2I2 SOUTH WEST AFRICA
3.PRELIMINARY OBJECTIONS FILED BY THE
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
LIST OF ABBREVJATIONS
A.D. Appellate Division of the Supreme Court
of South Africa
A.j.I.L. The American Journal of International
Law.
A.P.S.R. The American Political Science Review.
Bib. Un. Bibliothèque Universelle et Revue de
Genève.
B.Y.B.I.L. The British Year Book of International
Law.
C.L.J. The Cambridge Law Journal.
G.A. General Assembly.
Grotius Soc. Transactions of the Grotius Society.
I.L.A., Rep. International Law Association, Reports.
L. of N., Assembly, Rec. League of Nations, Assembly, Records.
L. of N., Council. Min. League of Nation>, Council, Minutes.
L. of N.,O.J. League of Nations, Official Journal.
L. of N., 0.]., Spec. Sup. League of Nations, Official Journal, Special
Supplement.
O.R. Official Records.
P.M.C., Min. Permanent Mandates Commission, Minutes.
R.D.I. Revue de Droit International et de Légis
lation Comparée.
S.A.L.J. The South African Law Journal.
s.e. Security Council.
U.N.C.I.O. United Nations Conference on International
Organization.
U.N. Doc. United Nations Document.
U.N.P.C. United Nations Preparatory Commission.
U. of S.A., Pari. Deb., Union of South Africa, Parliamentary
Senate. Debates, Senate. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 213
CHAPTER I
INTRODUCTORY
A. The Preliminary Objections to be dealt with herein relate to
the proceedings instituted in the International Court of Justice by
the Govemment of Ethiopia and the Govemment of Liberia, by
separate Applications filed on 4th November, rg6o. The said Govem
ments are hereinafter referred to as the "Applicants". Pursuant to
an Order of the Court of 13th January, rg6r, each Applicant filed
a separa te Memorial on rsth April, rg6r. Thereupon the proceedings
were joined by the Honourable Court by Order of 2oth May, rg6r.
The said proceedings are directed against the Govemmen t of the
Union of South Africa which, as from 31st May, rg6r, is known as
1
the Republic of South Africa. The term "Respondent" is herein
after used, for convenience, as referring to the Govemment of the
Union or of the Republic, as the context relative to date might
require; and sometimes the term "Mandatory" is used with the
same meaning.
B. Respondent herewith files, in terms of Article 62 of the Rules
of Court, the Preliminary Objections stated hereinunder, and prays
that the Honourable Court may, without deciding on the merits of
the case submitted by the Applicants, and by reason of one or more
or ali of the said Objections, declare that it bas no jurisdiction in
the South West Africa Cases. The Objections may briefly be stated
as follows:
r. The "Mandate for German South West Africa", upon Article 7
of wlllch the Applicants' daim to jurisdiction is founded, has lapsed,
in the sense and to the extent that it is no longer "a treaty or
convention in force" within the meaning of Article 37 of the Statute
of the Court. (See paragraph D below.)
2. Even if the Mandate could be said still to exist as a "treaty
or convention in force", the alleged dispute is not between
Respondent and "another Member of the League of Nations" in
terms of Article 7 thereof, inasmuch as both Applicants ceased to
be Members of the League of Nations at its dissolution.
3· In any event the conflict or disagreement alleged by the
Applicants to exist between them and Respondent, is not a "dispute"
as envisaged in the said Article 7, in that the said conflict or disagree
ment does not affect any material interests of the Applicant States
or their nationals.
1 The Republic of South A/rica ConstAct, No. 3of 1961, Sections 1, 3 and
121.214 SOUTH WEST AFRICA
4· Furthermore, in any event, the alleged conflict or disagreement
is not a "dispute" which "cannot be settled by negotiation" within
the meaning of the said Article 7.
C. Each of these Objections will, in the above order, be lully
developed in a separa te Chapter below. These will be preceded,
however, by a Chapter setting out the historical background to the
present proceedings insofar as is relevant for the purposes of the
Preliminary Objections.
D. Attention is, at the outset, drawn to the ambit of the con
tention relative to lapsing of the Mandate as advanced in support
of the First ·objection. That contention confines itself to the pro
positions that, insofar as the Mandate was an international "treaty
or convention" within the meaning of Article 37 of the Statute of
the Court, it Japsed upon dissolution of the League, and that this
consequence is in itself fatal to the Applicants' daim to jurisdiction.
No submissions are advanced about the questions whether the
Mandate, in the wider sense of being an institution, lapsed upon
dissolution of the League or survived the League, and, in the latter
event, with what exact import and to what exact extent: such
questions extend beyond the ambit of relevance to jurisdictional
issues. In particular, it is for the purposes of these Objections to
jurisdiction unnecessary to review the proposition stated in the
1950 Advisory Opinion of the Court to the effect that the Mandate
acquired an objective or "real" aspect which survived the League:
if, for purposes of argument, the correctness of such a proposition
be assumed in the fullest measure, there is yet no conflict involved
with Respondent's contention that in the sense of an international
"treaty or convention" the Mandate is no longer "in force". The
significance of the distinction is more lully developed in Chapter III
below. The purpose of this initial briel reference is to guard against
confusion which could arise-as has in !act happened in the past
from the different senses in which the terms "Mandate", and
"lapsing of the Mandate", could be used and understood.
E. Certain of the submissions advanced by Respondent in sup
port of the Preliminary. Objections are not in accord with con
clusions arrived at, or views expressed by, the Court or sorne of its
Members in the Advisory Opinion of 1950. Respondent recognises
that, although advisory opinions have no binding force, they
are entitled to the greatest respect. Respondent submits, however,
that where good reasons exist therefor, an advisory· opinion
may be departed from in subsequent contentious proceedings.
It is also submitted that certain of Applicants' allegations,
especially at pages 97 and 98 of their M emorials, cannat be
supported. Applicants allege (page 97) that a statement of law in
an advisory opinion, concerning an "act ua! dispute ... especially
1 "International status of South-West Africa, Advisory Opinion: l.C.J. Reports
I950,p. I28." PREL!MINARY OBJECTIONS OF SOUTH AFRICA 215
if rendered after hearing of the disputants' submissions is 'sub
stantiaJly equivalent' ta deciding the dispute". In support thereof
the Eastern Carelia Case is quoted and Applicants further allege
(page g8) that the Peace Treaties Case of 1950 ' "followed the
doctrine of Eastern Carelia, but distinguished the two cases". This
allegation is incorrect. The Majority Opinion in the Peace Treaties
Case merely distinguished the two cases but expressed no view
on the correctness of the doctrine that an advisory opinion may be
"substantially equivalent to deciding the dispute". The Majority
Opinion in the Peace Treaties Case is reflected in the statement at
page 71that the "Court's reply isonly ofan advisory character", is for
the enlightenment of the United Nations and is not given ta States.
In Respondent's submission, certain aspects of the rgso Opinion
will have to be reconsidered, even assuming the correctness of
Applicants' statement that:
"The International Court does -not adhere. to. the. doctrine of
stare decisis; nevertheless it will not readily depart -rOma prior
ruling, especially if the subsequent proceeding involves issues of
fact and law identical in every respect to those in the prior pro
ceeding''.3
In every instance in which Respondent in these proceedings
urges a departure from conclusions stated or views expressed in
the 1950 Opinion, it submits that good reasons exist therefor.
The said reasons are deal! with separately in Respondent's argu
ment relative ta each instance of suggested departure. In the
main they will be found to relate ta features of the 1950 pro
ceedings, such as the lack of presentation, or of adequate presen
tation, ta the Court of material information of vital importance,
factual and otherwise. In the result, the issues cannat, in any true
sense, be regarded as "identicaJ in every respect to those in the
prior proceedings", either as regards the facts or as regards the
conclusions of law to be drawn therefrom. The Court's jurisdic
tion was in any event, not formulated as a specifie issue in the
1950 Opinion, which was primarily intended for the guidance of
the General Assembly in respect of a general question submitted
ta the Court.
In Respondent's submission these features render desirable, and
even necessary in the interests of justice, a de novo and thorough
consideration of the matters in question.
1 P.C.I.J.Ser. B,No. 5 (1923).
2 "Interpretation of Peace Treaties, Advisory OpJ.C.J.Reports I950, p. 65."
a P. 97 of theMemorials.216 SOUTH WEST AFRICA
CHAPTER II
HISTORICAL BACKGROUND
Part A.
INTRODUCTORY
1. In this Chapter the historical background to the present
proceedings will be recounted, but only to the extent relevant for
the purposes of Respondent's Preliminary Objections. For the
sake of convenience, particularly as regards replying to certain of
the allegations by the Applicants in Chapter Il of their M emorials,
the subdivisions in !hat Chapter are broadly adhered to. Many of
those allegations could, however, be relevant only to the merits of
their case, and full replies thereto would not be relevant for the
purposes of the Preliminary Objections.
This account will, therefore, not contain a comprehensive state
ment of the historical background to the proceedings. Respondent
will, in particular, refrain from furnishing full replies to those
allegations, and citations from various reports, which relate to
charges !hat Respondent' has violated substantive obligations con
cerning the ad!fiinistration of South West Africa.
0RIGIN AND NATURE OF THE MANDATE SYSTEM
2. Although the term "Mandate" had been used before in regard
to certain international relationships, 1 it first acquired a special
meaning in International Law when the Mandate System of the
League of Nations was instituted. This System originated, together
with the League, from the peace settlements effected alter World
War I. As Quincy Wright remarked:
"This system, like mOst other political innovations, was not a
product of disinterested juristic thought nor of detached scientific
investigation but was a compromise invented by the Versailles
statesmen to meet an immediate political dilemma". 1
1
In this respect vide Hall, H. D. Mandates, Dependencies and TrusJeeship (1948),
p. 17 et seq. and "The Trusteeship System", B. Y.B./.L.,Vol. XXIV (1947),
pp. 44-46: Wright, Q. Mandates under the League of Nations (1930), pp. 15-23;
Schneider, W. Das VOlkerrecktlicke ·Mandat (1926), p. 14 et seq.; Mohr, E. G. Die
Ft-age der Souvertinitiit in den Mandatsgebi(1928), p. 4; Temperley,H. W. V.
A History of the Peace Conference of Paris(1920-24), Vol. VI, p. 502; Kennedy,
W. P. M. and Schlosberg, HJ.The Law andCustom of the South African Constitution
(1935), pp. 514-15; Rolin, H. "Le Système des Mandats Colonîaux"R.D.I.,Vol.
XLVII (192o),pp.356-57.
1Wright, op. cil., p. J. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 2IJ
J. The dilemma which required resolution by compromise in
volved, briefly, a clash of views and aspirations within the ranks
of the Allied and Associated Powers relative to the future of terri
tories and colonies conquered from enemy powers during the war.
4· Among such terri tories was German South West Africa, which
had been surrendered to South African military forces in July, rgrs,
as a result of which Respondent remained in military occupation
for the remainder of the war and thereafter pending the peace
settlements. Similar situations obtained in respect of other territories
conquered and occupied by other Allied and Associated Powers.
These included, inter alia, the former German colony in New
Guinea, which was occupied by Australia; that in Samoa, by New
Zealand; the German islands in the Pacifie Ocean north of the
Equator, by Japan; and various German territories elsewhere in
Africa, by Great Britain, Belgium and France. Further north,
various portions of the Ottoman Empire were in Allied occupation.
s. During the war, secret treaties and agreements were made
between sorne of the Allies whereby their respective daims to
various occupied territories were to be recognised in the event of
an Allied victory. And the British Imperial War Cabinet decided
in March, rgr7, that the three Dominions, Australia, New Zealand
and South Africa should be allowed to annex the abovementioned
occupied territories, adjacent to their own, namely, German New
Guinea, 1erman Samoa and German South West Africa respec
tively.
On the other hand, certain proposais for international control of
conquered colonies, sorne of them even relating to ali colonies, 2
were also made during the war years.
In rgr8, G. L. Beer, historian, and adviser to President Wilson
of the United States of America, connected such proposais with
others then current for the establishment of a League of Nations.
