difference
they result from differences of interpretation."
The representative accepted very frankly, Mr. President, the position
that these attempted interpretations have been more often political than
juridical, and that in the juridical sense they do not have the value
attempted to be assigned to them.
In the record of 6 May (A/AC.121/PV6, 6 May 1965) there is a relevant
statement by the representative of the Argentine, at pages 26 and 27-
I should like to start at page 26:
"It has been argued that the evolution that has taken place in the
international community since the Charter was signed twenty years
ago requires flexibility of interpretation and periodic dynamic
adjustments to the ncw circumstances. We do not disagree with
those views, which, it is only fair to state, wcre anticipated by those
who drafted the Charter when they included Chapter XVIII,
which is specifically designed to kccp the Charter up to date by the
legal means of amendment. We recognize that the amendment of
the Charter may be an arduous task, but there is nothing to prevent
us from uniting our will so as to estahlish certain provisional
operative standards which will later assume institutional form, in
accordance with Articles ro8 and ro9, after a vital procedure which
will enable us to ascertain how efficiently they fonction."
At page 27, this passage appears: SOUTH WEST AFRICA
"Experience has shown, on the other hand, that excessive flexi
bility ininterpreting the clearly laid down standards of the Charter
represents the fondamental origin of the problem now before us.
The point of view is maintained by my delegation in spite of the
fact that a flexible interpretationof the Charter might have given
the small and medium-sized countries the illusion that by strengthen
ing the competence of the Assembly in peace-keeping operations,
we gave satisfaction to our strong conviction of the legal equality
of States."
Then, at page 28/30, the representative applied his general attitude to
the particular problem with which the Committee was dealing. I am not
concerned so much with that as with the general view expressed in this
passage:
"The resolution called 'Uniting for Peace', adopted in 1950 with
the abstention of the Argentine delegation, represented the most
extreme example of that flexible approach to the interpretation of
the Charter. While it gave to the small countries the illusion of the
affirmation of the concept of the legal equality of States in con
sidering and deciding upon problems that endangered peace, at the
same time it sowed the seeds of future dîscord precisely because,
with that resolution, we removed ourselves too far from the straight
legal interpretatîonof the standards of the Charter."
The discussion continued, Mr. President-new ideas came along, they
were taken up, and they were discussed again. I do not want to be ex
haustive on the subject, but there are a few more pertinent statements
by representatives of States on this point.
On 17 May the representative of France-the same one as before
spoke again and I wish to give two brief extracts at page 3 of the relative
record (A/AC.121/PV 7, r7 May 1965):
"I have already had the opportunity of explaining the reasons
why the evolution to which reference has been made could not
supersede the normal interpretation of the unequivocal provisions
of a treaty."
I pause there to repeat the words: "why the evolution to which reference
has been made could not supersede the normal interpretation of the
unequivocal provisions of a treaty." In that respect I think the best
I can do is to refer to a passage from the statement made by the rep
resentative of Venezuela on 29 April, that is the same one that
I have read to the Court before. Then, later at that same page the
French representative added:
"The present crisis in the United Nations shows, moreover, what
happens when attempts are made to circumvent one of the basic
principles on which the authors of the San Francisco Treaty far
sightedly decided to base the Charter."
The representative of the Soviet Union returned to the fray on 25 May
1965. I refcr to a brief passage at page 3 of the relevant record (A/AC.
121/PVS, 25 May 1g65):
"The Soviet Union, along with other States, became a Member of
the United Nations under certain specific conditions, which are
clearly stated in the United Nations Charter. During the twenty
years of the existence of the United Nations the Soviet Union has REJOINDER OF MR. DE VILLIERS
unswervingly adhered to the provisions of the Charter. Any attempts.
to force upon the Soviet Union essentially new conditions for
membership in the United Nations ... consütuting a violation and
distortion of the wise principles of the Charter ... are not going to
succeed.
