Written Statements (India, United States of America, Nigeria)

INTERNATIONAL COURT OF JUSTICE

PLEADINGS,ORALARGUMENTS,DOCUMENTS

LEGALCONSEQUENÇES FORSTATESOF THE

CONTlNUED PRESENCE OF SOUTH AFRICA IN
NAMIBIA(SOUTHWEST AFRICA)

NOTWTTHSTANDINGSECWRlTY COUNClL
RESOLUTlON 276(1970)

VOLUME 1
Request for Advisory Opinion, Documents, Written Statements

COUR INTERNATIONALDEJUSTICE

MÉMOIRES, PLAIDOIRIESET DOCUMENTS

CONSEQUENC JERIDIQUESPOUR LES ÉTATSDE
LA PR~SENCECONTlNUE DE L'AFRFQUEDU SUD

EN NAM1BIE(SUD-OUEST AFRICAIN)
NONOBSTANT LA RÉSOLUTION 276 (1970)
DU CONSEIL DE SECURITE

VOLUME 1

Requttpour avconsultadocumentsexposkcrits CONTENTS IX

Page
. . c) 1969(jusqu'ila vingt-quatritme sessionl'kssemblte
gknkraleinclusivement).............. 38
3. Autres résolutionspertinendes1'AssemblCegénérale . . 38

C. Documentation du Conseilkconomique et societ delaCom-
mission des droits de l'homm.............. 34
1. Documents de la Commission des droitdeI'hoinme ... 39
2 et3. Documents et résoIutionsdu Conseil économiqueet
social ....................... 40
CONTENT OSF THEDOSSIER ................... 42

Writtenstatements. Exposésécrits
WRITTEN STATEME NFTTHE SECRETARY.GEN LERFATHE UNITED
NATIONS .......................... 75

1. Introduction......................
The question before the Cou...............
The meaning and scope of the question..........
The issuestobe examined ................

II. International obligations concerning Nam........
Obligations derived frorn the mandates sy........
Obligations derived frorn the CharttheoUnited Nations. .
Other sources of legal obliga..............
The special respansibiliofethe United Nations towards the
people and Territory of Nanlibi............
The role of the General Assembl.............
The right of the people of Namibia to self-deterniination and
independence .....................
III. The continuepresenceof South Africa in Namibia.....
The basis Forthe South African presen..........

The role of the Securfty Coun..............
The illegal occupatio..................
The responsibility ofSouAfricn .............
IV.The legal consequences for Stat.............
The territoriauthority .................
Diplornatic. consular and other relat..........
International treaties and agreemen...........
"Dealings" and commercial. investment and tourist activ.ties
Correlative obligatio..................
V. Conclusion .......................

Annex A. Resolutions adopteby the General Assembly with spe-
cificreference to Namibia (South West Afric........
Anncx B. Acts of the South African Parliament purpotoapply
to Namibia. and enacted. or purportedly extendeto Namibia
after October 1966 ....................
REVIEW OFTHE PROCEEDIN OCSTHE ÇENERAL ASSEMBL YND OF THE
SECUK~TC YOUNCI RELATINC TO THETERMINATI OFNTHE MANDATE
FOR Nn~rsra AND SUBSEQUEA NTTION (SUBMITTE TO THE INTER-
NATIONAL COURT OFJUSTIC EN BEHAL FF THESECRETARY-GENERAL
OF THE UNITED NATIONS ).................. CONTENTS iY1'

Page
.Proposais submitted.to theAd Hoc Cornmittee . . . . . 147
.(O) Proposa] by Ethiopia, Nigeria, Senegal and the
.United Arab Republic . . . . . . . . . . . . . 147
. .(b) Proposal by Chile and Mexico . , . . . . . . . . 148
.(cj Proposai by Canada, Italy and the United States . . 148
Transmission OF the three proposalsto the General Assem-
bly. . . . . . . . . . . . . . . . . . . . . . . . 148
The propositions underlying ail-three proposals . . . . . 148
Differencesof view on praciical action . . . . . . . . . 149
Subjects on which unaniniity of viewexisted in the Ad Hoc
Cornmittee . . . . . . . . . . . . . . . . . . . . 149
, Proceedingsof thefifthspecialsessionof the General Assem-
.blywhich led to the adoption of resolution 2248(S-Vjof 19
May 1967. . . . . . . . .. . . . . . . . . . . . . 150
Documents before the General Assemblyin connection with
theitem report of the Ad Hoc Cornmittee for SouthWest
Africa . . . . . . . . . . . . . . . . . . . . . . 150
Draft resolutions. . . . . . . . . . . . . . . . . . 150
Draft resolution AIL.516IRev. 1 . . . . . . . . . . 150
Draft resolution AlL.517 . . . . . . . . . . . . . 151
Adoption of resolution 2248 (5-V) . . . . . . . . . . . 151
Szatementsinthe generaldebaieand explmations ofvote. . 151
Sraiements by CO-sponsors of draft resolution AIC.5161
Rev. t . . . . . . . . . . . . . . . . . . . . . 151
Statements by delegations which voted in favourof but
did not CO-sponsordraft resolution AIL.516IRev. I . . 153
'Statetnentsby permanent membersafthe Security Council
abstaining in the vote upon draft resolution AIL.5161
Rev. 1 . . . . . . . . . . . . .. . . . . . . . 154
Statements by Western European and other States (other
than permanent members of the Security Council) ab-
stainingin thevote.upon draft remlution A/L.516/Rev.
1 ....................... 154
Stingminthe vote upon draft resolution A./L516/Rev. I. . 156
Statements by members of the Eastern European group
abstaining in the vote upon draft resoIution A/L.S16/
Rev. 1 . . . . . . . . . . . . . . . . . . . . . 156
Statement opposing the adoption ofdraft resolution AIL.
5161Rev . . . . . . . . . . . . . . .. . . . . 157
Statements by delegations absent durlng the vote upon
draft-resolution AIL.SI6IRev. 1 . . . . . . . . . . 157
General observations on General Assenibly resolution 2248
(S-v> . . . . . . . . . . . . . . . . . . . . - . . 157
, Survej~of General Assembly resolutions relatingto Namibia
adopted subsequent ta GeneraI Assembly resolutions 2145
(XXI} and 2248 (S-V) , . .. . . .;. . . . . . . . . . 158
Resolutions 2324 (XXri) and 2325 (XXII) of 16 December
1967 . .. . . . . . . . . . . . . . . . . . . . . 158 NAMIBIA (SOUTH WEST AFRICA)
Page
Resolution 2324 (XXII) ............... 158
Resolution 2325(XXII) ............... 158

Resolution 2372 (XXIl) of 12June 1968 ........ 158
Resolution 2403 {XXILl)of 16 December 1968...... 159
Resolution 2498{XXIV) of 31 October 1969 ....... 159
ResoIution 2678[XXV)of 9 December 1970....... 150
V .Praceedings leading fo Security Council resolution 245
(1968) ....................... 160
Request for a meeting of the Security Counci...... 160
Meeting ofthe Security Council ............ 161
Documents before the Securjiy Council in çonnection with
the question considere............... 161
Adoption of Security Cowncil resolution 245 (1968.... 161
Sumrnaryof viewsexpressed inthe debate........ 161
General observations on Security Council resolution 245
(1968) ...................... 163
VI .Proceedings leading to Secürity Council resolution 246
(1968) ...................... 164
Request for a meeting of the Security Counci...... 164
Meetings of the SBcurityCouncil ............ 164
Documents befor e.the Security Council......... 164

(b) Draft resolutioSI8429pand amendments... ..... 164
184
Adoption of Seruriiy Council resolution 246 (196.... 166
Provision in resolution 246(1968) referrito General As-
sernblyresolution 2145 (XXT) ............ 166
Summary of vicwsexpressed in the debat........ 166
Statesrnot members of the Security Council....... 170
General observations on Security Council resolution 246
(1968) ...................... 171

VI1 .Proceedings leading to Security Council resolution 264
(1969) ...................... 171
Request for a meeting ofthe Security Council...... 171
Meetings of the Security Council............ 171
Documents before the Security Council ......... 172
Communications .................. 172
Draft iesolution.................. 172
Adoption of Security Council resolution 264(1969).... 173
Summary of views expressed in the deba........ 173
General observations on Security Corincil resolution 264
(1969) ...................... 177

VIII. Proceedings leading ro Security Council resolution 269
(1969) ...................... 177
Request for ameeting of the Security Council ...... E77
Meetings of the Security Counci............ 178
Documents before the Securiry Council......... 178 CONTENTS XII1

Page
Conimunications and Reports ............ 178
Draft resolution.................. 178
Adoption of Security Council resolution 269 (196.... 179
Summary of views expressedin the debat........ 179
General observations on Security Council resolution 269
(1969) ...................... 182
TX. Proccedings leading to Security Council resolution 276
(1970) ...................... 183

Meetings of the Security Counci................. 183
Documents before the Security Council......... 183

Communications and reports ............ 183
Draft resolution.................. 184
Adoption of Security Council resolution 276 (197.... 185
Summary of viewsexpressed in the debat........ 185
General observütions on Security Council resolution 276
(1970) ...................... 189
X. Proceedings leading ta Security Council resolution 283
(1970) ...................... 190
Request for a meeting of the Security Counc...... 190
Meeting of the Security Council............ 190
Documents before the Security Council......... 191
Reportof the AdHoc Sub-Cornmittee ........ 191
Draft resolution.................. 191
(i) Draft resolution S/989............ 141
(if) Draft resolution 51989............ 191
Adoptioii of Security Council resolution 283 (19.... 142
Sunimary of viewsexpressed in the debat........ 192
General observations on Security Council resolution 283
(1970) ...................... 195
XI. Proccedings leading to Secur~ty Council resolution 284
{1970) ...................... 196
Proceedinp in theAd Hoc Sub-Cornmittee ....... 196
Proceeéingsat the 1550thmeeting of the Security Counci.. 199
XII. Summary of the reviewof proceedings ......... 202

Anmanent mernbers of the Security Council.......ons by pe203

Ex~osk RIT nu SECRÉTAI CÉENÉRALDES NATIONU SNIES ..... 207
1.lntroduction ...................... 207
La question dont est saisie la Co............. 207
Senset portéede la question ............... 207
Points Bexaminer .................... 210
II.Obligations internationales concernanlaNamibie ...... 210
Obligations decoulant du régimedes mandats ........ 210
Obligationsdbcoulant delaChartedesNations Unies .... 213
Autres soiirced'obligationsjuridiques........... 216 Page
. Les responsabilitéssptciales des ,Nations UniAs l'égarddu
peuple et du territoire de la Nami........... 217
Le rblede I'Assembliegknérale .............. 218
Le droit du peuple de Namibia I'autodetermination et il'indé-
pendance ....................... 220

III. La prksencecontinue de l'Afriquedu Sud en Namibie.... 225
A quel titrel'Afrique duSud est présen.......... 225
. Le r8le du Conseil de sécuri............... 237
L'occupation illéga................... 234
La responsabilitde l'Afriquedu Sud ........... 235
IV .Conséquencesjuridiques pour les Etats .......... 237

Autoritéterritariale................... 237
Relations diplomatiques, cansulaires et au........ 238
Traitks et accords internationau............. 239
CRelations))et activitésrelatives au commercaux investisse-
ments etau tourisme .................. 241
Obligations correspondantes ............... 242
V . Conclusion....................... 245
'
Annexe A: Résolutionsadoptées par l'Assembléegknéraleconcer-
nant expressernentla Namibie (Sud-Ouestafricai....... 247
Annexe B: Lois adoptéespar le Parlement sud-africain ecensées
s'appliquer Ala Namibiequi ont ktépromulguéesen Nainibie ou
dont l'application aurait étéétendaela Nainibie après octobre
.1966 ........................... 252

ETUDE DES DEBAT DE L'ASSEMBLÉ CE~NÉRALE ETDU CONSEI LE SECU-
RITRELATIFSÀ LA CESSATIONDU MANDAT SUR LA NAMIB ITMESURES
PRISESX LA SUITE DE CEDEBAT SDOCUMENT SOUMIS A LACOUR INTER-
NATIONALE DE JUSTIC EU NOM DU SECR~TAT AIRN~RA DE L'ORGA-
NISATION DESNATIONU SNIES) ................. 260
Intfoduction ........................ 260

. 1. Débats qui ont conduit i l'adoption de la résolution2145
(XXI) de l'AssembléegénCrale.............. 261
Examende la question du Sud-Ouest africaien prioritk . . 261
Documents dont l'Assembléegénéraleétait saisieAl'occasion
de l'examen delaquestion .............. 261
1) Rapport du Comitéspécialet rapport du Sous-Comitédu
Sud-Ouest africai.................. 261
2) Projets de resolutions et amendement......... 262

a) Projet de résolutionAIL.483 et Ad.1 à 3 et amende-
ments quiont étéadoptés ............. 262
h) Sous-amendement aux amendements contenus dans le
document AIL.448,qui n'a pas étéadopté ...... 267
c,JProjet de rtsolution qui n'a pastté ado...... 267
Adoption de la résolution2145 (XXI) de I'Assernbltegénérale
et analyse du vote.................. 267
Résumédes vuesexpriméeslors du débat ......... 268

1) Dkclarations faiteà l'occasionde la prksentation du
projetde résolutioAIL.483 et Add .1 A3 ...... 268 CONTENTS XV
Page

2) Déclarations faites lors de la présentation des amende-
ments proposésdans le doçunient AIL.488 ...... 268
3) Déclarationsfaites au coursde la discussion ..... 259
a) Par lesauteurs du projet de résolutionAjC.483et Ad.
1à 3 ..................... 269
b) Par des délégations quine figuraient pas au nombre
des auteurs du projet de résofutionAIL.483 et Add .
1 3 mais qui ont votéen sa faveur ....... 271
i)Eiats de l'Europe de l'Est .......... 271
fi) Etats de L'Europede l'Ouest et autres Etais. 273
1) Etats de l'Europede l'Oum ........ 273
...............
2) Autres Etats 275
iii} Eiats d'Asie ed'Afrique ........... 278
iv) Etats d'Amériquelatine ........... 279
rJ Par des dklégationsqui s'étaientabstenues lors du
vote ..................... 281
i) France................... 281
ii) Royaume-Uni ............... 282

d) Par des délégationsui avaient votécontre leprojet de
résolutionAjL.483 et Add .1 à 3et les amendements
figurant dans le documentAIL.488 ........ 284
i) Portugal.................. 284
ii) Afrique du Sud ............... 284
Observations généralesconcernant la résolution2145 (XXL) . 284

II.Débatsdu Comitéspècialpour le Sud-Ouest africain cré6 en
application de la sesalution 214(XXI) de l'Assemblée gèné-
rale ......................... 285
Propositions presentéesau Comitéspécial ......... 286
a) Proposition présentéepar I'Ethiopie.le Nigéria.la Rtpu-
blique arabe unie et le Sénegal........... 286
b) Proposition présenttepar le Chili et le Mexique.... 286
c) Proposition prksentée par le Canada. les Etats-Unis
d'Amérique etI'Italie ............... 287
Comm~inicationdes trois propositions à l'Assembléegénérale 287
Conclusions sur lesquellesreposaientlestrois proposition. . 287
Divergences de vues quant aux mesures pratiques ..... 287
Questions ayant fait l'unanimitéau sein du Comitéspécial. . 288

111. Débats de l'Assembléegénérale (cinquième sessioe nxtraordi-
naire) qui ont aboutia l'adoptionde liartsolution 2248 (S-V)
du 19mai 1967 .................... 288
Documents dont 1'Assernblee giniraleÇtaftsaisiea l'occasion
de l'examen dela question .............. 289
Rapport du Comitéspécialpour le Sud-Ouest africain . . 289
Projetsde rksolution ................. 289
Projet de résolutionAIL.51GIRev 1 .......... 289
Projet de rksolution AIL.517. ............ 289XVI NAMIBIA (SOUTPIWEST AFRICA)

Page
Adoption de la rtsolutiori22448(CS-V). . . . . . . . . . . 290
Déclarationsfaites au cours de la discussion gtnéraleerexpli-
cations de vote. . . . . . , . . . . . , . . . . . . . 240
Déclarationsfaites par des délégations iîgiiranau nombre
des auteurs du projet de résoIutionA/L.516/Rev. I . . . 290
Déclarationsfaites par des délégationqs uiont votéenfaveur
du projet de réso4utionAlL.5 1GIRev.1 mais qui ne figu-
raient pas au nombre de ses auteurs . . . . . . . . . 292
Déclarations faitespar les membres permanents du Conseil
de stcurite qui se sont abstenus lors duvore sur le projet
de résolutionAIL.516lRev. 1 . . . . . . . . . . . . 293
Dkclarations faites par des Etats de l'Europe de l'Ouest et
par d'autres Etats(autres que les membres permanents du
Conseil de sécurité)qui se sont abstenus lors du vote sur
Ieprojet de rksolution A/L.S16/Rev. 1 . . . . . . . . 294
Déclarations faites par des membres du Croupe afro-asia-
résolutionAIL.5161Rev.enu1 .o. .du. . .. su. .e.pr. . . . 295
Déclarations faitespar les Etats de l'Europe de l'Est quise
sont abstenus lors du votc sur le projet de rksolution
A/L.Sl6jRev. 1 . . . . . . . . . . . . . . . . . . 296
Otclaratian Faitepar unedéltgationopposéeAl'adoption du
projet de rtsolution AlL.516IRev. 1 . . . . . . . . . 296
Dtclarations faites par des dtlégationsabsentes lors du vote
sur le projet de résolutioAIL.5161Re 1v... . . . . . 296
Observations générales concernant la résolution2248 (S-V) de
l'Assembléegénérale. . . . . . . . . . . . . . . . . 297
IV. Etude des rksolutions adoptées par l'Assembléegknérqale au
sujet dela Namibie postérieurement aux résolutions2145 (XXT)
et 2248 (S-V) de l'Assembléegénérale, . . . . . . . . . . 297
Résolutions2324(XXII)et2325(XX 16dI)cdembre1967 . 297

Résolution2325 (XXII)I) .. . . . .. . . . . .. . . . .. . . 297

Rtsolution 2372(XX11)du 12juin 1968. . . . . . . . . . 298
Résolution2498 (XXIV) du 3 11octobre 196968. .. .. .. . . .. 299
Résolution2678 (XXV) du 9 décembre1970 . . . . . . . . 299

V. D6bats qui ont abouti à I'adoption de la résolution245(1968)
du Conseil de sécurité . . . . . . . . . . . . . . . . . 300
Demande de réuniondu Conseil de sécurité . . . . . . . . 300
Réuniondu Conseil de sécurité . . . . . . . . . . . . . 300
Documents dontleConseiIde stcurité étaitsaisipour l'examen
de la question . . . . . . . . . . . . . . . . . . . . 300
Adoption de la résolution245 (1968) du Conseil de séciaité. 301
Observations généraleseconcernant la rksolution 245 (1958) du1
Conseil de sécuritt . . . . . . . . . . . .. . . . . . 303

VI. Débats quiont abouti l'adoption de la résolution246 (1968)
du Conseil de sécurité . . . . . . . . . . . . . . . . . 303 COmENTS XVII
Page

Demande de réunion du Conseil de sécurité ........ 303
Documents dont le Conseilcudetsécuritéétait sais...... 304

a) Lettres et rapports ................ 304
b) Projet de résolution SI8429et amendements ..... 304
Adoption de la résolution 246 (1968) du Conseilde sécurité . 306
Dispositions de la résolution 246 (1968) se référanta la résolu-
tion 2145 (XXI) de l'Assembléegénérale ........ 306
Résumédesvues exprimées au cours de Ia discussion .... 306
Ems membres du Conseil de sécurité.......... 307
Erats non membres du Conseil de skcurité ........ 310
Observations générales coricernant la résolution 246 (1968) du
Conseil de sécurité .................. 311

VIT. Débats qui ont abouti a l'adoption de la résolution 264(1469)
du Conseil de stcuritt .................
Demande de rkunion du Conseil de sécurité ........
Réunions du Conseil de sécurité .............
Documents dont le Conseil de sécuritéétait saisi......
Lettres .......................
Projet de résolution .................

Adoption de la résolution 264 (1969) du Conseil de stcurité .
Rksumtdes vues exprirnkes au cours de la discussion ....
Observations généralesconcernant la résolution 264 (1969) du
Conseil de sécurité ..................
VI11. Débats quiont abouti a l'adoptionde la résolution 269 (1969)
du Conseil de sécurité .................
Demande de réunion du Conseil de sécurité ........
Réunions du Conseil de sécurité .............
Documents dont le Conseil de sécuritkétait saisi......
Lettres et rapporis ..................
Projet dc rksol~ition .................

Adoption de la résolution 269 (1969) du Conseil de sécurité .
Résumédes vues expriméesau cours de.la discussion ....
Observations généralesconcernant la résolution 269 (1969) du
Conscil de sécurité ..................
IX. Débats qui ont abouti l'adoption de la résolution76 (1970)
du Conseil de sécuriit .................
Demande dc rkunion du Conseil de stcurité ........
Rkunions du Conseil de sécurité .............
Documents dont le Conseil desécuritéétait saisi ......
Lettres et rapports .................. 324
Projet de résolution ................. 325

Adoption de la résolution 276 (1970) du Conseil destcurité . 326
Résumé desvues expriméesau cours de la discussion .... 326
Observations généralesconcernant la résolution 276 (1470) du
Conseil de sécurité .................. 331XVIII NAMIBIA (SOUTH WESTAFRICA)

Page
X .Débatsqui ont abouta l'adoption de la résolution283 (1970)
du Conseildesécuritk ................. 332

Demande deréuniondu Conseil de skcuri........ 332
Réuniondu Conseil de sécurit............. 332
Documents dant le Conseil de sécurittesais...... 332
Rapport du Sous-Comitk ad ho............ 332
Projets de rCs~luti................. 332

i) Projet de résoluSI9891............ 332
ii) Projde résolutionSI989............ 333
Adoption dela résolution283 (1970) du Conseil de séc.r333
Resunnedes vues exprimaes acoursde ldiscussion.... 333
Observations généralsoncernantIarésolution283(1970)du
Conseilde sécurit.................. 337
XI .Debats qui ont abouti hl'adoptdenla résoIution284(1370)
du Conseil de sécurité 338
..................
Débats auseindu Sous-Coniitad lzo........... 338
Débats du Conseil de sécuratsa1550'séarice ...... 341
XII. Résuméde l'étudedes débats.............. 344

Annexe concernant les efdeti'abstention volontaire des membres
.permanents du Conseidesécurité.............. 346
WRI~ENSTATEMEN OF THE GOVERNME NT THE KINGDOM OF THE

NETHERLAND ......................... 350
WR~TTEN STATEMEN OFTTHE GOVERNMEN OFTHE POL~SH PEOPLE'RSE-
PUBLIC ............................ 354

WR~EN STATEMEN OF THEGOVERNMENT OF PAKISTA ........ 355

WRITTEN STATEMEW OF THE GOVERNMEN OTTHE'HUNGARIAP NEOPLE'S
REPUBLI .......................... 359

LETTE RROMTHE AMBASSAD OFRHE CZECHOSLO VACIAL~S.....LIC
TO THEPRESIDEN QF THEINTERNATION CALURT OFJUSTICE 361

F~R~TTE STATEMEN OF THEGOVERNME OFTFINEAND ........

1. lntroductory rernark..................
I. The legal consequences for SoAfrica..........
II1. The legconsequencefor orher Mernbersofthe United Nations
than South Afric....................
1V. The Iegalconsequences for States not rnernbers of the United
Nations ........................

Chapter 1. Introductio...................
Chapter T.The interpretatiand modification of treaties.
A .Introductor.......................
B. Interpretation of treat................XX NAMIBIA (SOUTH WEST AFRTCA)

Page
Annex A. Extracts from staternents by representatives of certain
Statesat the Twenty-firstSessionofthe General Asseniblyconcem-
ing the Court's Judgment of 18 July 196........... 451
Annex B. Resolutions .................... 474
AnnexC .......................... 476
Annex D .......................... 478
Annex E. Letter dated 16 July 1962from the Permanent Represen-
tative of Mexico to the United Nations to the Under-Secretary for
Trusteeship and Information from Non-Self-Goveming Territo-
ries ........................... 4&2
Annex IF.......................... 484
Chapter Y. The validity and legal effect of Security Council reso-
lution 276 (1970)..................... 490
A. lntroductory...................... 490
B. The basis for the adoption of Security Council resolution
276 (1970)....................... 491
C. The non-applicability of Chapter VI1of the Charter .... 497
D . The relevance of Chapter V of the Charter as a separate basis
forthe actionof the SecurIty Council........... 501
E. The relevance and requirements of ÇhapterVI of the Charter 509
. General ...................... 509
II.The scopeof the powers oftheCouncil under Chapter VI . 509
III.The realpurposes of the Council ........... 511
IV. The investigation and determination by the Counci... 517
F. The legal consequences of Security Council resolution 276
(1970)......................... 520
1.General ...................... 520
II.The juridicalnature and legal effectsof resolution 276
(1970)....................... 520
III.The Icgal consequences for States of resolution 276
(1970)........................ 524
IV. Conclusion .................... 527
G . Conclusion ...................... 528

Annex S.curityCouncil resolution 276(1970) .......... 529
Chapter YI . introduction to the contentions concerning General
Assembly resolution 2145 (XXL) ............... 531
Annex. Dechration on the granting of indépendence to colonial
countries and peoples ................... 539

Chapter VIT. History and content ofthe Mandate ........ 541
k . htroductory ...................... 541
B . History and origin of the mandates system......... 542
C. The fraining of the mandate for South West Africa ..... 552
D. The Leagiie of Nations period.............. 556
E. Analysisof the Mandate for South Wesi Africa ...... 558
F. The Mandatory's obligation to report andaccount ..... 561
r. General ..................... 561 Page
II.Substitution of supervisory organs by virtue of some
objective principle of international law......
TIT. The express terms of the Mandate ..........
IV .Winstrumenti.................... read into the mandate
Y. Judicial pronouncements ..............
VI. Judgc Jessup's disseniing opinion in 196.......
VTT. Conclusion ....................
C .The possibility of revocation of the Mandate........

II.GRevocation bywirtueof..aprinciple of international la.
Il1.The express termsof the Mandate ..........
IV. Revocation by virtue of an implied term .......
V. Conclusion ....................
Annex A. Article 22 of theCovenant of the Leagueof Nations ...
Annex B .andate for GermanSouth West Africa .......
Chapter VITI .The transitional years 1945-1946and thereafter..