He proposed a Mandate System for Mesopotamia and certain of
the German Colonies, urging that the administration of these areas
should be entrusted to "different States acting as mandatories of
the League of Nations". 3 Beer considered, however, that the
Mandate System could not be applied to South West Africa, and
recommended that this region be incorporated in the Union of
South Africa. •
1
Vide Lloyd George, O. The Truth about the Peace Treaties (1938), Vol. I, pp.
114·23 and Vol. II, p. 766; Spiegel, M.Das VOlkerrechtliche Mandat und seine
Anwendung auf Paliistina (1928),pp. 8-g; Temperley, op.dt, Vol. 1, p. 195;
Logan, R. W. The African Mandates in WtWld Politi(1948), pp. 1-2; Townsend,
M.2EVide Hobson,nJ.FA. TowardsmInternationalGovernment (1915). Vide also the
discussionby Patter, P. B. in "Origin of the System of.Mandates under the League
of Nations",A.P.S.R.,Vol. XVI, No. 4 (November,1922), pp. 563-83.
1 Beer, G. LAjrican Questions at the Paris Peace Ccmjered. by L. H. Gray
(1t.Ibid., p. 443·
rs zr8 SOUTH WEST AFRICA
Like Beer, General Smuts, in the publication referred to by the
1
Applicants, linked a proposed Mandate System with a proposed
League of Nations. He limited his proposai to "territories formerly
belonging to Russia, Austria-Hungary and Turkey", and expressly
excluded the "German colonies in the Pacifie and Africa", since in
these cases "it would be impracticable to apply any ideas of political
2
self-determination in the European sense".
The United States of America was not a party to the secret treaties
and agreements mentioned above; she entered the war alter most
of them bad been concluded. At the termination of the war President
Wilson strongly advocated a policy of "no annexations"; and he
went to the Paris Peace Conference determined to secure application
of the proposed Mandate System, in an extreme form, to all ex
enemy colonies and possessions. His proposais, as contained in his
drafts of the Covenant, included that the League would be vested
with complete authority and control, that it would be entitled (not
obliged) at its discretion to delegate to aState or "organised agency"
powers to act "as its agent or mandatory", and also that by reason
of an appeal from the people of the territory the League could
substitute sorne other State or agency as mandatory. 3 In keeping
with this conception, his Third Draft proposed that the expenses of
Mandatory govemment would, if necessary, be borne by ali the
Members of the League. 4
6. From the above, the makings of conflict at the Paris Peace
Conference will be manifest. The future of the German Colonies was
discussed as from the 24th January, rgrg, in the "Council of Ten",
which consisted of the heads of govemment and foreign ministers
of the United States of America, the United Kingdom, France,
Italy and Japan. Representatives of Australia, New Zealand and
South Africa were allowed to be present and to express their views
at the discussions concerning the future of the former German
Colonies in New Guinea, Samoa and South West Africa.
There was fairly general agreement that a Mandate System was
to be established. The controversy concemed the contents of such
a System, and particularly the peoples and territories to which it
was to be applied, especially inasmuch as there was general recog
nition of the wide differences between the varions peoples and
territories concemed, ranging from, on the one band, developed
' societies to, on the other, peoples stillliving in the Stone Age.' The
1 Smuts, J.C. The League of Nations: A Practical Suggestion(1918), p. 15 and
Applicants' Memorials, p. 34·
t Smuts, op. cil.pp. 12 and 15.
s Vide particularly paras. _1,II and III oi his Second Draft, as amended by his
Third Draft: Baker, R. S.Woodrow Wilson and World Settlement (1922-23), Vol. III,
pp. IQ8·IO, 126-29.
• Ibid.,p. 127.
1 Vide FM. Rel. U.S.: The Paris Peace ConjeYence, I9I9Vol. III, p. 786. Accor
ding to an article in thUnited Nations Reviewof September, 1954, (Vol.I,No. J,
p. 31), the people in sorne parts of New Guinea stilllive "in Stone Age conditions
of primitive savagery". Vid" also Vo2, No. 3 (September, 1955). p. 34· PRELIMINARY OBJECTIONS OF SOUTH AFRICA 219
representatives of the three Dominions strongly pressed their cases
for incorporation of the respective territories, and were supported
by the British Prime Minister, Mr. Lloyd George. After represent
atives of Japan and France bad also spoken in favour of annexation
in their cases, President Wilson's reaction was so strong as to
threaten "a break-np of the conference". 1
The Conference reached a state of apparent deadlock on 27th
January, 1919. There followed negotiations behind closed doors for
two days, during which Lloyd George secured the agreement of the
representatives of the Dominions to a document which he handed
in as a proposai to the Conference on 30th ]anuary, announcing
that it
"did not represent the real viewsof the Colonies(Dominions];but it
had been accepted by them as an attempt at a compromise ... be
cause they fully realised that there could be no greater catastrophe
than for the delegates to separate withont having come to a definite
decision". 1
The document contained provisions which, with unimportant
alterations and one important addition, 3eventuaJJy became Article
22 of the Covenant. • Its essential feature, as Lloyd George ex
plaiiled, was the division of Mandates into three classes in recogni
tion of the wide range of differences between the varions communi
ties and territories. He described the third of these classes (the
eventual C Mandates) as:
"Mandates applicable to countries which formed almost a part of
the organisation of an adjoining power, who would have to be appoin
ted the mandatory". ' (Italics added.)
lt was in this category that German New Guinea, German Samoa
and German South West Africa were to be put.
President Wilson indicated that the document "made a long
stride towards the composition of their differences", but at the
same time suggested deferment of a decision. A somewhat heated
discussion ensued, in which the Prime Minister of Australia rendered
clear that for his country and New Zealand the document "repres
ented the maximum of their concession". • A speech, generaJJy
described by commentators as "conciliatory", was then made by
the South African Prime Minister, General Botha, in which he
stated, inter atia:
1
1 Lloyd George, op. cit., Vol. I, p. 530.
1 For. Rel.U.S.: The Paris Peace Conference, I9I9, Vol. Ip.,785.
Para. 9 of Art.22,concerning the Permanent Mandates Commission.
t For text vide FOY. Rel. U.S.:The Paris Peace Conference, I9I9,Vol. III,pp.
791·96.
Ibid.,p. 786.
• The words quoted are taken from the original unpublished Minutes of the
Council of Ten. InFor. Rel. U.S.the ward "minimum" is erroneously substituted
for the ward "maximum". VitteVol. III,pp. 799-800.220 SOUTH WEST AFRICA
"He appreciated the ideals of President Wilson.... They must
remember that their various peoplesdid not understand everything
from the same point ... Personally he felt very strongly about the
question of German South West Africa. He thought thal it differed
entirely from any question they had to decide in this conference, but
he wouldbe prepared to say that he wasa supporter of the document
handed in !hat morning [hy Lloyd George], because he knew that, if
the idea jructified, the Leagueof Nations would consist most!y of the same
people who were present there that day, who understood the position and
who would not make it impossible for any mandatory ta1 govern the
country. That was why he said he wouldaccept il". (Italics added.)
Alter further discussion, President Wilson agreed to accept the
proposa!, which was then adopted, with very minor amendments. 2
In its eventua! form, as Article 22 of the Covenant, 3it became part
of the Treaty of Versailles, which was signed on 28th June, 1919,
and came into force on 1oth January, 1920.
7. In terms of Articles n8, II9 and 257 of the Treaty, Germany
renounced ali rights in or over ber colonial possessions in favour of
the Principal Allied and Associated Powers. The Mandate for
South West Africa was a!located to the Union of South Africa by
the Supreme Council of the Allied and Associated Powers on the
7th May, 1919, its decision in that regard being recorded as follows:
"German South West A/rica. The Mandate shall be held by the
Union of South Africa". •
On the 24th December, 1919, the Principal Allied and Associated
Powers approved the terms of a draft Mandate Agreement accept
able to the Mandatory. The Mandate and the proposed terms were
confirmed and defined by the Council of the League, in agreement
with the Mandatory, on the 17th December, 1920, as the "Mandate
for German South West Africa". •
8. The main elements of the compromise embodied in Article 22
of the Covenant are rendered clear by the above historical back
ground. As was commented generally by M. Rappard, Secretary
and subsequently member of the Permanent Mandates Commission:
1 Ibid ... pp. 8o1-o2.
1 Miller, D. H. The Drafting of the.Covenant (1928), Vol. 121)-28.
•1 A draft clause on Mandates was introduced by Smuts at the Sixth Meeting
of the League of Nations Commission on 8th February, 1919. As to amendments
to this draft made in the League Commission, vide Miller, op. cit., Vol. II, pp. 283,
285, 306, 313, 323-24 and 355· At the Sixth Meeting, an attempt was made to
insert the ward "if" between the words "as" and "integral" in the provision relating
to C Mandates, which reads, "South West Africa and certain of the islands in the
South Pacifie ...can be best administered under the laws of the Mandatory State
as integral portions thereof". After discussion, the ward "if" was not inserted.
Vide Miller, op. cil., Vol. I, pp. 186 and 190 and Vol. II, p. 273.
" For. Rel. U.S.: TheParis Peace ConjeYence, I9I9, Vol. V, p. 508. The 7th May
is the correct date, not the sth as stated by Applicants on p. 36 of tbe MemoYials.
1 Vide Annex B infra and L. of N., 0.).I92t,p. 89. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 22I
'.'Thetenns of the compromise were obvious: President. Wilson
succeeded in preventing annexation; the conquerors in retaining
their conquests". 1
More particularly, in tetum for the concession that ali the
German Colonial possessions were brought into the Mandate
System, President Wilson had to abandon certain of the extreme
aspects of his proposais conceming League supremacy and control
and the consequent payment of expenses of Mandate administration
by League Members. Ali Mandatories were to be States, not
"organised agencies". The Mandates were to be allocated by the
Principal Allied and Associated Powers (not the League), and at
any rate in the case of the C Mandates the allocation "would have,
to be" to the adjacent claimant States. 2 The relationship between
the League and Mandatories was in each case regulated by a
Mandate agreement, which would normally require mutual consent
for alteration. 3 AU this was very far removed from the envisaged
free League discretion to appoint and change Mandatories. Again
in the case of C Mandates, the Mandatories were to have powers to
administer the territorie> "as integral portions" of their own. And
there would be no objection to eventual amalgamation that could
naturally result from such administration, if agreed to by the in
habitants. At the Peace Conference President Wilson stressed that
"it wasup to the UnionofSouth Africato make it soattractive that
South West Africawouldcomeinto the Unionof their own freewill.
. . . Isuccessful administration by a mandatory should lead to
union with the mandatory, he would.e the last to abject"; •
and later he said that:
"if South Africa managed South West Africa as .~e as she had
managed 6er owncountry, then she wouldbe married to South West
Africa''.
Finally, the "open door" principle of equal trade opportunities
for Members of the League, althougb originally envisaged for ail
Mandates, was excluded in the case of C Mandates. '
g. In view of the above features, commentators qnite naturally
referred to C Mandates as being in their practical effect not far
removed from annexation.
Thus, during the First Session of the Permanent Mandates Com
mission, Mr. Ormsby-Gore, the United Kingdom member, stated:
1 Rappard, \V. E. "The Mandates and the International Trusteeship System",
Varia Politic(1953), p. 182.
1 Vide Lloyd George's statement on 3oth January, 1919, para. 6 supra.
3 Vide Art. ofthe "Mandate for German South· West Africa".
4 FO'I. d. U.S.: The Paris Peace Conf~regrg,cV!l.,III. pp. 741-42.
s Ibid.p.788.
• Vide final words of Art. 22(6).222 SOUTH WEST AFRICA
"... this case of South West Africa was, indeed, a typical example of
the complete political incorporation of a mandated territory in the
territory of the mandatory Power". 1
Margalith wrote:
"It has been found necessary, also, to devise three types of adminis
tration, and to give in the case of C Mandates, powers that amount
nearly to annexatîon. Otherwise the British Dominions could not
have been won over to the acceptance of the mandates principle at
aU". 1
When introducing the Peace Treaty in the British House of Cam-
mons on 3rd July, rgrg, Lloyd George stated:
"... South West Africa, running as it does side by side with Cape
Colony, was felt to be so much a part, geographically, of that area
that it would be quite impossible to treat itin thesame way as you
wo-ulda colony 2,ooo or 3,000 miles away from a centre of adminis
tration. There is no doubt at ait thal South West A/rica will become
an integral partof the Federation of South Africa. It willbe colonised
by people from South Africa. You could not have done anything
else. Yon could not have set customs barriers and have a different
system of administration". • (!talles added.)