We also wish to point out that it is not only the States Members
of the United Nations that signed the Charter in San Francisco
twenty years ago which are obliged to follow unswervingly the
provisions of the Charter. All the young countries which have
become Members of the United Nations in recent years, and whose
acceptance as Members has greatly strengthened the United Nations.
and made it more representative and more viable, must also be
guided by the provisions of the Charter. As is known, in becoming
Members of our Organisation, those countries gave a solemn promise
to respect the United Nations Charter, which is the basic law
governing the activities of the Organisation. The trouble is notto be
found in the fact that the Charter is not perfect; rather, it is to be
found in the fact that the possibilities contained in the Charter have
thus far not always been utilized and implemented."
Then, finally, Mr. President, we revert to the representative of Mexico,.
because of the attitude which he expressed after all this debate in
proposing a draft resolution to this body. This was on 2 June 1965.
I think I should start at the page headed 13/15 of the relative record
(A/AC.121/PV 9, 2 June r965). Towards the bottom of the page he
said:
"Paragraph 4 [that is, of the draft resolution] emphasizes strict
respect for the Charter ... not just any interpretation of it, but the
Charter itself as the embodiment of the spirit of international
solidarity."
Then, at the top of the next page, headed 16, we find this statement:
"Judge Spender, in his individual opinion on the financial problem
of the Organisation, stated that the Charter: '... is a multilateral
treaty. It cannot be altered at the will of the majority of the Mem
ber States, no matter how often that will is expressed or asserted
against a protesting minority and no matter how large be the
majority of Membcr States which assert its will in this manner or
how small the minority' ...
This stress and the very meaning of the Mexican proposai are
ideas that must be kept in mind."
At the next page, 17, there is this further passage:
"Judge Spender, in his separate opinion, was quite correct when
he said that the Court limits itself to giving an interpretation of an
Article of the Charter and there its fonction ended; that it is not
competent to deal with the political consequences flowing from such
an opinion. It is precisely the Assembly that is competent to do
such a thing."
Mr. President, I refer to these attitudes in order to demonstrate that
the processes of norm creation here urged upon the Court by the Appli
cants have their practical implications stretching very far beyond the
confines of this particular case.
I referred the Court before to the so-called dynamic interpretation and SOUTH WEST AFRICA
application of the provisions of Article 73 of the Charter, with rcference
to non-self-governing territories-to the process by which the original
compromise which went into that Article, was entirely counteracted by
the eventual practical results arrived at by the processes of this so-called
dynamic interpretation and application. That is one matter in respect
of which dangerous implications ha\'e arisen which have been pointed
out by commentators. The one to which l have just referred now is
another one which commentators have used as an occasion for issuing
a warning as to the implications of processes of a kind which are urged
upon the Court by the Applicants.
The international society, particularly members of that society, large
and small, have made it clear to what extent thev treasure their sover
,eignty-to what extcnt they insist that if they éo-operate in an inter
national organization, they do so upon the terms that have been agreed
to, and that other terms and conditions are not to be enforced upon them
against their will. Failurc to heed that waming would appear to imperil
the whole of the international order which has been brought about so
painstakingly up to this stage.
The Applicants, Mr. President, do not appear to pretend that this
process of dynamic interpretation on which they rely, was merely an
interpretation of what stands there, of what is to be found in the partic
ular provisions of the Charter on which they rely. If they merely relied
upon those provisions of the Charter one would have expected them to
read out the provisions and to say: "that is what the words mcan", or
in so far as the words are not clear, "we have later interpretations which
assist in clearingup the ambiguities or obscurities that there might be".
But that is not what they relied upon. They came here with the fruits
of this so-called dynamic process, and they said: "these are what the
Court is to apply as the authentic interpretation of the particular
provisions of the Charter, and therefore also as standards governing
the interpretation of the Mandate."
We find that this appears to be acknowledgcd in a passage such as the
following which appears in the verbatim record of 19 May:
". . . the articles in question, Articles 55 (c) and 56, impose legal
duties susceptible of definition by a consensus of the membership of
the Organization ... " (supra, p. 346),
and Applicants go on in that same passage, Mr. President, to makc it clear
that they speak here of consensus in the sense in which they use that
tcrm, inappropriately in our submission, as not referring to unanimity,
but as referring to something less than unanimity and in the face of
admitted opposition. That is what they call consensus, and they say
that that process of consensus, in which there is opposition, and in
which the consensus amounts to less than unanimity, can have some legal
bearing on the problcm, that it is to be regardcd as a definition which is
not to be found in the Articles as they stand.