A . Tntroductory......................
C Dissolution of the Leagued ofNations ...........
D . The period 196-1949 ..................
E . The effect of the evenis during the transitional ye....
1. General .....................
TI. Thc United Nations Charter ............
III. United Nations resolutions of January-February 1946
pertaining to assumption of certain Lcague functions and
establishmentof the trusteeship systeni.......
TV. League of Nations resolutions during last session of its
Assembly, 8 to 18 April 1946 ............
V. Negotiations subsequeni todissolution of the Leagri. .
Y1. Practiceof States .................
F. Conclusion ......................
Annex A . Participationby Members of the United Nations in
debates in that Organization during the years 1947. 1948and 1949
concerningtheaQuestionofSouth West Africa" ........
First Par.........................
Second Part .......................
Chapter IX . The earlier Opinions and Judgrnentsconcerning super-
visionofSouth West Africa .................
A. Tntroductory ......................
B . Analysis of. and comment on. the 1950Advisory Opinion . .
C. Dissent from the 1950 Advisory Opinion concerning super-
vision.........................
1 Minority opinions .................
TI. Opinionsof writers ................
D. Advisory Opinions of 1955and 1956 ...........
E. The 1962Judgrnent and Opinions ............
1. General .................... Page
II. Separate opinion of Judge Eustamante ........ 695
TI1.Dissenting opinion of JudgesSir PercySpendecand Sir
Cerald Fitzniaurice ................ 696
IV. Dissenting opinion of Judgevan Wyk ........ 698
V. The Judgment of the Court ............. 698
VI. Separate opinion of Judge Sessup .......... 703
VI1 . Sepasate opinion of Sudge Sir Louis Mbanefo ..... 704
VIII. Dissenting opinionsof President Winiarski.JudgesBasde-
vant and Morelli and Declaralionof Judge SpiropouEos . 705
.F . The '1966Judgmentand separate opinions ......... 706
1. General ..................... 706
11. The Sudgrnen tf the Court ............. 705

(a) The Court's analysis of the mandates in the context
of the Leapue system ..............
. (b) The Court's view asto the events in the transitional
period 1945-1946 ...............
(c) of 'fillingin the gaps"'..............e ina process
(d) Conclusion tobe drawn from the Court's approach .

111. Separateopinion of Judge van Wyk .........
IV. Dissenting opinion of Vice-President Wellington Koo . .
VI. Dissenting opinion of JudgeJessupa............
VI1. Dissenting opinion of JudgePadilla-Nervo ......
VI11. Dissenting opinion of Judge Sir Louis Mbanefo ....

G . Conclusion ......................
Chapter X. The validity and legal effectoGeneral Assemblyreso-
lulion 2145 (XXI) .....................
A . Introductory ......................
B. The origin andmbit of the powersof the General Assernbly. .
C. The powers of the General Assernbly in relation to the present
.. .que$tion. .... , , , . , , . +! i ........
D. The nature and legal effect of &neral Assernbly resoluiion
2145 (XXI) ......................
E . Conclusion ......................
Chapter...I. The factualissu. a . .......4......
A . Intraductory ...... : ...............
B. The political background to the adoption of resolution 2145
wl) .........................
C . The attacks on South Africa'sadministration of theTerritory .
1. General .....................
II. Thc quality and sources of the çriticisragainst South
Africa'çpolicles ..................
II. Reactions to expbsitions of the tfue fact.......

(a) The visit of Mi.Caipio and Dr .Martinez de Alva to
South WestAfrifa ', .............. CONTENTS XXllI

Page
{b) Furiherreaction toevidenc proving the absence of
militarizarion................ 740
(c) The Sorirh WestAfricacases........... 742

E .Subsequent eventse...................ution2145 (XXI) . . 751
F .The latesi progress.................. 756

I'.General .................... 756
II. Population and history............ 756
1l.Government and administration .......... 761
IV. Summaryreview of general economic developrnent . 764
V:Banking.....................s.......... 768
YI1. Agriculture.................. 770
VI11. Veterinary services........ ' ..... 775
IX. Fishing .................... 775
X. Construction .................. 776
. XI Commerce ................... 778
XII. Manufacturing ................. 778
XII1. Railway, road transport, harbour and air serv. .s 779
XIY . Oficial transport............... 783
XV . Raads ..................... 783
XVI . Postal and telecommunications services..... 785
XVII . Economic advancement of the indigenous peoples of
South West Afric................ 788
XVlIi Waterresources ................. 792
XIX Power ..................... 797
XX . Educaiion ................... 799
XXI . Health services................ 806
XXTI. Scientifi....................esearch services . . 808
XXII1. Summary 809
G .Conclusion ...................... 809
lntroductionto pholographic presentation........... 811
Annex A..South Wesr Aji-icSurveyIYO ............ 812
Annex B. Communication dated 26 September 1967from the Minis-
terof Foreign Affairsof the Republic of South Africa (U.A[oc
6897, Annex II, Enclosure 2)................ 812
Annex C. South West Africa: SouthAfrica R'sply to the Secretary-
GeneraIof the United Nations (Securiiy ÇounciI resolution 269 of
1969)........................... 812
Table ofcasescited ..................... 813
List of tlie relevant documentation............ 815
.........
WRI~TEN STATEME NFTTHE GOVERNME OFTINDIA 830
Introductory ........................ 830
T. Scopeofthe question ................. 830
TT Issues bforc the Court................ 837
JT TLegal consequencesforStates.............. 838
1V .Conclusion ...................... 842XXlV NAMlRlA {SOUTH WEST AFRICA)
'Page

WRITTEN STATEME NT THE GOVERNME ONT THE UNITEDSTATES OF
AMERKA ........................... 842
lntroductory ........................ 843

TheQuestion ....................... 843
Issues presented...................... 843
jurisdiction of the Cour.................. 843
Part T.Statenlent of fac................... 845
South Africa's administration of South West Africa under the
League of Nations Mandate ................ 845
The 1950Advisory Opinion ................. 846
The 1955 AdvisoryOpinion ................. 847
The 1956Advisory Opinion ................. 848
The cont~ntious cases ................... 848
General AssernbEyresolution 2145&XI) and subsequent General
Assernblyand Security Council resolutions......... 849

Part I. Stateinentoflaw ................... 852
Chapter f. The United Nations validly terminated South Africa's
Mandate overthe Territory of Namibia .......... 852
Section 1. Scopeof the question.............. 852
Section TI.The Mandate as a treaty in force........ 854
Section TT.1There is a legal obligation to observtreaties in
good faith ...................... 855
Section IV. A material breach of a treaty entitlesthe other party
to suspend its operation in wholorin part........ 856
Section Y. The League of Nations had the right to terminate
rightsndera mandate in the evcnt oa materia! breach of its
obligations bythe Mandatory Fower ........... 857
Section VI. The United Nations succeeded to the right to ter-
minate South Africa's mandate in the event of a material
breach ........................ 860
Section VFI.Sbuth Africa has been in material breach of its
inandate obligations.................. 863

A . By refusing to submit reports, transmit petitions, and
otherwise recognizethe authoritythe United Nations .. 863
B. By systernatic rejection of the recommendationOF the
General Assenlbly and the Security Counci...... 864
C. By application ofapartheidin Namibia ........ 864
1.Freedorn of movernent .............. 856
2 Freedom of residence and right to own land.... 867
3. Freedom of employment ............. 867
4. Right to participate in governme......... 868
5. The rightto family lif.............. 868
6. The right to education.............. 869

Section VI1T.The United Nations had theright to terminaie
Soiith Africa'sauthority under the Mandate becauof South
Africa's material breaches of its mandate obligations, and
such terminatiowas a reasonable exerciseof United Nations
supervisory authority................. 871
Section 1X. The United Nations has the legal capacity to as-
sume the functionof the Mandatory Power ........ 872WRITTEh STATEMENT OF TI-Il7 GGVERNMENT OF INDIA

INTRODUCTORY

1. The Swurity Council of the United Nations, in resolution 284 (1970)
of 29 July 1970, has requested the International Court of Justice to give an
ad>kop opi~iiw on the following question:
"Wha t are the legal consequences for States of the continued presence
of Soutt. Africain Namibia, notwithstanding Security Council resolution

274 (197D)T"
2. It may k recalled that by General Assembly resolution 2145 (XXI) of
27 ûctober 1966, the United Nations terminated the Mandate of South West
Africa and arsumed direct responsibility forthe territory, now called Namibia,
untiI its independence. By resolution 264 (I969), the Security Council recog-
nizd the termination of the Mandate and called upon the Government of
South Africa immediately to withdraw its administration from the territory.

By ~solutiori 276 (1970), the Security Council strongly condemned the refusal
of the Goveinrnent of South Africa to comply with General Assembly and
Security Cor~ncil resolutions pertainingto Namiba and also declared that
"the oontinuzd presence of the South African authorities in Namibia is illegal
and that wnsequently ail acts taken by the Government OF South Africa on
behalf of or concerning Namibia after the termination of the mandate are
illegal and invalid". The Council declared further that "the defiant attitude
of the Gavernrnent of South Africa towards the Council's decisions under-
mines the ailthority of the United Nations". In that resolution, the Council
decided to mtablish an nd hoc s~ib-committes of the Council :

"... ta study, in cunsultiitiun ,with the Secrettlry-Generniways and
nieans by which tlie relevant resolutions ul' thc Cuunçil, including ihç
preseiit rasnlution, can beeffectively iiiiplcmcntcd in ricsurdançc with thc
oppropriate provisioiis oitm Chnrier, in the light of the flagrant refusal
nf Snuth Africa ta withdraw froiu Naniibia nnd iu siibiriit ils Rcorii-
mcndalions by 30 April 1970".

3. 'I'he Rzsidcnt uf thc Scc~irily Cuiinciantiounccdon 30 JaiiuaryI97n
thal iht Ab Hot: Suh-Crriuii-iittae would he curnpuser1 uf a11mçrnbers of the
Socurily C'u~mcil.Iri ils repo[S/9865).ttir: Suh-Coininittee requested tSc-
curicy rnuncii to considcrilrter nlthc pcissibiti~y~Trcqiiesting, ili accordance
wilh Arlicic Yb(1) of theCharter. an adviçory opinion from thc Intcrnütionxl
Court ofJutiw on "the legal consequences for States of the continued presence
of South Africa in Namibia, notwithstanding Security Council resolution 276
{1970ji'.fie Security Council, taking note of this recommendation of the
Ad HOC Sub-Cornmittee, has requested the advisory opinion of the Court on
the question rererred to earlier. The Council alscbdecided that the opinion of
theCourt be "transmitted to the Security Council at anearly date".

1. SCOPE OF THE QUESTION

4. It mai.beuseful, at the outset, to define the scope of the question before
the Court. I:csoIution 284 (1970) of the Security Council, which referred the WRITTEN STATEMENT OF INDIA 831

question to the Court, was adopted on the basis of a draft resolution
sponsored by Finland (519892). Commenting on this draft resolution at the
1550th meeting of the Security Council, members of the Security Council
expressed different opinions on the scope of the question transmitted to the
Court. While the representatives of some members considered that the question
was wide enough to enable the Court to look into the question of the legal
foundations of the revocation of the Mandate by the General Assembly, others
expressed different opinions. While introducing the draft resolution submitted
by Finland, which wasfiriallyadopted by the Security Council,therepresentative
of Finland expressed the following view:

"First, an advisclry opinion from the International Court of Justice
would have considerable value in defining and spelling out in legal terms
the implications foi States of the contineed presence of South Africa in
Namibia.
Secondly, an advisory opinion woufd also be of value in defining more
precisely the rights of Namibians-those staying in Namibia as well as in-
habitants of Namibia residing abroad. In this way it could perhaps accord
somemeasure of adlied protection to Namibians whose basic human rights

are being suppresseii through the application of South African repressive
legislation.
Thirdly, itis Our1:xpectionthat an advisory opinion of the International
Court of Justice could underline the fact that South Africa has forfeited
its mandate over South West Africa because of its violation of theterms
of the Mandate itself, because South Africa has acted contrary to its
international obligations, contrary to the international status of the
territory and contrary to international law. It is important, in our view, to
expose the false froiit of legality which South African authorities atternpt
to present to the v~orld. This would hetp the United Nations and the
Governments of Member States to mobilise public opinion .intheir coun-
tries-especially in those countries which have the power to influence
events in Southern f~frica in a decisive way." (S/PV. 1550,p. 18.)

Therepresentative of Nepal stated:
"The draft resolution in question is entirely based on the report of the
Sub-Cornmittee which recommends that the Security Council request the
International Court ofJustice to give an advisory opinion on:

'... the legal cotisequences for States of the continued presence of
South Africa in Namibia, notwithstanding Security Council resolution
276(1970)'.(SI98IJ, p. 7.)

In voting in favoiir of the draft resolution, it will be Our understanding
that the 1nternation:iI Court limit the scope of its advisory opinion strictly
to the question put 10it, and not review or examine the legality or validity
of the resolutions aGopted by both the General Assembly and the Security
Council." (Ibid p .,7.)
The representative of Syriacommented as follows:

"The InternationalCourt of Justice, as we see fromthe draft resolution,
is not asked to rule on thestatus of Namibia as such; rather it is requested
to elicit the scope of legal rneans at the disposal of States, which may
erect a wall of legal opposition to the occupation of Namibia by the
Government of Sourh Africa. Accordingly, our understanding of the draft
is that it seeks to adtl a valuable element to the range of actions thatbean taken by States in fiilfilment of their obligations under the Charter and the

resolutions of the Security Counçil." (Ibid.,p.47.)
"On tlie basis of such understanding, and within this scope, my delega-
tion will cast its vote affirmatively on the draft resolution of Finland and
wishes to reiterate its gratitude to the representative of Finland for the
initiative that may prove useful in its consequences." (Ibid., pp. 48-50.)
The represeniative of Spain expressed the following view :

"The problem of Namibia has confronted us with one of the most
serious cluestions the Organization has ever faced-that is, the behaviour
of one OFits Members in respect of failure to comply with the resolutions
of one of the Organization's bodies. My delegation feels that it istherefore
most appropriate to request a ruling from the International Court of
Justice, forthis would makeit possible for us to beaware of theinternational
legal corisequences of a failure to comply with resolutions of a United
Nations body-in particular, resolutions 264 (1969), 269 (1969) and 276
(1970) 01'the Security Council.
My dclegation therefore supports this draft resolution, which was so

ably presented by the delegation of Finland. We confidently expect this
further iiction by the Security Council to contribute decisively to the
achievenient of the objectives the United Nations has set for itself on this
question-that is, the defence of the interests and rights of the Namibians
and respect for the decisions of the Organization in discharging its special
responsibility toward the Territory of Namibia." (Ibid., pp. 56-57.)
The represenrative of Burundi observed:

". .. there is, however, always the hope that an impartial judgment,
which would be in conformity with the interests of the Narnibian people,
would serve the two-fold purpose of rehabilitating the prestige of the
International Court, world opinion of which was so much disenchanted,
and also harmonizing the position of the Court with the position taken by
the General Assembly in putting an end to South Africa's Mandate over
Narnibia." (lbid., p. 7.)

After the adoption of the draft resolution submitted by Finland, the represen-
tative of the Ilnited Stateof America stated:

"My government particularly wefcomes the adoption of the resolution
contained in document S/9892, which requests an advisory opinion of the
International Court of Justice. ..We believe that the international
commuriity has indeed a serious need for impartial and authoritative legal
advice on the question of Namibia.
We recall that the Court, in its advisory opinions of 1950, 1955and 1956,
has already provided useful guidance to the Assembly on legal issues
concerning Namibia, and we believe that the Court can and should now
give the Council the benefit of its impartial and authoritativeviews both as
to the duties of South Africa and the responsibility of other Mernbers of
the United Nations in light of resolution 276(1970)." (Ibid.,p. 82.)
The representative of France said:

"We ;ire among those who believe that the international status did not
come to anend with thedisappearance of the L~agueof Nations and cannot
unilater;illy be modified by the adrninistering Power, and that it is only
when the people exercise their right to self-determination that this will WRITTEN STATEMENT OF LNDIA 833
cornetoan end. On the other hand, it is doubtful that the United Nations,
heir to the League of Nations, can have the powers which the League of

Nations had. The Geneva Organization did not seem to be empowered
unilaterally to depriveacountry of its Mandate.
In viewof these tioubts, we were much interested in the initiative taken
by the representati.~eof Finland to request an advisory opinion on the
question from the Intemational Court of Justice. Of course, the-in our
view-imperfect lartguage of the request t O the rnternational Court may
be a matter of regret. Without prejudging the opinion of the Court, it
might be appropriare to leave it to the Judges in the Court to question the
legal foundations of the revocation of the Mandate. Ttis, then, because
'weconsider that it would make it possible for the International Court of
Justice to clarify thi:legal position as regards the legality of the revocation
that wehave decideiinonetheless tosupport the text." (Ibid., pp. 86-87.)

The representative of the United Kingdom stated:

"In the Ad Hoc Sub-Committee the United Kingdom representative
made it clear that niy Government was quite willingto consider a request
for an advisory opinion from the hternational Court of Justice. He did,
.however, add that ciursupport for this depended upon the submission to
. the International Court of the issue of the Status of South West Africa
as a whole. The qur:stion before us does not appear to do this. It is based
on certain assumptions about the legal status of South West Africa which,
. -in .the opinion of niy Government;. ought thernselves to be examined:by
the Court: These s.ssumptions are .not.expressly stated in the question
itself but-they do cli:arlyemerge frorn some speechesof the sponsors made
: in the Ad Hoc Sub-Committee and also today: Tnthe first place,'there is a

question wheiher, having regard to al1 the circumstances, the General
Assembly was corripetent to terrninate the Mandate over South West
Africa.as it claimed.to do by virtue of Generaf Assembly resolution 2145
(XX). In the second place, if it were.establishedthat the General Assembly
wasso competent tc.terminate the Mandate, there would rernain a question
whether it was entitled to vest in the .UnitedlNations responsibility forthe
Territory. These qirestions,pose complicated legal issues which havenot
. hitherto been the subject of any.decision or advisory opinion of.the Inter-
national Court. My Government-regrets that the question which it is now
fproposed to.submit to the Court is constructed in such a fashion that the
Court mightfeelitselfinhibitedfrompronouncing on the morefundamental
issues conceming the present status of South West Africa. It is for these

reasons that rny Government has abstained on the request for an advisory
opinion as expresse11.n t..,.horter draft resolution." (Ibid., pp. 89-90,91.)

5. These different opinions expressed in the Security Council by the repre-
sentatives of the mernbecsof the Security Council on the scope of the question
might prima facie, lend credence, to the viewthat the question put to the Court
was drafted in, what the representative of France called, "imperfect language".
Itis submitted that this is not so and that the intention of the Security Council
isclear and beyond any doubt. In its present formulation the question does not
entitle the Court toexpre:ssan opinion on thecompetence ofthe General Assem-
bly to terminate the Mandate of South West Africa. A number of reasons jus-
tifythis conclusion.

Firstly, SecurityCounîil resolution 276(1970) is based on, what the represen-
tative of the United Kingdom called, "certain assurnptions about the legalstatus of South West Africa". These assurnptions are that the Mandate of
South West P~fricawas terminated and that the United Nations assurned direct
responsibility for the Territory until its independeilce.These are valid assump-
fions and cannot be the subject-matter of review by the Court unless it is
requested so 'todo by the competent organs of the United Nations. If this was

not the corre'rtinterpretation, the Court could have been asked to express its
opinion directly on the cornpetence of the United Nations to revoke the
Mandate of South West Africa.
Secondly, the words "notwithstanding Security Council resolution 276
(1970)" in thtq:uestion put to the Court support the viewexpressed by us.It is
precisely for this reason that the representative of France, who wanted the
Court to question the legal foundations of the revocation of the Mandate,
requested a :separate vote on these words when the Security Council was
considering the draft resolution submitted by Finland. A vote was taken on
those words and the Security Council decided to retain them in the question as
formulated. We may add that the position would not have been different even
in the absence of these words. These words, however, place beyond doubt the
intention of tlie Security Council. Their further purpose is indicated in the later
portion of thi:sstatement.
Thirdly, th'cquestion should aIso be interpretetl in the light of the circum-
stances that Ii:dthe Council to put it to the Court. As stated earlier, the request
to theCourt for an advisory opinion was the result of a recommendation of the
Ad Hoc Sub-Cornrnittee established by the Security Council to study "ways
and means" b'ywhichthe relevant resolutions of the SecurityCouncil, including

resolution 2715(19701,could be effectivelyimplemented in accordance with the
appropriate provisions of the Charter and in the light of the flagrant refusal of
South Africa to withdraw from Namibia. In its report, the Committee States
as follows:

"13. In the course of its deliberations, the AdHoc Sub-Cornmittee has
beenguicledprimariIy by the followingthreeconsiderations:
First, resolution 276 (1970) and the establishment of an Ad Hoc Sub-
Committee of the Council is to be regarded as an interirn measure, the
purpose cfwhich is to helpthe Councilmake substantive decisions.
Second, the Security Council in resolution 276 (1970)has provided the
Ad Hoc Sub-Cornmittee with a broad enough mandate to allow it to
examine al1proposals and ideas for such effective and appropriate sfepss
mighr be takenby the Security Council toimpbment ifs relevant resolurions
onthesuljject.
Third, while recognizing that it is the prerogative of the Security
Council .todecide on any action with regard to Namibia, the Ad Hoc Sub-
Cornmittee considers that it could best serve the Council by drawing its
attention to such proposals as would be likely to command sufficiently
broad support to ensure effectiveimplementation." (Sl9863,p. 5.)(Empha-

sissupplied.)
It is clear tliat the Ad Hoc Sub-Cornmittee recommended the present request
to the Court as one of the "ways and means" by which the relevant resolutions
of the Security Council could be effectively implernented. The consideration
which led the Security Council to make the request for an advisory opinion
has been stated in thefollowing terms in resolution 2(1970):

"... an advisory opinion from the International Court of Justice WOU-
be usefui for the Security Council in its further consideration of the \VRITI'ENSTATEMENT OF INDIA 835

question of Namibiir and in furtherance of the objectives the Council is
seeking". (Emphasis supplied.)

This background constitutes an essential element in the proper appreciation
of the scope of the question before the Court.
Fourthly, it is no gainsayingthat the competent organs of the United Nations
need not submit al1 their decisions for judicial review. Ttmay be relevant to
recall that at the San Francisco Conference,Committee IV/2-of the Commis-
sion on Judicial 0rgani;:ation adopted an important declaration on inter-
pretingthe Charter, therelevantpart of whichreads :

"In the course of the operations from day to day of the various organs
of the Organisation, it is inevitable that each organ will interpret such
parts of the Charter as are applicable to its particular functions. This
process is inherent i~ithe functioning of any body which operates under
an instrument definiiig its functions and powers." (UNCIO, Vol. 13,
p. 703at p.709.)

The General Assembly and the Security Council are not obliged to seek
advisory opinions of the Court on al1legal questions before them. The Charter
only speaks in terms of competence of these organs to request the Court for an
advisory opinion on any 1r:galquestion. Article 96, paragraph 1,of the Charter
States that:"The General Assembly or the Security Council may request the
InternationalCourt ofJusticeto givean advisoryopinion onany legalquestion."
In other words, it is left to these organs to decide on which legal questionsthey

may seek the opinion of the Court. Hence, the mere fact that competence of
the United Nations to terrninate the Mandate of South West Africa involves a
legalquestion should not create a presumption that the Court would have been
asked in the present request to givean opinionon it.The Court cannot obviously
give its opinion on a qut:stion, which is not referred to it, on the basis of
presumptions whichare not validlydrawn.
The records ofthe United Nations ctearlyindicate that, notwithstanding
sorne doubts expressed b:rrepresentatives of some Members of the United
Nations, the General Assembly or the SecurityCouncil never entertained any
doubt about the competcnce of the United Nations General Assembly to
terminate the Mandate ofSouth WestAfrica.
The question of the corrrpetenceof the Council of the League of Nations or
of the General Assembly of the United Nations, in this regard, has not hitherto

been the subject of any jutigment or advisory opinion of the Permanent Court
of hternational justice or the International Court of Justice. Nevertheless, if
the Council of the League of Nations had been possessedof the right to termi-
nate the Mandate, the Genrral Assemblyshould bedeemed to possessthe same
right, consequent to what the International Court of Justice said in its Advisory
Opinion of 1950 on the Iiiternational Stalus of Souih West Africa that "the
General Assembly of the United Nations is legally qualified to exercise the
supervisory functions previously exercised by the League of Nations with
regard to the administration of the Territory". (I.C.J. Reports 1950, p. 137.)
Ktis stated in the Mandate for South West Africa that the Mandatory, in
agreeing to accept the Mandate, had undertaken "to exercise it on behalf of

the League of Nations". And as pointed out by the International Court of
Justice in its Judgrnent in the Second Phase of the South West Africa cases,
the Leaguehad the right:
". ..in the pursuit of itscollective, institutional activity, to requirethe due
performance of the Mandate in discharge of the 'sacred trust' ... To put this conclusion in another way, the position was that under the Mandates
system, and within the general framework of the League system, the
various mandatories were responsible for their conduct of the inandates
solely to the League-in particular to its Council." (South West Africa,
Second Phase,Judgtnent, I.C.J. Reports 1966, p. 29.)

It also flciwsfrom the relevant provisions of the Mandate as well as from
the practice of the League of Nations that the Council, on whose behalf the
MandatoryIladundertaken to exercisethe Mandate and to whom the Mandatory
wasresponsible fortheconduct of the Mandate,wasalso competent to terminate
the Mandate. In a statement ebmitted to the Court in 1950in connection with
the'Advisor:yOpinion of the.Court of 1950on the Internationnl Statrrsof South
West Africa, the representative of the Secretary-General of the United Nations

had obser~ed as follows:
"At i:hisstage, 1should like to recapitulate some of the principles which
may be adduced from the practice of the League of Nations with regard

to ,achange in status of a mandated territory during the active lifetime of
the League . . . Fourth, tlzepossibilii'y ofrrvocatioi~ irlthe everit of userious
breach#oo fbligation by a rnan&tory was not completely precluded." (Plead-
ings,Oi.ulArgunienrs,Documents,InternatiorznlSfatlis of Sorlth WestAfric#,
, Advisoiy Opinion of 11July 1950,pp. 233-234.) (Emphasis supplied.) ,

Judge Alvarez indicated.he l.gal position thus :
: "It ni&,hap;en that '. a.rnanditoiy~t&~ does Aotperforni the obligatio~s

resultirig from its Mandate. In that. case the United ,Nations ,Assembly
; may ir!ake,admonitions, and i! necessary,,'re .v oke the l)fandate.",-I,C.J.-.
, . Repprts 1950,. 1p.2.) , , . . !i ' ,:.v . '. ,
According i:oan informed writer on the subject, . : .. ' .. , .-.
. -
, :,Y. .. the right of revocation must be regai-ded as an irriplied pqrt' of the
mandates system, as the obligation of accountability by a mandatory to
" the Le.aguefor the administration of its 'sacred trust' (contained in both

Article 22 of,the Covenant and the individual mandates),must surely be,
seen as including the sanction of revocation as the ultimate deterrent
against.abuse of the trust". (John Dugard, "Revocation of the Mandate
for South West Africa", Americah Journal of international Law, Vol. 62,
', p. 85.) , *.I .-

It is thus seen that the General Assembly, as !;uccessorto the.Council of'the
League, could terminate the mandate in case the mandatory concerned does
not perform the. obligations resuiting from the mandate. And the General
Assembly of. the United Nations, as the competent organ, in the words of
Judge Lauterpacht, "to pronounce a verdict upon the conformity of the action
of the administering State witli its international obligations", considered in its
resolution 2145 (XXI) of 27 October 1966that "al1 the efforts of the United
Nations to induce the Government of South Africa to fulfil its obligations in

respect of the administration of the Mandated Territory and to ensure the
well-being and security of the indigenous inhabitants have been of no avail",
and affirmed "ifs right to take appropriate actiiin in the matter, including the
right to revert to itself the administration of the Mandated Territory". in the
same resolution, the General Assembly declared that :

"South Africa has failed to fulfilits obligations in respect of the adminis-
tration~ of the Mandated Territory and to énsurethe moral and material JYRITTENSTATEMENTOF INDIA 837
well-being and security of the indigenous inhabitants of South West
Africa, andhas, in fact, disavowed the Mandate."