And Temperley wrote:
"Clearly the development of this territory must in the main come
from the adjoining Union of South Africa, and its progresswould be
seriously hantll'capped it ifwere administered as a distinct entity with
separate native, fiscal, and railroad poticies. As, however,it was feared
that an exception made in one case-no matter how valid it might be
might open the door to other a g,eneral application of the system was
insisted upon. This had sorne unfortunate consequences since, mainly
in arder to meet the special circumstances in South Africa, a broad
formula had to be adopted which was not completely satisfactory as
far as other areas were concemed". • (Italics added.)
ro. It will be observed from the aforegoing that considerable
over-simplification, tending towards a wrong impression, is involved
in the Applicants' statement in their M emorials that:
"The Mandate System, as ultimately given expression inArticle 22
of the Covenant of the League of Nations and in the severa! Mandate
Agreements, represented a victory for the opponents of the principle
of annexation". 6
A compromise can hardly be regarded as a victory for either side.
By itself, the Applicants' over-simplification may be unimportant.
But certain other statements by them demonstrate that negation
1P.M.C., Min., 1, p.21.
' Margalith, A. M.The International Mandates (1930), pp. 33-34.
1 Temperley, op.-citVol. III, p. 95.
• Ibid., Vol. II, pp. 233-34.
1 Applicants'Memorials, p. 33· PRELIMINARY OBJECTIONS OF SOUTH AFRICA 223
of the significance of the compromise could lead to erroneous con
clusions.
So, for example, it is unsafe to assume that the Mandate System
as finally agreed upon, and particularly as regards C Mandates,
could be interpreted in terms of quotations from General Smuts'
publication. The quotations set out by Applicants at p. 33 of their
Memorials relate to a proposed System which the author considered
to be totally inappropriate for those territories which eventually
became C Mandates 1 and which could only be accommodated in a
specially adapted System, agreed to by way of compromise.
Similarly there is no justificatio2 for Applicants' expression ··so
striking a reversai of concept", as applied to a 1920 speech by
General Smuts in which he, in common with the commentators
mentioned in paragraph 9 above, spoke of the relationship between
the Union and South West Africa as being, in effect, close to annex
ation. This matter will be further dealt with below.
These and other attempts in the Memorials to disparage policies
directed towards doser assimilation between South Africa and the
Territory as being somehow in conflict with duties undertaken by
Respondent, do not accord with the expressed intentions of the
statesmen who created the Mandate System. Respondent accepted
the obligations which the Mandate for South West Africa involved
for it; and it bas always regarded compliance with those obligations
as being a matter of importance-according to their letter and
spirit during the lifetime of the League, and according to their
spirit thereafter. But it resents and resists attempts at the unilateral
imposition upon it of suggested duties which were excluded from
those undertaken, and which would amount to a repudiation of the
compromise whereby Respondent was induced to agree to the
Mandate System being""rehdered applicable at ali to the case of
South West Africa.
THE LEAGUE OF NATIONS PERIOD
II. The functions of the League of Nations in respect of Mandates
were exercised by the Council, the Assembly and the Permanent
Mandates Commission.
12. The Council was the body to which every Mandatory was
ultimately accountable. It was to the Council that the Mandatories
3
bad to render annual reports, to its "satisfaction".'
The Council alone bad the power to take decisions and address
recommendations to the Mandatories. •
1 Vide para.5 supra.
1 Applicants' Memorials, p. 38.
1 Art.22 (7).
• e.g.Art. 6 of the Mandate for South West Africa .
.iVide The Mandates System-Origin-Principles-Application (1945),p. 35;
Hall, op.cil., p. 174; P.M.CMin., 1, p. 5· SOUTH WEST AFRICA
224
Article 4 of the Covenant entitled any Member of the League not
represented on the Council "to send a Representative to sit as
a member at any meeting of the Council during the consideration
of matters specially affecting the interests of that Member." This
provision enabled a Mandatory to be represented when the Council
considered matters relating to its own Mandate and to Mandates
in general.
In terms of Article 5 of the Covenant, decisions of the Council
required "the agreement of all the Members of the League repre
sented at the meeting." (Italics added.) Whether a Mandatory
could exercise its vote in the Council in such a way as to frustrate
the unanimous view of ali the other Members on a matter affecting
its own Mandate, was never raised. In fact no occasion on which
there was such a division of votes ever arose; ali Council decisions
concerning mandates were taken unanimously. 1 In this connection
Jennings states that the "invariably careful and even elaborate
avoidance of an adverse vote from the Mandat ory" in the Council
is "difficult to understand unless one may assume at any rate the
possibility of a veto in the Mandatory state". '
13. The Assembly derived its powers in respect of Mandates from
Article 3 of the Covenant in terms of which it could "deal at
its meetin9,s with any matter within the sphere of action of the
League ...
At the First Assembly a "working basis" was, however, decided
on according to which
"Neither body [i.e. the Assembly or the Council)has jurisdiction
to render a decision in a matter which by the Treaties or the Cave
nant has been express!y committed to the other organ of the League.
Either body may discuss and examine any matter which is within
the competence of the League". •
Thus, in respect of Mandates, the Assembly's role was confined to:
"... the exercise of a certain moral and very general influence in
this domain. Its function may be said to be to maintain touch
between public opinion and the Council". •
14. The Permanent Man.dates Commission was instituted by the
Council on zgth November, rg2o, pursuant to the provisions of
Article 22, paragraph g, of the Covenant, in terms of which its
functions were "to receive and examine the annual reports of the
Mandatories and to advise the Council on ali matters relating to
the observance of the mandates".
1 Vide "South-West Africa-Voting Procedure, Advisory Opinion of june 7th.
I955: I.C.]. Reports I955",pp.IOO-OI. (]udge Lauterpacht's Separate Opinion.)
1]ennings, R. Y. "The International Court's Advisory Opinion on the Voting
Procedure on Questions concerning South-West Africa",Grotius Soc.,Vol. 42,
(1956)p. 92.
L. of N., Assembly, Rec.1, p. 320.
• The Mandates System-Origin-PrincipleS-Application, p. 34et se'q. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 225
Article 22 of the Covenant did not make provision for petitions
from inhabitants of Mandated territories, nor did the .Mandate
instruments do so. Petitions were, however, sent to the Permanent
Mandates Commission, and as a result the Council, at its 23rd
session in 1923, framed rules relating to the procedure to be adopted
with regard thereto. In terms of these rules, petitions from "com
munities or sections of the populations of mandated areas" were
to be submitted only through the Mandatory concerned, which
would be entitled to attach "such comments as it might think
desirable." Petitions "regarding the inhabitants of mandated
territories received ... from any source other than that of the
inhabitants themselves", were to be addressed to the Chairman of
the Commission who had to decide whether they should be regarded
as "claiming attention". If so, the Mand1tory concerned was then
to be asked for its comments thereon.
The question whether the Permanent Mandates Commission
was entitled to grant oral hearings to petitioners was raised on
severa! occasions in the organs of the League, especially during the
years 1926-1927, when a proposai for such hearings "in certain cases"
met with considerable opposition. When the views of the manda
tories were sought in regard thereto, they unanimously expressed
their opposition, with the result that the Council on 27th March,
1927, decided that
"there is no occasion to modify the procedure which has hitherto
been followedby.the Commissionin regard to this question". 1
In constituting the Permanent Mandates Commission, the Council
decided inter alia that it was to consist ofnine members, the majority
to be nationals of non-Mandatory States. It further provided that
"Ali the Members of the Commissionshall be appointed by the
Council and selected for their personal merits and competence. They
shall not hold any officewhich puts them in a position of direct depen
denceon theirGovernments white members of the Commission" ..,(Italics
added.)
The Permanent Mandates Commission was described as
"essentially an advisory body-a body whose duty it is to examine
and report-designed to assist the Council in carrying out its task.
Its work is preliminary in character. Constitutionally, it has no
power to take decisions binding on the rnandatory Powers or to
address direct recommendations to them. Its conclusions are not final
until they have been approved by the Council".•
1
2 L.of N., 0.].,1923, p. 300.
1 Ibid., 1927, p. 348.
Later increased to ten and then to eleven.
1 The Mandates System-Origin-Principles-Application, p. 35· Vide also van
Asbeck, F.M. "International Law and Colonial Administration"Grotius Soc.Vol.
39 (1953). p'4·226 SOUTH WEST AFRICA
The Commission itself realized and stated that, having adopted
the rule of "absolu te independence and impartiality", its Members
should exercise their authority "Jess as judges from whom critical
pronouncements are expected, thau as collaborators who are
resolved to devote their experience and their energies to a joint
endeavour". 1
Although its powers were purely advisory, the Commission de
veloped into an effective institution. In this connection M.Rappard,
-at first Secretary and later for a long time a member of the
Commission-stated:
"As the Commission, thanks to the persona! competence and
g1'nerallyrecognizedindependence of its members, came to enjoy
a real respect and, indeed, q11itesorne prestige, an international or
rather a super-national moral.e.uthority sprang up... In its capacity
as a purely advisory body ... the Permanent Mandates Commission
had no powers of coercion whatever. As a universally esteemed
group of impartial and independent experts, however, its powers
of persuasion were indisputably very effective. No Mandatory
government ... ·could afford to disregard its advice for fear of no
other sanctions but those of public and parliamentary opinion.
The net result was a willingco-operation between the League and
the Mandatory governments, and the enhancement of the standards
of administration in the mandated territories and even, by a natural
repercussion, in colonial administration everywhere". 2
15. There was at ali times cordial co-operation between Re
spondent and the Permanent Mandates Commission. On occasion
differences of opinion arose-as was the case also with regard to
other Mandated terri tories-but this was inevitable in view mainly
of uncertainties and obscurities in a new system, operating under the
somewhat vague terms of the compromise embodied in Article 22
of the Covenant. And with both Respondent and the Commission
approaching their task in the spirit of that compromise, the problems
which arose were always satisfactorily solved.
Applicants' Memorials, on the other hand, contain statements
and allegations suggesting strife between Respondent and the Com
mission, and even a "hostile" attitude towards the Commission on
Respondent's part. These allegations and suggestions are unfounded,
as will appear from doser scrutiny of the facts to which they relate.
r6. At page 37 of their Memorials, Applicants state as follows:
"Annual reports called for in Article 6 of the Mandate for South
West Africa were for a time submitted by the Union to the Council
of the League of Nations, beginning with a report for rgrg". (Italics
added.)
Respondent finds it difficult to appreciate why such language
should be used, when the true facts are that Respondent regularly
1 L. ofN., 0.].1921,pp. II24·2j.
1 Rappard, Varia Politica, p. 184. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 227
submitted annual reports until 1940, alter the outbreak of the
Second World War, which brought about a cessation of ali reporting
by Mandatories and of meetings of the Commission.
17. The Applicants state at page 37 of their Memorials that
"the Union was not at first overtlv hostile towards the Permanent
Mandates Commission". ~
Respondent denies the implication that it was at sorne time
hostile, overtly or otherwise, towards the Commission. On the
contrary, there is abundant evidence to show that despite occasional
divergencies of view regarding specifie matters, Respondent's atti
tude throughout was one of friendly co-operation.
So, for instance, Respondent was the first of ail the Mandatories
to be represented at the discussions of the Permanent Mandates
Commission by the officer "personally responsible for the adminis
tration" of the Mandated territory, namely the Administrator of
South West Africa-which action the Council particularly appreci
ated and commended to other Mandatories. 1
. At Respondent's invitation, the Chairman of the Commission
visited South West Africa in 1935 and made an extensive tour of
the Territory. As far as is known, this was the only occasion on
which a member of the Commission was invited by a Mandatory
to visit a Mandated territory. Respondent had extended this in
vitation also to the Secretary-General of the League and the Director
of the Mandates Section of the League, but neither could avait
himself thereof. ' ·
On many occasions appreciation was expressed, on both sides, of
the relationship and co-operation between Respondent and the
Commission. As examples may be mentioned the following:
{a) In a letter by General Smuts, dated the 16th May, 1923, to
the Chairman of the Commission, there occurred inter alia:
"I also wish to express my appreciation of the valuable work
which you are doing as Chairman of the Permanent Mandates Com
mission; and I wish especially to thank you and the other members
of the Commission for the way in which you have assisted the Conn
ciof the League in arder to meet my wishes about the naturalisation
of the white German inhabitants of South-West A!rica. You have
shawn great fairness and wisdom in realising the special and ex
ceptional character of the problem in that territory, and 1 thank
you for final!y agreeing to the solution which1have put forward".'