We need go no further, Mr. President, in my submission, to show that
an attempted reliancc on this so-called process of interpretation is
untenable as a means of bringing the Applicants' case under the heading
of Article 38(1) (a).
The alterations, the additions, or the extensions involved for the
provisions concerncd, as compared with their mcaning as originally
formulated, can never be justifieçi by interpretation. Those extensions, REJOINDER OF MR. DE VILLIERS 651
alterations, or additions could only be justifi.ed by a further normative
process.
That normative process is here referred to by the Applicants as
definition by consensus. The explanation which they themselves give of
what they regard as definition by consensus makes it clear, in my sub
mission, that that is nota process which could cver fall under Article 38
(r)(a). It is not treaty-making, with the consent of the parties involved.
lt is not following the prescribed methods of amendment of a treaty
which, when they have been put in operation, could be said still to be
part and parcel of the conventional process operating within the con
templation of Article 38 (1) (a). It is neither of those; it is rather
something of the nature of quasi-legislation, in the nature of a majority
insistent enough and preponderant enough to impose its will, in the
Applicants' submission, on that of a contesting minority.
So it follows, Mr. President, that in our submission, and for these
reasons, it becomes clear that Article 38 (r) (a) does not apply at all to
this case sought to be made by the Applicants.
Thus far, 1 have dealt with this contention about so-callecl authentic
interpretation only with reference to the Charter. With reference to the
Constitution of the International Labour Organisation, the very same
consiclerations apply, as I have just stated, except that there is a partic
ular provision of the International Labour Organisation Constitution
which underlines and emphasizes our answer to the Applicants' conten
tion. lt is Article 423 of the Constitution, whiclt reads as follows:
"Any question or dispute relating to the interpretation of this
Part of the present Treaty or of any subsequent convention con
cluded by the Members in pursuance of the provisions of this Part of
the prescnt Treaty shall be referred for decision to the Permanent
Court of 1nterna tional Justice."
Of course, in terms of Article 37 of the Statute that would now refer to
the present Court.
So it is quite clear, therefore, Mr. President, that questions relating
to interpretation of the Constitution itself and of conventions concludcd
by Members in pursuance of the provisions of the Constitution, are to be
referred to the Court for judicial determination. There is therefore no
suggestion that organs of the International Labour Organisation could
themselves authoritatively interpret these documents so as to render
them binding upon the Court or upon parties.
lt follows, therefore, Mr. President, that in neither case can this
so-called authoritative interpretation bring the matter under contem
plation of Article 38 (1) (a) of the Statute. \Ve shall later consider to
what extent the provisions of the two Constitutions, i.e., the human
rights provisions in the Charter particularly, and certain provisions of the
LLO. Constitution, to what extent they can be relied upon, to bring
the matter within the purview of Article 38 (1) (a). But that is an
argument relating to the content of the suggested norm. Naturally, as a
process of norm creation, if those provisions do contain the norm con
tended for by the Applicants, then, of course, by becoming a party to the
Constitutions concemed, viz., the Charter and the LLO. Constitution,
the Respondent would have incurred international obligation in accor
dance with such a norm. \Vhether it would be a question for determina
tion in a case concerning the interpretation and application of the SOUTH WEST AFRICA
Mandate, is, of course, a different matter, but that would then at least be
a matter falling within the purview of Article 38 (r) (a).
But, Mr. President, that concerns, as I say, the question of the suggested
content of the norm. One would then have to analyse those provisions
themselves and see whether their content corresponds with the content
of the suggested norm. That is a matter with which I shall deal when
I corne to the part of the Applicants' case concerning the suggested
content of the norm.
Finally, Mr. President, before leaving Article 38 (1) (a) and merely
in the context of the norm-creating process, it may be pertinent to
point out that the Applicants' argument as prcscnted to the Court in
the oral reply in regard to this Article, appears to be a complete after
thought, possibly inspired by the form of the questions put by Sir
Gerald Fitzmaurice, because if we look at the verbatim record of 181\larch,
which the Court will recall was the opening day of the Oral Proceedings,
we find that my learned friend, Mr. Gross, in giving an exposition to the
Court of what his case was going to be, dealt particularly with his case
regarding suggested violation of Article 2, paragraph 2, of the Mandate.