Pursuant to this declaration, the General Assembly decided:

"The Mandate conferred upon His Britannic Majesty to be exercised
on behalf by the Gc-vernment of the Union of South Africa is therefore
terminated, that Soulh Africa hasnoother right to administer theTerritory
and that henceforth South West Africa cornes under the direct responsi-
bility of the United Nations."
The termination of the hIandate thus effected by the General Assembly, and
also recognized by the Security Council in its resolution 264(1969), is, therefore
valid and irrevocable. WC:need not elaborate this point further in the light of

the fact that the questiort before the Court does not in any way cal1 for the
opinion of the Court on the cornpetence of the General Assembly to terminate
the Mandate.

II. ISSUES BEFORE THE COURT

6. What then arethe issues which fall to be decided by the Court within the
framework of the question submitted to it by the Security Council? The words

"the continued presence c-fSouth Africa in Namibia, notwithstanding Security
Council resolution 276 (1370)" in the question are crucial for a proper appre-
ciation of the scope of thr question before the Court. It is submitted that the
Court should take as its :;tarting point what the Security Council declared in
resolution 276(1970) on tlie continued presence of South Africa in Namibia and
express its opinion on the obligations of States under the Charter of the United
Nations, the relevant resc~lutionsof the United Nations and international law
to further the objectives the United Nations is seeking.
7. In discharging this t;isk, the Court might well recall what Judge Azevedo
said in the Peace Treaiies case :

"[TJhe Court, which has been raised to the status of a principal organ
and thus more closely geared into the mechanism of UNO, must do its
utmost to CO-operate with the other organs with a view to attaining the
aims and principles ttiat have been set forth." (I.C.J. Reports 1950,p. 82.)
Shabtai Rosenne makes the following pertinent observation:

". ..in general, it cannot be doubted that the mutual relations of the
principal organs ouglit to be based upon a general theory ofco-operation
between them in the ~ursuit of the aims of the Organization. This approach
opens the way to a functional conception of the task of the Court in its
capacity of a principal organ of the United Nations, according to which,
subject to overriding considerations of law (including judicial propriety),
the Colirt nmst CO-operatein the attainment of the ainasof the Organization
and sirive to give effect10 the decisions of other principal organs, and not
ochieve results whichwouldrender ihem migatory." (The Law and Praciice
of the Intertzational Court, Vol. 1, 1965p. 70.) (Emphasis supplied.)

8. After having reaffirnied the relevant resolutions of the United Nations
which terminated the Mandate and called upon the Government of South
Africa immediately to withdraw its administration from the territory, the Se-
curity Council, in resolution 276 (1970) declared, in relation t~ the continued
presence of South Africa in Namibia, as follows:838 NAMIBIA (SOUTH WEST AFRICA)
"2. Decbzres that the continued presence of the South African authorities

in Niimibia is illegal and that wnsequentlyal1acts taken by the Govem-
meni of South Africa on behalf of or concerning Namibia after the
termination of the mandate are illegal and invalid;
3. Decbsresfurrhetr hat the defiant attitude of the Government of South
Africa towards theGCouncil'sdecisions undermines the authority of the
United Nations;
4. Considers that the continued occupation of Namibia by the Govern-
meni: of South Africa in defiance of the relevant United Nations reso-
lutions and of the United Nations Charter has grave consequences for
the rights and interests of the people of Namibia."

What has been declared by the Security Council should, as has already been -
said, form the starting point in the determination by the Court of, what the
question bef'orethe Court calls, "the legal consequences for States of the con-
tinued presence of South Africa in Namibia".

III. LEGAL CONSEQUENCES FOR STATES

9. Following thetermination of the Mandate by the United Nations and also
the assumption by it of the direct responsibility for the Territoryuntil its in-
dependence, the General Assembly and the Security Council decided upon
several measures which al1States were to adopt in furtherance of the objectives
the United Nations is seeking.Referenceniay be made,in particular, to Security
Council resolutions 245 (1968), 246 (1968), 264 (1969), 269 (1969), 276 (1970),
and 283 (15'70),and also to General Assembly resolutions 2145 (XXI) of 27
October 1966, 2324 (XXTT) of 16 December 1967, 2248 (S-V) of 19 May 1967,
2325 (XXII) of 16 December 1967, 2498 (XXIV) of 31 October 1969 and 2527
(XXIV) of 1 December 1969. It is not necessary to summarise here what has
been said i~ithese resolutions. The obligations which these resolutions, read
with the relevant provisions of the United Nations Charter and also the ap-

plicable priiiciples of internationlaw, created for States, are obvious.
10. It is subrnitted that the decision of the General Assembly in its resolution
2145 (XXI) of 27 October 1966, by which the United Nations terrninated the
mandate and assumed direct responsibility for the Territary until its indepen-
dence, is fully binding on al1Members of the United Nations. The binding na-
ture of this decision revoking the Mandate flows from the particular circum-
stances of this case.
11. To rt:call what the Court said in its Advisory Opinion of 1950, "The
General Assembly of the United Nations is legally qualified to exercise the
supervisory functions previously exercised by the League of Nations with re-
gard to the administration of the Territory". These supervisory function exser-
cised by the Council of the League included the right to revoke the Mandate-a
right which the General Assembly inherited. Connected with this is the fact
that al1 decisions of the Council of the League were binding. As the successor

to the Couiicil of the League, the General Assembly should be considered as
having the sarne competence as the Council had in relation to the taking of
binding decisions with regard to the revocation of the Mandate. To argue that,
while the Council could take a binding decision with regard to the revocation
of theMandate, the General Assembly is empowered onfy to make a recom-
mendation, not binding to the sarne extent as a decision of the Council of the
League, runs counter to what theCourt itself has stated in its Advisory Opinions.
Besides, th:; argument leads one to the conclusion that there is no international ~MITTEN STATEMENT OF INDIA 839

organization which ia coinpetent ever to take a binding decision revoking the
Mandate. This goes agairist the basic philosophy of the Mandate which envis-
aged that in case of failure on the part of the mandatory to fulfil its obligations
in respect of the administration of the rnandated territory, an international

organization, on whose Iehalf the mandate is exercised, should, if necessary,
even terminate the Mandate.
12. As the Court pointed out, "the Mandatory was to observe a numbertof
obligations and the Council of the League was to supervise the administration
and see to it that these obligations were fulfilled". How can the General As-
sembly, the successor to the Council of the League, discharge this task without
having the competence to take decisions binding on the Mandatory? Thenature
and scope of internati~r~al supervision and its necessity continue, notwith-
standing the fact that the League had ceased to exist. As the Court said in its
Opinion of 1950:

"Some doubts migiit arise from the fact that the supervisory functions of
the League with regard to mandated terriiories not piaced under the new
Trusteeship System were neither expressly transferred to the United Na-
tions nor expresslyassumed by that Organization. Nevertheless, there seem
to be decisive reasom for an affirmative answer to the above-mentioned
question.
The obligationincnmbent upon a mandatory Statetoaccept international
supervision and to s?ibmit reports is an important part of the Mandates
System. When the aiithors of the Covenant created this system they con-
sidered that the effec~iveperformance of the sacred trust of civilization by
the Mandatory Powers required that the administration of mandated

territories should be subject to international supervision. The authors of
the Charter had in mind the same necessity when they organized an In-
ternational Trusteesliip System. The necessity for supervision continues
to exist despite the di:;appearance of the supervisory organ under the Man-
dates System. It cannot be admitted that the obligation to submit to super-
vision has disappeared rnerely because the supervisory organ has ceased to
exist, when the United Nations has another international organ perform-
ing similar, though aot identical, supervisory functions." (I.C.J. Reports
1950,p. 136.)

If the General Assembly does not enjoy the right to take a decision which is
bindingon South Africa, the Mandatory could, at will, disregard the provisions
of the Mandate or even disavow the Mandate, while the organization remains
impotent to take any action.
13. It is true, as the Court said in its Opinion of 1955,that "it is from the
Charter that the General rissembly derives its competence to exercise its super-
visory functions". It is also true that the General Assernbly could exercise al1
the powers which the Council enjoyed with regard to the Mandate. The fact
that the supewisory functions of the League with regard to mandated territories
not placed under the new trusteeship systern were neither expressly transferred
to the United Nations nor expressly assumed by that Organization did not
prevent the Court from expressing the view that the General Assembly took
over the supervisory functions in respect of theMandate for South West Africa.
The taking over by the General Assembly was held by the Court to be justified

by "the necessity for supervision" and the need to "safeguard the sacred trust
of civilization through the maintenance of effective international supervision of
the administration of the niandated Territory". The same considerations, among
others, dictate that the decision of the General Assembly on the revocation of840 NAMlBlA (SOUTH WEST AFRICA)

the Mandate should be treated as binding on Mernber States by what the Court
in the Repurations case held, would follow by "riecessary implication as being
essential to the performance of its duties".
14. Accoi-dingly,it is not permissible, in the absence of express provisions
to the contrary in the Charter of the United Nations, to attribute to the decision
of the Geni:ral Assembly terminating the Mandate a meaning which would
not be in ccinformiiywith these paramount considerations. It may be relevant
to recall what the Court said in its Opinion of 1956:

"There isnothing in the Charter of the United Nations, the Covenant of
the kague, or the Resolution of the Assembly of the League of April
18th,1946, relied upon bythe Court in itsopinionof 1950,that cm bt con-
strued as in any way restricting the authority of the General Assembly to
less than that which was conferred upon the Council by the Covenant and
theMandate;nor do~stheCourt findanyjustificationfor assumingthat the
taking over by the General Assemblyof the supervisory authority formerly
exercised by the Council of the League had the effect of crystailizing the
Mandates System at the point which it had reached in 1946 ...Irfol[owed
thartht:Geneml Assernbiy incarrying ouf ifssupervisory funcrionshad the

sanienirthoriryas the Council. Thescope of thnt authority could not be mur-
rowed /?ythefactthat the Asse»?b!yhad replaced the Corncil as the super-
visory organ." (I.C.J. Reports 1956, pp. 29-30.) (Emphasis supplied.)
How can the General Assembly have "the same authority as the Council"
unless it could also take decisions which would be binding on South Africa?
Asthecourt itselfhasstated inthe Expensescase not al1decisionsof the General

Açsernbiyare hortatory.
15. Besid.es,the exercise of this right by the General Assembly would also
servet Oprolmotethe purposes of the United Nations, namely the promotion of
"respect for the principle of equal rights and self-determination of peoples",
and the promotion and encouragement of respect "for human rights and for
fundamental freedoms for al1without distinction as to race, sex, language, or
religion".
16. The I'actthat rules governing the making of decisions in the Council of
the League were different from those governing the making of decisions in the
General Assembly should not make any difference in this connection, for, as
the Court itself has pointed out in its Opinion of 1956, "in the nature of things
the General Assembly,operating under an instrument differentfrom that which
governed the Council of the League of Nations, would not be able to follow

precisely the sarne procedures as were followed by the Council". It may be
noted that General Assembly resolution 2145 (XXI) of 27 October 1966 was
adopted by more than two-thirds majority of the members present and voting.
What is more, in its resolution 264 (1969), the Security Council recognized
that the General Assembly terrninated the Mandate of South West Africa and
assumed direct responsibility for the Territory until its independence. This re-
cognition wasreiterated and reafirmed in subsequent resolutions of the Security
Council on this question. Such a record of reiterated consideration, confirma-
tion, approval and ratification by the Security Councii, of the decision of the
General Assembly, is a matter which the Court should also take into consider-
ation.
17. It therefore follows that the decision whereby the United Nations ter-
minated thr: Mandate and assumed direct respoiisibility for the Territory until

itsindependence is equally binding on South Afi-ica,the Mandatory, as well as
the other Pdembers of the United Nations. Consequently, they are bound to 'WRITTENSTATEMENT OF INDIA 841

consider that the continued presence of South Africa in Narnibia and al1acts
done by the Governrnent of South Africa on behalf of or concerning Namibia
after the termination of the Mandate are illegal and constitute persistent vio-
lationsof the mandatory obligationsarising out of the United Nations decisions.
18. Furthermore, as tlie Security Council decided in resolution 269 (1969),
"the continued occupation of the territory of Namibia by the South African
authorities constitutes an aggressive encroachnreiit on the authority of the

United Nations, a violation of the territorial inlegrity anda denial of the politica
sovereignty of the peuple of Narnibia". (Emphasis supplied.) Since the United
Nations is the authority which is directly responsible for the Territory until its
independence, States are legally required not to have dealings of any sort with
the Government of Sou1.hAfrica nor any contacts with it which would imply
recognition of the authority of the South African Government over Namibia.
Such dealings or contacts would be in direct conflict with the obligations of ~
States under the establisbed principles of international law,and the Charter of
the United Nations undix which Member States have pledged themselves to
take joint and separate action in CO-operationwith the Organization for the
promotion of respectfor the principle of equal rights and self-detemination of
peopies and also respect f'orhuman rights and for fundarnentalfreedoms for al1

without distinction as to race, sex, language, or religion. As the obligation to
respect these principles was imposed upon memberStates by the Charter itself,
it followsthat any violation of them isa violation of the provisionsof the Char-
ter.
19. Equally important is the consideration that the Security Council, in its
resolution 276 (1970), called upon "al1 States, particularly those which have
economic and otherintercstsin Namibia, to refrain from any dealingswith the
Government of South Afiica which,are inconsistent withoperativeparagraph 2
of this resolution". Operiltiveparagraph 2, as referred to earlier, declared that
"the continued presence of the South African authorities inNamibia is illegal
and that consequently all acts taken by the Government of South Africa on
behalf of or concerning Namibia after the termination of the mandate are
illegal and invalid", Res~iution 283 (1970) of the Security Councii also called

upon al1Statesto takeceri:ainspecificmeasureb sywhichthe relevant resolutions
of the Council could be t:ffectivêly implemented. Ttneeds hardly to be stated
that in Article 25 of the United Nations Charter the Mernbers of the United
Nations agreed to "accept and carry out the decisionsof the Security Councilin
accordance with the presint Charter", an article to which reference has been
made by the Council itself in its resolution 269 (1969).
20. Although there is in the Charter no express undertaking to accept re-
comrnendations of the G~neralAssembly similarto the agreement inArticle 25
to accept and carry out iiecisions of the Security Council, "it cannot be said
that the Charter specificaIlynegates such an obligation, and it may be possible
to deduce certain obligations from the Charter as a whole which it would be
impossible to establish from an express undertaking". (F. Blaine Sloan, "The

Binding Force of a 'Recommendation' of the General Assembly of the United
Nations", British Year Bcok of International Law, Vol. XXV, p. 14.)This is a
fortiori true in respect of a decision of the General Assembly on matters con-
nected with the direct and special responsibility of the United Nations for
Namibia until its independence and the inalienable right of the people of Narni-
bia to self-determination and independence, in conformity with General AS-
sembly resolution 1514(XV) of 14December 1960. In assessingthe Iegalcon-
sequences arising out of the relevant General Assembly resolutions, the Court
should take into account that they embody in thern, what Judge Jessup called,842 NAMIBIA (SOUTH WEST AFRICA)

"the pertinent contemporary international community standard". (I.C.J. Re-
ports 1966,p.441.)

IV. CONCLUSION

21. In coriclusion it is respectfully submitted that the Court may be pleased
to answer the question referred to it by the Security Council in the following

manner :
(i) The decisionof the United Nations by which the Mandate of South West
Africa \vas terminated and by which the United Nations assumed direct
responsibility for the territory until itsindependence is binding on al1
States.

(ii) Every State is bound, under well-established principles of international
law, irrespective of considerations Aowingfrom other sources as for exarn-
ple decisions of the United Nations subsequent to the termination of the
Mandate, not to recognize any authority exercised by South Africa on
behalf of, or concerning, Namibia, in relation to which Territory, South
Africa hasceased to have any locusstandi with the termination of the Man-
date, aridthe exercise of which authority would amount to an unlawful
encroachment on the legitimate rights of the United Nations as the Ad-
ministei-ingAuthority. This obligation on the part of every State isfurther
reinforc:edby the decisions of the Security Council which Mernbers of the
United Nations agreed to "accept and carry out" under Article 25 of the
United Nations Charter.
(iii) Sincethe Charter of the United Nations commits al1States to the principle

of equal rights and self-determination of peoples, towards which they
pledgedthemselves to take joint and separate action in CO-operationwith
the Organization, and since the United Nations is the competent authority
having direct responsibility for the Territory until its independence, States
are legally bound to take joint and separate action in CO-operationwith
the United Nations for the achievement of the inalienable right of the
people 'ofNamibia to self-determination and independence.
(iv) States, pursuant to Article 25 of the Charter, are bound to implement al1
decisiorisof the Security Council on the question.
(v) The dec:isionsof the General Assembly, in so far as they pertain to the role
of the United Nations as an administering authority, occupy a sui generis
positioii, and have, therefore, to be implemeiited by States in good faith as
embodying "the pertinent contemporary international community stan-

dard". WRITTENS'I'ATEMENT OF THE GOVERNMENT
OF THE UNTTEDSTATESOF AMERICA

INTRODUCTORY

The Question

On 29 July 1970,the SecurityCouncil, "Reaffirming the special responsibility
of the United Nations with regard to the terrritory and people of Narnibia",
adopted resolution 284 (1970) requesting the International Court of Justice to
give an advisory opinion on the followingquestion:

"What are the Iegalconsequencesfor States of the continued presence of
South Africa in Namibia, notwithstanding Security Council resolution 276
(1970)?"

IssuesPresented

The Government of i:heUnited States believes that, apart from some pre-
liminary and incidental questions,the followinglegalissuesneed to be discussed
in connection with this Cequest:
(1) Whether the rights and authority of South Africa with respect to Namibia

(South West Africa) were validly terminated by United Nations action.
(2) Whether South Afri:a is in illegal occupation of Namibia.
(3) The legal consequenres for South Africa and other States of South Africa's
continued presence in Namibia.

Jurisdictionof the Court

The jurisdiction of the Court derives from Article 96, paragraph 1, of the
Charter of the United Niitions:
"The General Assembly or the Security Council rnay request the
International Court of Justice to give an advisory opinion on any legal
question."

The statute of the Court, in Article 65, paragraph 1,authorizes the Court to
respond to suchrequests :

"The Court rnay give an advisory opinion on any legal question at the
requesf of whatevei body may be authorized by or inaccordance with the
Charter of the United Nations to make sucha request."
Both the Charter and the Statute of the Court require that a request for an
advisory opinion conceIn a legal question. The statute also provides that the
giving of an advisory ilpinion is a matter for the Court's discretion. The
United States believesthat the Court should give an opinion on the important
legalquestion submitted toitby the Security Council.
In its most recent Advisory Opinion, Certain Expenses of the United Nafions
(Article17,paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962,

page 151,the Court notingthat itspowerwas discretionary,reaffirrnedwhaitthad
previously stated in the interpretation of Peace Treaties case, namely that "the844 NAM~BIA (SOUTH WEST AFRICA)
reply of the Court, itself an 'organ of the ~iited Nations', represents its
participation in the activities of the Organization, and, in principle, should

not be refuser. (Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, Firsi Phase, Advisory Opinion, I.C.J Reporfs 1950, p. 65, at p. 71.)
The Court a.lso cited The Administrative Tribunol case where it said only
"compelling reasons" would justify a refusa1 to give a requested advisory
opinion. (Judyments ofthe Administrative Tribunalof the I.L.O. uponCornplaints
Made againsi' Unesco, Advisory Opinion, I.C.J. Rcporfs 1956, p. 77, atp. 86.)
Indeed,in no case has the International Court of Justice declined a request to
give an advisory opinion on a legal question referred to it in accordance with
Article96of theCharter.
The question now before the Court by its very terms is a legal one: "What
are the legal consequences forStates of the continued presence of South Africa
in Namibia . .. ?' (italics added). The Security Council has requested the

Court to assist it by clarifying the legal consequences of an illegal situation.
This request clearly falls within the advisory jurisdiction of the "principal
judicial orgari of the United Nations". WRITTEN STATEMENTOF THE UNITED STATES OF AMER~CA 845

PART 1

Statement of Facts

SouthAfiica's Administration of South West Afiica underthe
League of Nations Maizdate

South West Africa was annexed by Germany in 1884.On 9 July 1915 the
Territory was surrendered to forces of the Union of South Africa. Under
Article 119 of the Trea'y of Versailles Germany renounced al1her rights and
titles over the Territo~y in favour of the Principal Allied and Associated

Powers. Representatives of the Principal Allieand Associated Powers decided
that the Territory should be placed under the League of Nations mandates
systemasa Class "C"Mandate. Followingthe entry into force of the Covenant
of theLeague of Nation!;,that organization,acting undethe terrnsof Articl22,
definedand confirmedthe terms of each of the Mandates. On 17December 1920,
under an agreement wirh the Council of the League, His Britamic Majesty,
acting for and on behalf of South Africa, agreed to accept the Mandate and
"to exercise it on behalf of the League of Nations" in accordance with the
provisions of that agreement. The Court in the International Status of South
West Africa, Advisory Lppinion,I.C.J. Reports 19.50,after having recalled that
the twin pillars of the riandates system were "the principle of non-annexation
and the principle that the well-beingand development of [the]peoples forrned
'asacredtrust of civiliza.t",nobsemed that under the terms of the Mandate-

". ..the Union of South Africa (the 'Mandatory') was to have full power
of administration md legislation over the Territory as an integral portion
of the Union and couId apply the laws of the Union to the Territory
subject to such local modifications as circumstances might require. On
the other hand, the Mandatory was to observe a nurnber of obligations,
and the Council of the Leaaue was to su~emise the administration and
see to it that these obligations werefulfilled:" (I.C.J. Reportspp.5131,
132,)

The League supervised South Africa's administration of the Mandate untit
1940.Although it did not exerciseits authority during the SecondWorld War,
the League retained supt:rvisorypower until its dissolution 1946. In Chapter
XI of the Charter of th#:United Nations, which had meanwhile entered into
force in 1945, the Mernbers which had assumed or whichwere later to assume
responsibilities for the administration of temtories whose peoples had not yet
attained a full measure 3f self-government recognized the paramountcy of the
interests of the inhabitmts of those territories and accepteas a sacred trust

the obligation to prornc.te to the utmost the well-being of those inhabitants.
In Chapter XII the Members of the United Nations established an international
tmsteeship systern which incorporated principles corresponding to those in
Article 22of the Covenarit.
On 18April 1946, a date subsequent to the entry into force of the Charter,
the Assernblyof the League of Nations in paragraph 3 of its final resolution
mandates specificallynoled that Chapters XI and XTIof the Charter emkodied
those principles. (Leagueof Nations Ofleial Joi1rtia1st Sess.,Plenary)(1946),
p. 58.In paragraph 4it referred to tlic- ". ..expressedintentions ofthe Members of the League now administering
territories under Mandate to continue to administer them for the weI1-

king an.ddevelopment of the peoples concemed in accordance with the
obligaticlnscontained in the respectiveMandates, until otherarrangements
havebeenagreed betweenthe United Nations and the respectivemandatory
Powers".

Paragraph 2 of Article 80 of the Charter, of course, suggests that the arrange-
ments which the League Assembly envisioned would be promptly negotiated
and concluded. In any event, the saving clause in paragraph 1 of that Article
was intended to preserve the rights of the inhabitants of mandated territories
and the terms of existing international instruments" applicable to such terri-
tories until agreements placing the territory under the trusteeship system had
beenconclud,td.
The Court in its Advisory Opinion on the InternarioS ntatus ofSouth West
Africfa oundthat, byadopting itsresolution of 18April 1946,

"... the Assembly [had] manifested its understanding that the Mandates
were to continue in existence until 'other arrangements' were established".

Indeed, as it points outlater in its opinion: the resolution presupposed "that

the superviscay functions exercised by the League would be taken over by the
United Nations". (Ibid., p137.)
The Court also found that South Africa had recognized the continuance of
its obligations under the Mandate. The letter of 23 July 1947from the South
African Legation to the Secretary-Generakis ofparticular interest inthisregard
since it referred to a resolution of the South African Parliament in which that
body declared "that the Government should continue to render reports to the
United Nations Organization as it has done heretofore under the Mandate".
(Ibid., p. 135.) South Africa did, in fact, submit such reports for a time. In
addition, she.had,already at the second part of the first session of the United
Nations aske.dthe Assemblyto approvethe incorporation of South WestAfrica
into South Africa. The Assernbly declined. When the matter was considered
again in 194'7at its second session, the Assembly reiterated itsprevious stand.
In 1948South Africa changed its position. The South African representative
to the United Nations asserted that the Mandate was no longer in force and
contended that South Africa was not accountable to the United Nations for
any action in South West Africa. In 1949South Africa informed the Secretary-
General by lstter that it would subrnitno further reports to the United Nations
respecting the territory. (SeeUN doc.A/929, 13July 1949.)

The1950 Advisory Opinion

On 6 December 1949 the General Assembly decided in resolution 338 (IV)
to ask the Court for an advisory opinion on the general question of the status
of the Territory and on a series of subsidiary questions relating, inter dia,to
the obligatioiisof South Africa under theMandate.
On the geiieral question as to the international status of the Territory the
Court was u~ianimouslyof the opinion that South West Africa was a territory
under the international Mandate assumed by the Union of South Africa on
17Decernber1920.
One of the subsidiary questions was: "Does the Union of South Africa
continue to have international obligations under the Mandatefor South West
Africa and, if so, what are those obligations?' The Court, by 12 votes to 2, WRIT~EN STP.TEME ONTTHE UNITED STATES OF AMERICA 847

replied that South Africa continued to have the international obligations
statedin Article 22of the Covenant of the Leagueof Nations and in the Mandate
for South West Africa, iiswell as the obligation to transmit petitions from the
inhabitants of that Territory. The Court went on to say that the supervisory
functions with respect to those obligations were to be exercised by the United
Nations. South Africa was obligated to submit to the United Nations the

annual report provided for in Article 6 of the Mandate and to transmit to it the
petitions of the inhabitmts, which she had been required to furnish to the
League under rules adopted by the Council in 1923.Finally, the Court stated
that the referenceinArticle 7 of the Mandate, which provided for submission
of unresolved disputes ixtween the mandatory and another Member of the
League relating to the interpretation or the application of the provisions of the
Mandate, to the PermarhentCourt of Intermational Justice should bereplaced
by a reference to the Intsmational Court of Justice, in accordanoe with Article
37 ofthe Statute of the Court. (I.C.J. Reports 1950,p. 143.)
In discussing the supe~isory roleofthe United Nations the Court observed
that the "degree of su--ervision to be exercised by the General Assembly
should not . ..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 Leagueof Nations". (Ibid., p. 138.)
In reply to another slrbsidiary question, the Court unanimously expressed

the opinion that the Union of South Africa acting alone did not have the
competence to modify tke international status of the Territory. (Ibid., p. 144.)
By resolution 449 (V) of 13 December 1950the General Assembly adopted
the Court's Opinion as the basis for its supervision of the administration ofthe
Territory.
The1955Advisory Opinic~n

Despite the Court's 1950 Advisory Opinion, which specifiedcertain of her
obligations with regard to the supervisory functions of the United Nations,
South Africa continued to decline to submit annual reports on the adminis-
tration of the Territory and to transmit petitions from the inhabitants. The
General Assembly took note of this fact, inter alia, in its resolution 749 [VITT)
of 28November 1953.
After what the Court described as "prolonged and unfruitful negotiations"
(Voting Procedur onQ~estions relating to Reports and Petitions concerning the

Territory of South West Africa, Advisory Opinion, I.C.J. Reports 1955P. 67,
at p. 71), between representatives of South Africa and an adhoc comrnittee of
the General Assembly on modalities of supervision of the administration of
the Territory, the General Assembly, by the same resolution 749 (VTII)estab-
lishedthe Committee on South WestAfrica and requested it to:

"(a)examine, within the scope of the Questionnaire adopted by the
Permanent Mandates Commission of the League of Nations in 1926,such
information and di~cumentation as may be available in respect of the
Territory of South-WestAfrica;
(6) examine, as far as possible in accordance with the procedure of
the former Mandates Systemreports and petitions which may be submitted
to the Committee or to the Secretary-General;
(cl transmit to the General Assembly a report concerning conditions
in the Territory taking into account, as far as possible, the scope of the re-
ports of the Permanent Mandates Commission of the League ofNations;

(d) prepare, for the consideration of the General Assembly,a procedure848 NAMIBIA (SOUTH WEST AFRICA)

for the examination of reports and petitions whichshouldconforrn asfaras
possible~totheprocedurefoIlowedinthi by tesApesmtbly,the Coun-
cil and the Permanent Mandates Commission of the League of Nations."