{b) On 6th June, 1936, the Chairman of the Commission thanked
the South African representative
"for his co-operation and expressed the Commission's appreciation
of the cordiality, sincerity and loyalty shown by the accredited
1 L.ofN., O.j.,1924, p. 1287.
1 P.M.C., Min., XXVII, p.153.
1 Ibid., IIp.·us.228 SOUTH WEST AFRICA
representative of the Mandatory power. It was a matter for satis.:
faction that there was such close co-operation between the Com
mission and the Union". 1
(c) In his address of 9th April, 1946, to the Assembly of the League
in its final session, the South African representative stated:
"it isgenerally recognisedthat the Leaguedischarged its supervisory
functions in respect of mandates with high seriousness, skill and
success. For twenty years, as one of the mandatory Powers, South
Africa worked in close co-operation with the Permanent Mandates
Commission,and we are proud of the !act that our relations with
that body have always been both happy and cordial". 1
Again the reason for the language in the Memorials, as above
cited, is diflicult to appreciate.
18. The Applicants state at page 37 of their Memorials that
"Officiais of the Union Government viewed the mandate as
tantamount to annexation".
They then quote, at the same page, two extracts from a news
paper report of a speech made by General Smuts at Windhoek in
September, 1920, the first being that he
"emphasised that the League of Nations had nothing to do with the
giving of the Mandates",
and the second
"In effect, the relations between the South West Protectorate
and the Union amount to annexatian in alibut name".
This the Applicants then describe as
"so striking a reversai of concept towards the Mandate System".
ln regard to the fi.rst of the above extracts, General Smuts was
speaking of the allocation of Mandated territories by the Principal
Allied and Associated Powers. 3 His address was delivered sorne
months prior to the execution of the Mandate instrument. • In
regard to the second extract, Respondent has already pointed out •
that General Smuts's description accorded with that of other
commentators, and that when regard is had to the nature of the
compromise arrived at in respect of C Mandates, no "reversai of
concept", "striking" or otherwise, was involved. Tbat General
Smuts, in the passage in question, was concèmed only with the
practical etfect of the C Mandate, and was in no way seeking to evade
the signifi.cance of the safeguards envisaged in the interests of the
1
Ibid., XXIX, p. I37-
a L.of N., 0.].Spec. Sup.No. 194, p. 32.
* Vide para.7 supra.
1 17th December, 1g2o-vide para. 7supra.
Para. 10supra read with para. supra. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 229
native population, or of League supervision in respect thereof,
appears from the context of the whole address as reported, as weil
as from a letter written by him on the subject to M. Rappard on
the 4th July, 1922. In the report of the speech there occurs, inter
alia, the following:
"... the mandate was a new idea in International Law, and there
fore it was only right that a full explanation should be given at this
stage. He emphasised that the League of Nations had nothing to do
with the giving of mandates, which were already settled as a fact by
the Peace Treatyquite apart from the League of Nations.
Under the Peace Treaty Germany had renounced her colonies
not to the League of Nations, but to the Great Powers. Article rrg
of the Treaty made that clear.The Great Powers passed a resolution
t'n Paris in May, I9I9, conferring various mandates and in the case
of South-West A/rica the mandate was given to the UnioThis man~
date was accepted by the Union Parliament. The League of Nations
was only concerned in one way, na.mely to defi.ne the scope of the
mandate in any particular area ... The Prime Minister then quoted
the relevant portion of the Peace Treaty providing for thgovern~
ment under the laws of the Mandatory. Subfect to safeguardsthe
Union Govemment had complete authority over South West Africa,
not as a separate territory, but as an integral portion of the Union,
as though it were Union territory, with safeguards for the natives
against slavery, trafjic arms, liquor and military training-the
control of these safeguards lying with the League of NationsThe
Union Govemment could extend to South~We Asfrica its legal,
judicial, administrative and fi.nancialsystems, its Civil Service, its
police, and its Railway Administration, and it could declSouth~
West Africa a Province of the Union and could give Parliamentary
representation, the only limit being in regard to natives.
In effect, the relations between Sout Wh~est Protectorate and
the Union amount to annexation in ali but name. Without annexa
tian the Union could under the Peace Treaty do whatever it could
have done in annexed territory, savt: the reservation of the natives".
(Italics added.)
In his letter to M. Rappard, General Smuts pointed out that
he had addressed the German section of the population and had
explained to them "the futility of looking to the· Fatherland and
the necessity of throwing their lot in with the people of the Union".
He added:
"I have explained to them that the Union has full power olegis~
lation and administration over South-West Afric:aas an integral
portion of the Union, and that the effect is very much the same as
if they were incorporated into the Union, subject of course to 'the
full safeguards in the interests of the native population. In ali this,
I have confined myself to the strict letter of Ar22 ....
Do not for a moment think that in my ideas or proposais I depart
from the system of mandateswhich I consider one of the mostbene~
1P.M.C., Min.,II, p92. SOUTH WEST AFR!CA
230
ficent advances in international law. We must only recognise thefact
thal C mandates are in etfect not far removed from annexation. The
case is, of course, quite different with the other two far more im·
portant types of mandates" . (Italics added.)
In the light of these facts, apparent in full from the Minutes of
the Permanent Mandates· Commission as referred to by Applicants
themselves at page 37 of the M emorials, there can again be no
justification for the Applicants' language in question.
19. Applicants state at page 38 of the M emorials that the Perma
nent Mandates Commission "felt obliged on more than one occasion
to cali the Union to task with respect to its attitude toward the
legal status of the Territory." Applicants then proceed to allege in
this regard that
"... when the Union concluded a series of Agreements with Por
tugal regarding the boundary between Antjola and Soutb West
Africa, theCommissiondrew attention to the facthat in the Pream
ble to one such Agreement, the Union asserted 'full sovereignty
over the territoryof South West Africa, lately under the sovereignty
of Germany'." (Italics added.)
As a fact Respondent in the Preamble did not assert "full" sover
eignty: the word "full" was not used and the word "sovereignty"
was qualified by the words "subject to the terms of the said Mandate."
The relevant part of the Preamble read:
"And Whereas under a mandate issued by the Council of the
League orNations in pursuance of Article 22 of the Treaty of Ver
sailles, the Government of the Union of South Africa, subject to the
terms of the said mandate, possesses sovereignty over the Territory
of South-West -Africa (hereinafter referred to as tbc Territory)
lately under the sovereignty of Germany".• (Italics added.)
A lengthy controversy did arise, with reference to this Preamble,
asto the meaning to be assigned to the word "sovereignty". There
followed discussions and correspondence, which as a result of mis
understandings were protracted. Part· on!y of these is quoted by
the Applicants. A full account, as recorded in the official records of
the League-but which would needlessly lengthen this statement
shows that the difficulty related mainly to the meaning to be
assigned to the word "sovereignty" in the context of Mandates.
This was a question dealt with at gxeat length by many authorities,
who arrived at a variety of conclusions. Wright mentions at !east
ten theories. 3
As far as the League was concerned, M. Hymans had in 1920, in
a report adopted by the Council on sth August, 1920, stated as
fol!ows:
1Ibid., p. 91.
2L. ofN., O.]., 1926, p. I533·
• op.ciJ.PP· 319-39. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 231
"The degree of authority, control or administration is, so far as
'B' or 'C'Mandates are concerned, a question of only secondary
importance.
In the former case, as in the latter, the Mandatory Power will
enjoy. in my iudgment, a full exerciseof sovereignin so far as such
exercise is consistent with the carrying out of the obligations im
posed hy paragraphs 5 and 6." 1 (Italics added.)
There was, however, no attempt in the League to define where
sovereignty, in the traditional sense of absolute power, was lodged
in regard to Mandates. In this regard, the above report by
M. Hymans bad stated:
"I shaHnot enter into a controversy-t tisowo~uhdcertainly
be very interesting-as to where the sovere1gntyactually resides.
We are face to face with a new institution. Legal erudition will
decide as to what 1xtent it can apply to this institution the older
juridical notions."
Similar sentiments on this aspect of the matter were expressed
by M. Beelaerts van Blokland in a report adopted by the Council
on 8th September, 1927, 3and also in a further report by M. Procopé
adopted on 6th September, 1929. • The different senses in which
the word "sovereignty" could be used, contrihuted to the mis
understandings involved in the lengthy discussions and exchange
of communications between the Commission and Respondent.
What is, however, of importance, is that aUsuch misunderstand
ing was resolved through the acceptance by Respondent, in a letter
of r6th April, 1930, of the above reports of M. Beelaerts van
Blokland and M. Procopé, which were to the effect, inter alia,that
"sovereignty in the traditional sense of the word does not reside in
the Mandatory Power." 5
In the light of tlus outcom of the exchange of communications
between the Commission and Respondent concerning the question
of sovereignty, Respondent finds it difficult to understand why
Applicants' M emorials, at page 39, leave this matter on the note of
" 'no clear reply to this question' ", " 'regrettable misunderstand
ing' " and "its [Respondent's] assertion of the possession of sover
eignty over the mandated territory."
20. With regard to the reference at page 39 of the Applicants'
Memorials to an "intention to incorporate" the Territory, Re
spondent's view has consistently been that doser association
between South West Africa and South Africa was in accord
ance with the compromise arrangement regarding C Mandates as
1L. of N., Council, Min., Vp.I183.
1 Ibid., p. t8 .
' L.ofN., 0.}.1927,p.1120.
• Ibid., 1929, p. 1467.
' Ibid., 1930, pp. 838-39·232 SOUTH WEST AFRICA
contained in Article 22 and given effect to in the Mandate instru
ment for South West Africa. 1
In September, r920, General Smuts saw the constitutional de
velopment of South West Africa as follows:
"The policyofthe Government wouldbe to carry out the mandate.
South-West Africa would always be a separate unit as a large
country, but it was impossible torun it as a province at the present
time, though later, no doubt, it would become one, with a Provincial
Counciland membersin the HouseofAssembly,but first other stages
would have to be passed through. The first would probably be an
Advisory Council to be appointed to advise the Admimstrator.
Not long alter that. the Council would become an elected council,
and in due course there would be a full Parliamentary system". 1
Although Respondent during the existence of the League never
made any formai proposais, either for the incorporation of South
West Africa as a fifth province or otherwise, incorporation was
from time to time strongly urged by sections of the inhabitants of
the Territory. This pressure from within the Territory arose mainly
as a counter to events in the r930's-the daims of Germany under
Hitler to the restoration of the former German colonies and the
insistence on the part of the German section of the population in
South West Africa that this would sooner or later be achieved.
M. Rappard in I934 called this agitation for incorporation "a very
natural reaction". s
The statement of M. Rappard referred to at page 39 of the
Memorials was made in r925. It did not relate to any concrete
proposai or intention and, in !act, constituted speculation on a
purely hypothetical basis. Consequently Sir Frederick Lugard con
sidered that in the absence of a concrete proposai, this discussion
was beyond the Commission's competence. •
In the circumstances the phrase "the proposai" at page 39 of the
Memorials is not understood, nor does Respondent understand the
allegation that such a proposai (sic) "frequently drew the Com
mission's attention."
2r. The purport of the quotation given by the Applicants at
pages 39 to 40 of their Memorials, will be better understood when
that quotation is read in the context of the full paragraph in which
it appeared. That paragraph read:
"The Commission was inforrned by the mandatory Power that
the latter has appointed a special Committee to study certain
constitutional problems raised by a motion ofthe Legislative Assem
bly of the territory aiming at its incorporation as a 'fifth province
of the Union'. Itnoted, in particular, that this committee is to take
1Vide para. 8 supra.