He referred then particularly to the bearing of Article 38 (r) of the
Statute upon his case. But, in this reference, he omitted all reference to
subparagraph (a). He stated in that record:
"ln their written pleadings, the Applicants have sought to
demonstrate that disputes concerning the interpretation and
application of Article 2, paragraph 2. of the Mandate are justiciable
(may I refer to our Reply, IV, at pages 483 and following).
Such disputes, it is respectfully submitted, are justiciable and in
accordance with, and on the basis of, international custom, as
evidence of a general practice accepted as law, the general principles
of law recognized by civilized nations, and judicial decisions and
teachings of qualified publicists of the various nations. In short,
Mr. President, justiciability of disputes concerning the interpreta
tion and application of Article 22 of the Covenant and Article 2,
paragraph 2, of the Mandate is supported by reference to the
application of Article 38, paragraph I, of the Statute of this honour
able Court." (VIII, p. rr7.)
The Court will sce that in refcrring to paragraph I of Article 38,
only contents of subparagraphs (b), (c) and (d) are mentioned, viz.,
international custom, gcneral principles of law and judicial decisions and
teachings of qualified publicists but the contents of the very first one
which are now relied upon, are not mentioned at ail. And no wonder,
Mr. President, becausc on analysis, as we say, as far as the norm-creating
process is concerned, the Applicants had to base their case on this very
flimsy foundation of the so-called authoritative interpretations whereby
a large and insistent majority can bind an opposing minority.
That, Mr. President, concludes my consideration of Article 38 (1) (a)
as encompassing a possible norm-creating process relevant to this case,
apart, of course, from the argument as to the content of the suggested
norm and consideration of the particular provisions of the Charter and
the LLO. Constitution which will corne at a later stage.
We can now turn to the Applicants' attempted reliance on Article 38
(1) (b) which mentions, as a source to be applied by the Court, "inter
national custom as evidence of a general practice accepted as law". REJOINDER OF MR. DE VILLIERS
Now, it is instructive first to see in what manner the Applicants seek to
establish this customary norm of non-discrimination or non-separation
on which they rely as falling under this particular head.
In the verbatim of rg May, at page 347, supra, they said the following:
"In common parlance, a custom may develop and exist despite objection
during its period of emergence." May I just pause there for a moment,
Mr. President. That would seem to mcet the Applicants' crucial difficulty
or rather,it would seem to be an attempt made to meet the Applicants'
crucial difficulty. That is the crucial point at issue in these proceedings.
The Applicants, in trying to rely on the first major source, Article 38
(r) (a), ran into this diffi.culty that they could not find words, they cou!d
not find provisions in treaties which support their contention in regard
tathe existence of such a norrn. They therefore had to attempt to rel y on
this proccss of so-called authoritativcinterprctation with all the inhercnt
difficulties in it. Now they try to rely on custom where, as it is, they have
to admit that for the purposes of treaty Iaw, of conventional Iaw, of the
creation of obligations by way of treaty or convention, it is necessary
to rely upon the consent of the parties sought to be bound. Here they try
to circumvent their difficulty by saying that in regard to the gcneration
of an international customary law, that consent is not nccessary and
they take it to the extreme of saying that a custom may develop and
exist despite objection during its period of emergence. That, as we shall.
show, is the very crucial issue between the Parties.
The passage in the verbatim of 19 May continues:
"So long as international society was highly decentralized it was.
necessary to rest law-creating proccdures on State practice. With the
growth of an organized international community, with constituent
organs, it is increasingly reasonable to regard the collective acts of
the competent international institutions as evidence of general
practicc accepted as law."