The Comniittee on South West Africa, acting pursuant to this resolution,
prepared twosets of rules, one ofwhichprescribedthe procedures to befollowed
by the General Assembly in its consideration of the reporand observations
of the Comrriittee. Rule F of this set provided that decisions of the General
Assembiy with regard to reports and petitions werc:to be made by a two-thirds
majority vote. Rule Fwas specificallyadopted by the General Assemblas part
of resolution 844(IX) o11October 1954.
Because sosmeMembers of the Assembly had questioned the correctness of
this particular rule, the General Assembly asked the Court whether the adop-
tion of sucha rule was consistentwith its 1950Advisory Opinion on the Inrer-
national Statla of South West Africa.

In itsOpinion of 6June 1955theCourt concludeclthat Rule Fwas compatible
with the language in its 1950 Advisory Opinion that "the supervision to be
exercised by the General Assembly should conform as far as possible to the
procedure followed in this respect by the Council of the League of Nations".
(Voting Procedure on Questions relatito Reports and Petirions concerning the
Territory ofSouth West Africa, Advisory Opinion, I.C.J. Reports 1955, p. 67,
at p.77.)The Court recalled that :

''[fin the nature of things the General Assembly, operating undean
instrument differentfrom that which govemed the Council of the League
of Nations, would not be able to follow precisely the same procedures as
were foll.owedby the Council ,.. [tlhe expression 'as fas as possible' was
designed to aIlow for adjustments and modifications necessitated by legal
or practicalconsiderations." (Ibid., p. 77.)

The 1956Advisory Opinion
In 1955the Comrnittee on South West Africa found itself handicapped in
examining p-titions because it lacked South Africa's observations on the
petitionsancl the supplementary factual information that would have been
provided had.South Africa decided to co-operate with the Committee. There-
fore, the Committee requested the General Assembiy to decide whether or not
it would be permissible for the Comrnitteegrant oral hearingsto petitioners.

Before deciding on the matter, the General Assembly requested an advisory
opinion from.the Court. (General Assembly resolution 942A (X). )he Court
accepted the request and on 1 June1956, having reaffirrned the obligations of
the mandatoiy and of the General Assembly with respect to the administration
of the Territciry, advised that "providedthat the General Assembiy was satisfied
that sucha course was necessary for the nzaintenanceof efective international
supervisiofcr the adminisrration of the Mandated Terrifor..,"the grant of
oral hearings to petitioners who had already submitted written petitions would
be consistent with i1950 Opinion. (Admissibility of Hearings of Petitioners by
the Cornmittt!eon South West Africa,Advisory Opinion, I.C.J. Reports 1956,
p.23,at p. 32(italicsadded).)

TheContenficiusCases
On 4 November 1960, Ethiopia and Liberia iiistituted proceedings before
the Court agiiinst the Union of South Africa. They sought declarations by the

Court to the effect that South West Africa remained a territory under the
Mandate, that in a number of respects South Africa had breached its con- WRITTEN ST4TEMENT OF THE UNITED STATES OF AMERICA 849

tinuing obligations under the Mandate, and that South Africa was bound to
continue to comply witl.1the provisions of the Mandate relating to international
supervision, with respect to which the functions formerly exercised by the
League of Nations had beentaken over by the General Assembly of the United
Nations. South Africa raised objections to the Court'sjurisdiction on the basis
that Ethiopia and Liberia had no locrisstandiin the matter. In its 21 December
1962 decision on the Preliminary Objections, the Court concluded that Article
7 of the Mandate which conferred jurisdiction on the Court as to disputes
between the mandatory and another Member of the League was "a treaty or
convention still in force.within the rneaningofArticle 37 of the Statuteof the
Court" and decided, b,, 8votes to 7,that it had jurisdiction to adjudicate upon
the merits of the dispute. (South West Africa, Prelifninary Objections, Judgmenf,

I.C.J. Reports 1962,p. 319,ap. 347.)
But in the secondphase of theproceedings on 18JuIy 1966,by the President's
casting vote-the votes being equally divided-the Court found that Ethiopia
and Liberia "cannot tle considered to have established any legal right or
interest appertaining to them in the subject-natter of the present clairns, and
that, accordingly,the Court must decline to give effecto them". (South West
Africn, SecondPhase, Judgment, Z.C.J.Reports 1966, p. 6,atp. 51.)

Genernl Assembly Reso1:ction2145 (XXI) and Subsequent GeneralAssembly and
SecrrrityCouncil Resol~rrions

On 27 October 1966 the General Assembly adopted resolution 2145 (XXI),

in which it recalled th;-.tthe Court's three advisory opinionson South West
Africa as well as its jutigment of 21 December 1962 had established the fact
that South Africa continued to have obligations under the Mandate and that
the United Nations as ihe successor to the League of Nations had supervisory
powers in respect of South West Africa. Having studied the reports of the
various cornmittees which had been established to exercise the supervisory
functions over the adniinistration of the mandated Territory, the Assembly
expressed the conviction that the administration of the Territory by South
Africa had been conducted in a manner contrary to the Mandate, the Charter
of the United Nations and the Universal Dedaration of Human Rights.
Having further consià.eredthat al1the efforts of the United Nations to induce
the Government of South Africa to fulfil its obligations had been of no avail,
the Assemblyreaffirmedthe international status of South West Africa; declared

that South Africa had failed to fulfil its obligations in respect of the adminis-
tration of the mandater1Territory and to ensure the moral and material well-
being and security of th(:indigenous inhabitants of South West Africa and had,
in fact, disavowedthe M'andate;and decidedthat "the Mandate conferred upon
His Britannic Majesty to be exercised on his behalf by the Government of the
Union of South Africa ;s therefore terminated, that South Africa has no other
right to administer the Territory and that henceforth South West Africa cornes
underthe direct responsibility of the United Nations".
The General Assemkly, having thus terminated South Africa's rights and
authority under the mandate, resolved that in these circumstances the United
Nations must discharge thoseresponsibiiitieswith respectto South West Africa.
Tt established an Ad Hoc Cornmittee for South West Africa to recommend
practical means by which South West Africa shouId be administered, so as to
enable the people of the Territory to exercisethe right of seIf-determination and

to achieve independenc:. The Assembly also called upon the Government of
South Africa "forthwitli to refrainand desist from any action, constitutional,admini~trati~r, political or otberwise, which will in any manner whatsoever
alter or tend to alter the present intemational status of South West Africa".
The resolution was adopted by a vote of 114to 2 (Portugal and South Africa),
with 3 abstentions (France, Malawi and the United Kingdom).
The General Assembly considered the report of the Ad Hoc Cornmittee for
South West Africa at its fifth special session in 1967.Acting upon the recom-

mendations in that report, the General Assembly adopted resolution 2248
(S-V),which included a number of measures designed to implement the deci-
sions taken in resolution 2145.SectionsII and IVestablished a United Nations
Council for South West Africa to be responsible to the General Assembly for
the administration of the Territory and outlined steps to be taken by the Coun-
cilleading to the transfer of the Territory to the authority of the United Nations
and the withdrawal of South African administration. The Councilendeavoured
to comply wii:hthe Assembly'sdirectivethat it proceed to South West Africa to
take over the administration of the Territory, biit South Africa rather than
facilitating thetransfer of administration relied on its effectivecontrol over the
Territory to tieny the Council entry. Subsequently in resolutions 2325(XXII),
2372(XXII)iind 2403(XXIII), the General Assembly in increasinglyfirm tones
called for South Africa's withdrawal.
On 20 March 1969 the Security Council in resolution 264 recognized the
General Assembly's temination of South AfricaSsrights under the Mandate,
stated that the continued presence of South Africa in Namibia was iltegal, and
called upon South Africa to withdraw its administration from the Territory.
In addition, .theCouncil "recalling" that the General Assembly in resolution
2145 had called upon South Africa to refrain from "any action. ..which will
in any manne:rwhatsoever alter or tend to alter the present international status
of South West Africa", declared that South Africa had no right to enact the
"South West Africa Affairs Bill", then pending before the South African legis-
lature. That Bill, enacted as the South West Africiui Affairs Act, 1969,defined
and extended powers of the Govemment in Pretoria in areas in which the Ad-
ministration in the Territory had previously exercised authority and further

implemented South Africa's scheme for the creation of "homelands".
Thereafter, on 12 August 1969, the Council condemned South Africa for
refusing to comply with resolution 264 (1969)and for its "persistent defiance"
of the authoriltyof the United Nations. (SecurityCouncilresolution 269(1969).)
The Council again called upon South Africa to withdraw immediately its
administration from Namibia, and set a deadline of 4 October 1969. On 26
September 1'969South Africa's Foreign Minister informed the Secretary-
General that his Governmentregarded General Assemblyresolution 2145(XXI)
and subsequent United Nations resolutions dealing with Namibia, including
Security Council resolution 269, as invalid.
The Security Council subsequently discussed trials of Namibians under the
South African Terrorism Act of 1967, the application of which extended to
Narnibia. Following that discussion the Security Council adopted resolution
276(1970) inwhich itreaffirmed that "the extension and enforcement of South
African laws in the territory together with the continued detentions, trials and
subsequent sr:ntencingof Namibians by the Government of South Africa con-
stitute illegal acts and flagrant violations of the rights of the Namibians con-
cerned, the Universal Declaration of Human Rights and of the international
status of the territory"; characterized the continued presence of South African
authorities in Namibiaas "illegal" andtheacts taken on behalf of or concerning
Namibia by ihose authorities subsequent to thetermination of the Mandate as
"invalid"; andcalledupon States to refrainfrom any dealings with the Govern- WRITTEN STATEMENTOF THE UNITED STATESOF AMERICA 851

ment of South Africa iriconsistent with the iilegal character of that presence.
Two finalresolutions ielevantto this casewere adopted by the Security Coun-
cil on 29 July 1970. Resolution 283 requested States to refrain from any re-
lations-diplornatic, consular or othenvise-with South Africa implying recog-
nition of the authority of the South African Governent over the territory of
Narnibia and called upcmStates maintaining diplomatic or consularrelations
with South Africa (4 to issuea forma1declaration to the Governent of South
Africa to the effect that they do not recognize any authority of South Africa
with regard to Narnibia and that they consider SouthAfrica'scontinued pres-
ence in Namibia illegal, and (6) to terminate existing diplomatic and consular
representation as far as they extend to Namibia and to withdraw any diplo-
matic or consular mission or representative residing in the Territory.The reso-
lution further called upon al1States to take various economic measures with

respect to Narnibia and requested them to reviewbilateral treaties betweenthem
and South Africa whichcontain provisionsapplicable toNambia. TheSecretary-
GeneraI was requested ti,undertakea similar study with respect to multilateral
treaties which might be considered to appIy to Namibia.
Resolution 284 requested the Secretary-General to transmit to the Court the
request for an advisory opinion on the question now before it. PART II

Statement of Law

CHAPTER1

THE IJNITED NATIONS VALIDLY TERMINATED SOUTH
AFRICA.'SMANDATE OVER THE TERRITORY OF NAMDIA

Section1

Scope ofthe Question

The question submitted to the Court relates to the "legal consequencesfor
States of the continued presence of South Africa in Namibia, notwithstanding

Security Co~incilresolution 276 (1970)".The purpose of this question was ex-
plained as follows by the delegation of Finland whichintroduced the resolution
requesting tl-lisadvisory opinio:
"First, an advisory opinion from the International Court of Justice
would have considerable value in definingand spelling out in legal terms

the implications for States of the continued presence of South Africa in
Namibiar.
Secondly, an advisory opinion would also be of value in defining more
precisely the rights of Narnibians-those staying in Narnibia as welI as
inhabitants of Narnibiaresiding abroad. In this wayit couldperhapsaccord
some measure of added protection to Namibians whose basic human
rights are being suppressed through the aliplication of South African
repressive legislation.
Thirdly, it is our expectation that an advisory opinion of the Inter-
national Court of Justice could underline the fact that South Africa has
forfeitefl its mandate over South West Africa because of its violation of
the terrris of the mandate itself, because South Africa has acted contrary
to its international obligations, contrary to the international status of the
territory and contraryto international law .." (SIPV.1550, p. 18.)
I
On a previous occasion, the delegate of Finiand stated that an advisory
opinion-

".. .would dispel doubts, inrer alia, about questions relating to diplo-
matic or consular relations which might be ccinstruedto imply recognition
of Soutfi Africa'sauthority over Narnibia and the question of amendingor
revising bilateral and multilateral treaties between States and South
Africa t,othe extent that they contained provisions applying to Narnibia.
In the svent that such agreements and treaties did not contain explicit
provisions regarding their application to Namibia, the question of their
applicakiilityto the Territory would have to be determined on the basis of
the relevant provisions of international Iaw." (S/AC.17/SR.12, p. 3.)

Other delegatesasserted that the Court should elicit the scope of legalrneans
at the dispo:iaIof States for constructing a wall of legal opposition to tOC-
cupation of IYamibiaby the Government of South Africa and rule on the inter-
national 1ega.lconsequences of a failure to comply with resolutions of a United
Nations body. (Delegates of Syria and Spain, S/PV.1550, pp. 47, 56.) WRI~TEN STATEMENT OF THE UNITED STATES OF AMERICA 853

It might be suggesteclthat the phrase "notwithstanding Security Council
resolution 276" means ihat the validity of that resolution is to be assumed.
Bowever, application ol'the basic rule of interpretation that terms are to be
giventheir ordinary meaiiing in context militates against such an interpretation.
The ordinary rneaning of "notwithstanding" when used as a preposition is
"in spite of" or "despite". (SeeWebster's New International Dictionary of the
English Lmrguage, SecondEdition, Unabridged, 1957,p. 1669;and The Shorter
Oxford Ei~glishDictionary, Vol. II, 1944, p. 1341.)The French text used the
word "nonobstant" as the equivalent of "notwithstanding". Theword generally
means "Qui n'empêchepas". When used as a preposition it means "malgrk,
sans égard à". (Le Nouvi?auPetit Larousse, 1950.)

Resolution 276 declaresthe continued presence of theSouth African authori-
ties in Namibia illegalIIIcontext the question is what are the legal consequen-
ces of South Africa's continuing its presence in Namibia despite the illegality
of that presence. An analysisof the debate on the resolution confirms that the
Council used "notwithstsnding" to denote "despite" or "regardless".
During the debate in ihe Security Council, several of the delegations voting
for the resolution stated that the Court should limit the scope of its advisory
opinion strictly to the question put to it, and should not reviewor examine the
legalityor validity of the resolutions adopted by both the General Assemblyand
the Security Council (Delegateof Nepat, S/PV.1550, p.37); or that the Court
is not asked to rule on the status of Namibia as such (Defegate of Syria,ibid.,
p. 47). Concern was also expressed that the Court may raise in its opinion

doubts about General Ajsembly resolutions 2145 (XXI) and 2248(S-V)(Dele-
gare of Zambia, ibid., p.53).
On the other hand, 1.epresentativesof France and the United Kingdom
stated that it would be .lesirable for the judges of the Court to consider the
legal foundations of the revocation of South Africa'sMandate and to examine
certain assumptions abolit the legal status of Namibia. In particular, questions
were raised:

(oj whether, having regard tu al1circumstances, the General Assembly was
cornpetent to terminate South Africa's Mandate; and
(b) whether the Assembly was entitled to vest in the United Nations res-
ponsibifity for the 'I'erritory.Those representatives abstained frorn voting
because their Govei-nments thought that the question submitted to the
Court was construcred in such a way that the Court rnight feelitself in-
hibited from pronoc.ncing on the more fundamental issues concerning the
present status of Namibia (ibid., pp. 87, 91).

The delegation of Finland, which was responsible for the suggestion that an
advisory opinion should besought from the Court, ernphasizedthroughout the
debate that "the purposr of requesting an advisory opinion was not to cal1
into question the basic dixisions taken by the General Assembly and the Se-
curity Council terminating the mandate of South Africa over Namibia". (See,
for instance, S/AC.l7/SF:.17, p.8.)
Taken as a whole, the debate in the Security Council affords support for the
view that the Council considered that the Court could render an advisory
opinion on the question presented without examiningthe validity of GeneraI

Assembly and Security C:ouncilresolutions relating to Namibia. Nevertheless,
the former mandatary kiaschallangedthe validity of the termination of its
Mandate (see,especially,SouthWest Africa Survey 1967, p. 41), and some mem-
bers of the Security Councilhave expressed doubts as to the validity of General
Assembly resofution 2145 (XXT).Becausethe Court may, accordingly,consider854 NAMBIA (SOUTH WEST AFRICA)
it essential to deal with the validity of the termination, the United States pro-
poses to exainine this important issue in this Part of its Statement.

The United States has previously expressedits viewsin the political organs of
the United Nations that, given the international supervisory responsibilities of
the United Nations with respect to the territory described in the Mandate as
South West Africa and the breach by South Africa of its obligations under that
instrument,the General AssemblywasIegallyentitled to declarethe termination
of South Africa'sMandate in resolution 2145 (XXI), which action was sub-
sequently recognized by the Security Council in ~,esolutions264, 269 and 276.
In this part of its statement the United States will detail the legal arguments
which lead to the conclusion that the United Nations validly terminated South
Africa's rights and authority under the Mandate.

Section 11

TheMandateas a Treaty in Force

The Couri. has consistentiy regarded the Mandate as a treaty in force con-
taining obligations for South Africa.In its 1950Opinion the Court, after refer-
ring to Article 37 of its Statute, observed that there waa provision in Article 7
of the Mandate providing for the reference of disputes to the Permanent Court
of International Justice and expressed the "opinion that this clause in the man-
date is still in force and that, therefo... South Africa is under an obligation
to accept thr:compulsory jurisdiction of the Court according to those provi-
sions". (International Stofus of South West AfricaA ,dvisory Opinion, 1,C.J.
Reports 1950, p. 128, at p. 138.)Nothing in either the 1955or 1956 Advisory
Opinions, which dealt with the compatibility witli the 1950Opinion of certain

supervisory runctions which the Generai Assembly proposed to exercise, sug-
gests that the Court had ceased to regard the Mandate as a treaty in force.
In the coilrse of proceedings before the Court in 1962, counsel for South
Africa subrriitted the foltowing amended preliminary objection to the juris-
diction of the Court, which had been invoked on the basis of Article 7 of the
Mandate:

"n]he Mandate for South West Africa has never been, or at any rate is
since the dissolution of the League of Nations no longer, a 'treaty or con-
vention in force' within the meaning of Article 37 of the Statute of the
Court, i.hisSubmission being advanced-
(a) with respect to the Mandate as a whole includingArticle7 thereof; and
(b) in iiny event, with respect to Article 7 itself."

(SouthWesrAfrica, PrelirninaryObjections,hdgrnent, I.C.J. Reports 1962,
p. 319, at p. 330 (italics omitted).)

In itsJud.gment, which is binding on South Africa, the Court rejected the
amended prcliminary objection and explained: "The Mandate, in fact and in
Iaw,is an international agreement having the character of a treaty or conven-
tion." (Ibid.,-p. 330.) The Court continued:

"[ghis Mandate, like practically al1other similar Mandates, isa special
type of xnstrumentcomposite in nature and instituting a novelinternational
régime.It incorporates a definite agreement consisting in the conferment
and acceptance of a Mandate for South West Africa, a provisional or WRITTEN STAYEMENT OF THE UN~TEDSTATESOF AMER~CA 855
tentative agreement on the terms of this Mandate between the Principal

Allied and Associated Powersto be proposed by the Council of the League
of Nations and a formal confirmation agreement on the terms therein
explicitlydefinedby ~heCouncil and agreed to between the mandatory and
the Council representing the League and its Members. It is an instrument
having thecharacter 2fa treaty or convention and embodyinginternational
engagements for the mandatory as defined by the Council and accepted by
the mandatory." (Ibid p.,331.)

Before bringing CO a close its discussion of the South African preliminary
objection the Court cited the language from its 1950 Opinion, quoted above,
and remarked:
"The unanirnous holding of the Court in 1950 on the survival and con-
tinuing effect ofArticle7 of the Mandate, continued to reflectthe Court's
opiniontoday. Nothing has sinceoccurred which would warrant the Court

reconsidering it. All important facts were stated or referred to in the pro-
ceedings before the Court in 1950."(Ibid., p. 334.)
It concluded its rejection of the objection with the following sentence:

"The validity of Article 7,in the Court's view, wasnot affected by the
dissolution of the League, just as the Mandate as a whole is still in force
for the reasons statetl above." (lbidp. 335.)

SectionIII

ThereIs a Legal Obligafion to Observe Treaties in GoodFoith

In 1969 the United Nations Conference on the Law of Treaties brought to a
successfulclose more than 15 years' work within the Organization relating to
the codification of treaty law. The Convention that was produced by the

combined efforts of the 1 10 States participating in the Conference, although
it is not yet in force, ~onr~tituaeprimary source of reference for determining
what are the customary principles of treaty law applicable to the Mandate.
Article 4of the Vienn;~Convention on the Law of Treaties provides that
the Convention applies cinly to treaties which are concluded by States after
entryinto force of the Treaties Convention with regard to such States. However
it specifically preservetlieapplicability to al1 treaties of rules of customary
treaty law that are contaii~edinthe Convention. Many of the provisions of the
Convention codifypre-existingcustomary law.In this regard the Legal Counsel
of the United Nations has pointed out that the debates and decisions of the
Conference-

". ..may show the opinions of governments about what the present rules
are, and thus may furnish evidence of existing customary international
law. If a rule was atiopted by a very large majority and with a general
understanding that it represents existing law, it rnay be taken to formulate
such law." (Letter of 11May 1970from the Legat Counsel (Stavropoulos)
to Secretary-General (Twight),International CivilAviation Organization.)

Two articles of the Tri:aties Convention which both on the basis of their
content and according to the criteria laid down by the Legal Counsel of the
United Nations may be t3ken to formulate existing law arethose relating ta
parla sunt servanda (Art. 26) and to the consequences of breach of a treaty
(Art. 60).856 NAMlBlA (SOUTH WEST AFRICA)
Article 26 provides that a State is bound to carry out in good faith its treaty
obligations. The International Law Commission described the rule as "the
fundamental principle of the law of treaties". (Reports of fhe InternationalLaw

Commission on the SecondPart of itsSeventeenth Session and on Its Eighteenth
Session, GA, OR, 21st Session, Supplement No. 9, p. 42.) nie formulation of
this principle proposed by the Commission was adopted without any negative
vote at the second sessionof the Conference.
The Prearnbie to the Charter of the United Nations affirmsthe determination
of the peoples of the United Nations "to establish conditions under which
justice and respect for the obligations arising from treaties... can be main-
tained". Paragraph 2 of Article 2 expressly provides that Members "shall
fulfilin good faiththe obligations assumed by them in accordance with the. ..
Charter".
International tribunals have also affirmed the principle of good faith perfor-
mance of treaty obligations. In the North Atlanric Coast Fisheries case, a
tribunal of the Permanent Court of Arbitration declared: "Every State has to
execute the obligations incurred by treaty boriafide . . ." (UN, Reports of
Internationa.Arbitral Awards,Vol.XI, p. 186.)AformerJudge and distinguished
commentator on the Permanent Court observed: "The assumption runs
throughout its jurisprudence that States will in good faith observe and carry
out the obligations which they have undertaken." (M. O. Hudson, The Per-

manent Co~i'rotf InternationalJmtice 1920-1942(1 943), p.636.)
In Certai.9NorwegianLoans, Judgmenf, I.C.J.Reports 1957, page 53, Judge
Lauterpacht stated: "Unquestionably, the obligation to act in accordancewith
good faith, beinga generalprinciple of law,isalso part of international Iaw."
Commenting on thisstatemeotSirGerald Fitzrnauricedeclared:

"Aciion in good faith is an international Lawobligation ... and accord-
ingly action not in good faith must be considered as a breach of interna-
tional law .. ." ("Hench Lauterpacht-The Scholar as Judge: Part TT",
38 Brit. Yr.Bk. of lntLaw9(1962).)

SectionIV

A Material BreachofaTreafy Entilles the OtherParty to Suspendifs Operation
in Wholeor inPari

A second.relevant rule of treaty law, codified in Article60 of the Conven-
tion, deals with termination or suspension of the operation of a treaty as a
consequence of its breach. Paragraph 3 of that Article restricts its application
to casesof rnaterial breach, whichisdefined as:

"(a)~rrepudiationoftheti.e ,arty..
(b) the violation of a provision essential to the accompiishment of the
cibjecor purpose ofthe treaty".

The basic principle ernbodied in the Article is that a rnaterial breach of a
treaty on c'neside may give rise to a right on the other side to abrogate the
treaty or si~spendits operation in whole or in part. The commentary to the
correspondingarticle in the Harvard Draft summarizestraditional international
law doctrine regarding breach and demonstrates that the principle has been
recognized in municipal courts sinceIate in theeighteenth century. (29American WRITTEN STATEME~ OF THE UN~TED STATESOF AMERICA 857
JournalofInfernationallcw Supplement, pp.653,1078 (1935) TheInternational
Law Commission's 1966 Commentary on its Draft Articles on the Law of

Treaties stated that "the great majority of jurists" recognized the principle
expressed in Article 60. (I.L.C. Report, Eighreenth Session, GA, OR, ZIsr
Session),SupplementNo. 9,at p. 82.)At the Conference on the Law of Treaties,
in which South Africa p;rrticipated, no delegation denied the principle in the
rather extensive debateiiithe Cornrnittee of the Whole; no delegation voted
against the adoption of i:hearticle in the Plenary. The foregoing evidence is
more than sufficientto establish that theprinciple in Article 60may be regarded
as representingexisting law.
The fact that the Manrhte is not a treaty between States does notaffectthe
applicability to it of the treaty law contained in the Treaties Convention.
Article 3 of the Convention provides that any of the rules set forth in the
Convention may be applied to treaties between States and international
organizations where such rules would be applicable "under international law
independently of the Convention".

The rule relating to material breach, like that relating to pacta suntservanda,
was recognized before the adoption of the Convention as applying to al1
treaties, not only to thoiie between States. Indeed, each of the Special Rap-
porteurs on the Law of Treaties, BrierIy, Lauterpacht, Fitzmauricand (inhis
second report) Sir Hurnphrey WaIdock, proposed an article on breach which
would have applied to al1written treaties without regard to the nature of the
partiesIt was only laterin 1965,in order to sirnplifythe drafting of certain of
the articles, principally those relating ,to the conclusion of treaties, that the
International Law Cornniission rernoved from the scope of the Convention
treaties to whichone or more international organizations wereparties.
The rules relating to ptrcta sunt servanda and to material breach have been
shown to be formulations of the law as it existed independently of the Treaties

Convention; they are properly applicable to the Mandate. Therefore, if South
Africa was in material brcach of its obligations under the Mandate,the United
Nations was entitled to terminate her rights and authority under the Mandate.