1 P.M.C., Min., II, p92.
3 Ibid., XXVI, p.so.
• Ibid., VI, p. 6o. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 233
account, inter alia, 'of the character of the territory as a mandated
territory and the rules of international law governing the mandate'.
The Commission noted with satisfaction the statement by the
accredited representative !hat the mandatory Power will not take
any action in this respect until ithas first communicated its inten
tions to the League of Nations.
As the guardian of the integrity of the institution of mandates,
the Commission therefore expects to be informed of the mandatory
Power's views on the question, which it will not fail to subject to
that careful examination that its international importance demands.
The Commission wishes, on this occasion, to draw attention to
the mandatory Power's fundamental obligation to give effect, not
on!y to the provisions of the mandate, but also to those of Article 22
of the Covenant." 1 (Italics added.)
M. Rappard indicated the attitude of Members of the Commission
when he said:
"... he deeply appreciated the statements made by the accredited
representatives. The attitude of the Union Govemment in this
matter had now been fully and complete!y defined. Last year, there
bad been sorne misunderstanding on the subject, because the pre
vions accredited representative had apparent!y not felt authorised to
make definite statements. There had been no Jack of goodwill on
his part, and this observation implied no criticism of his attitude.
It was, however, a matter of congratulation !hat so full a statement
had now been made. This statement went a long way to create !hat
mutual confidence between the Mandates Commission and the man
datory Power which was so necessary for the success of their mutuai
efforts''.•
Thus as regards the Mandatory's attitude, the Commission ex
pressed, not "misgivings" 3,but "satisfaction".
Applicants state at page 40 of the Memorials "in the meantime
the Union had established 'a South West Africa Commission' ... to
deal further with the matter of incorporation". In fact this Com
mission was the body referred to in the observations of the Perma
nent Mandates Commission, above quoted, as a "Committee to study
certain constitutional problems." Its appointment had been notified
to the Commission by Respondent, and the observations of the
Commission arose from the discussion of that very notification.
The Commission's subsequent observations referred to by the
Applicants at page 40 of the Memorials, read in full:
"The Commission noted the statement in the annual report
(page 4) !hat the mandatory Power 'isof opinion that to administer
the mandated territory as a fifth province of the Union subject to
the terms of the mandate would not be in conflict with the terms
of the mandate itself'. It also noted that the mandatory 'feels!hat
suflicient grounds have not been adduced for taking such a step'.
1 Ibid., XXVII, p. 229.
1 Ibid.,p.I6I.
1As is alleged by Applicants at p. 39 ofMtmorials.
r6234 SOUTH WEST AFRICA
The Commission does not express any opinion as to a rnethod of
administration the scope of which it has had no opportunity of
judging and the adoption of which, according to the statement of
the mandatory Power, is not contemplated; it confines itself to
making al! legal reservations on the question".
In the absence of any specifie proposai, the Permanent Mandates
Commission could hardly be expected to take any other course
than to reserve its position, as it did. The significance which the
Applicants attach to this reservation is therefore not understood.
Respondent bas never made a secret of its conviction that doser
association between South Africa and South West Africa would
best serve the interests of the inhabitants of South West Africa. It
held that view before Versailles and reassessment in the light of
subsequent events has not led to any other conclusion. Respondent
sees nothing wrong, sinister or strange in seeking that doser
association.
There is, however, no justification for Applicants' statement at
page 40 of their M emorials that
"the question of the legal status of the Territory was perhaps the
most serious area of disagr:eement persisting between the Union and
the Permanent Mandates Commission''.
As appears from the tacts aforestated, there was no "area of
disagreement persisting" as regards "the legal status of the Territo
ry"; and Respondent is not aware of any "area of disagreement",
"serions" or otherwise, "persisting" in regard to any other matter.
22. Applicants allege at page 40 of their Memorials that the Per
manent Mandates Commission "repeatedly deemed it necessary to
criticize other phases of the Union's administration of the Territory"
-and theythen list live aspects of administration, giving references.
For reasons stated in paragraph I above, Respondent does not deal
here with the substance of the allegations, other than to state that
neither the references cited by Applicants nor the other records of
the League support the allegation that the Commission bad "re
peatedly criticized" aspects of its administration of South West
Africa. Itwas the duty of the Commission to express its views on
the administration, and complete agreement at ali times between
the Mandatory and individual members or even the Commission as
à whole could not possibly be expected. Yet, individual differences
·whicli did arise from time to time, were remarkably few and they
were invariably settled to the satisfaction of the Commission, the
Council and the Mandatory.
1 Ibid., XXXI,p. 192. PRELIMINARO YBJECTIONO SFSOUTH AFRICA 235
THE PERIODOFTRANSITION 1945-1946
Establishment of the United Nations
23. The establishment of the United Nations Organisation result
ed largely from inter-Allied co-operation during the Second World
War. The name "United Nations" bad been adopted by the Allies
in the later stages of the war and used in declarations, such as that
of the 1st January, 1942, at Washington, pledging war-time co
operation. The prospect of establishing a new international organ
isation for the preservation of international peace was mentioned
in a declaration signed on the 3oth October, 1943, at Moscow, by
the representatives of four of the major Allied Powers, viz. the
Union of Soviet Socialist Republics, the United States of America,
the United Kingdom and China. The first blueprint of the organi
sation was prepared during discussions in the period August to
October, 1944, at Dumbarton Oaks, Washington, in which the said
four powers participated. Following on these discussions there was
published the proposai inter alia that the key body in the contem
plated organisation was to be a Security Council on which the "Big
Five" powers (being the above four and France) were to be perma
nently represented. During the Yalta Conference of February, 1945,
between President Roosevelt of the United States of America,
Prime Minister Churchill of the United Kingdom and Premier Stalin
ofthe Soviet Union, came an announcement that the question of
voting procedure in such a Security Council bad been settled and
that "a conference of United Nations" should be called to meet at
San Francisco to prepare a charter for "a general international
organisation to maintain peace and security . . . along the !ines
proposed in the informai conversations of Dumbarton Oaks".
A conference of delegates of fifty nations was held at San Fran
cisco between the 25th April and the 26th June, 1945, at which
the Charter of the United Nations was drafted, unanimously agreed
upon and signed by ali the representatives. It came into force on
the 24th October, 1945, when, as required by Article no thereof,
the five Powers that were to be permanent members of the Security
Council and a majority of the other signatory States bad filed their
1
ratifications.
24. During tl)e aforesaid events the League of Nations was still
in existence; and it continued to exist side by side with the new
organisation until April, 1946. .
There was no suggestion that the United Nations was to be the
League under a new name, or an automatic successor in law to
League assets, obligations, functions or activities. Indeed, two of
the major powers which played a leading role in the establishment
of the United Nations, and were to be permanent members of the
1Everyman's United Nations (6th edpp.4-5. Vide also Goodrich, L. M. and
Hambro, E. Charter of the United Nations (2npp.3-18. SOUTH WEST AFRICA
Security Council, were known to be strongly averse to any notion
of automatic succession. They were the Soviet Union, which had
been expelled from the League in December, 1939, and the United
States of America, which bad never been a Member of the League.
In terms of Article 3 of the Charter, the original Members of the
United Nations were the States which, having participated in the
San Francisco Conference or having signed the Declaration by
the United Nations of Ist January, 1942, also signed the Charter
and ratified it in accordance with Article IIO. There were sr such
original Members of the United Nations, of which I7 were not at
that time (r945-I946) Members of the League. They were:
Byelorussian Soviet Socialist Republic, Chile, Costa Rica, El Salva
dor, Guatemala, Haiti, Honduras, Lebanon, Nicaragua, Paraguay,
Peru, Philippines, Saudi Arabia, Ukrainian Soviet Socialist Repub
lic, Union of Soviet Socialist Republics, United States of America,
Venezuela.
Of those 17, six had never been Members of the League. They
were:
Byelorussian Soviet Socialist Republic, Lebanon, Philippines, Saudi
Arabia, Ukrainian Soviet Socialist Republic and United States of
America.
AU the others (except the Soviet Union) had many years before
withdrawn from the League on notice. 1
Further, of the 42 Members of the League of Nations at that
time, II were not original Members of the United Nations. They
were:
Afghanistan, Bulgaria, Estonia, Finland, Ireland, Latvia, Lithuania,
Portugal. Siam (T'<(iland),Sweden and Switzerland.
Four of these, viz. Switzerland, Lithuania, Latvia and Estonia,
never became Members of the United Nations. The others were
admitted to membership at various times, in sorne cases years alter
2
the establishment of the United Nations.
As a result of the admission of new Members, United Nations
membership grew to 99 as at the end of 1960. Although I4 of these
new Members had af sorne stage or another been Members of the
League, the other 34 had never been.
25. At the San Francisco Conference, during the discussions
conceming ·the provisions of the Charter relative to a proposed
Trusteeship System, 3 the South African representative made the
following statement :
1 For·dates vide Walters, F. P. A Hùtory of the League of Nations (1952), Vol. 1,
pp. 64-65.
1 Vide dates in Everyman's Uniled Nations (6th ed.), p. 6.
1 In Committee ll/4 on II th May, 1945· PRELIMINARY OBJECTIONS OF SOUTH AFRICA 237
"1 wish to point out that there are territories already under
Mandate where the Mandatory principle cannot be achieved.
As an illustration, 1 would refer to the former German territory
of South West Africa held by South Africa under a 'C' Mandate.
The facts with regard to this territory are set out in a memoran
dum filed with the Secretariat, which 1 now read:
When the disposai of enemy territory under the Treaty of Ver
sailles was under consideration, doubt was expressed asto the suita
bility of the Mandatory forrn of administration for the territory
which forrnerly constituted the German Protectorate of South West
A!rica.
Nevertheless, on 17th December, 1920, by agreement between the
Principal Allied and Associated Powers and ·in accordance with
Article 22 Part1 (Covenant of the League of Nations) of the Treaty,
a Mandate (commonly referred to as a C Mandate) was conferred
upon the Government of the Union of South Africa to administer
the said territory.
Under the Mandate the Union of South Africa was granted full
power of administration and legislation over the territory as an
integral portion of the Union of South Africa, with authority to
apply the laws of the Union to it. .
For twenty-five years, the Union of South Africa has govemed
and administered the territory as an integral part of its own territory
and has promoted to the utmost the material and moral well-being
and the social progress of the inhabitants.
It has applied many of its laws to the territory and has faithfully
perforrned its obligations under the Mandate.
The tcrritory is in a unique position when compared- with other
territories under the same forrn of Mandate.
It is geographically and strategically a part of the Union of South
Africa, and in World War No. 1a rebellion in the Union was fomen
ted from it, and an attack launched against the Union.
It is in large measure economically dependent upon the Union,
whose railways serve it and from which it draws the great bulk of its
supplies.
Its dependent native peoples spring from the same ethnological
stem as the great mass of the native peoples of the Union.
Two-thirds of the European population are of Union origin and are
Union Nationals, and the remaining one-third are Enemy Nationals.
The territory has its own Legislative Assembly granted to it by
the Union Parliament, and this Assembly has submitted a request
for incorporation of the territory as part of the Union.
The Union has introduced a progressive policy of Native Admin
istration, including a system of local government through Native
Councils giving the Natives a voice in the management of their own
affairs; and under Union Administration Native Reserves have
reached a high state of economie development.
In view of contiguity and similarity in composition of the native
peoples in South West Africa the native policy followed in South
West Africa must always be aligned with that of the Union, three
fifths ofthe population of which is native.
There is no prospect of the territory ever existing as a separate
state, and the ultimate objective of the Mandatory principle is
therefore impossible of achievement. SOUTH WEST AFRICA
The Delegation of the Union of South Africa therefore daims thal
the Mandate should be terminated and that the territory should be
incorporated as part of the Union of South Africa.