So, Mr. President, one sees here in this passage already that when thcy
say they rely upon the generation of a rule of international customary
law they do soin a very peculiar sense-they do so, not by relying upon
the normal processes to which regard is to be had when a question arises
as to the generation of a customary principle or a customary rule; they
seek to rely upon the activities of States not in their inter-State practice
but within organisations of the so-called organized international com
munity or society. This becomes clearer when we proceed to the next
passage in the record of 19 May:
"... Respondent's policies in South West Africa ... have been
subject to quasi judicial scrutiny ovcr the last decade or more by
organs of the United Nations as distinctive as the International
Labour Organisation and Committees of the United Nations in
various forms, such as the South West Africa Committee itsclf. It is
against this background [this background, 1',lr. President, of the
so-called quasi judicial scrutiny] that the Applicants contend that
the international standard of non-discrimination and non-separation
has ripened into a norm of customary international law within the
language and meaning of Article 38, paragraph r (b), of the
Statute of the Court." (Supra, p. 348.)
So that is the evidential field on which the Applicants choose to rcly.
And, Mr. President, they proceed to make it clear even that they seek SOUTH WEST AFRICA
to rely on that exclusively, without referring to the rest of the standard
and traditional field of evidence to be considered in order to see whether
a rule of customary law has become generated. ln the verbatim record
of 13 May they say;
"The issue before the Court ... is whether the processes of the
organized international community have or have not eventuated in
international standards or an international legal norm or both.''
(Supra, p. 256.)
So, l\Ir. President, the question is to what extent and in what manner
can this so-called organized international community gencrate rules of
customary law? Orto put it in another way, the crux of this issue: can
organs or members of the associations which are said to comprise the
organized international community, in their participation in the activities
of those organizations, add to or supplement the terms of their Con
stitutions, or can they bring about legal consequences outside the limits
indicated by those Constitutions? That would seem to be the crux of the
matter. The Applicants would seem to admit that the consequences for
which they contend, fall outside the scope and limitations indicated in
those constituent instruments themselves, but they would appear to
suggest that the gap has been bridged by a custom, which app1ies this
concept of theirs of a consensus approaching unanimity, and to which
effect isto be given despite protests of a minority.
That would seem to be the effect of their contention. They would have
to bridge this gap between the limits indicated in the Constitutions
themselves, as to instances in which individual States can be bound by
collective action, and where they want to corne with this contention of
theirs. \Ve have seen in the first place that they cannot do so by the
process of so-called authoritative interprctation. We have seen that
they could bridge the gap if there should have been new treaties or if
there should have been formai amendment of the relevant international
instruments. But they do not rely upon any such suggestions of formai
amendmcnt or of new treaties, and the question then is whether by some
process fallingunder the concept of generation of rules of customary law,
they can bridge this gap. That there is a gap is perfectly clear, and it
would seem to be admitted by the Applicants.
Neither the United Nations nor the International Labour Organisation,
as organizations, possess legislative, quasi-legislative,or normative
fonctions. As far as the United Nations is concerned, the Applicants said
in the verbatim record of 19 May:
"... the capacity to develop and give effect to international custom
is not equivalent, in our view, to endowing the General Assembly
with lcgislative law-making powcrs or competence". (Supra, p. 348.)
In other words, they do not suggcst that the General Assembly is to be
regarded as being endowed with legislative law-making powers or
competence-they want to disassociate themselves from a contention of
that kind. They proceeded to quote with approval an extract from a
work by one Mrs. Higgins-and that is at the same page of the same
record-and that extract commenced with the words: "Resolutions of the
Assembly are not perse binding ... ",soit would seem, Mr. President,
that that is a common cause basis from which we can proceed to deal
with the argument in regard to which the issue arises. I should, never
theiess, like to refer briefly, because I think it may be of significance, to REJOINDER OF MR. DE VILLIERS
certain aspects of the scheme, the ratio of this basic situation which
appears to be admitted by the Applicants, the ratio of this very arrange
ment whereby the powers of these international organizations and their
organs are limited to the extent that they are.
In the first place, l should like to refer to the general position as.
summarized by Oppenheim in his International Law, the Eighth Edition,
1955, Volume I, at page 28:
"Since the Family of Nations is not at present a State-like
comrnunity, there is no central authority which can make law for it
in the way that Parliaments make law by statutes within the
States. The only way in which International Law can be made by a
deliberate act, in contradistinction to custom, is by the members of
the Family of Nations concluding treaties in which certain rules for
their future conduct are stipulated."