TheLeague ofNations Hlid theRight to TerminateRights Undera Mandate in
the Evenfof a Muferial Breochof its Obligations by the Mandatory Power

During the League of Nations period a number of modifications and termi-
nations of mandatestook place, As the representative of the Secretary-GeneraI
of the United Nations (Mrr.Kemo) informedthe Court in his statement of 17
May 1950: "The normal method by which modification or termination could

occur appears to have bren with the consent of both the Council and the
mandatory Power." Otalics omitted.) (I.C.J. Pleadings,Status of South West
Africa, p. 266.) The stateinent suggests the question with which we shall now
deal; narnely whether during the League period there was any other method by
whichthe Mandate might havebeen modified.
The genesis of the ma~idatessystem may tr raced to a pamphlet entitled
"The League of Nations: ,\ Practical Suggestion", published in 1918by General
Smuts, who later served ;rs representativeofSouth Africa at the Paris Peace
Conference.The Smuts proposa1servedas the point of departure for subsequent
discussions of the manda~essystem. As he conceived the systern al1authority
and control over the .ovc:rseasterritories placed under the mandates system858 NAMIBIA (SOUTH WEST AFI~ICA)

would vest in the League, which would exercise it either directly or through
mandatory powers acting on its behalf. As to the possibility of modification of
mandates, hi:wrote:

"[an caseof anyflagrant and prolonged abuse of this trust the population
conceroiedshould be able to appeal for redress to the League, who should
in a proper case assert its authority to the full, even to the extent of
removiiigthemandate, andentrusting itto sorneother state, ifnecessary..."

Although the Covenant of the League as finally adopted did not include a
provision of'that character, there is support in subsequent discussions in the
Permanent Mandates Commission for the proposition that if the mandatory
breached itcobligation under a mandate the League could revoke the manda-
tory's rights,.See 1.C.J. Pleadings, International Stafus of South West Africa,
page 230, for representative citations to the Permanent Mandates Commission
discussions, Given the absence of a case of material breach raised before an
appropriate organ of the League the Permanent Mandates Commission had no
occasion to grapple squarelywiththe problem.
While there was little officia!consideration of the possibility of modification
of a mandate by the League in consequence of violation by the mandatory

power of its.international obligations, the question was thoroughly examined
by jurists diiring the League period. The work of the Institute of International
Law, which culminated in the adoption of a resohtion on International
Mandates, affords valuable and persuasive evidence that in the view of the
leadingjurists of the day the League had the power to modify a mandate when
the mandatory power breached its international obligations under a mandate
agreement.
The 1nstii:ute'sconsideration of mandates began in 1921when Sir Thomas
Barclay fileda preliminary report in whiche made the followingstatement :

"Les territoires des mandats, mémequand il s'agit des mandats 'C',
ne fornient partie du domaine souverain du mandataire qu'autant que ce
dernier remplisse certaines conditions. Mais, s'il ne les remplissait pas, il
pourrait êtreprivéde son mandat par la SociétédesNations."(28Annuaire
deI'Instifutdedroit international(1921),28.)
"The territories under mandate, even when they are Class 'C'mandates,
do not form part of the sovereign domain of the mandatory unless he
complies with certain conditions. But if he does not fulfilthese conditions
the Lea.gueof Nations may take away his mandate." (Translation.)

The Xnstitute subsequently asked Professor Henri Rolin to serve as rap-
porteur on mandates. Rolin, who had served as Legal Adviser to the Belgian
delegation to the League of Nations, submitted his report in 1928.In that part
of his treatment of "Termination" whichdeals with revocation hestated:
"ml y a pour le Mandataire un droit acquis qui ne peut être révoquque
dans le cas où le Mandataire lui-mêmeaurait gravementcontrevenu à ses
obligations.
..........................

[Cl'estau Conseil seul qu'appartiendrait deprononcer une révocation.
..........................
II esi.inutile d'insister sur l'improbabilitéqu'une Puissance Mandataire
s'exposejamais iipareille sanction." (34 ,Innuaire de l'lnstitur de droit
internationall928), 46,47,48.)
"The mandatory has an acquired right which can only be revoked in a WRITTEN STATEMENT OF THE UNITED STATES OF AMERICA 859

case inwhichthe maûdatory himself has gravely violated his obligations.
..........................
It isfor the Counc~Iacting alone to revoke a mandate.
..........................
There is no need ti) dwell on the improbability that a mandatory Power
willeverexpose itselfto sucha sanction." (Translation.)

Professor Rolin circulated his report, a questionnaire, and a draft resolution
to his colleagues on the C:ommissionin 1928.Although some of his colleagues
were not in agreement with al1his conclusions, none expressed disagreement
with any of the points set out above.
At its Cambridge Session in 1931 the Institute devoted three meetings to a
discussion of Professor FLolin'sreport. In his oral presentation Rolin stated
that the Commission had concerned itself with four basic points. The sole
point whichishere relevant isthe fourth, whichconcerned the conditions under
which a mandate is brought toan end and the powers of the League ofNations
in that regard. On 30 Jury, 1931, the Institute debated the following revised
proposal on that subjec:

"Les fonctions de 1'Etat mandataire prennent fin par démission ou
révocation du mandataire.,var les modes habituels d'expiration des
engagements internai.ionaux et aussi par abrogation du mandat et recon-
naissance delacolleciivitésous mandat commeindépendante.
La démissionn'a (l'effetqu'à partir de la date fixéepar le ConseiI de la

S. D. N. pour éviter toute interruption dans l'assistance donnée aux
collectivitéssous mandat.
La révocation de 1'Etat mandataire et l'abrogation du mandat sont
dkcidéespar le Consi:il de la S. D. N. ; I'abrogation peut résulteraussi de
I'admissionde lacollcctivitésousmandat comme Membre de la S. D. N."
(36Annuairede l'Instit dedtroit iniernational(1931)II,p.60.)

"The dutiesof the rnandatory Stateshall beterminated by the resignation
or discharge of the rnsndatory, by the usual terms goveming the expiration
of international cominitments, and also by the annulment of the mandate
and recognition of th: independence of the comrnunity under mandate.
The resignation shall not become effective untit the date stipulated by
the Council of the League of Nations in order to prevent any interruption
in the assistancegivea.to the communities undermandate.
The discharge of the Mandatory State and the annulment of the mandate
shall be decided by tlie Council of the League of Nations; the annulment
may also result from the admission of the community under mandate to
membership in the Leagueof Nations." (Translation.)

The debate immediately focused on the question of revocation. Professor
Rolin argued that the right of revocation derived frorn the supervisory powers
of the League, that it was a necessary eiement of this power, but that the right
could beused as a sanction only with respect to serious derelictions on the part
of the mandatory. (Ibid 13.55.)In response to the suggestionthat ifa difference
arose between the Council and a mandatory's obligation jt was for the Per-
manent Court of International Justice rather than the Council to decidewhether

to revoke a mandate, Professor Rolin replied that theinstruments constituting
the mandates provided for recourse to the Court in casesof differencesbetween
a mandatory and another Member of the League. In his view, revocation went
to the essence of control; in accepting responsibility for administering a terri-
tory under the control of the League ofNations a mandatory implicitlyaccepted the sanctioii of revocation by decision of the Council. Professor Verdross
expressed the opinion that such action would be the equivalent of unilateral

termination of a treaty in response to breach by the other party of its obligations.
h such circumstances, unilateral termination was permitted by the general
principleso-international law.
When Professors Borel and Politis asked for deletion of the term "révoca-
tion" from i.heproposed text, Rolin insistedthat the Institute clearly reçoivethe
issue; rejection of the word "révocation" would signifythat the Institute denied
that the Coiincilhad the power to revoke the rights of a mandatory. In a sepa-
ratevoteonthe word "révocation" theInstitutedecided byasubstantial majority
to retain Rolin's text (ibid., ap. 60). Ina subsequent roll-cal1 vote on the
resolution as a whole, na rnember of the Institute cast a negative vote.
A number of other jurists have also concluded that the Leagueaf Nations
had the povverto revoke the rights of a mandatory Power which was in breach
of its obligations. Professor J.H. W. Verzijl in an article originaIly published
in Dutch in the Telegraafof 16 April 1933stated:

"As far as revocation by the League isconcerned, thegroundfor this can
consist ...in the fact that a mandatory Power has ceased to deserve its
maintenance as such (for example, owing to neglect of its specific obli-
gation:; as a mandatory) .. ."(Reprinted in English in InternationaLaw in
Historicol Perspecrive,1970, Vol. III, p458.)
J. Dugard in "The Revocation of the mandate for South West Africa" (62
AmericanJournalof International Law (1968), 78,86),cites the following corn-
mentators as having accepted during the League period the possibility of revo-
cation: Wright, Stoyanovsky, Bentwich, Wessels, Feinberg and Hales. (For a
contemporsrry view, see J. F. Crawford. "South West Africa: Mandate Ter-
rnination in.Ristorical Perspective", 6 ColumbiaJournalof TransnationalLaw
(1967), p. 91, at p. 114).
In view of the nature of the mandate, the supeivisory role of the League with

respect to the obligations under that instrument, the recognition in the dis-
cussions of the League of the possibility of termination of a mandate and the
opinions of the jurists recited above, there is no basis for holding that, haa
material brt:ach of a Mandateoccurred during tlie League period, the Council
of the League would have been unable as a matter of law to exerciseits super-
visory authority by revoking the rights it had conferred on the mandatory Po-
wer.

Section VI

TheUnitedNationsSucceeded to the Right to TerminateSouthAfrica'sMandate
in the Event ofa A4aterialBreach

The supervisory authority of the League of Nations, including the power to
terminate a mandate, now rests with the United Nations. In its 1950Advisory
Opinion the Court stated that the supervisory functions of the ïeague were to
be exercisetlby the United Nations, and that South Africa was obliged to sub-
mit the anriual reports provided for in the Mandate and to transmit petitions
from the irihabitants of the Territory to the General Assembly. The Court
pointed out, hoivever, that the "degree of supervision to be exercised by the
General Assembly should not .. . exceed that which applied under the Man-
dates Systern,and should conform as far as possible to the procedure followed
in this respi:ct by the Council of the League of Nations". (InternafionalStatus WRITTEN STA1EMENT OF THE UNITED STATES OF AMERlCA 861

of South West Africa, Adirisory Opinion, I.C.J. Reports 1950,p. 128,at p138.)
Subsequent Adtisory Clpinions in 1955 and 1956, which dealt, respectively,
with VotingProcedure on Questions reIating to Reports and Petitions concerning
fhe Terrifory of South West Africa and Admissibility of Hearings of Petitioners
by the Committee on South West Africa reaffirmed the mandatory's obligations
and the General Assembly's super~isory role. In the latter opinion the Court
observed:

"... the obligations of the mandatory continue unimpaired with this
difference, that the s?ipervisoryfunctions exercised by the Council of the
League of Nations are now to be exercisedby the United Nations and that
the organ of the United Nations exercising these supervisory functions,
that is, the General fissembly, is legally qualified to carry out an effective
and adequate supervisionof the administration of the Mandated Territory,
as was the Council of the League.
.................................
The general purpo1.tand meaning of the Opinion of the Court of 11 July
1950 is that the paramount purpose underlying the taking over by the
General Assembly of the United Nations of the supervisory functions 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 effectiveinternational supervision
of the administration of the Mandated Territory.
................................
There is nothing in the Charter of the United Nations, the Covenant of
the League, or the Resolution of the Assernblyof the League of April 18th,
1946,relied upon by the Court in itsopinion of1950,that can beconstrued
as in any way restricting the authority of the General Assembly to less
than that which was conferred upon the Council by the Covenant and the
Mandate;nor does die Court find any justification for assuming that the
taking over by the Gcneral Assemblyof the supervisory authority formerly
exercised by the Chacil of the League had the effect of crystallizing the
Mandates Systern at the point which it had reached in 1946." (Admissi-
bility of Hearings of Petitioners on the Committee on South West Africa,
Advisory Opinio~z,I.CJ. Reports 1956, p. 23, at pp. 27-29.)

The early practice of th2 United Nations supports the conclusion that it has
the cornpetence to terminate mandates established by the League of Nations.
(UN doc. Aj64, p. 13.) Vhth respect to the Palestine Mandate established in
1920, theGeneral Assembly,in 1947,subsequent to thedissolution ofthe League,
adopted resolution 181 (II) which included the language: "The Mandate for
Palestine shall terminate ;ts soon as p6ssible but in any case not later tha1
August 1948."The recordriof the Assemblyshow that 33States voted in favour
of the resolution, 13 agaiiist, with 10 abstentions, incfuding the United King-
dom, the mandatory Powi:r.
After this decision was taken the Government of the United Kingdom an-
nounced that the Mandate would be terminated on 14 May 1948. (Hansard,
Commons, Il December 1947,col 1218.)The United Kingdom representative

stated inthe Security CounciI on 24 February 1948that his Government was
bringing to an end the dii;charge of its reponsibilities under theMandate and
was "leaving the future of'that country to international authority".(SC, OR,
3rd Year, 253rd Meeting, p. 272.) A few days later,the representative of the
United Kingdom recognized that it was for the United Nations to decide what
procedure to adopt "with a view to assumingresponsibility for government of862 NAMIBIA (SOUTW WEST AFRICA)

Palestine on 15May". (SC, OR, 3rd Year, 260th Meeting,p. 402.)JudgeJessup
pointed out that in submitting the future of Palestine to the General Assembly,
the United Kingdom Government "recognized the authority of the United
Nations to bring about a change in the status of a mandate". (Sourh West
Africa, Second Phase, Judgment [dissenting opinion of Judge Jessupl, I.C.J.
Reports 1965, p. 6, atp. 351.)
A second precedent supports the authority of the appropriate organ of the

United Nations to terminate without the consent of the mandatory Power a
mandate gninted by the League of Nations.
At its 124th meeting on 2 April 1947 the Security Council, acting under
Article 83, paragraph 1, of the Charter, unaninlously approved a trusteeship
agreement with the United States for the former Japanese mandated islands.
The right of'the United Nations to take this action was based on its succession
to the Leagie. As the delegate of the United States explained at the 116th meet-
ing of the Security Council, it was the view of the United States-

"... that Japan never did have sovereignty over these islands and that so
far as the trusteeship is concerned, any interest of the cestui qutrustwas
represented by the predecessor of the United Nations, namely, the League
of Nations, and, as the successors of the League of Nations, it is in Our
hands. If there is any entity which can properly represent that aspect of the
life of these islands, it is the United Nations." (Oficial Records of the
Securit,y Council, 2nd Year, No. 23, p. 471.)

At the timt: the agreement was concluded Japan had not renounced its obli-
gations or rights under its Class"C" Mandate of 17December 1920.Aithough
the agreement does not purport to terminate the Mandate (the preamble merely
stating that "Japan, as a result of the Second World War, has ceasedto exercise
any authority in these islands") the conclusion of the agreement effectively
extinguisheli the Mandate. Japan later renouncedher rights under thisMandate
and accepted the action of the SecurityCouncil in Article 2(cl of the Treaty of
Peace signed at San Francisco on 8 September 1951. (136 UNTS 45.) This
power to terminate a mandate necessarily includes the power to terminate the
rights and sruthority of a mandatory as was done in respect of South Africa by
General Assembly resolution 2145(XXI).
In addition to the general question dealing aith the international status of
South West Africa and the international obligiltions of South Africa arising
therefrom which the General Assembly submitted to the Court for an advisory

opinion in 1949,there were three subsidiary questions. The last of these, Ques-
tion (cl,wa:
"Has the Union of South Africa the competence to modify the inter-
national status of the Territory of South West Africa, or in the event of a
negative reply, where does cornpetence rest to determine and modify the
international status of the Territory?"

The Court replied that South Africa acting aione did not have the cornpetence
to modify the international status of the Territory, andthat "the competence to
determine and modify the international status of the Territory rests with the
Union of South Africa acting with the consent of the United Nations". (Inter-
national Status of South West Africa, Advisory Opinion, I.C.J. Reports 1950,
p. 128, at pp. 141,144.)
The Court's answer to Question (cl in its 1950 Advisory Opinion on the
Sfatus of Saurh West Africa may beasserted to support the argument that de-

spite South Africa's breachesof the Mandate the United Nations did not have WRITTEN STA'TEMENT OF THE UNITED STATES OF AMER~CA 863

the competence to revoke South Africa's mandate without her consent. Such
an argumentcould only tiebased upon a misconception as to the scope of that
part of the Court's opinion. As the Court explained,Question (c) related solely
ta "modification of theinternational status ofTerritory". The underlying con-
Cernof the Court was with the competence to effect "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". (Internotio-
na1 Status of Sourh West Africa, Advisory Opinion, I.C.J.Repot-fs 1950, p. 128,

at p. 142.)The revocatioii of South Africa's mandate did not change the inter-
national status of the Teuitory. Ttfollows that the Court's answer to Question
(cl is not pertinent to a i.evocation based upon the General Assembly'ssuper-
visory powers, which the Court affirmed in its answer to Question (a).The
Court's appreciation of tliis distinction is illustrated by the following language:
"Article 7 of the hiandate, in requiring the consent of the Council of the
League of Nations fc-ranymodification ofits terms, brought into operation

for this purpose the same organ which was invested with the powers of
supervision in respect of the administration of theMandates. In accordance
with the reply given above to Question (a), those powers of supervision
now belong to the General Assembly." (Ibid., p. 141.Cf. dissentingopinion
of Judge Alvarez, ibi'd.,pp. 182, 184.)
Thus,it maybeconcluded that the League of Nations could have terminated
the Mandate in case of a graveviolation and that the General Assernbly'sexer-

cise of that power would be within the language and the spirit of the previous
advisory opinions of the Court on this subject and would be consistent wiifi
prior United Nations practice.

Section VI1

South Africa Hus &en in Material Breach of Its Mandate Obligafions

A. By Refusing to Submit Reporfs, TransmitPetitions, and Orherwise Recognize
the Authority of the hifed Nations
Despite the Court's Acvisory Opinion of Il July 1950affirmingthe duty of
South Africa under the Mandate to submit reports as required by Article 6of
the Mandate and to transinit petitions of the inhabitants of the Territory to the
General Assembly, Soutli Africa has refused to perform its treaty obligations
or to recognize the supelvisory authority of the United Nations in respect of
South West Africa.

The cardinal purpose of the mandates systemdescribed in Articke22of the
Covenant was the establishment of a "sacred trust of civilization" to be ad-
ministered on behalf of the international community bymandatories who wouId
be accountabfe to an international supervisoryauthority. The very purpose of
requiring the mandatory 1.submit an annual report was to ensure that accoun-
tability. By substituting unilateral assertions of continuing to administer the
territory "in the spirit of the. . . Mandate" (letter23fJuly 1947frornkgation
of South Africa to Secretary-General of the United Nations, cited in Infer-
nation01 Status of South West Africa, Advisory Opinion, I.C.J. Reports 1950,
p. 128, at p. 135) for in~ernational supervision of that administration, South
Africa has "severely redvced" the degreeof international supervisionprovided
for in the Mandate (Admissibility of Hearings ofpetitioners by the Cornmittee an
South WestAfrica, Advisory Opinion,I.C.J. Reports 1956, p. 23, at p. 45 [sepa-
rate opinion ofJudge Lariterpacht])and directlydeprived the UnitedNations of864 NAMIBIA (SOUTH M'EST AFRICA)

the information necessary for effectivesupervision of the administration of the
Territory. Siich action constituted a material breach by South Africa of its
obligations iinder the Mandate and a violation of the principle of poctn sunt
servanda.

B. By Systeinatic Rejection of the Recomn~endarionsof tireGeneral Asse~nbly
andthe Security Cocrncil.

South Africa has also failed to comply with resolutions of the General As-
sembly and ihe Security Council relating to its administration of the Mandate.
1I iis separate opinion on 7 June 1955, on the question of VofitrgProcedure 011
Reports and,Petitions ConcerningSouth West Africa, Judge Lauterpacht touch-
ed on the possible legal consequences of continuing failure of the Mandatory
to recognize the supervisory authority of the United Nations:

"Although there is no automatic obligation to accept fully a particular
recommendation or series of recommendations, there is a legal obligation
to actin good faith in accordancewith the principles of the Charter and of
the. System of Trusteeship. An administering State may not be acting
illegally by decliningto act upon a recommendation or seriesof recommen-
.dations on the sarnesubject. But in doing so it acts at its peril whenapoint
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 Puiposes of the Charter. Thus an Administering State which consis-
tently sets itself above the solemnly and repeatedly expressedjudgment of
the Organization, in particular in proportion as that judgrnent approxi-
mates to unanimity, may findthat it has oversteppedtheimperceptibleline,
betweeri impropriety and ilfegality, between discretion and arbitrariness,
betweeri the exercise of the legal right to disregard the recommendation
andthe abuse of that right, and that it has exposed itself to consequences
1egitirna.telyfollowing as a legal sanction." (Voting Procedure on Questions
.relating ta Reports and Petitions concerning the Territory of South Wesi
Africa, Advisory Opinion, 1.C.J. Reports 1955, p. 67, atp. 120.)

The persistent disregard of more than 70 resolutions relating to the admin-
istration of the Territory adopted over nearly two decades by the principal
organs of the United Nations constituted a violation of South Africa's duty to
act in good faith in accordance with its duties under the Mandate toward the
supervisory authority.

C. By Applicatiorzof Apartheid in Namibia , .
Article22 (1)of theCovenant madeapplicable to al1mandatesthe fundamen-
ta1 principle:that "the well-being and development of such peoples forms a

sacred trust of civilization". Articl2 of the Mandate for South West Africa
required tha.t-
"The Mandatory shall promote to the utmost the material and moral
well-benngand the socialprogress of the inhabitants of the territory subject

to the present Mandate."
An examination of the institutions which South Africa has introduced into
Namibia and their practical eflect upon the inhabitants of the Territoryis
essential to any discussion of whether South Africa has complied with its basic
obligations under those instruments.
South Africa which administers Namibia as an integral part of South Africa WRITTCN ST+TEMENT OF THE UNTER STATESOF AMERICA 865
has established apartheid as the principle for adrninistering the Territory as
well as for South Africa itself, Since 1950the General Assembly has expressed
concern over the policy of apartheid. In General Assembly resolution 1248

(XTII),the General Assembly declared again that:
".. .in a multiraciai society, harmony and respect for human rights and
freedorns and the p~acefuldevelopment of a unified cornrnunity are best
assured when patterns of legislation and practice are directed towards
ensuring equality before the Iaw of al1persons regardless of race,creed or
colour, and when the economic,social, cultural and political participation

of all racial groupsison a basis of equality;..."
In General Assernbly resolution 2145 (XXl), which terminated South Africa's
rights under the Mandate, the General Assembly reaffirmedGeneral Assembly
resolution 2074(XX) of 17December 1965and expresslyreferredto thecondem-
nation of apartheid in Namibia in that resolution.
The most teliing evidence that apartheid as applied to the inhabitants of
Namibia is a violation ofthe Mandate rnay be found in the arguments of the
South African Governmcnt itself. In a publication of the Department of Foreign

Affairs, South West Africa Survey 1967, the South African Govemrnent's pol-
icy is set forth as one of "separate development" or apartheid, namely that
"the White nation of Soiith Africa and South West Africa must stay as a White
Africannation" (ibid.,p. 163).Such apolicy with respect toa territory in which,
according to the 1960 cejlsus, 81.47 percent. of the population is African, 4.5
per cent. coIoured, and 13.91per cent. European, is a flagrant contradiction of
the Mandatory's obligations to the inhabitants. South Africa frankly declared
its rejection of the norrn.Jrstandard of universal adult suffrage.In disregard of
its obligations under the Mandate to the Territory as a wholeand to the peopte
as a whole, South Africa adopted a poIicy of apartheid and rejected "every
policy which suggestedthe giving of limited rights to the various groups inside
one political structure" since such policy "had the prospect of one man one
vote as an unavoidable end result, with its easily predictable consequences"
[the end of minority coritrol]. (See SouthWest AfricaSurvey 1967, pp.46-47.)
The basic premise of ajjartheid, to preSeNe the control of the white minority

in al1of Southern Africa and to prevent self-determination by the majority, is
antithetical to the obligations of South Africa under the Mandate, namely "to
prornote to the utmost the material and moral well-beingand the social progress
of the inhabitants".
According to a study of the International Commission of Jurists:

"The latest officialestimate, made in 1960,of the population of South-
West Africa (therehas beenno censussince1951)placesthe total at 554,000,
of which 464,000are African, 69,000are European and 21,000are Colour-
ed. For administrative purposes, the Territory is divided into two zones,
an arrangement inherited from the former German Administration. Lying
to the south and corilprisingnearly two-thirds of the whoIe country is the
European settler area, called the Police Zone, which also contains small,
enclosed reserves of Africans who live and work there. These areas are
completely segregated and the residential areas of the Europeans and Af-

ricans are separated by 500-yard buffer-strips.The rest of the population,
that is, the rnajorit~fthe Africans, livesin the Tribal Areasin the north,
comprisingthe remaining one-third of the total area." (International Com-
mission of Jurists, Apartheid iSourhAfvicci and South WesrAfrica (1967),
pp. 19-18.)866 NAMIB~A (SOUTH WEST AFRICA)
The study also shows exclusive white control of basic policy for the whole

territory.
"Sint,: 1951, South-West Africa has been represented at the National
Parliamtnt at Pretoria by ten European South African nationals, six of
whom sit in the House of Assemblyand four in the Senate. The Legislative
Assernbly of the Territory consists of eighteen Europeans, al1 of them
South PJrican nationals living in South-West Africa. The South African

Governinent exercisescomplete administrative and legislativecontrol ove1
the following interna1 matters of South-West Africa: Africa affairs, cus-
toms arid excise, railways and harbours, police, extemal afairs, immi-
gration, civil service, health, agriculture, lands, mining, commerce and
industp." (Ibid.1
Administration of non-white affairs is shown to have been centralized in the

Governrnent at Pretoria. Indeed, under the South West Africa Afïairs Act of
1968this ceritralization has become more complete.
Under the:Act, the State President may amend existing proclamations ap-
plicable to the Territory and "if he considers it to be necessary, declare any
suchamendrnent to be of retrospective effect".
The Study of the International Commission of Jurists also shows the wide
power vested in the discretion of the Administrative officialsover the lives of
Africans and other non-whites.

"The Tribal Areas, where there are no European settlers, are ruled in-
directly through traditional chiefs, whofunction under the authority of the
Administrator of South-West Africa. The President of the South African
Republic is the declared Supreme Chief of al1Africans, in which capacity
he has drastic and almost unlirnited powers ioappoint and remove chiefs,
divide ciramalgamate tribal communities, deport and banish individuals
and groups. He can order the removal of any person from one part of the
Territory to another without allowing any form of access or appeal to the
courts. .Africansdo not possesseventhe most rudimentary political power,
and have no participation at al1in the making of the Iaws which govern

their lives compIetely, and which carry rigid sanctions. All independent
attempts at political organization are forcibly suppressed, asare those in-
volving trade union activities. No intention to change this situation has
ever been manifested by the South African Government." (Ibid., p. 19.)
Since 196'7,under the Homelands Act, provision has been made for native
authorities stndnon-white localized self-government. However,the power and

resources ofsuchlocal authorities are limited and are terminable at the pleasure
of the State President, that is, the Government at Pretoria. (Clauses 5 (2) and
14 of the Act.)
In the application of apartheid, Namibians have been systematically subject-
ed to legal discrimination and deprivation offundamental rights and freedoms
on the basis of race in violation of South Africa's obligations.
Under South African administration certain basic rights and freedoms of
Namibians have been limited by legal restrictions imposed on the grounds of
race. The following six subsections discuss those limitations.