As territorial questions are however reserved for handling at the
later Peace Conference where the Union of South Africa intends to
raise this matter, it is here only mentioned for the information of
the Conference in connection with the Mandates question". 1
26. The significance of the above statement appears further from
an extract from a later statement by Field-Marshal Smuts, which
can conveniently-although out of historical sequence~ cted
here. Addressing the Fourth Committee of the General Assembly
of the United Nations at its fourteenth meeting on 4th November,
1946, Field-Marshal Smuts stated, inter alia:
"It was . .. incumbent on the Union Government as tntstee of the
interests of the people of South West Africa to ensure !hat, when the
proper time arrived for consideration of any change in the status of
the Territory, such consideration should not be prejudiced by any
prior commitment on the part of the Union Government by virtue
of its membership of any organization which might replace the
League of Nations; Accordingly, in May 1945, when questions
relating to trusteeship were under consideration by the San Fran
cisco Conference, the Union Government entered a reservation
designed to ensure that the future status of South West Africa and
the desirability of its incorporation in the Union should not be
prejudiced by any proposais adopted by the Conference in regard to
the future of mandated Territories. The text of this reservation is
given in Paragraph r of Document Ajr23. In the event, however,
the Charter of the United Nations by the use of the term 'may'
instead of 'shall' in Article 77 excluded any obligation to place
Mandated Territories under trusteeship and made the application
of the trusteeship system to such territories a matter of·voluntary
agreement. This no doubt accounts for the !act thal in addition to
South West Africa three other Mandates-Transjordan, Palestine
and the Japanese Pacifie Islands-have so far been excluded from
the Trusteeship System". 1
1 The official records of the San Francisco Conference contain on!y a brief som
mary of this statement.(U.N.C.I.O. Docs. Vol.10,p. 434.) The text quoted here
is taken from the original typewrittendocument from which the South African
representative, Dr. D.. Smit, read the statement in the Committee on Trusteeship
on IIth May, 1945, which accords with an unoffi.cial verbatim record in the custody
of the United Nations Secretariat. The original document read by the South African
representative contains alsoe following paragraph which is, however, not reflected
in the unofficial verbatim record: ·
"As stated in the Memorandum, this is not a matter that can be decided here,
but I am directed to mention it for the information of the Conference so that
South Africa may not afterwards be held to have acquiesced in the continuance
of the Mandate or the inclusion of the territory in any form of trusteeship
under the new International Organization."
Dr. Smit affirms that he made the whole statement as it appears in Respondent's
records.
1 G.A., O.R., First Sess., Second Part, F014rthComm., Pap.I"Z39· PRELIMINARY OBJECTIONS OF SOUTH AFRICA 239
27. Towards the conclusion of the San Francisco Conference, on
25th June, rg45, there was established a Preparatory Commission
of the United Nations, consisting of one representative of each
1
signatory State. The functions entrusted to it were to convoke the
General Assembly in its first session, to prepare the provisional
agenda, documents and recommendations for the first sessions of
the principal organs of the Organisation, and to do certain other
defined prepara tory work pending establishment of the Secretariat. •
One of these items of prepara tory work was to:
"Formulate recommendations concerning the possible transfer of
certain functions, activities, and assets of the League of Nations
which itmay be consideceddesirable for the new Organisation to
take over on terms to be arranged". •
The Commission first met on 27th June, I945. at San Francisco.
And when its Second Session opened on 24th November, r945. in
London, it had before it a Report by its Executive Committee, '
which was composed of representatives of the Governments of
fourteen States. This report served as a basis for the work of the
full Commission, which rendered its own report on 23rd December,
rg45, 5 setting out therein inter alia recommendations concerning
the agenda and proposed resolutions for the First Part of the First
Session of the General Assembly, which was held in London from
roth January to r4th February, rg46.
28. The Commission's task in regard to the possible transfer of
certain functions, assets and activities of the League to the United
Nations, was carried out in the following stages:
(a) A sub-committee of the Executive Committee made certain
recommendations, cited in Section 3 of Chapter IX of the latter's
report. The sub-committee recommended, with certain exceptions
and qualifications, the transfer of the functions, activities and assets
of the Leagne. Among the exceptions were the political functions
of the League; and the sub-committee also indicated that:
"Since the questions arising from the windingup of the Mandate
system are dealt with in Part III, Chapter IV, no recommendation
on this subject is included here". •
In regard to functions arising from Treaties; the sub-committee
recommended the adoption of a resolution by which the United
Nations should express their willingness to exercise functions and
powers previously entrusted to the League, reserving, however, the
right to decide which functions and powers they were prepared to
take over and to determine which Organ of the United Nations, or
1 U.N.C.l.O. Docs.,Vol.s.pp. 300, 315 and Vol.1,p. 630.
1 Ibid.,Vol. .;, pp. 300, 316.
• Ibid.,p.316,item (c).
t Doc. PCfEXfr 13/Rev. 1, 12th November, I945·
1 Doc. PCj2o, 23rd December, 1945·
• Doc. PCjEX/IIJjRev. 1,Chap. IX, Sec. 3. para1, 2and .;. p. uo. SOUTH WEST AFRICA
Specialised Agency associated with it, would exercise the functions
or powers taken over. 1 Added to this recommendation was the
following:
"The transfer to the United Nations of functions or powers en
trusted to the League of Nations by treaties, conventions, agree
ments or instruments having a political character, would if the par
ties to these instruments desire, be separately considered in each
case''.t:
As regards possible transfer of functions and activities as weil as
of assets, the sub-committee suggested the appointment by the
Preparatory Commission of a small committee to negotiate with
the Supervisory Commission of the League of Nations regarding
"the parallel measures that should be adopted by the League of
3
Nations and the United Nations".
(b) The Executive Committee's recommendations, as set out in
Sections r and 2 of Chapter IX of its Report, reveal acceptal)ce in
substance of the sub-committee's recommendations. Recommen
dation No. r of the Executive Commit tee read as follows:
"r. that the functions, activities and assets of the League of
Nations be transferred to the United Nations with such exceptions
and qualifications as are made in the report referred to above, and
without prejudice to such·action as the United Nations may subse
quently take with the understanding that the contemplated transfer
does not include the political functions of the League, which have
in !act already ceased, but solely the technical and non-political
functions;" 4
A footnote relative to exceptions and qualifications read in part:
"The Committee recommends that no political questions should
be included in the transfer. It makes no recommendation to transfer
the activities concerning refugees, mandates or international bu
reaux".' (Italics added.)
Section 2 of this Chapter of the Executive Committee's Report
contained a draft Resolution for the General Assembly, concerning
the assumption by the United Nations of functions of the League
under International Agreements. It·distinguished between:
"A. Secretarial Functions";
"B. Functions and Powers of a Technical and Non-Political
Character" ; and
"C. Treaties and International Conventions, Agreements and
other Instruments having a Political Character''.
1 Ibid., para. p. 111.
s Ibid., para10,p. 111.
3 Ibid., paras. 32 and 33, p. r 14.
' Ibid., p. roS. PRELIMINARY OBJECTIONS OF SOUTH AFR!CA 24r
In regard to A and B it suggested an expression of willingness,
subject to the reservations mentioned by the sub-committee, to
ensure continued exercise of functions and powers. In regard to C
it suggested the following:
"The General Assembly of the United Nations decides that it will
itself examine or will submit to the appropriate organ of the United
Nations any request from the parties that the United Nations
should take over the exercise of functions or powers entrusted to
the League of Nations by treaties and international conventions,
1
agreements or other instruments having a political character".
The sub-committee's recommendation that a small Committee be
appointed to negotiate with the League ;iupervisory Commission
regarding parallel measures, was endorsed. 2
(c) Discussions in the Preparatory Commission itself revealed
that two delegates in the Executive Committee had voted against
acceptance of Chapter IX of its Report, 3 and also !hat there was
concern amongst sorne delegates about the possibility thal the word
"transfer", as used in the recommendations concerning functions
and activities of the League, could "imply a legal continuity which
would not in fact exist", resulting in a suggestion thal the phrase
"the assumption of responsibility for certain functions and activi
ties" might be adopted. • This was eventually done, ' with the
further substitution of "powers" for "activities". The recommen
dations of the Commission, relative to functions and powers, in the
form as finally adopted by the General Assembly in its Resolution
XIV (1) of 12th February, 1946, read as follows:
''TRANSFER OF CERTAIN FUNCTIONS, ACTIV!TIES AND
ASSETS OF THE LEAGUE OF NATIONS
I
FUNCTIONS AND POWERS BELONGING TO THE LEAGUE OF NATIONS
UNDER INTERNATIONAL AGREEMENTS
Under various treaties and international conventions, agree
ments and other instruments, the League of Nations and its organs
exercise, or may be requested to exercise, numerous functions or
powers for the continuance of which, after the dissolution of the
League, it is, or may be, desirable that the United Nations should
provide.
Certaio Members of the United Nations, which are parties to
sorneof these instruments and are Members of the League of Nations,
2 Ibid., p1 10.
Ibid., p. 109 (last para. of sec. 1).
3 U.N. P.C., Committee 7, Summat-y Records, par1,p.2.
• Ibid., para. 3, pp. 2-3.
' Ibid., pp10-11.242 SOUTH WEST AFRICA·
have informed the General Assembly that, at the forthcoming
session of the Assembly of the League, they intend to move a
resolution whereby the Members of the League would, so far as this
is necessary, assentand give effect to the steps contemplated below.
Therefore:
r. The General Assembly reserves the right to decide, alter due
examination, not to assume any particular function or power, and
to determine which organ of the United Nations or wh1ch special
ized agency brought into relationship with the United Nations
should exercise each particular function or power assumed.
2. The General Assembly records that those Members of the
United Nations which are parties to the instruments referred to
above assent by this resolution to the steps contemplated below and
express their resolve to use their good offices to securethe co-oper
ation of the other parties to the instruments so far as this may be
necessary.
3· The General Assembly declares that the United Nations is
willing in principle, and subject to the provisions of this resolution
and of the Charter of the United Nations, to assume the exercise of
certain functions and powers previously entrusted to the League of
Nations, and adopts the following decisions, set forth in A, B, and
C below.
A. Functions pertaining to a Secretariat
B. Functions and Powers of a Technical and Non-Political Character
Among the instruments referred to at the beginning of this reso
lution are sorne of a technical and non-political character which
contain provisions, relating to the substance of the instruments,
whose due execution is dependent on the exercise, by the League of
Nations or particular organs of the League, of !unctions or powers
conferred by the instruments. Certain of these instruments are
intimately connected with activities which the United Nations will
or may continue.
It is necessary, however, to examine carefully which of the organs
of the United Nations or which of the specialized agencies brought
into relationship with the United Nations should, in the future,
exercise the functions and powers in question, in so far as they are
maintained.
Therefore:
The General Assembly is willing, subject to tliese reservations, to
take the necessary measures to ensure the continued exercise of these
functions and powers, and refers the matter to the Economie and
Social Council.
C. Functions and Powers under Treaties, International Conventions,
Agreements and Other Instruments Having a Political Character
The General Assembly will itself examine, or will submit to the
appropriate organ of the United Nations, any request from the PRELIMINARY OBJECTIONS OF SOUTH AFRICA 243
parties that the United Nations should assume the exercise of func
tions or powers entrusted to the League of Nations by treaties,
international conventions, agreements and ether intruments having
a political character ... "1
Regarding transfer of a.Ssets, the Preparatory Commission on
r8th December, 1945. set up a committee
"to enter, on its behalf, into discussion with the League of Nations
Supervisory Commission, which bas been duly authorized by the
members of theLeague of Nations, for the purpose of establishii.~
a common plan for the transfer of the assets of the League to the
United Nations on such terms as are considered just and convenient.
This plan willbe subject, so far as the United Nations is concemed,
to approval by the General Assembly". •
It will be observed that the task of this negotiating committee
was confined to assets, the earlierrecommendations of the Executive
Committee and its sub-committee (sub-paras. (a) and (b)above) not
being followed insofar as they related to functions and activities
-ostensibly inasmuch as the conception of a "transfer" of certain
functions and activities had been abandoned in favour of one of
"assumption" of certain functions and powers.
The Commission's recommendation regarding assets was merely
that the plan to be developed as a result of the discussions should
be submitted for approval to the General Assembly. 3This was done
at the First Part of the First Session, the General Assembly ap
proving of the common plan in Part III of Resolution XIV of r2th
February, 1946(supra).