We can refer the Court also to the book by the honourable 1\iember
of the Court, Judge Jessup, A Modern Law of Nations, at page 135,
where the honourable author accepts that the United Nations is not a
world legislator and where he speaks of certain possible developments
as having to await the crcation of an actual world legislator. And then
Jater, at the same page again, he suggests that certain developments.
could "pave the way to the development of an actual system of inter
national legislation under which an international body would have the
legal authority to prescribe rules binding the community as a whole",
accepting, thereforc, that in the law as it stands there is no such inter
national legislator with those powers.
Dealing now, Mr. President, with the specific organs of these two main
bodies, the United Nations and the International Labour Organisation,
let us begin with the Security Council of the United Nations. We find
that Article 25 of the Charter provides that the Security Council has.
power to make decisions; other provisions, of course, cmpower the
Security Council to make recommendations in particular circumstances,.
but it can go to the extent of making decisions only under certain
circumstances. Point number one that is important is that those are
decisions relating to ad hoc situations; they are not clecisions rclating to
a normative process, a Iegislative process of making Jaw in general for
the future. That is a factor stressed by Kelsen in his Law of the Uniteà
Nations, at pages 293 to 295.
:tlfPresident, what is further important in this situation is the very
fact of the narrow 1imits within which the Security Council can evcn make
those decisions. Its power to do so and to bind individual Members of the
organization, even without their concurrence in the particular decision,
dcrives of course from the explicit agreement by Members to be so
bound, as it is found in Article 25 of the Charter. Article 25 states that
specifically. The :Members of the United Nations agree to accept and
carry out the decisions of the Security Council in accordance with the
Charter, but, .Mr. President, just as in the case of the Covenant of the
League of Nations, to which we referred the other day, wc find that, in
broad principle, the same position applies in that the compass within
which this can occur, is a very limited and a very definitely circum
scribed one. Itis, of course, not exa_ctly the same as it was in the case
of the Council of the League, but it is also a circumscribed one.
Broadly speaking, if one has regard to the various provisions of the SOUTH WEST AFRlCA
Charter which are relevant in this regard, they would seem to fall under
only one or two heads. Perhaps the two are to be assimilated, perhaps
they are not, but the two that corne to mind are situations of actual or
threatened breaches of the peace, as contemplated in Article 39 of the
Charter and the provisions which follow on that, and a situation as
.contemplated in Article 94 of the Charter, in which a party fails to carry
out a judgment of this Court in a contentious proceeding. Such is the
narrow circumscription of the circumstances, Mr. President, and then,
added to that, one finds that the composition of the Security Council
and the voting procedure in the Security Council are so circumscribed as
very strongly to reduce the possibility of the making of such binding
-decisions in various situations. The mere fact that there is required a
positive vote of seven Members of the Council, consisting of II coupled
with the veto rights given to the great Powers on the Council (those
aspects of it are well known to the Court, so l need not stress them},
in themselves have the practical effect of rcducing the probable scopc
within which there could be decisions of the Security Council, binding
upon States which have not agreed to those particular decisions.
That is the general scheme, which is a very carefully checked and
balanced one, as the authors of the Charter saw it.
In the case of the General Assembly, one knows that the basic position
isthat its powers are only recommendatory except in the case of certain
specific matters such as provisions for approval of the budget, admission
of Members, and so forth. The situation was dealt with in the opinions of
Judges Lauterpacht and Klaestad, an extract from which I read to the
Court on Friday, so I nee1 not dwell upon that. I should like to point out,
Mr. President, that, as far as the sphere of making rccommendations is
concerned, and evcn having regard to the exccptional cases where bind
ing decisions may be taken, it is again perfectly clear, as appears from
the comment of the various commentators, that the General Assembly
is not vested with legislative powers. Oppenheim uses that expression
explicitly in his8th edition, Volume I, at page 424. I can refer the Court
to further comment on the situation in Kelsen, pages 193-194; Goodrich
and Hambro, Charter of the United Nations, 2nd edition, pages 151-152;
·Goodrich, The United Nations (1959), page 207. and L. Delbez, Les
principes générauxdtt droit international public, 3rd edition, 1964, at
pages 414-415. I do not want to read in extenso from the comment, but
I should Iike to point out certain pertinent features.