1. Freedomof Movernent
The report of the Special Rapporteur of the Commission on Wuman Rights

on the "Study of Apartheid and Racial Discrimination in Southern Africa" 867
WRITTEN STA'TEMENTOF THE UNlTED STATESOF AMERICA
(UN doc. E/CN.4/949/Pldd.l), states in Part 1, Chapter II, a comprehensive
study and treatment of the laws of South West Africa:

"The freedom of inovement of Africans is severelyrestrictedby a com-
plex pass system to be found in the Native Administration Proclamation,
1922, the Extraterritorial and Northern Natives Control Proclamation,
1935and the Natives (Urban Areas) Proclamation, 1951." (Ibid para..652.
The General Assembly in Resolution 2439 (XXIII) endorsed the recom-
mendations of the Special Rapporteur that South Africa be required to

repeal, amend or ri:place laws cited in paragraph 1547 of the Report
(EICN.4/949/Add.4).)
Paragraph 5 of Proclatnation NO. II of 1922 (OficialGazette, 1 April 1922)
provides :

"5. No native shall Saveas is herein excepted travel within or leave the
Territory unless he l~ein possession of a pass duly issuedfor that purpose
by an authorized person. Any person contravening the provisions of this
section shall be liable on conviction in the case of a first offeacfine
not exceedingone pcaundor in default of payment to imprisonment with or
without hard labour for a period not exceeding fourteen days and in case
of a second orsubsec{uentoffenceta a finenot exceedingthree pounds or in
default of payment ro irnprisonment with or without hard labour for a

period not exceeding:one month."
2. Freedom ofResidence and Right taOwn Land

Strict limitations on the residence of Africans in reserves, police zones,and
in urban areas are imposed by the Extraterritorial and Northern Natives Con-
trol Proclamation, 1935,;indthe Natives (Urban Areas) Control Proclamation,
1951,as amended by section 3 of Ordinance No. 25 of 1954.(Seepara. 662-675
of the Report to the Hurnan Rights Commission.) The South West Africa Af-
fairs Act of 1968strengthened legal restrictions on the right of Africans ta own
or occupy land.

3. Freedom ofEnploynent

Restrictions on freedoin of employment and on conditions of employment,
including the place, nature, duration, remuneration, and disabiliand work-
men's compensation exist in Namibia. The study made for the International
Commission of Jurists on "Apartheid in South Africa and South West Africa",
1967,states at pages 24-25:

"The system of recruitment of African workers operating in South-
West Africa today i:;unique in its organized and efficient application of
conditions that are akin to slauery. Workers are recruited, under contract,
in the Tribaf Areas by the South African Government-sponsored South-
West African Nat iveLabour Association (SWANLA), which classifiesthe
male population intciworking categories A, B and C, suitable respectively
for work inthe mines, on land andon the agricultural and livestock-breed-
ing farrns of the Eurcipeans.Theseletters areproduced on theclothes of the
workers, which they have to provide for themselves. Once having been
chosen by SWANLP,contractors, the men are transported to their areas of
work. The workers have to pay a government tax on each contract of
employment. There is no other way of obtaining work or eaming a wage
except through the SWANLA contract-system, which provides the em-
ployer~in the mines .muidarms with the amount andquality of labour that NAMIBIA (SOUTH WEST AFRICAJ

they require. Once under contract, the worksr may not leave the area of
employrnent and may not cancel the contract. No African trade unions are
recognised, the workers are excluded,from al1 systems of collective bar-
gaining and strikes are a criminal offence."

See also paragraphs 756-763 of the above-cited study made for the Human
Rights Commission.
As an exainple of the differenceson the basis of race in the amount of com-
pensation paid to survivors under the law applied by South Africa in Narnibia,
compare seci.ions40 and 86 of the Workmen's Compensation Act, No. 30 of
1941, on beriefitsto dependants in case of death of a worker. See also Social
Pensions Oriiinance, No. 2 of 1965(Oficial Gnzrtfe Extraordinary, 26 March
1965) which provides for diferent old-age, disability and blindness pensions
for White and Coloured and has no provision for Africans.

4. Righr toParticipate in Governrnent

The Study for the Human Rights Conmissioi~ recites the barriers to any
participation by Africans in the central Government which controls their
affairs:
"575. The European inhabitants of South West Africa are represented
both in the Parliament of the Republic of South Africa and in the Legis-

lative Asçemblyof South West Africa. The non-Buropeans are represented
in neithr:r.
576. I3yChapter III of the South West Africa Affairs Amendment Act,
1949,provision is made for the election of sixrepresentatives to the South
African House of Assembly by registered European voters of South West
Africa.IBy virtue of section 34 of the Act, al1European citizens over the
age of 1.8are entitled to vote. Similarly, by section 29, only Europeans are
entitled to stand for election. The Act also provides forfour senators from
South West Afrjca to sit in the South African Senate. Two are nominated
by the SitatePresident (one must be selected rnainly on the ground of his
thorough acquaintance with 'thereasonable wants and wishesofthecolour-
ed races of the territory') and two are elected 11ymembers of the Legislative
Assemb:lyof SouthWestAfricaand the memkrs of the SouthAfricanHousa
of Assernbly elected for the territory of South West Africa.
577. 'TheLegislative Assernbly consists of 18 members elected by the
registercidEuropean voters. Qualifications of voters and of candidates for

electionare the same as those given in the preceding paragraph for the
House c~fAssembly."
Ordinance Pro. 34 of 1961 established a Colourcd Council for the Territory
with advisory functions with respect to "economic, social, education and cul-
tural matters affectingthe interests of the coloured populatioofthe Territory".
(Ibid., sec. 6.) As pointed out in paragraph 589 of the Report to the Human
Rights Commission "native affairs" are reserved to the Governrnent of South

Africa by thi: Constitution of South West Africa.
5. TheRight to FarnilyLife

The i3uma.nRights Commission Report Statesiriparagraph 639:
"Again as in South Africa, the Policy of allowing Africans to enter
European areas to work only as 'single'meii on a contract basis has the
result of splitting up families and interfering with the family life of men

whom economic necessitycompeIs to seek work away frorn the reserves." WRITTEN STfkTEMENTOF THE UNlTED STATES OF AMERICA 869

Under the Native (Ur3an Areas) Proclamation, Proclamation No. 56 of 1951
(Oficial Gazette Exfraordinary, 29 October 1951), there are strict limitations
on the residenceof women in proclaimed areas (areas "in which natives are
congregated in largenunibers for mining or industrial purposes"). Paragraph 22
of thisProclamation autliorizes the administrator:

". .. to prohibit ar~yfemate native from entering the proclaimed area for
the purpose of residing or obtaining employment therein after a date to be
specifiedin any sucli notice, without a certificate of approva.. .".

Such certificate could. be issued only if the applicant has produced satis-
factory proof that her hiisband (or father) "has been resident and continuously
employed in the saidareirfor not lessthan twoyears".
See also the requirement specified in paragraph 17 of Proclamation No. 65
of 1955,OficialGazette, 31 March 1955,that:

"17. (a) Every fèmale native resident in the proclaimed area, other
than the wife, ininor child or bonafide dependant of a native in employ-
ment in sucharea-
(i) shall not later ihan the seventh day of each and every rnonth produce
proof that she is in bona fide ernployment to the location superinten-
dent (for the information of the registering officer) by means of a
' certificate from heremployer . . ;

(ii) shall be deemed to be.out of bonn jde employrnent if she fails to
produce the proof mentioued in item (i) within the period indicated
in that item;
(iii) may be requirt:d in writing by the registering officer to depart from
the proclaimed area and not to return thereto within a specified
period, if she shall be out of bonafide employment for a continuous
period of fourti:endays."

6. TheRightto Education
Under South African administration of Namibia, education is cornpulsory
for the white child but not for the coloured or Africanchild. By 1966,46 years
from its acceptance of tlie Mandate, South Africa had brought only a handful
of Africans-and Africansconstituted four-fifths of the population-to college
admission level. Replies in Parliament by the South African Minister of Bantu

Education (Hatisard As;enibly, Il March 1969, No. 6, pp. 2253-2254)show
that, from among the Si?O,00A 0fricans of Namibia, only 14 students entered
for the matriculation exs.minationat the end of 1968and, of these 14, only 3 or
0.0006percent. obtained.a universityentrance pass.
The figures given by the South African Government on expenditures for
education in South West Africa show that for 1965/1966the total expenditure
on white education wai;R2,675,557 for a 19,893 white pupil total, a total
expenditure for coloured education of R680,OOO for a 9,402 coloured pupil
total, and a total expenditureof R1,333,879for a 45,402African pupil total.
Limitations on the liberty of Namibians, such as those referred to above are
imposed on the basis of race; in many cases their application has been subject
to the arbitrary and unfatered discretion of the relevant Minister in Pretoria,
and the infringement of these regulations is often a criminal offence. For
example, Section 1 (d) of Proclamation No. 15 of 1928vested in the Adminis-
trator (these powers arc!now held by the Minister) the power "whenever he
deerns it expedient in thr:general public interest" to "order the removal of any
tribe or portion thereof or any Native from any place to any other place withinthe mandated. Territory upon such terms and conditions and arrangements as
he maydetermine". Section 2 ofthe Proclamation provided:
2. The Administrator shall not be subject to any court of law for or by

reason of any order, notice, rule or regulation professed to be issued or
made or of any other act whatsoever professed to be committed, ordered,
permitteri or done in the exerciseof the powers and authority conferred by
thisProclamation.
And Section3(2)provided:

(2) Any Native who neglects or refuses to comply with any order issued
under paragraph (b), (d) or (e)of section one shall be guilty of an offence
and liable on conviction to a fine not exceeding ten pounds or to im-
prisonmt:nt forany period not exceedingthreemonths.
The obligation to promote the well-beingand social progress ofthe people of
Namibia is violated when the mandatory implements a systernatic policy, as

described in part above, to effect political, economic, social and educational
repression.
Although the Court in 1966disposed of the South West Africa cases without
discussing thr: Applicants' contention that South Africa's application of the
policy of apartheid in the Territory was inconsistent with its obligations under
Article2 of the Mandate, sixJudges dealt with the matter. Five of those Judges
Wellington Koo, Tanaka, Padilla NeNo, Forster, and Judge ad hoc Mbanefo,
found againsi.South Africa on the question. The sixth, ad hocJudge van Wyk,
found forSouth Africa.
In an cloquent opinion, Judge Forster summarized "the multiplicity of
impedirnents put in the way of coloured people iil al1fields of social life" by
the application to Namibia of South Africa'spolicy ofapartheid:

"Barriers abound: in admission to ernployment ,in access to vocational
training, in conditions placed on residence and freedorn of movement;
eveninrt:ligious worship . .."(SoufhWest Africa, SecondPhase,Judgmenl,
I.C.J.Reports 1966,p.6,at p. 482.)
Heconcluded:

"Crea~ingobstaclesandmultbi arieriisnot ...a waytocontribute
to the promotion of the material and moral well-being and the social
progress ofthe inhabitants of theterritory. It is, on the contrary, a manifest
breach of the second paragraph of Article 2 of the Mandate." (Ibid .t,
p. 483.)
The injunci:ionto prepare the peoples under Mandate to stand by themselves
under the strenuous conditions of the modern world by its own terms sets a
dynamic standard. Conternporaneously with the dedication of the United Na-

tions to developing "friendly relations among nations based on respect for the
principle ofetluai rights and self-determination" and to achieving"international
CO-operation ... in prornoting and encouraging respect for human rights and
for fundamerital freedoms for al1without distinction as to race", South Africa,
though a UnitedNations member, embarked on a course designedto effectively
frustrate self-determination for the people of Namibia and to deny the human
rights ofthe people under itstutelage. South Africa instituted a system in which,
in itsown woi:ds: WRITTEN STA'IEMENTOF THE UNITED STATESOF AMERICA 871

"Al1the required nleasures necessarily involved the allotment of status,
rights, obligations a~d privileges on the basis of mernbership of a group,
rather than on grounds of individual quality, potential or rnerit." (South
WesfAfricn Survey,I~nnexureD, p.171.)

The application of apartheid to Namibia is incompatible with the specific
undertaking of the Mandatory in the Mandate to promote to the utmost the
nioral well-beingand developmentof the inhabitants.

The application of apartheid to the people of Namibia constituted a material
breach of the Mandate wîrranting termination of South Africa's rights under
that instrument.

Section VI11

The UnitedNations Had r.heRight tu TerrninafeSouthAfrica's AuthorityUnder
the Mandare Beca~rseof FouthAfrica's Materia! Breaches of irsMandate Obli-
gations, and Siich Tcrmin,ztionWas a Reasonable Elcercise of United Nations
SupervisoryAufhority

On 27 October 1966 by resolution 2145 (XXI) the General Assembly,
"(c)onvinced that the administration of the Mandated Territory by South
Africa has been conducted in a manner contrary to the Mandate. . .",declared
that South Africa had "failed to fulfil its obligations in respect of the adminis-

tration of the Mandated Territory and to ensure the moral and material well-
beingof the indigenous inhabitants . . ." It decided "that the Mandate conferred
upon His Britannic Majetity to be exercised on his behalf by the Government
of the Union of South Africa is therefore terminated, that South Africa has no
other right to administer ~heTerritory and that henceforth South West Africa
cornesunder the direct resl~onsibilityof the United Nations".
The resolution further recites that "al1 the efforts of the United Nations to
induce the Government of'South Africa to fulfil itsobligations in respect of the
administration of the Ma.ndated Territory and to ensure the well-being and
security of the indigenou. inhabitants had been of no avail". In the debate a
number of delegates recalled that the prior resolutions of the Assembly on the
subject (which then numbered more than 70) had had no measurable effect in
inducingSouth Africato fiilfilitsobligations.
Boththe debates inthe CieneralAssemblyandthe textof resolution 2145(XXI)
evidence the pervasive and strongly held view that only by termjnating South
Africa's rights under the Mandate and assurning direct responsibility for the

administration of the Territory could the General Asçemblyhope to achievethe
purposes of the Mandate and bring to an end South Africa'scontinuing denial
of the basichurnanrights clfthe inhabitants of Namibja.
In Admissibiliry ofHeai*ingsof Petitioners by the Cornmitteeon Soufh West
Africa, Advisory Opinion,I.C.J. Reports 1956, p. 23, the Court considered the
cornpatibility with its 19541Advisory Opinion of an early rneasure of super-
visory authority taken b:i the General Assembly in consequence of South
Africa's failure to transmit petitions. At that time the General Assembly
authorized the Cornmitte: on South West Africa to gant oral hearings to
petitioners, despite the fact that such an action constituted a modification of
the proceduresrelating to petitions prescribedby the Council of the League. In
allowing the modification the Court stated that the new procedure had becorne
necessary- "... because the mandatory had refused to transmit to the General
Assembly petitions by the inhabitants of the Territory, thus rendeiing
inoperative provisions in the Rules conceming petitions and directly
aflectiqg the ability of the GeneralAssembly to exercise an effectivesuper-
vision".(Italics added.)

The Court went on to state that the question on which it was giving an
opinion "arose out of a situation in which the mandatory has maintained its
refusal to assist in givingeffectto the Opinio11July 1950,and to CO-operate
with the United Nations by the submission of reports, and by the transmission
of petitions in conformity with the procedures of our Mandates System".
(Ibid pp.,31.-32.)
In 1950 and, indeed, even in 1956neither the Assembly nor the Court seems
to have regarded South Africa's breaches of thc Mandate as acts which had
crystallized into an inflexible policy. 1956 niodification of procedures for
hearing petitioners, which, it was hoped, would assist the Assembly in exercis-
ing the supervisory powers, as wellas other practical stepscalculated to achieve

the same erid adopted by the General Assembly during the ensuing decade,
proved insufficientin light of South Africa's intransigence. Having exhausted
a11other means at its disposal without effect, the General Assembly decided
in resolutio1l2145(XXI)to rely on itsultimate supeniisory power of revocation
of South Afiica's rights under the Mandate.
The reasonableness ofthe General Assembly'saction in resolution 2145@XI)
is demonstrated by the fact that it was taken only as a last resort after nearly
two decade:; of lesser measures to induce South Africa to cease its rnaterial
breaches of its obligations under the Mandate had faileIndeed, it is difficult
to see what other action the United Nations could have taken without having
relinquished.its obligations with respect to the Territory. The Security Council,
by havingconsistentlyconfirmed the validity of the General Assembly'saction,
has supported that view.

Section IX

me Unite dotions Was the Legal Capncity to Assume the Funetionsof ,
the Mandatory Power

Since South Africa'srights under the Mandate were terminated, it feIl to the
General Ass.emblyas the supervisory authority with respect to the Mandate to
provide for the continuance of the sacred trust. Rather than appointing a
State to diicharge those functions it placed the Territory under the direct
responsibility of the United Nations by operative:paragraph 4 of its resolution
2145 (XXr). After having considered the 1967report of thAd Hoc Committee
for South West Africa, it decided in resolution 2248(S-V) to establish a Council
for Namibia to exercise administrative authority over the Territory subject to
the Assembly'ssupervisoryauthori ty.

The decision by the Assembly that the United Nations should administer
Namibia is consistentwith the basic structure of the mandates system and the
international trusteeship system and the practice of the United Nations. The
mandates s:ystem presupposes an administering authority. The League of
Nations performed analogous functions in the case of the Saar through a
Commissiori established pursuant to the Amex to Article 50 of the Treaty of
Versailles. Indeed, as the discussion of "The League of Nations: A Fractical
Suggestion" in Section V of this Part points out, the original Smuts proposal WRITTEN STA'TEMENT OF THE UNITED STATESOF AMERICA
873
contemplated that mandatory functions rnight be exercised either directly by
the League orby rnandatories acting on its behalf.
Article 81 of the Charter specificallyprovides that the United Nations may
be an administering authority ofa trust territory. It rnay be recalled that the
United Nations for a time adrninistered the territory of West New Guinea
(West Irian)on the basis ofan Agreement between the Republic of Indonesia

and the Kingdom ofthe Netherlands, (D. W. Bowett, U.N. Forces(1964 )p,.
255-261.)Byanalogy the United Nations may assume responsibility for adrnin-
isteringa territory undarmandate.
The Security Council by its resolution 264 (1969)recognized the action taken
by the Assemblyconcerningresponsibility for the administration of Namibia. CHAPTER II

SOUTH AFRICA BY ViRTUE OF ITS CONTINUED YRESENCE IN
NAMIBIA TQOTWITHSTANDING SECURITY COUNCiL RESOLUTION
276 (1970) IS OCCUPYING NAMIBIA ILLEGALLY AND IS
0BLIGA.TED TO TRANSFER ADhlINISTRATION OF NAMIBIA
TO THE UNITED NATIONS

Section1

SouthAfrica Isin IMegalOccupation of Namibia

In the preceding chapter, it was demonstrated that the United Nations
validly terminated South Africa'sMandate over the Territory of Namibia. This
sectionexamines various bases upon which South Africa might claim that its
continued presence in Namibia is lawful and concludes that South Africa is in
illegaloccupation of Namibia.
South Africa's rjght to be present in and to adrninister Namibia derived
solely from t.heMandate. In cornrnenting on the nature of those rights in 1962
the Court said:

"The rights of the mandatory in relatiotothe mandated territory and
the inhabitants have their foundation in the obligations of the mandatory
and they are, soto speak, mere tools given to enable it to fulfilits obliga-
tions." (I.C.J. Reports 1962,pp. 319,328-329.;)

The cour^ unanimously stated in the first of its Advisory Opinions relating
to the Territlary:
"The authority which the Union Government exercises over the Terri-
tory is based on the Mandate. If the Mandate lapsed,. ..the latter's
authorii:~would equally have lapsed." (ItzternationalStafus of South West
Africa, .ddvisory Opinion,I.C.J. Reports 1950,p. 133.)

In the view of the United States the General Assembly correctly concluded
in resolutior2145 (XXT)that South Africa's Mandate having been terminated,
South Africn'sright thereunder to presence in and administration of the Terri-
tory had terrninated.
Apparently recognizing that, as the Court stated in its 1950 Opinion, the
Mandate "d.id not involve any cession of territory or transfer of sovereignty
to ... South Africa", counsel for South Africa asserted to the Court on 27 May
1965that "the legai nature of its rights [intheTemitory1 is such as isrecognized
in international law as flowingfrom military conquest" (I.C.J. Pleadings, South
West Africa, Vol.IX, p. 478).
As indicated in the Statement of Facts, South West Africa, which had been

annexed by Germany in 1884,was surrendered ti~forces of South Africa on 9
July 1915.Under Article 119of the Treaty of VersaillesGerrnanyrenounced al1
her rights a:ndtitles over the Territory in favour of the Principal Allied and
Associated IPowers.Subsequently, representatives of those Powers decided to
place the Territory under the League of Nations mandates system. On 17
Decernber 1920, the Council of the League, acting under Article 22 of the
Covenant, d.efinedthe terms of the Mandate. The third preambular paragraph
of that instrument recited the agreement of "His Britannic Majesty, and on WRIT~EN STATEMENT OF THE UNITED STATESOF AMER~CA 875

behalf of the Governmint of the Union of South Africa.. .to accept the
Mandate in respect of the .. .territory... and to exercise it on behalf of the
League of Nations in accordance with" provisionswhichfollowed.It isobvious,
therefore, that South Africa's administering authority over the Territory was
based on the agreement with the Council of the League,not on conquest.
Even under traditional international law, conquest alone would not have
afforded alegal basis for South Africa'sclairn to sovereignty. Conquest would
have to have been followed by subjugation or cession. Germany was not
subjugated and its cessioriof South West Africa was to the Principal AIliedand
Associated Powers. South Africa received not sovereignty, but a mandate
subject to League supervision and the performance of obligations imposed by
the terms of the Mandate and the Covenant of the League. Lauterpacht'seighth

edition of Oppenheiln,Volume1,page 567,States:
"Conquest is onlj, a mode of acquisition if the conqueror, after having
firmly established the conquest, formally annexes the territory. Such,
annexation makes the enemy State cease to exist, and thereby brings the
war to an end. Anclas such ending of war is named subjugation, it is
conquestfollowed b:rsubjugation, and not conquestalone, which givestitle
and is a mode of accpiring territory. It is, however, quite usuaI to speak of
'title by conquest', ~nd everybody knows that subjugation after conquest
. is thereby meant. Biitit must be specially mentioned that, if abelligerent
conquers a part of th.:enemyterritory andafterwardsmakes the vanquished
State cede the conquered territory in the treaty of peace, the mode of

acquisition isnot sul-ijugationbut cession."
Judge Jessup, after citinl: this statement in bis 1966 dissenting opinion, took
judicial notice of the facts "that Gerrnany did not cede South West Africa to
South Africa and that Srluth Africa did not conquer the whole of the territory
of Germany". (Sourh West Africa, SecondPhuse, Judgment, I.C.J.Reports 1966,
pp. 418-419.)
Prescription is another generally recognized mode of acquiring territory.
Lauterpacht's Oppenheimdefinesprescription as-

". ..the acquisition of sovereignty over a territory through continuous
and undisturbed exercise of sovereignty over it during such a period as is
necessary to create under the influence of historical development the
general conviction that the present condition of things is in conformity
with international order". (Op. cit., p. 576.)

It would be difficultto fina case in which a claim of prescriptionwould be less
appropriate than one mirde by a mandatory Power with respect to territory
under its administration; the running of the prescriptive period could not have
begun during the continuiince of the Mandate.
In the 1962contentiou:; case South Africa asserted that in 1945its represen-
tative at the San Francisco Conference had made a statement to the effect that
it rnust be held not to have acquiesced in the continuance of the Mandate.
South Africa may not rely on that statement in theprescriptioncontext since,
as the Court afirrned in its opinion on the InrernutionalStatus of Sourh West
Afiica, South Africa subsequently recognized the status of Namibia as an inter-
national territory in transmitting to the second part of the first session of the
United Nations General AssembIy a "Statement on the outcorne of their
consultations with the peciplesof South WestAfrica as to the future status of the
mandated territory and iniplementation to begivento thewishesthusexpressed".
(I.C.J. Reports 1950, p. 134.) That action bars South Africa from asserting876 NAMIBIA (SOUTH WEST AFRICA)
that she has as from 1945exerciseduninterrupted and undisturbed sovereignty
over theTerritory and thus acquiredtitle byprescription.Moreover,the debates,
reports and resolutions ofthe General Assembly,itscornmitteesand subordinate
organs and of the SecurityCouncil relating to Namibia and the abortive attempt
of the United Nations Ad Hoc Comrnittee to visit the Territory are conclusive

evidence that the continued occupation of the Territory by South Africa has
not been undisturbed, al1 available peaceful methods of asserting its super-
visory responsibility having been used by the United Nations. These facts
demonstrate that suchcontinued occupation isnot regarded bythe international
cornmunity at largeas "in conformity withintemational order".
The only other mode of acquisition of territory that could conceivably serve
as a basis for a claim of title by South Africa is occupation of terra ndlius, Le.,
territory which under international 1awbelongs to no one. South Africa's re-
cognition of the international status of the Territory both before and after the
establishmeritof the United Nations estops her frorn asserting thatNamibia
was terra nufliusand that her occupation and control of the Territory under the
Mandate afford a basis for a clairn of title.
Is there anyother basis on which South Africa's occupation could be legally
justified? It iswellestablishedthat the Iawfulauthorityaoterritory may autho-
rizea State to occupy part or al1of the territory and to perforrn administrative
functions in or for that territory. Howeuer, the present lawful authority with
respect to Namibia, the United Nations, has not consented to South African
occupation of Namibia. On the contrary, the United Nations has consistently
opposed Soiith Africa's attempt to thwart its supervision. In 1967the General

Assembly created a United Nations Council for Namibia and charged it to
proceed to the Territory, base itself there, arrange transfer of administration
from the South African authorities, take over administration and ensure the
withdrawal of South African police and militaryforces and other South African
personnel. R.esolution2248(S-V)called upon the Government of South Africa
"to comply without delay with the terms of. ..the present resolution and to
facilitatethe transfer of the administration of the ierritory of South West Africa
to the Count:il". South Africa prevented the Council for Namibia from entering
the territory. (See Report of the Council, UN doc. Al7088 and Corr. 1.) The
General Assemblyresponded by adopting resolutions 2325@XII), 2372{XXLI)
and 2403(XKIII), in which inincreasinglyfirmtones, it calledfor South Africa's
withdrawal from the Territory.
Beginning in 1969the Security Council in resolutions 264, 269 and 276 con-
demned the refusa1 of South Africa to comply with the General Assembly
resolutions idating to withdrawal, called upon South Africa to "withdraw its
administration from the Territory", and declared "the continued presence of
the South African authorities in Namibia" as "illegal".
There is no legal basis for South Africa'scontinuing occupation of Namibia.