29. (a) It will be recalled that the sub-committee of the Executive
Committee stated in its recommendations that "questions arising
from the winding-up of the Mandate System are dealt with in
Part III, Chapter IV" of the Executive Committee's Report. '
(b) Reference t<iChapter IV of its Report reveals that the Execu
tive Committee, in view of possible delay in constituting the Trustee
ship Council in terms of Article 86 of the Charter, recommended
that the General Assembly create a Temporary Trusteeship Com
mittee "to carry out certain of the functions assigned in the Charter
to the Trusteeship Council, pending its establishment". '
One of the functions proposed for such a Committee was to
"advise the General Assembly on any matters that might arise
with regard to the transfer to the United Nations of any functions
and responsibilitieshitherto exercisedunder the Mandates System".•
1 G.A. Resolution XIV(I)12th February, 1946 in U.N. Doc. A{64.
t Doc. PC/20, p. uS.
1 Ibid.
4 Vide para. 28(a) supra.
• Doc. PC/EX/IIJ/Rev. 1, Chap. IV, sec. 2, para. J, p. 55·
• Ibid., par4.(iv), p56.244 SOUTH WEST AFRICA
And in Section 3, para. g, there was included in the proposed
Provisional Agenda for the Temporary Trusteeship Committee:
"Problems arising from the transfer of functions in respect of
existing mandates from the League of Nations to the United
Nations".
This is probably what the sub-Committee of the Executive Com
mittee had in mind in speaking of "Part III, Chapter IV" of the
Executive Committee's report.
(c) The recommendations regardinga TemporaryTrusteeshipCom
mittee were, however, not accepted by the Preparatory Commission.
They were replaced by a recommendation that the General Assembly
should adopta resolution calling on states administering terri tories
under League of Nations Mandate to undertake practical steps for
submitting trusteeship agreements in respect of them "preferably
not later than during the Second Part of the First Session of the
General Assembly". 1 The recommendation proceeded:
"Those trusteeship matters which willbe taken up by the General
Assembly at the First Part of its First Session for the purpose of
expediting the establishment of the trusteeship system, will be
considered by the Trusteeship Committee of the General Assembly,
using the methods which the General Assembly considers most
appropriate for the further consideration of these matters".
(d) In the discussion preceding this recommendation, in the 4th
Committee of the Preparatory Commission on zoth December, 1945,
the representative of Austnùia made certain reservations conceming
aspects of the proposed preamble, stating, inter alia:
"Th~r weas an implication that Article 8o imposed an obligation
on States administering the territories mentioned in Article 77 to
placethose territories under trusteeshiThe terms ofArticles 75and77
made it clear thal the placing e>territory under trusteeship would be
a voluntary act.
Thirdly, the phrase 'callson,' since it had a special connotation
in the Charter (e.g. Articles 33 and 41), was unfortunate in this
context.
His Delegation cordially associated itself with the language of
the resolution, but had to insisthal the language of the preamble
was not within the letter and spirit of the Charter;the action of a
mandatory would be as voluntary as thal of any State putting any kind
of dependent terri/ory under trusleeship(ltalics added.)
Respondent's representative on the same occasion
"reserved the position of his Delegation until the meeting of the
General Assembly, because his country found itself in an unusual
position·.The mandated territory of South-West Africa was already
a self-goveming country, and last year its Jegi~la haur passed
1
Doc. PCj2o, Chap. IV, se1,p. 49-
1Ibid.
U,N. P.C., Committee 4, Summary Records, p. 39· PRELIMINARY OBJECTIONS OF SOUTH AFR!CA 245
a resolution asking for admission into the Union. His Govcrnment
had replied thal acceptance of this proposai was impossible owing
to their obligations under the mandate.
The position remained open, and his Delegation could not record
its vote on the present occasion if by sa doing it would imply that
South-West Africa was not free to determine its own destiny. His
Government would, however, do everything in its poWer to impie
ment the Charter". 1
In the discussion on the same subject in the Preparatory Com
mission meeting on 23rd December, 1945, Respondent's representa
tive stated:
"the South African Delegation associated itself whol!y with the
desire of Committee 4 ta apply the principles laid dawn in the
Charter and thal its efforts had been directed towards that end.
In view, however, of the special position of the Union of South
Africa, which held a mandate over South-West Africa, it reserved
its position with regard to the document at present under review,
and especial!y because South Africa considered thal it had lully
discharged the obligations laid upon it by the Allies, under the
Covenant of the League of Nations, on the advancement towards
self-govemment of territories under mandate, and that the time had
now come for the position to be examined as a whole. For that
reason, the South African delegation reserved its attitude until the
Assembly met". •
(e) The Preparatory Commission's report was considered at the
First Part of the First Session of the General Assembly in January
February, 1946. Addressing a Plenary Meeting on 17th January,
1946, the South African representative stated his Govemment's
position on the South West Africa Mandate in the following terms:
"Under these circumstances. the Union Government considers that
it is incumbent upon it. as indeed upon aU other mandatory Powers.
ta consul! the people of the mandated territory regarding the form
which their own future government should take. since they are
the people chiefty concerned. Arrangements are now in train for
such consultations ta lake place and, until they have been concluded,
the South African Govemment must reserve its position conceming
the future of the mandate, together with its right of full liberty of
action, as provided for in paragraph r of articlea of the Charter.
From what I have said I hope it will be clear that South West
Africa occupies a special position in relation to the Union which
differentiates ·that territory from any other under a C mandate.
Tliis special position should be given full consideration in determi
ning the future status of the territory. South Africa is, nevertheless,
properly conscious of her obligations under the Charter. 1 can give
every assurance that any decision taken in regard to the future ~f
the mandate will be characterized by a full sense of our responst
bility,s a signatory of the Charter, ta implement its provisions, in
1 Ibid., p. 40.
2 U.N. P.C., journal, p131. SOUTH WEST AFRICA
consultation with and with the approval of the local inhabitants,
in the manner best suited to the promotion of their material and
moral well-being". '
On 22nd January, 1946, in the Fourth Committee, he added:
"Referring to the text of Article 77, he said that under the
Charter the transfer of the mandates regime to the trusteeship
system was not obligatory. According to paragraph 1 of Article 8o,
no rights would be altered until individual trusteeship agreements
were concluded. It was wrong to assume that paragraph 2 of this
Article invalidated paragraph r. The position of the Umon of South
Africa was in confonnity with this legal interpretation.
He explained the special relationship between the Union and
the territory under its mandate, referring to the advanced stage of
self-government enjoyed by South-West Africa, and commenting
on the resolution of the Legislature of South-West Africa calling
for amalgamation with the Union. There would be no attempt to
draw up an agreement until the freely expressed will of both the
European and native populations had been ascertained. When that
had been done, the decisiOnof the Union would be submitted to the
GenéralAssembly for judgment". 1
(f) Of the other Mandatories the representative of the United
Kingdom stated (on 17th January, 1946):
"We have decided to enter forthwith into negotiations for placing
Tanganyika, the Cameroons and Togoland under the trusteeship
system. Preliminary negotiations have already started. 1 must make
it clear that our willingness to place these territories under the
trusteeship system naturally depends upon our being able to
negotiate tenns which in our view are generally satisfactory, and
which achieve the objectives of the Charter and are in the best
interests of the inhabitailts of the territories concerned ...
Regarding Palestine, the Assembly is aw;rre that an Anglo
American Committee of Enquiry is, at this very moment, examining
the question of European. Jewry, which is one of the most tragic
episodes in the whole of history, and also the Palestine problem.
We think it necessary to await the Committee's report before
putting forward any proposais relating to the future of Palestine.
Regarding the future of Transjordan, it is the intention of His
Majesty's Government in the United Kingdom to take steps in the
near future for establishing this territory as a sovereign independent
State and for recognizing 1ts status as such. In these circumstances,
the question of Transjordan going under trusteeship does not arise". •
The representative of France stated (on 19th January,. 1946):
"The French Government intends to carry on with the work
entrusted to it by the League of Nations. Believing further that it
is in the spirit of the Charter that this work should henceforward
be carried on under the trusteeship system, it is prepared to study
1G.A., O.R., First Sess., First Part, 12th Plenary Meeting, january, 1946,
pp. t85-s6.
s Ibid., Fourth Comm.3rd Meeting, 22nd January, 1946, p. 10.
... Ibinth Plenary Meeting, t]th January, 1946, pp. 166-67. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 247
the terrns of the agreements by which thls regime could be defined
in the case of Togo arid the Cameroons, on the understanding,
however, !hat thls shaJl not entai!, for the populations concerned,
any diminution in the rights which they already enjoy by reason of
their integration into the French community, and further that
these agreements will be submitted for approval to the representa
tive organs of these populations". 1
Other Mandatory Powers, New Zealand, Australia and Belgium,
stated intentions to negotiate trusteeship agreements in respect of
the mandated territories adrninistered by them. '
(g)In its Resolution XI ofgth February, 1946,the General Assembly
(inthe preamble) inter alia expressed regret at the fact that the
Trusteeship Council could not be brought into being at that session,
because trusteeshlp agreements had first to be concluded, and
referred to the above-mentioned recommendation of the Prepara
tory Commission as regards expediting the conclusion of such
agreements. The Resolution proceeded to state inter alia that
"with respect to Chapters XII and XIII of the Charter, the General
Assembly:
Welcomesthe declarations, made by certain States administering
territories now held under mandate, of an intention to negotiate
trusteeship agreements in respect of sorne of those territories and,
in respect of Transjordan, to establish its independence.
Invites the States administering territories now held under man
date to undertake practical steps, in concert with the other States
directly concerned, for the implementation of Article 79 of the
Charter (which provides for the conclusion of agreements on the
terrns of trusteeship for each territory to be placed under the
trusteeship system), in order to submit these agreements for appro
val, preferably not later than during the second part of the first
session of the General Assembly". a
Dissolution of the League of Nations
30. The situation as far as the League of Nations was concerned,
after establishment of the United Nations, was described in a
League publication as follows:
"The adoption of the Charter of the United Nations by a Confe
rence at whlch the great majority of the States Members of the
League werè represented made the Jatter's ultimate disappear
ance a foregone conclusion and from that time onwards.the chief
concem of those responsible for its destinies was to see that its
activities were tenninated in a manner worthy of the part it has
played in world affairs during the las! quarter of a century". •
1
Ibid.16th Plenary Meeting, 19th January, 1946, p. 251.
t Ibid.14th and 15th Plenary Meetings, I8th January, 1946, pp. 227,23238~d
t U.N. Doc. A{64,p.13.
• The LeagueHands Over {1946), p. 61. SOUTH WEST AFRICA
31. The Secretary-General of the League, m a communication
dated the 20th September, 1945, drew the attention of League
Members to the task entrusted at San Francisco to the United
Nations Preparatory Commission relative to "the possible transfer
of certain functions, activities and assets of the League which it
may be considered desirable for the new Organisation to take over
on terms to be arranged". 1 The communication contained a pro
posa! that the Supervisory Commission of the League be empowered
to negotiate with representatives of the United Nations in this
regard and to draw up provisional terms of transfer "subject to the
final decision of the League Assembly". 2 The proposai was accepted
by the Members of the League, and negotiations were entered into
with the United Nations negotiating committee established by its
Preparatory Commission on the r8th December, 1945. 3By reason
of the limited terms of reference of the United Nations committee, 4
the negotiations concerned assets only. The joint deliberations were
successful and resulted in the "common plan", which was approved
by the G~ner a lsembly of the United Nations in Part III of its
Resolution XIV of the 12th February, 1946. 5 It still required the
assent of the League Assembly to become effective.
Alter referring to the United Nations resolutions relative to
8
possible assumption of League functions and powers, the authors
of The League Bands Over stated:
"Thus by the time the Assembly met in its twenty-first session
itwas in possession of the United Nations' plans for taking over the
League's material assets and for carrying on, either directly or
through one of its related agencies, all the League's most important
functions and activities .of a non-political character. Its main
business, therefore, was 'ta make provision for bringing the League
of Nations to an end in orderly fashion, so that as muchas possible
of its surviving work can be continued without interruption and as
much as possibleo( its property can be used to promote those high
purposes of international peace and co-operation for which the
League itself was founded'".'
32. The League Assembly met in its twenty-first, and last session
from the 8th to the 18th April, 1946.
Its final resolution, adopted on 18th April, 1946, provided at the
commencement of its operative part as follows:
1 Vide para. 27 supra.
1 The League Hands Ovrr, p. 6z.
1 Vide para. 28(c) supra.
' Ibid.