The last author, Delbez, says explicitly-"It [the General Assembly]
has in respect of Membcr States neither normative powers nor individual
powers of decision".
Most of the commentators, Mr. President, givc as the rationale for the
situation that the General Assembly was intended to exercise a political
influence, and not to play the role of a law-giver or an interpreter of the
law, or of in any way laying down the law. Its fonction is political and
notjuridical.
I should like to refer to the comment of Kelsen on this particular
·point, at pages 199-200 of the work to which I referred:
"... it is important to note that the main competence of the Assem
bly, as determined by Article rn, has a political, nota legal character.
The intention was to cstablish the General Asscmbly as town meet
ing of the world, the open conscience of humanity-that isto say,
as a deliberative and criticising organ. Hence, legal fonctions of the REJOINDER OF MR. DE VILLIERS
Assembly are to be considered as exceptions and reqmre special
provisions in the Charter."
Again, in Goodrich, the work to which I referred, at page 207, there is
a general statement which I should like to cite:
"Since both the General Assembly and the Security Council lack
authority to take legally binding decisions in the realm of peaceful
settlement and thus must seek to achieve their objectives by
persuasion, what these two organs actually dois usually determined
by an estimate of the course of action which under all the circum
stances is most likely to achieve the desired result. If the purpose
of action is to getan immediate settlement or adjustment based on
the consent of interested parties, the course followed will presumably
be that which is most likely to identify and eliminate present dif
ferences and achieve an agreed settlement. If, on the other hand,
the purpose of action is to gain a propaganda advantage in the
'cold war' or build up pressure on one of the parties to accept a
particular programme, then the course followed will be that which
at the same time serves the interests of the major proponents and
is acceptable to an impressive majority."
Mr. President, l thought it fit to refer to this comment as to the
rationale of the situation, because it secms tome to be eminently relevant
to the suggestion that activities within a body such as the General
Assembly and the Security Council, acting in this particular way, can
be said to establish customary international law at ail, when their
purpose is so essentially different, when their purpose isnot directed at
acts of States, when their purpose is not directed at indications whether
there is a Jegal obligation or not, in the ordinary course of events. There
may be exceptions, but the basic essential fonction of these organs is so
foreign to that which is suggested as being neccssary in a process of
generating a norm of customary law.
ln the case of the Trusteeship Council, the position can be stated very
shortly. It is quite clear that in tcrms of Article 87 the Trusteeship
Council cannot have wider powers than the General Assembly-it
assists the General Assembly, and its fonctions are limited and directly
prescribed, the scope relates essentially to supervisory functions regard
ing trusteeship administration. There again, one finds no purpose of
Iaying down norms which may be binding in the future.
Finally, we corne to the Constitution of the International Labour
Organisation. As far as we could study that document, Mr. President,
it seems clear that the functions of that Organisation are intended to be
non-normative. The Organisation may prepare draft conventions, but
those draft conventions then again require ratification by the States
concemed. This emphasizes that that power of binding without the
consent of the States concerned was not intended to be given to the
Organisation. And then there are certain other functions relating to
investigation of specific complaints and so forth, but again a limited
compass relating to investigation· of particular complaints and noi
normative in a gcneral scnse at ail.
It is against that background, Mr. President, of what we find in the
constituent instruments, what we find by way of contemplation of the
nature and the extcnt of the powers of these varions organized bodies and
organs, that the two questions arise which are relevant to the issue now SOUTH WEST AFRIGA
under consideration: firstly, cana norm arise by custom in the processes
of these Organizations, and, secondly, would such a norm be binding
upon a disscnting Statc?
Mr. President, forthe purposes of considering whether a rulc of custom
ary law has bcen generated by the processes suggested by the Applicants,
it is necessary first to consider the basic principles which apply, as
enunciated by various authorities and by various commentators. My
learned friend, Dr. verLoren van Themaat, has spedally conducted some
research into this matter, and with your leave, Mr. President, I should
like to ask him to prcsent a brief survey of relevant auth"orities to the
Court.
Minutes of the Public Hearings held from 15 March to 14 July, 20 September to 15 November and 29 November 1965, 21 March and on 18 July 1966, the President, Sir Percy Spender, presiding (Annexes to the Minutes - continued)