SectionII

South A-fiica Should Have Transferred the Administration of Namibia
tathe Unite dations

When tht: General Assembly in resolution 2145 (XXI) terminated South
Africa's rights and authority under the Mandate for Namibia, it also decided
that the Territory should corne under the direcl responsibility of the United
Nations. Having established the United Nations Council for Narnibia to ad-
minister the Territory, the General Assernbly in resolution 2248 (S-V) called WRI'ïïEN STATEMENT OF THE UNITED STATES OF AMERICA 877

upon South Africa to facilitate the transfer of the administration of the Terri-
tory to theCouncil.TheGovernmentof South Africa refused to CO-operatewith
the United Nations in th€:implementation of theseresolutions.(Communication
of 26 September 1967from the Government of South Africa, UN doc. A16822.)
Taking note of that communication, the General Assembly in resolution 2325
(XXm called upon the Government of South Africa to withdraw from the
Territory al1its military and police force and its administration. South Africa
again refused to CO-operiite.
The question of non-cornpliance with these resolutions was submitted to the

Security Council in 1969,and in its resolution 264(1969)the Council recognized
that "the United Nation!; General Assembly terminated the mandate of South
Africa over Namibia anclassumed direct responsibility for the Territory until
its independence", and cc~nsideredthat "the continued presence of South Africa
in Namibia is illegaland contrary to the principles of the Charterand the previ-
ous decisions of the Unitcd Nations". A few months later, the SecurityCouncil
in resolution 269 (1969) .:ondemned the Govemrnent of South Africa "for its
refusal to complywith re::olution264(1969)andfor its persistent defianceof the
authority of the United Nations". Later, in resolution 276 (1970),the Security
Council declared that "the defiant attitude of the Govemment of South Africa
towards the Council's dccisions undermines the authority of the United Na-

tions". Finally, in resolution 283 (1970) the Security Council noted "thecon-
tinued flagrant refusal of the Government of South Africa to comply with the
decisions of the Security Council demanding the immediate withdrawal of
South Africa frorn the tcrritory", and called upon al1 States to take various 3
measures with respect to South Africa and Namibia.
These resolutions of the General Assembly and of the SecurityCouncil pro-
ceed clearly on the assurnption that the original General Assembly resolution
2145 (XXT)was legally effective.It is generally accepted that certain decisions
of the General Assembly and somedecisionsmade by the General Assemblyon
the recommendations of the Security Council are legally effectiveunder the

Charter of the United Nations. One can mention here the decisionsrelating to
admission, suspension aiid expulsion of Members, the budget of the United
Nations and the apportionment of expenses among the Members of the Or-
ganization, and the appciintment of the Secretary-General. Moreover, as was
pointed out in one of the previous sections of this statement, the Council of the
League of Nations could.have terrninated a mandatory's authority under the
mandate with a binding tiffecton that State. As successor to the Council, the
General Assembly has a1s.othe power to rnake a legallyeffectivedecision in this
limited area. If therweri:any doubt that the General Assernblyalone could do
so, surely the General Assembly and Security Councif acting together, could
rnake such a decision; boxhthose organshave decided that South Africa'srights

under the Mandate have been terminated. CHAPTER Ili

FROM SOUTH AFRICA'S CONTINUED PRESENCE IN NAMIBIA
FLOW CERTAIN LEGAL CONSEQUENCES FOR SOUTH AFRICA
AND OTHER STATES

Section 1

South Africa Hus Certain Duties concerningNarnibia Under InrevnationalLow
International law establishes a number of duties with which South Africa
must compl:yso long as she continues to maintain her illegal occupation of
Namibia. This section discussesthe nature of those duties; violation of certain
of those duties is discussed briefly herein but is dealt with prirnarily in other
sections of tliis statement. In the viewof the United States, it would be desirable
for the Court to affirm in its Advisory Opinion South Africa's duties under

international law during her continued presence in Narnibia.

A. The Duty Underthe Mandate to Promote the PVe(1-Beina gndDevelopment of
the InhabitantsIs Impressed Upon the Territory and Survives Termination of
South Africa'sRights Underthe Mandate
While anciexationby the victors of territories detached frorn defeated States
had been thi:traditional mode of dealing with colonies in general peace treaties
prior to 1919,the Principal Allied and Associated Powers adopted a different
method for dealing with the colonies and territories detached from Germany
and Turkey at the end of the First World War. The new method wastheestab-
lishment of a mandates system, the fundamental elements of which were
embodied in Article 22 of the Covenant of the League of Nations, which pro-

vides, in part:
"To those colonies and territories which as a consequence of the late
war have ceased to be under the sovereignty of the States which formerly
governed ehemand which are inhabited by peoplesnot yet able to stand by
thernselves under the strenuous conditions of the modern world, there
should be applied the principle that the well-king and development of
such peoples form a sacred trust of civilization and that securities for the
perforniance of this trust should be embodied in this Covenant.
The best method of giving practical effect to this principle is that the
tutelagc: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 wlio arewillingto accept it, and

that this tutelage should be exercisedby them as mandatories on behalf of
the League.
The character of the mandate must differ according to the stageof the
development of the people, the geographical situation of the territory,
its economic conditions and other similar circumstances.
.................................
Then: are territories, such as South-West Africaand certain of theSouth
Pacific:islands,which, owingto the sparseness of their population, or their
small size, or their remoteness from the centres of civilization, or their
geographical continguity to the territory of the mandatory, and other
circumatances, can be best administered under the laws of the mandatory WRIREN STATEMENT OF THE UNITED STATES OF AMERICA 879

as integral portion!; of its territory, subject to the safeguards above rnen-
tioned in the interests of the indigenous population.
In everycase of inandate, the mandatory shall render to the Council an
annual report in rekrence to the territory cornmitted to its charge.
The degree of a~ithority,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."

In Article 23 (b) the Members of the League undertook as well "to secure
just treatment of the native inhabitants of territories under their control".
The Council of the Lcague, acting under Article 22 of the Covenant, defined
the rights and obligatio~isof South Africa witb respect to South West Africa in
the Mandate of 17 Deccmber 1920.Article 2, paragraph 1, of that instrument
conferred on the Mandatory "full power of administration and legislation over
the territory subject to the present Mandate as an integral portion of the Union
of South Africa" and authority "to apply the lawsof the Union of South Africa
to the territory, subject to such local modifications as circumstances may re-
quire". However, Article 2, paragraph 2, irnposed the duty on South Africa to
"prornote to the utmost the material and moral well-being and the social
progress of the inhabitants ...". It follows that exercise of administrative or
legisfativepowers inconsistent with that duty was not authorized by Article 2.
Closely related to the peneral duty is the specific duty set forth in Article 3:
"to see .. . that no forced labour is pemitted .. ," Also relevant is Article 5
which provided:
"Subject to the provisions of any local lawfor the maintenance of public

order and public morals, the mandatory shall ensure in the territory free-
dom of conscience and the free exerciseof al1forms of worship, and shall
allow al1 missionaries, nationals of any State Mernber of the League of
Nations, to enter into, travel and reside in the territory for the purpose of
prosecuting their calling."
In its 1950 Advisory Opinion the Court stated:

"The Mandate was created, in the general interest of the inhabitants of
the territory, and of humanity in general, as an international institution
with an internatiorial object-a sacred trust of civilization... The inter-
national rules regulating the Mandate constituted an international status
for the Territory ..." (InternalionaiStatus of South West Africa , dvisory
Opinion, I.C.J. Repsris 1950, pp. 128, 132.)
Sir Arnold McNair, in his separate opinion, described the international
institution in the following words:

"The Mandates !iystem (and the corresponding principles of the Inter-
national Trusteeship Systern)is a new institution-a new relationship be-
tween territory and its inhabitants on the one hand and the government
which represents thcm internationally on the other-a newspeciesof inter-
national govemmerit, which does not fit into the old conception of sover-
eignty and which icalien to it. .. .What matters in considering this new
institution i... what are the rights and duties of the mandatory in regard
to the area of territory being administered by it. Theanswer to that ques-
tion depends on the international agreements creating the system and the
rulesof law which theyattract. Its essence is that the mandatory acquires
only a lirnited title to the territory entrusted to it, and that the measure of
itspowers iswhat is necessaryfor the purpose of carrying out the Mandate. 'The maiidatory's rights, like the trustee's, havetheir foundation in his
obligations; they are "tools given to him in order to achieve the work
assigned to him"; he has "al1 the tools necessaiy for such end, but only

those".' " (Ibid., p. 150.)
McNair went on to observe:

"Article 22 proclaimed 'the principle that the well-being and develop-
ment of such peoples form a sacred trust of civilization and that securities
for the performance of this trust should be embodied in the Covenant'.
A large part of the civilizedworld concurred in opening a new chaptet in
the life cifbetween fifteenand twenty millions of people, and this article
was the instrument adopted to give effectto their desire. ln my opinion,

the new régimeestablished in pursuance of thij 'principle'has more than a
purely ccintractual basis, and the territories subjected to it are impressed
with a special legal status, designed to last until modified in the manner
indicated by Article 22 .. ."(Ibid pp.,154-155.)

South Africa isnot relieved of its obligations under the Mandate because the
United Nations terminated South Africa's rightto continue to administer the
Territory. By virtue of the speciai legal status impressed by the Covenant and
the mandates system on territory placed under mandate, any authority in the
territory is bound to respect the rights of the inhabitants. Thus, while South
Africa remailis in illegal occupation of Namibia, it must promote the well-
being and development of the inhabitants even though its rights under the
Mandate have been terminated.

B. SouthAfri:cuHus theDufy taAct inConformity withChopter XI of theUnited
Nations Charter concerningNon-Self-Governing Territories

The Charter of the United Nations established in Chapter XI a specialrégime
for al1non-self-governingterritories not subject to the trusteeship system.Article
73 of that Chapter provides in part:

"Members of the United Nations which have or assume responsibilities
for the administration of territories whose peoples have not yet attained a
full measure of self-government recognizethe principlethat the interests of
the inhabitants of these territories are paramount, and accept as a sacred
trust the obligation to promote to the utmost, within the system of inter-
national peace and security established by the present Charter, the well-
being of the inhabitants of these territories, and, to this end:
a. to cnsure, with due respect for the culture of the peoples concerned,
their political, economic, social, and educational advancement, their just
treatment, and their protection against abuses;
b. to tievelop self-government. to take due account of the political as-
pirations of the peopks, and to assist them in the progressive develo~ment
of their free political institutions, according to the particular circumstances
of each .territory and its peoples and t&ir vaGing stages of advance-
93
ment;. . .
Sincethe inhabitants of Namibia "have not yet attained a full measure of self-
government". Chapter XI clearly applies to them.
The United States-will refrain at this juncture from rehearsing the facts es-

tablished before the appropriate organs of the United Nations with regard t~
South Africa'sfailure to discharge the sacred trust described in Article 7HOW- WRITTEN ST,4TEMEN OT THE UNITED STATESOF AMERICA 88 1
ever, it wishes to point ciutthat so long as South Africa remains in Namibia it
remains bound to dischiirgethose obligations.

C. South Africa Hus thtaDuty tu Act in Conformity with Chapter IX and Other
Provisions of the Unit'zdNations Charter

Additional obligations of South Africa to the people of Namibia flow from
Chapter IX and from cei-tainother provisions of the Charter. Thus, Article 2(4)
obligates South Africa to refrain from threat or use of force in any manner in-
consistent with the purposes of the United Nations, including, in particular, the
development of friendly relations arnong nations based on respect for the prin-
ciple of equal rights and self-determination of peoples. Moreover,in Articles 55
and 56, al1 Members plidge to take joint and separate action in CO-operation
and, in particular, "to promote universal respectfor, and observance of, hurnan
rights and fundamental freedoms for ail without distinction as to race, sex,
language, or religion".
As the United States liepresentative said on 26 January 1967,in the Ad HOC
Cornmittee forSouth West Africa: "With but one exception the community of
nations speaks with unanimity in the rejection of the imposition on the Terri-
tory of the policy of apartheid." South Africa's application of that policy in
Narnibia is inconsistent withits Charter obligations under Chapter IX, as well

as with its additional obligations under Chapter XI to recognizethe paramount
interests of the inhabitants and ensure their just treatrnent, and with the rights
established for the inhal2itants of Namibia under the Covenant and the Man-
date.
D. South Africn Hus the Duty Under General InternatiunalLaw to Adhere to
Certain Standards in the Administration of Namibia as Occupied Territory

General intemational law prescribes rules goveming the conduct of a belli-
gerent occupant with respect to the inhabitants of an occupied territory. The
humanitarian standards ofArticle 3 of the Geneva Convention Relative to the
Protection of Civilian l'ersons in Time of War (75 UNTS 287) are generally
recognized to apply in E.IIcircumstances. By becoming a party to the Conven-
tion South Africa has ri:cognized al! the rules therein, including those in Part
m, sectionIII,which codify the law relating to belligerent occupation.
Article 1 of the Convention provides that the High Contracting Parties un-
dertake to ensure respr~t for the present Convention in al1 circumstances.

Although there is some authority for the proposition that a Party is bound to
observe the Convention as a whole whereverhostilities in which it is involved
occur, the more generally accepted view is that the Convention as such binds a
party only vis-à-visother parties. It is necessary to consider therefore, the con-
sequences of the fact tha.tneither Narnibia nor the United Nations isa party to
the Geneva Convention.
Section IT If Part Tl3of the Convention isprimarily a refinernent,expansion,
and clarification of regulations annexed to.Hague ConventionIV of 1907 re-
specting the laws and ciistoms of war on land. The 1907 convention clearly
applies only between tht:parties. However, the Contracting Parties to the 1907
Convention declared, in the preamble that in cases not included in the regula-
tions, the inhabitants . .. "remain under the protection and the rule of the
principles+ofthe law ai' nations,as they result from the usages established
among civilizedpeoples,fromthelawsof humanity and the dictates of the public
conscience". (100 Brif. & For. State Papers 338.) Many of the regulations
relating to belligerent occupation have long since been transformed into cus-tomary interiiational law. As such, they impose obligations on South Africa
with regard tl~the inhabitants of Namibia.
The fact that South Africa's occupation did not result from hostilities with
the United Nations should not release her from the obligations of a humani-
tarian converition designed to protect the rights of persons in occupied terri-
tories. The territory is occupied by force against the will of the international

authority entitled to administer it. Such occupation is as much belligerent oc-
cupation as the hostile occupation of the territory of another State.
E. ThePrecetlingDuties Are Unaffectedby the Fact that South Africa Is Occupy-
iizgNainibill Illegally

As indicated in subsection A, the rights of the inhabitants of Namibia are
impressed upim the Territory. In addition, it may be recalled that the Court has
stated that A.rticle 80, paragraph 1, of the Charter "maintains the rights of
States and peoples and theterms ofexisting international instruments untii the
territories in question are pIaced under the Trusteeship System". (1.C.J.Reports
1950, p. 133.)The fact that South Africa is occupying Namibia illegally has no
effect on those rights. Nemo ex suo delicto meliorem smm conditionemfacit.
Thus, so long as South Africa maintains her occupation of the Territory she
must refrain Fromtaking any measures with regard to the Territory or to the
inhabitants which are inconsistent with their rights under international law and

should withdi-aw any measures already taken which are inconsistent with those
rights.

SectionII

States Have certain Duties Under International Lizw with Respect to Namibia,
Among WhichAre:

A number of important legal consequences for other States flow from South
Africa's continued presence in Namibia. Relations between South Africa and
other States relating to Namibia are affected in müny ways. The United States
has decided to deal in detail with two legal consequences which it considerses-
pecially important: (a) the duty of States to respect the direct responsibility of
the United Nations for Namibia; and (b) the duty to apply certain legal rules
with respect t.0treaties affecting Namibia. It recognizes,however, that there may

be additional legal consequences.
A. To Respecr the Direct Responsibility of the Uitited Nations for Namibia

Notwithstanding the temporary inability of the General Assembly to exer-
cise its lawful authority within the Territory, States must acknowledge its law-
ful authority and respect its cornpetence to the extent that it can effectively
exercise that authority despite its absence from Namibia.
In its 1950 Advisory Opinion on South West Africa, the Court said that it
had "arrived ;it theconclusion that theGeneral Assemblyof the United Nations
is legally qua'lifiedto exercise the supervisory functions previously exercised by
the League of Nations with regard to the administration of the Territory .. .".
(InternationalStatus ofSouth West Africa Advisory Opinion, I.C.J.Reports 1950,
pp. 218, 237.:)On 27 October 1966 the General Assembly decided tq terminate
South Africa's mandate over South West Africa and said that "South Africa
hasno other right to administer the Territory and that henceforth South West
Africa cornes iinder the direct responsibility of the United Nations . ..".

(General Assembly resolution 2145 (XXT),para. 5.) WRITTEN STILTEMENTOF THE UNITED STATES OF AMERICA 883

Xthas been pointed out above that the General Assembly's revocation of
South Africa's function:,under the Mandate was Iegally valid. South Africa's
corresponding rights having expired, it fell to the GeneraI Assembly as the
supervisory authority with respect to the Mandate to provide for the continu-
ance of the sacred trust. Rather than appointing a State to administer the Terri-
tory it placed the Territory under the direct responsibility of the UnitedNations
by operative paragraph 4 of its resolution 2145(XXI). After having considered
the 1967report of the Ad Hoc Committee for South West Africa, it decided in

resolution 2248 (S-V) to establish a Council for Narnibia to exercise adrninis-
trative authority over the Territory subject to the Assembly's supervisory au-
thority.
Since the United Nations is now responsible for the administration of the
Territory, it has in law the sarne powers and obligations as any other adminis-
tering authority, and a11member States have a duty to assist it, in accordance
with paragraph 5 of Article 2 of the Charter in any action it takes to discharge
those duties. In accordance with Chapter TX of the Charter, States have an
obligation to CO-operati:with the United Nations towards the realization of
human rightsand fundamental freedoms, without discrimination,for the people
of Namibia.
The obligation to CO-operatewith the administering authority extends to
those areas in which th<:United Nations is able to take effective action with
respect to the Territory. While South Africa's illegal occupation continues, the
United Nations will be able to take such action primarily in areas that can

have immediateeffectoutside Namibia.
Although South Africa as the illegal occupant of the Territory has no right
under international law to administer Namibia, it continues to prevent the
iawful authority from efiectivelydischarging its responsibilitiesto the people of
the Territory. In deterniining whether or not to give effect within their own
territories to particular acts of administration perfomed in Namibia by the
illegal occupant, States :;hould examine a particular act in light of the interest
of the inhabitant or inhabitants of Namibia with respect to whornit wastaken.
Thus, by way of illu:;tration, it would seem that municipal courts should
generally be permitted to admit into evidence birth, marriage or death certifi-
cates issued by South Africa in Namibia on the same basis as documents
emanating from other tt:rritorial authorities despite the unlawful character of
South Africa's occupation. Similarly, under conflict of law rules States should
generally treat as valid niarriages performed in Namibia if such marriages were
valid under the law in factapplied inNamibia.

In the introduction to hisReport on the Work of the Organization submitted
to the Twenty-fifth Session ofthe General Assembly (UN doc. A/8001/Add. 1
(1970), para. 116),the Sccretary-General noted the signing by certain African
Governments of agreements with the United Nations Council for Namibia,
which willenable it to isr.uetravel and identity documents to Namibians. In the
interest of the inhabitants of Namibia, States may wishappropriately to provide
for according validity to such documents. States remain free to regard as
invalid restrictions placed by South Africa on travel by Namibians and travel
documents issued to Narnibians by South Africa. In viewof the defacto control
of Namibia by South Af'rica,however, it would seemthat1States might in the
interest of the bearers of the documents choose to accept such travel documents
despite the illegalcharacter of the issuingauthority.884 NAM~BIA (SOUTH WEST AFRLCA)
B. To Appiy CertainLegal Ruies with Respect to Treaties AffecringNamibia

A number of multilateral and bilateral treaties' to which South Africa is a
party, applieii to Narnibia on the date of the General Assembly'stermination
of South Mica's mandate. In this section we shall examine the legal conse-
quences of tlnat termination on the continuing applicability of those treaties
and on the present legal cornpetence to modify or teminate the applicability
of treaties ex-tendedto Namibia by South Africa or othewise applicable to the

Territory.
A reviewOF standard collections of treaties and of thepublicatiMultiiateral
Tveaties in Respect ofWhich the Secretary-GeraeralPerforms Depositary Func-
tions indicatesthata number of multilateral treaties wereapplicable to Namibia
on the date of the termination of South Africa'sniandate. Among the subjects
with whichthey deal are control of opium and other dangerous drugs, traffic in
women and children, obscene publications, health, transportation and com-
munications, economic statistics and slavery. These treaties, which are closely
related to the purposes of the United Nations and fuiIy compatible with the
mandates system,shouldcontinue to beapplicable to Namibia.
The final clauses of many multilateral treaties, including those in respect
of which the Secretary-General performs depositary functions, deal with

applicability of treaties to other than metropolitm territories in two general
ways. Those dating from the League of Nations period generally provide that
treaties will0.eapplicable only to the dependentterritories, includingMandates,
to which the:y are specifically extended by the Metropolitan power. Those
concIuded since the establishment of the United Nations frequently provide
that they will be applicable to al1territories for the international relations of
which the parties are responsible unless at the time of ratification a party
otherwise declares. The latter formula is assumed under existing international
Iawin the ablrenceofsomeindication to the contraiy.
ArticIe 29 of the Viema Convention on the Law of Treatiesprovides:

"Territorial scope oftreoties.
"Unless a different intention appears from the treaty or is otherwise
establistied, a'treaty is binding upon each party in respect of its entire
territory."

Asthe International Law Commission'scommentarymentions:

"State practice, the jurisprudence of international tribunals and the
writings ofjurists appear to support the viewthat a treaty is to be presumed
to apply to al1the territory of each party unlcss it othenvise appears from
the trea1.y."(Report of the IraternatiorralLaw Commission1, 966,GA, OR,
21st Session, Supplement No. 9, p. 45. See also materials cited by Com-
mission, ibid.,fn. 104.)

It follows from the general rule enunciated in Article 29 that a number of
South Africn's multilateral treaties which contain no provisions concerning
territorial applicability in the finalclauses,e.g. the Geneva Conventions of 1949,
were applicable to Namibia. What is the present status of those conventions?
Although the substitution of the United Nations for South Africa as the
Administeririg Authority with respect to Namibia is not a case of State succes-
sion,the practice of Stateswithregardto successio~ito treaties providesguidance
as to the priricipleswhich should be followed.The practice generally includes a
statement byanew State that it willcontinuetoapplytreatiesformerlyapplicable
to the Territory during a period of review of such treaties. Following that WW~EN STATEMENT OF THE UNITED STATES OF AMERICA 885

review,the new State notifies depositaries ofthe attitude it wishesto take with
respectto multilateral treaties.
In his third report on "Succession in respect of Treaties", Sir Humphrey
Waldock stated that-

". .. although modernState practice doesnot supportthe thesis that a new
State is under any general obligation to consider itself a successor to
treaties previously rippticable in respect of its territory, it does appear to
compel the conclusion that a new State has a general right, if it so desires,
to be a party to certain categories of [multilateral] treaties in virtue of its
character as a successor State". (UN doc. AlCN.41224at 28.)

He proposed formulating that rule in the following terrns:
"Article 7

Right of a New S~cte to Notify ils Succession in Respect of Muliilateral
Treaties
A new State, in relation to any rnultilateral treaty in force in respect of

its territory at the date of its succession, is entitled to notify the parties
that it considers itselfa party to the treaty in itsown right unless:
(a) the new Stata's becoming a party would be incompatible with the
object and purpose cifthe particular treaty;
(b) the treaty isa constituent instrument ofan international organization
to which a State rnay becorne a party only by the procedure prescribed
for the acquisition oi'mernbershipof the organization;
(c) by reason of the limited number of the negotiating States and the

object and purpose of the treaty the participation of any additional State
in the treaty rnusbeconsidered as requiring the consent of al1the parties."
Failure to treat multilatrral treaties as continuing to apply to Namibia while
under United Nations administration might deprivean independentNamibia
of exercisingits right as.new State to notify its successionin respect of multi-
lateral treaties "in force in respect of its territory at the date of its succession".

It would seem, therefore, that States should consider multilateral treaties
applyingto theTenitory on27October 1967,the date of theadoption of General
Assembly resolution 2145 (XXI), as continuing to apply to Narnibia until
such time as Namibia as a "new State" exercisesthe righfsdescribed inArticle 7
or until the United Nations, as the Adrninistering Authority, decides that it
would be in the best intixests of Namibia to terminate the application of one
or more of those treaties. Solong as South Africa continues to occupy Namibia
other States have the rig;htto require South Africa to perform the obligations
ofexecutory rnultilateral treatiesapplicable to theTerritory.
With respect to accession to multilateral treaties not presently applicable to

Namibia, the United Nations should be allowed, whenever possible,to accede
to them on behalf of Namibia. There are many precedents for accession to
multilateral treaties by ail international territory under the administration of an
international organi~ati~n.During the League of Nations period, for example,
both Danzig and the Saar became parties to treaties. Indeed, more than 30
treaty actions by the 1attr:rare recorded in the Leagueof Nations Treaty Series.
Clearly the United Nations may accede on behaIf of Namibia to existing
international conventions which authorize such accession in their final cIauses.
Article 27, paragraph 3, of the Convention on Road Traffic of 19 September
1949(125 UNTS 22) coxitainssuch a clause. There are other conventions with
less-precisely drafted final clauses under which a depositary may accept an . .
886 NAMIBIA (SOUTH WEST AFRICA)
accession on behalf of Namibia by the United Nations. Where the depositary
merely notifies the parties of receipt of an instrument of accession under those

conventions, it would seem that many States would not wish to reject treaty
relations withrespect to Namibia based on suchan instrument.
There may, however, be existingmultilateral treaties which would not permit
the Adrninistering Authority to accede on behalf of Namibia. In the unlikely
event that South Africa should wish to accede to such a treaty on behalf of
Namibia and.the United Nations as the Administering Authority expressly or
impliedly agi'ees,States might properIy inform the depositary that, although
they recognirtethe authority of the United Nations as the lawful administrator
of the Territi~ry,they will consider South Africa bound to apply the treaty to
Namibia unl.il terrnination of its iliegal occupation. Such action would be
consistent bath with respect for the direct responsibility ofthe United Nations
and the traditional international law rule which generally recognized the

capacity of an occupant exercisingdefacto control over a territory to conclude
treaties which will be applicable to the territory for so long as he remains in
effectivecontrol.
If the Administering Authority does not agreethat Namibia should be bound
by a multilateral treaty not previously applicable to Namibia to which South
Africa deposits an instrument of accession on behalf of Namibia, other parties
to the treaty should refuse to accept treaty relations with regard to Namibia.
States rnay, additionally, wish to raise the question of South Africa's action in
the matter iri the appropriate organs of the inteinational organization under
whose aegisthe subject-matter of the treaty falls. (See,e.g., Annex to ITU letter
No. 3060/60/TT (30 June 1967)containing text ofresolution of Administrative
Council of RU regarding the right of South Africa to represent the Territory
withintheITU.) .

A differeni.rule should be applied to terrnination of an existing multilateral
treaty applicable to Narnibia. It follows from the termination of South Africa's
rights under the Mandate that South Africa no longer possesses the legal
capacity to viiithdrawfrom the inhabitants of Namibia the benefits they enjoy
under rnulti1;iteraltreaties applicable to the Territory. It may berecalled that
South Africa was required by Article 3of the Mandate to see to it that the slave
trade was prohibited and to control trafficin armç in accordance with the prin-
ciples analogous to those laid down in the Convention on the control of arms
traffic of 10September 1919.In addition, South Africa undertook in Article 23
/a) of the Ccivenantto entrust the League with the generat supervision overthe
execution of agreements with regard to the trafficin women and children, and
the trafic in opium and other dangerous drugs and in Article 23 (f) to take

steps in matters of international concern for the prevention and control of
disease. It would be inconsistent with the purposes of the Mandate to permit
South Africa as an ilfegaloccupant to terminate the applicability to the Terri-
tory of conv~rntionson such subjects heretofore applied for the benefit of the
inhabitants. :Havingregard to these factsandto theresponsibilities ofthe United
Nations as the Administering Authority, other parties should treat a purported
South African withdrawal of application of such treaties to Namibia as without
legal effect.
The United States believes that the terminatiori of South Africa's functions
under the Mandate has different consequences as to bilateral than as to mul-
titateral treaties. Regard for the administrative authority of the United Nations
should generally preclude a State from entering into future bilateral treaties
with South Africa applicable to Namibia. It would seem, however, that ex-

ceptionally such a treaty might be concluded should the lawful authority, the WR~TTENST.+TEMENTOF THE UNITED STATESOF AMER~CA 887

United Nations, expresalyor impliedlyauthorize a State to do so. As in the case
of multilateral treaties, other States may require South Africa to continue to
perform the obligations of executorytreatiesfor solongas South Africa remains
in occupation of Namiliia.

States have recently been asked by the Security Council to review existing
bilateral treaties applicable to Namibia.In conducting this review it would
seem appropriate for States to consider whether in view of the change in the
legal character of South Africa'spresenceinNamibia they should haverecourse
to the denunciation clailse of any suchtreatyor notify both South Africa and
the AdministeringAuthority that they shall no longer consider one or more of
those treaties applicable to Namibia. NAMlBIA (SOUTH WEST AFRICA)

PART III

Conclusions

On the basis of the foregoing review of the facts and of the principies of
international :lawapplicable to the question submitted to the Court by Security
Council resoli~tion284(1970),the Government of the United States of America
submits that the Court could usefully include the following conclusions in its
Advisory 0pi:nion.
A. The United Nations validly terminated therightsand authority granted to
South Africa under the Mandate of 17 December 1920. The Mandate was a
treaty in force and South Africa waslegallyobligated to carry out its provisions
in good faith. Although there was no case brought before the Council of the
League alleging that a mandatory had breached its obligations, had such a

breach been established during the League period, the Council would have had
the authority to terminate the rights of the mandatory. The United Nations
succeeded to i:hispower.In a number of respects, namely by refusing to submit
reports and to transmit petitions of the inhabitants of the Territory, by sys-
tematic reject:ionof recommendations of the General Assernblyand the Security
Council with respect to the administration of the Territory and by the appli-
cation of apartheid in Namibia, South Africa materiaIiy breached its Mandate
obligations.Zn light of the failure of other measures taken over neartwo de-
cades to induce South Africa to cease its rnaterial breaches, the General Assem-
bly reasonably exercisedits power to revoke South Africa'srights and authority
as mandatory by resolution 2145 (XXT). The Assembly was also competent to
assumethe functions of administration under the Mandate of 17December 1920.
B. South lLfrica no longer has any rights in Namibia under the Mandate;
there is no other legal basis for its continued presence in the Territory. South
Africa is, therefore, in illegal occupation of Narnibia.

The Gener.al Assernbly and the Security Council have adopted resolutions
confirming the illegality of South Africa's presence inNamibia and affirming
its duty to tsansfer administration of the Territory to the United Nations.
In accordanct: with Article 2, paragraph5,of the Charter, South Africa has the
duty to comply.'
C. A nurn'ber of important legal consequences flow from South Africa's
continued il1e:galpresence in Namibia. These consequencesare of two general
kinds. South Africa has certain legal duties whichitmust observe so long as it
remains in Namibia. Other States also have certain duties under international
law with respect to Namibia.
South Africa's duties include obligations: to promote the well-being and
development of the inhabitants; to act in conformity with Chapter XI of the
United Nations Charter concerning non-self-governing territories; to act in
conformity with Chapter IX and certain other provisions of the Charter, and
under genera:linternational law, to adhere to certain standards in the adminis-
tration of Namihia.

Other States have the duty to respect the direct responsibility of the United
Nations for Narnibia and to assist it in exercising those responsibilities in the
manner indicated in Part II, ChapterDI, sectionIl A,, of this statement. Other
States also ha.vea duty to apply the legal rules described inJI,rChapter III,
section II, B, of this statement, to treaties affectingNamibia. WRITTEN STA.TEMENT OF THE GOVERNMENT OF

NIGERIA

1. The Organization of African Unity wishes to begin by settjng out the
terms of resolution 284 (1970).

Adopted by the Security Councilat ifs 1550th
meeting on 29 July 1970
TheSecurity Council,
Reafirrning the special responsibiiity of the United Nations with regard
to the territory and the people of Narnibia,
Recalling Securily Council resolution 276 (1970) on the question of
Narnibia,
Taking note of the report and recommendations subrnitted by the Ad
Hoc Sub-Committc:e established in pursuance of Security Council reso-
lution 276 (1970),
Takingfurther note of the recommendation of the Ad Hoc Sub-Comrnit-
tee on the possibility of requesting an advisory opinion from the Inter-
national Court of Justice,
Consideringthat an advisory opinionfrom the InternationalCourt of
Justice would beus~:fulfor the SecurityCouncilin its further consideration
ofthe question of blarnibia and in furtherance of the objectivesthe Council
is seeking,

1. Decides to suljrnit in accordance with Article 96 (1) of the Charter,
the followingquestion to theInternational Court ofJusticewith therequest
for an advisory opinion which shall be transmitted to the Security Council
ai an early date:
"What are thi: legal consequences for the States of the continued
presence of Soutli Africa in Namibia, notwithstanding Security Council

resolution 276 (1'370)?"
2. Requests the fiecretary-General to transmit the present resolution to
the International Court of Justice, in accordance with Article 65 of the
Statute of the Coui,t, accompanied by al1documents likely to throw light
upon the question.

2. Znthe Jnternafiona!Status of South West Africa case, I.C.J. Reports 1950,
page 128, the IntemationaL Court of Justice held that the United Nations
Organization is the lawfùl successor ta the League of Nations in respect of the
former Mandate granted to the Government of South Africa under Article 22
of the League Covenant under a special agreement entered into between the
Government of South Pfrica and the League of Nations.
3. The Court accordiiigly held that the Govemrnent of South Africa is under
an obligation under Article 73 (e) of the Charter of the United Nations to sub-
mit reports through tht: Trusteeship Council to the United Nations General
Assernbly in respect of ordinary trust territories and to the Security Council in
respect of strategic trust territories. Namibia (the former South West Africa) is
not in this sense a strategic trust territory.
4. The International Court of Justice, while hokdingthat there was no legalobligation on the Government of South Africa to c:oncludea trusteeship agree-
ment in respect of the territory held by her under a League ofNations mandate,
nevertheless a.ffirmedby a ununimousvotethat the Union of South Africa acting
alone wasnot competent to rnodifythe international status of that territory and

that the cornrietenceto determine and modify that status rested with the Union
of South Africa acting with the consent of the United Nations. It was also held
that the Government of South Africacontinued to bebound bytheinternational
obligations laid downinArticle 22of theCovenant of the LeagueofNations and
in the Manda.tefor South West Africa as wellas by the obligation to transmit
petitions froni the inhabitants of that territory. The Court was alsounanimous
in holding that the jrrdiciusupervision continued and that, having regard to
Article 7 of the Mandate and Article 37 of the Statute of the Court, reference
to the PermainentCourt of International Justice was to be replaced by a refer-
ence to the International Court of Justice.
5.The sovereignty of a trust territory such as Namibia is ultimately in the
United Naticins and not in the administering authority of such a territory.
The Union of South Africa has only a primary sovereignty in so far as it is
necessary to achieve the paramount object under Article 76 of the Charter
"to promote the political, economic, social and educational advancement of

the inhabitants of the trust territories".
6. This waisconclusively established by üresolution of the first General As-
sembly in 1946 by which the attempt by the Government of South Africa to
annex Namitiia was clearly rejected not only as inconsistent with the trustee
character of the obligation assumed by the Government of South Africa under
the trusteeship system with the United Nations but also as incompatible with
the goal and object of the entire trusteeship system which are to regard the
trust territory as a "sacred trust of civilization" which should be helped to
"develop ultirnately to self-government and independence". The Assembly,
however, recommended that the territory be placed under the United Nations
system of tru.steeshipand invited the Government of South Africa to submit a
trusteeship agreement for the territory l.The Government of South Africa
refused to accept this resolution, but agreed to continue to adrninister the
territory as ail integral part of the Union in accordance with the principles laid
down in the ;Mandate and to submit regularly to the Secretary-General of the

United Nations, in accordance with Article 73 (e) of the Charter "for infor-
mation purposes, subject to such Iimitations as security and constitutional
considerations may require", statistical and other information of a technical
nature relatirig to the economic, social and educational conditions of South
West Africa. 'TheGeneral Assemblyhas, however, maintained since that day its
original recoinmendation that South West Africa be placed under the trustee-
ship systemestablished by the United Nations Charter '.
7. The General Assembly of the United Nations, as the legal authority
having joint power of supervision with the Trusteeship Council asserted its
right to demand the submission of annuai reports on Narnibia by the Govern-
ment of the Union of South Africa and, in default of that Govemment's general
obligations as a trustee power under the Charter of the United Nations, adopted
resolution 2145(XXI) on 27 October 1966,by which it revoked the trust vested
in the Goverriment of South Africa. Operative paragraph 4 of that resolittion is
in these words:

UN Jonrnizl,No. 63/A,p. 679; also ibid., Nos. and 33.
Second General Assembly doc.A/422; resolution570A and B (vi)of 1951. ~WïTEN STATEMENT OF NIGERIA 891

"Decides that the Mandate conferred upon His Britannic Majesty to be
exercisedon his behalf by the Government of the Union of South Africa is
therefore terrninated, that South Africa has no other right to administer
the territory and that henceforth South-West Africa cornes under the
direct responsibilit), of the United Nations."

8. By the same resolution, the General Assemblyalso established an Ad Hoc
Committee for Namibia to recommend ways and means for the successfulim-
plementation of the saiil resolution in the irnplementation of whichal1States .
were requested to extend their whole-hearted CO-operationand to render assis-
tance.
9. It is clear beyond doubt that the United Nations ha, in virtue of its
authority under the Ch;irter, properly exercised its power to revoke the trust

delegated to the Government of South Africa under the trusteeship systern.
As Oppenheim has said :
"Although the majority of Trusteeship Agreements provide that the

territories in question shall be adrninistered as an 'integral part' of the
Administering Stati:, it was made clear at the time of the approvat of the
Agreements that tht phrase does not imply any claim to sovereignty over
the trust territories. Thotfact of delegorion implies also the alrimatepuwer
of revocation incase of abuseorfailure of the trust vested intheAdministering
State l."

10. There are two points that arise from this passage for comment. The first
point is as follows. The :Frenchand Belgian delegates to the General Assembly
of the United Nations said that "it was the interpretation of their Governrnents
that the words 'asan integral part' werenecessaryas a matter of administrative
convenience and were not considered as granting to the Govemrnents of Bef-
gium and France the power to diminish the political individuality of the Trust
Territories". The British delegate said that the use of the words "as an integraf
part" in the Trusteeship Agreement for Togofand and the Cameroons under

the British administration "did not involveadministration as an integral part of
the United Kingdomitseif anddidnot imply British sovereignty inthese areas =".
Also, the United States representative in the Security Council said that the
Government of the United States took the view that the Trusteeship Agree-
ment (in respect of the former Japanese mandated territories), is "in the nature
of a bilateraI contract tietween the United States, on the one hand, and the
Security Council on the other" j.Thesevarious statements must be taken as an
accurate expression of the legal position on this aspect of the matter.
11. The second point is in respect of the power of revocation. Judge Mc-

Nair, in his separate opinion in the I~rterr~ationaS ltatus of South West Africa
case, while acknowledgirig withthe majority that it is "not possible to draw any
conclusion by analogy from the motions of mandate in international law or
from any other 'correspi~nding'legal conception of private law 4",went on to
refer to "rules and institutions of private law as an indication of policy and
principles rather than as directlyimporting these rules and institutions". Surely,
the idea of delegation of powers by the United Nations to an administering
authority as welf as the concomitant obligation of accountability are general

l I~ternarionatLaw, Vol. 1,Seventh Inipresçion,1963, pp. 237-238.
GeneralAssembly dot:. D. A/258, 12Dec. 1946,p. 6.
I.C.J. Reports 1950, p. 132.cords, Second Year, No. 23 (19471,p. 476.principles of law applicable in both municipal and international law. It must
not be forgotten that the International Court of Justice held, interalia, that a

mandatory, especially inthe caseof the "A" and "B" Mandates,was underan
obligation in the sphere of economics to adopt the policy of the "open door",
that is to Say, that the mandatory must ensure tci the nationals of al1 States
Members of i:heLeague the sanie rights in respect of commerce and trade as
were open to the nationals of the rnandatories (South West Africa belongs to
category "A"). Under Article 76 (d), however,in contrast to the corresponding
provisions of the League Covenant, the duty of the mandatory to ensure equal
treatment for al1Members of the United Nations and their nationals in social
and economii: matters is made subjectto the obligation to safeguardthe inter-
ests of the inliabitants.
12. The Government of South Africa has continued to refuse to propose a
trusteeship agreement under the Charter or to submit reports on the adminis-
tration of South West Africa. It even went further to enact the South West
Africa Affairs Amendment Act, 1949,for "a closer association" of South West
Africa with the Union. The General Assembly nevertheless adopted two reso-
Iutions at its Fourth Session held in 1949,the first reiterating in their entirety
its previous resolutions and calling upon the Union Government to submit
reports on the:administration of South West Africa, whilethe secondresolution
decided to sctbmit the question to the International Court of Justice for an

advisory opinion. As is already well known, the international Court of Justice
gave itsjudgrnent in the manner already indicated in preceding paragraphs.
13.In viewof the persistent breaches of the Mandate entrusted to the Gov-
emment of South Africa, the General Assembly ofthe United Nations decided
to terminale South Africa's trusteeship over Namibia, and appointed an alter-
native Admiriistering Authority to take over and administer the territory in
accordance with the provisions of Chapter XII of the United Nations Charter.
14. The Government of South Africa has, however, persistently refusedentry
to the Unitecl Nations body thus charged with responsibility for the adminis-
tration of Namibia, threatening that the United Nations Council on Namibia
would not orily be refused entry but that, if it did enter, the Government of
South Africa could not guarantee the safety of the members.
15. The action thus taken by the United Nations General Assembiy raises a
fundamental issue as to the competence of the Assembly to revoke unilaterally
the Mandate of the Government of South Africa over South West Africa.
The points await an authoritative determination by the International Court of
Justice in the light of Article7 of the mandate instrument and Article 37 of the
Statute of the Intemational Court of Justice. The question does not appear to
have beensettled during the existenceof the LeagueofNations, but the writings
of publicists would seemto indicate that the League whichgranted the mandate

and "on whose behalf" a mandatory held the territory must inevitably have
the power to abrogate it for breaches of the conditions of the Mandate. Thus,
Wright wrote:in his Mandates Underthe League of Nations, 1930,as follows:

"Whether the League can appoint a new mandatory in case one of the
present rnandatories should cease to function has not been determined.
Nor has it been decided whether the League can dismiss a mandatory
though tioth powers may be implied fromthe Covenant assertion that the
mandatcries act 'on behalf of the League',and members of the Permanent
Mandates Commission have assumed that they exist. Furthermore, it
would seem that the mandate of a givennati0.nwould automatically come
to an end in case the mandatory ceases to meet the qualifications stated in WRITTEN STATEMENT OF NIGERIA 893

the Covenant and that the League would hethe competent authority to
recognize such a fact. ..Sincethe areas subject to mandate are defined in
Article 22 of the Covenant, it would seem that the League whose com-
petence is defined by the Covenant, could not withdraw a territory from
the status of mandiited territory unless its recognition with the conditions
there defined no longer exist in the territory." (Pp. 440-441.)

16. Since the International Court of Justice has in its Advisory Opinion of
1950declared the international legalstatus of South West Africa (Namibia) and
since the United Nations has been declared to be the successorto the League of
Nations in respect of mitndated (now trust) territories, there does not appear to
beany international orgm or authority other than the United Nations to revoke
the South African Governrnent's trusteeshipof Namibia. If the League had the
power to revoke the Mandate, the United Nations must be the only competent
authority extant which is capable of exercising the right of revocation of the
former power of trustei:ship exercisable by the Governrnent of South Africa.
17. When the Assemlily of the League of Nations adopted its resolution of
18April 1946,it wasen~isagedthat the future of mandated territories would be
regulated by agreed arrangements between the United Nations and the man-
datory powers who had all made declarations of their intentions to discharge
their international ob1ig;itionswith respect to the Mandate. Where these under-

standings have later be:n ignored or deliberately breached and where inter-
nationally bindingprovi;ionsof the Charter have beensetaside byamandatory,
it does not seern that tliere is room for doubt that the only competent inter-
national body, namely i:heUnited Nations Organization, should, consistently
with its responsibility for international peace and security, stand idle whilethe
Government of South Africa continues to defy not only ihe WorId Court re-
garding its ruling in its 1950Advisory Opinion, but also the Organization itself
regarding itsvarious resolutions in relation to Namibia.
18. Accordingly, the continued presence of the Government of the Republic
of South Africa in Namibia since the General Assembly resolution 2145(XXI)
of 27 October 1966,revoking its trusteeship of South West Africa is illegaland
ultra vires.
19. Considering the long history of open and uncompromising defiance of
United Nations resoluticlnsby the Government of South Africa and considering
the contemptuous attitude of that Government towards the majority of Mem-
bers of the United Nations regarding its obligations under the international
trusteeship system, espe<:iallyin the field of economic and social activities, the
Governrnent of South Africa has forfeited any claim it might have had to dis-
charge the international obligations of a mandatory in accordance with the
provisions of the Charte):of the United Nations. The vast majority, not only of
the Members of the United Nations Organization, but afso of the human race

no longer have any confidencein the ability of the Government of South Africa
to fulfil the role envisacd under the mandates svstem as well as the relevant
provisions of the charte, of the United Nations. 1;srecord of brcachcsof treaty
obligations, particularly undcr the Chüncr of thc United Nations. docs not
entitle it to continue its presence in Namibia.
20. The SecurityCouricilresofution 276 (1970)adopted at its 1529thmeeting
on 30 January 1970reads as follows:

"The SecirrityCouni:il,
Reajîrtnitn hge inalienable right of the people of Namibia to freedom
and independence rzcognized in General Assembly resolution 1514 @V)
of 14December 19C0, Reafir,ning General Assemblyresolution 2145 @XI) of 27October 1966,
by which the United Nations decided that the mandate of South West
Africa was terminated and assumed direct responsibility for the territory
until its independence,

Reafi~~wing Security Council resolution 264 (1969)which recognized the
termination of the mandate and called upon the Govemment of South
Mica irrimediatelyto withdraw its administration from the territory,
Reafir.ininathat the extension and enforcement of South African laws
in theterritory together withthecontinueddetentions, trialsand subsequent
sentencing of Namibians bv the Govemment of South Africa constitute
illegal acts and flagrant violations of the rights of the Namibians con-
cemed, the Universal Declaration of Human Rights and of the interna-
tional sta.tusof the territory, now under direct United Nations responsi-
bility,
Recalling Security Council resolution 269 (1969),
1. Strungly condemnsthe refusal of the Government of South Africa to
comply with General Assembly and Security Council resolutions pertain-
ing toNirmibia;
2. Declares that the continued presenceof the South African authorities
in Namibia is illegal and that consequently al1acts taken by the Govern-

ment of South Africa on behalf of or concerning Narnibia after the ter-
mination of the mandate are illegal and invalid;
3. Declsresfurtherthat the defiant attitude of the Govemment of South
Africa tciwards the Council's decisions underminesthe authority of the
United Nations ;
4. Col;!~idertsat the continued occupation of Namibia by the Govern-
ment of South Africa indefianceof the relevant UnitedNations resolutions
and of the United Nations Charter has grave consequences for the rights
and interests of the people of Namibia;
5. Calfs upon al1 States, particularly those which have economic and
other interests in Namibia,to refrain from any dealings with the Govem-
ment of South Africa which are inconsistent with operative paragraph 2
of this resolution;
6. Decides to establishin accordance with rule 28 of the provisional
rules of procedure an ad hoc subcommittee of the Council to study, in
consu1tai.ionwith the Secretary-General, ways and means by which the

relevant resolutions of the Council, includingthe present resolution, can be
effectivelyimplemented in accordance with the appropriate provisions of
the Charter, in the light of the flagrant refusal of South Africa to withdraw
from Na.mibia, and to submit its recommendations by 30 April 1970;
7. Requestsal1States as weHas the specialized agenciesand other rele.
vant United Nations organs to give the sub-cornmittee al1the information
and othcr assistance that it may require in pursuance of this resolution;
8. Furthsr reqlrescsthe Secretary-General to giveevery assistanceto the
sub-cornmittee in the performance of its task;
9. Derides to resume consideration of the question of Namibia as soon
as the ret:ommendationsof the sub-committee have been made available."

21. The General Assembly resolution 2145 (XXT) of 27 October 1966 was
criticizedat the time on the two main grounds (a) that the Assembly was not
competent to discuss the matter, much less adopt a resolution on it, and ib)
that there wa:sno revocation clause in the original League instruments creating
the Mandate for the Union of South Africa. Tnthis connection, Article 10 of
the United Nations Charter provides: WRITTEN STATEMENT OF NIGER~A 895
"The General Asst:rnbIymay discussany questions or any matters within
the scope of the present Charter or relating to the powers and functions of

any organs provided for in the present Charter, and, except as provided in
Article 12, may malce recommendations to the Members of the United
Nations or to the Sr:curityCouncil or to both on any sucb questions or
matters."
Hanç Kelsenhas quite rightly pointed out that "there is hardly anyinternational
rnatter which the General Assembly isnot competent to discuss and on which
it isnot cornpetent to ma1:erecommendations". (The Law of theL~nitedNutions,

Praeger, 1950,pp. 198-193;see alsoGoodrich and Hambro, The Charter of the
United Nations, 1949,p. 152.)The other argument about lack ofexpressstipu-
lation for revocation in themandate instruments must beregardedas sufficiently
met by Lord McNair's dissenting opinion already quoted at paragraph 11
above. Power of revocation is necessarily implied in the use of the terms trust,
mandate and tutelage,terms featuring the three domestic legal régimesof the
Anglo-American Cornmoa law, the Roman lawand the Civil lawsystemsof the
world.
22. Even if the General Assemblyresolution 2145(XXI') were to beregarded
as defectiveby itself, it hss acquired the force of a Security Council resolution
by its adoption and reafnrrnation by and in the following Security Council
resolutions:

"Declares that the continued presence of South Africa in Namibia is
illegal and contrary to the principles of the United Nations and is detri-
mental to the interesrs of the population of the territory and those of the
international cornmrinity." (Resolution 264 (1969), operative para. 1.)
"Decides that the continued occupation of the territory of Namibia by
South African authorities constitutes an aggressive encroachrnent on the

authority of the Unitcd Nations, a violation of the territorial integrity, and
a denial of the po1itic:ilsovereigntyof the people of Namibia." (Resolution
269(1969),operativeiiara. 3.)Thisresolution also "called upon the Govern-
ment of South Afric3 to withdraw its administration from the territory
immediately and in any case before 4 October 1969".
By resolution 283 (1970) of 29 July 1970the Security Council requested
"al1 States to refrain from any relations-diplornatic, consuIar or other-
wise-with South Africa irnplyingrecognition of the authority of the South
African Governrnent over the territory of Narnibia". It urged al1 States
having such relation; with South Africa to discontinue thern. Finally,
the resolution called npon a11States to discourage their nationals, including
trading companies, fi-omobtaining concessions from South Africa with
respect to Namibia.

23. Security Council reiolution 276 (1970) has reiterated and reaffirrnedal1
the resolutions enumerated in the immediateIy preceding paragraph 22.
24. It is now necessary to surnmarize the principal legal consequences for
States of the continued presence of South Africa in Namibia, notwithstanding
Security Council resolution 276 (1970)as follows:

(i) Since the creation by the United Nations of the Council for Namibia as
the legitimate Adrninistering Authority for the territory, that is, as its de
jure government, the continued presence of the Government of South
Africa in the territory constitutes a concurrent facto but illegal govern-
ment for the same territoryThe avowedpurpose of the de jure government
wds and remains the igovernanceof Namibia until the inhabitants achieve896 NAMlBlA (SOUTH WEST AFRICA)
political independence within the shortest possible time under United
Nations auspices,whilethe declared intention of the Government of South
Africa lwhichis in illegal occupation is and remains the incorporation of
Namibia in the Republic, thereby frustrating the fundamental objective of
the Mandate and the trusteeship systemfor Namibia as "a sacred trust of

civilization" until it can stand on its own. Moreover, the CO-existenceof
two cornpeting administrations, the one legal and the other illegal, within
the sarrie territory and jurisdiction poses for States critical problems of
choice, not onlyas regards which of the two govemments to deal with, but
also as :regardsthe crisisof confidence created by the intransigence and the
obnoxiciuspolicies of the Government of South Africa.
(ii) Yet, th12member States of the United Nations are under an inescapable
duty urider Article 25 of the Charter which prouides:
"The Members of the United Nations agree to accept and carry out the

decisioiisof the Security Councilinaccordance with the present Charter."
Now b:yits various resolutions, the Security Council has reaffirmed and
adopteci the revocation of the Mandate of South Africa over Namibia,

has called upon South Africa to withdraw from Namibia andhas requested
al1 mernber States to discontinue al1 their existing relations with South
Africa .sith respect to Namibia. Not to comply with these decisionsof the
Security Council rnust clearly put everymenzberState, including the GOV-
emment of South Africa, in clear breach of Article 25 of the United
Nations Charter. The World Court has an equally clear and inescapable
duty to make a declaration to this effect asamatter of law based upon a
correctinterpretationof an unarnbiguous treaty provision in the United
Nations Charter.
(iii) There isa real sensein whichit can be said that the various decisionsof the
Security Council against South Africa in respect of Namibia have called
for the"taking of preventive or enforcement action" against South Africa.
Al1me:rnberStates shirking their responsibility in this regard would be in
breach of their treaty obligations assumedunderArticle2 (5)of the Charter
as follows:

"All Members shall give the United Nations every assistance in any
action it takes in accordance with the present Charter, and shall refrain
from giving assistance to any State against which the United Nations is
taking preventive or enforcement action."

For a !;tate to continue.in any form of relationship with South Africa in
respect of Namibia after the Security Council resolutions that such re-
lationship be forthwith discontinued wouldconstitute the giving of assis-
tance to South Africa against whichthe United Nations is taking action as
contemplated in Article 2 (5) of the Charter.
(iv) Nor can any rnember State seekto evade this its clear obligation under the
Charter by pleading in extenuation that it was already bound under a

pre-existing treaty, whether bilateral or m~iltilateral,to do or to refrain
from doing certain things for South Africa in respect of Namibia. Article
103 of the Charter definesthe legal position in these words:
"In the event of aconfiictbetweenthe obligations of the Members of the
United Nations underthe present Charter and their obligations under any

other iilternational agreement, their obligations under the present Charter
shall pi-evail." WRITTENSTATEMENT OF NIGERIA 897
The'SecurityCouncil has quite rightly called upon rnernberStates to rnake
public declarations in terms of Article 103.
(v) The current legal situation in Narnibia clearly threatens international
peace and security inthe sense of Articles 3and 76 (a) of the Charter,

and South Africa'scontinueddefianceand blatant disregard ofthe General
Assembly and Security Council resolutions on Namibia deserves an au-
thoritative deterrnin;ltofthe World Court in accordance with both the
letter and the spirit of the United Nations Charter.