5Ibid.
• Vide para. 28 supra.
7 At p. 63. The quotationwas taken from the Report of lhe Firsl Commitlee to
Jhe Assembly in L. of N., O.J., Spec. Sup. No. 194. p. 250. PRELIM!NARY OBJECTIONS OF SOUTH AFRICA 249
"Dissolution of the League of Nations.
I. (1) With effect from the day following the close of the present
session of the Assembly, the League of Nations shall cease to exist
except for the sole purpose of the liquidation of its affairs as provided
in the present resolution". 1
The rest of the Resolution related to practical arrangements
conceming liquidation, which need not be quoted. Of significance
for present purposes, however, is that paragraph 5 thereof approved
of the common plan ·for transfer of assets to the United Nations.
33· "The Assumption by the United Nations of Functions and
Powers hitherto exercised by the League under International Agree
ments" was the heading of a separate resolution adopted earlier
on the 18th April, 1946. It read, in so far as is relevant, as follows:
"The Assembly of the League of Nations,
Having considered the resolution on the assumption by the
United Nations of functions and powers hitherto exercised by the
League of Nations under international agreements, which was adop
ted by the G1neral Assembly of the United Nations on February
16th, 1946.
Adopts the followingresolutions:
I. Custody of theOriginal Texts of International Agreements.
2. Functions and Powers arising out of International Agreements of
a Technical and Non-political Character.
The Assembly recommends the Govemments of the Members of
the League to facilitate in every way the assumption without
interruption by the United Nations, or by specialised agencies
brought into relationship with that organisation, of functions and
powers which have been cntrusted to the League of Nations, under
international agreements of a techuical and non-political character,
and ~hic hhe United Nations is willing to maintain". a
34· "The Assumption by the United Nations of Activities hitherto
performed by the League" was the heading of a further separate
resolution of the 18th April, 1946, reading as follows:
"The Assembly directs the Secretary-General of the League of
Nations to afford every facility for the assumption by the United
Nations of such non-political ilCtivities, hitherto performed by the
League. as the United Nations may decide to assume". 3
35- Finally, "Mandates" was the heading of another important
separate resolution of the 18th April, 1946. Before setting out its
1
L. oj N., 0.]Spu. Sup. No. 194, p. 281.
1 G.A. Resoltdion XIV (1}, 12th NovembeT, 1946, in U.ND~. A/64, p. 35·
L. ofN., O.J Sptc.Sup. No. 194, p. 278.
17250 SOUTH WEST AFRICA
terms, regard is to be had to certain events which preceded its
adoption.
(a) The session was scheduled to last Jess than two weeks, and
delegates knew that it would not be possible to discuss the future
of the Mandate System at any length in an appropriate Committee.
Informa! discussions were consequently initiated between those
Members of the League most directly concerned, with a view to
securing the greatest possible measure of agreement before the
matter was officially considered in the Committee.
In pursuance of the said discussions, the representatives of Man
datory Powers, in addressing the plenary meeting of the Assembly,
made statements indicating the intentions of their Governments
regarding their respective Mandates. In the resolution ultimately
adopted the Assembly "took note" of these statements.
(b) The following are relevant extracts from these statements of
intention by the varions Mandatories:
(i) By the representative of the United Kingdom (on the gth April,
1946):
"The mandates administered by the United King<;lomwere origi
nally those for Iraq,Palestine, Transjordan, Tanganyika, part of
the Cameroons and part of Togoland. Two of these territories have
already become independent sovereign States, Iraq in 1923, and
Transjordan just the other day in 1946. As for Tanganyika and
Togoland under their mandate, and the Cameroons under their
mandate, His Majesty's Government in the United Kingdom have
already announced their intention of placing them under the
trusteeship system of the United Nations, subject to negotiations
on satisfactory tenns of trusteeship.
The future of Palestine cannot be decided until the Anglo
American Committee of Enquiry have rendered their report, but
until the three African territories have actually been placed under
trusteeship and until fresh arrangements have been reached in
regard to Palestine-whatever those arran~eme n tysbe---:-itis
the intention of His Majesty's Govemment m the United Kingdom
.to continue to administer these territories in accordance with the
general principles of the existing mandates".
(ii) By the representative of South A/rica (on the 9th April, 1946):
"Since the last League meeting, new circumstances have arisen
obliging the mandatory Powers to take into review the existing
arransements for the administration of their mandates. As was lully
explamed at the recent United Nations General Assemblyin'London,
the Union Govemment have deemed it incumbent upon them to
consult the peoples of South-West Africa, European and non
European "alike,regarding the forrn which their own future Govem
ment should take. On the basis of those consultations, and having
regard to the unique circumstances which so signally differ
entiate South-West Africa-a territory contiguous with the Union-
1 Ibid., 28. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 251
from ali other mandates, it is the intention of the Union Govern
ment, at the forthcoming session of the United Nations General
Assembly in New York, to formulate its case for according South
West Africa a status under which it would be internationally
recognised as an integral part of the Union. As the Assembly will
know, it is already administered under the terms of the mandate
as an integral part of the Union. ln the meantime the Union will
continue to administer the territory scrupulously in accordance
with the obligations of the mandate, for the advancement and
promotion of the interests of the inhabitants, as she bas done
during the past six years when meetings of the Mandates Com
mission could not be held.
The disappearance of those organs of the League concerned with
the supervision of mandates, primarily the Mandates Commission
and the League Council, will necessarily preclude complete compli
ance with the letter of the mandate. The Union Government will
nevertheless regard the dissolution of the League as in no way
diminishing its obligations under the mandate, which it willcontinue
to discharge with the full and proper appreciation of its responsi
bilities until such time as other arrangements a1e agreed upon
concerning the future status of the terri tory".
(iü) By the representative of France (on the roth April, 1946):
"The French Govemment intends to pursue the execution of
the mission entrusted to it by the League of Nations. It considers
that it is in accordance with the spirit of the Charter that this
mission should henceforth be carried out under the regime of
trusteeship and it is ready to examine the terms of an agreement 1
to define this regime in the case of Togoland and the Cameroons".
(iv) By the representative of New Zealand (on the nth April, 1946):
"New Zealand has always strongly supported the establishment of
the lnternational Trusteeship System, and bas already declared its
willingness to place the mandated territory of Western Samoa
under trusteeship. . . New Zealand does not consider that the
dissolution of the League of Nations and, as a consequence, of the
Permanent Mandates Commission will have the effect of diminishing
ber obligations to the inhabitants of Western Samoa, or of increasing
ber rights in the territory. Until the conclusion of our Trusteeship
Agreement for Western Samoa, therefore, the territory will continue
to be administered by New Zealand, in accordance with the terms
of the Mandate, for the promotion of the well-being and advance
ment of the. inhabitants". •
(v) By the Belgian .representative (on the nth April, 1946):
"At the meeting of the General Assembly of the United Nations
in London on J anuary 2oth last, she declared her intention of
entering into negotiations with a view to placing the Territory of
Ruanda-Urundi under the new regime. ln pursuanceof this intention,
1 Ibid.pp. 32-33.
s Ibid.p. 34·
' Ibid.,p. 43·252 SOUTH WEST AFRICA
the Belgian Government has prepared a draft agreement setting out
the conditions under which it will administer the territory in
question.
In the course of the same declaration of January zoth, we ex
pressed our confidence that the Trusteeship Council would soon
come to occupy in the United Nations Organisation the important
placewhichit deserves. Wecan only repeat that hope here and give an
assurance that, pending its realisation, Belgium will remain fully
alive to all the obligations devolving on m1mbers of the United
Nations under Article 8o of the Charter".
(vi) By the AustraJian representative (on the uth April, 1946):
"The trusteeship system, strictly so called, will apply only to
such territories as are voluntarily brought within its scope by
individual trusteeship agreements... Alter the dissolution of the
League of Nations and the consequent liquidation of the Permanent
Mandates Commission, itwill be impossible to continue the man
dates system in its entirety.
Notwithstanding this, the Government of Australia does not
regard the dissolution of the League as lessening the obligations
imposed upon itforthe protection andadvancement•of theinhabitants
of the mandated territories, which it regards as having still full
force and effect. Accordingly, until the coming into force of appro
priate trusteeship agreements under Chapter XII of the Charter,
the Government of Australia will continue to administer the present
mandated territories, in accordance with the provision of the Man
dates, for the protection and advancement of the inhabitants, In
making plans for the dissolution of the League, the Assembly will
very properly wish to be assured as to the future of the mandated
territories,for the welfare of the peoples of which this League bas
been responsible. So far as the Australian territories are concerned,
there is full assurance. In due course these territories will be brought
under the trusteeship system of the United Nations; until then,
the ground is covered not only by the pledge which the Government
of Australia bas given to this Assembly to-day but also by the
explicit international obligations laid down in Chapter XI of the
Charter, to which 1 have referred. There will be no gap, no inter
regnum, to be provided for". 1
(vii) No statement was made conceming the future of the Pacifie
Islands in respect of which a Mandate bad been granted to Japan.
(c) After the above statements by the representatives of the
United Kingdom and of Respondent bad been made (on the moming
of the 9th April, 1946), but before the others could be delivered,
and while the informai" discussions were still proceeding regarding
the drafting of a resolution, the representative of China, Dr. Liang,
raised the question of the future of Mandates in the First Com
mittee on the aftemoon of the gth April, 1946.
The Committee was at the time considering the draft resolution
conceming assumption by the United Nations of League functions
1 Ibid.
1 Ibid., p47· PRELIMINARY OBJECTIONS OFSOUTHAFRICA 253
and powers arising out of international agreements of a technical
and non-political character (vide paragraph 33 above). Dr. Liang
wished to propose for discussion the following draft resolution,
which he read out:
"The Assembly:
Considering that the Trusteeship Council of the United Nations
has not yet been constituted and that ali mandated territories
under the League have not been transformed into territories under
trusteeship;
Considering that the League functions as supervisory organ for
mandated territories should be transferred to the United Nations
after the dissolution of the League in order to avoid a period of
interregnum in. the supervision of the mandated territories;
Recommends that the mandatory powers as weil as those adminis
tering ex-enemy mandated territories shall continue to submit
annual reports on these territories to the United Nations and to
submit to inspection by the same until the trusteeship council shall
have been constituted ".
The Chairman, however, ruled that the proposai was not relevant
to the item then under consideration by the Comrnittee. What
transpired is set forth as follows in the summary records of the
League:
"Dr. LONELIANG(China) referred to the position of territories
under mandate and to the position which would arise on the disso
lution of the League, in view of the !act thal the trusteeship council
of the United Nations has not yet been appointed and was not
likely to be set up for sorne time. The Chinese delegation wished
to submit a resolutiOn recommending that the mandatory powers
should continue to submit annual reports on the mandated terri
tories to the United Nations and that they should agree to inspection
by the latter, pending the constitution of the trusteeship council.
The Chairman thought that the question raised by the Chinese
delegate could be discussed later, but for the moment they must
confine themselves to examining the resolutions of the United
Nations in the order in which they appeared in document Ajr3. 1946.
The General Assembly of the United Nations had certainly not
had the question of the system of trusteeship in mind when it
drafted its resolution on functions and powers under international
agreements of a technical and non-political character.
Dr. LoNELIANG(China) accepted the Chairman's explanation". '
(d) Following this incident, the informai discussions mentioned
above were renewed, the Chinese delegation also participating
therein. The final outcome was that when the question of Mandates
was reached in the First Committee, on the rzth ApriJ, 1946, the
Chinese delegate, Dr. Liang, himself introduced a new draft of
1 Ibid.p. 76.254 SOUTH WEST AFRICA
which Sir Hartley Shawcross of the United Kingdom said, when
seconding the proposa!, that it
"had been settled in consultation and agreement by ali countries
interested in mandates, and he thought it could, therefore, be
passed without discussion and with complete unanimity". 1
In proposing the new draft resolution Dr. Liang
"recalled that he had already drawn the attention of the Committee
to the complicated problems arising in regard to mandates from the
transferof functions from the League to the United Nations. The
United Nations Charter in Chapters XII and XIII established a
system of trusteeship based largely upon the principles of the
mandates system, but the functions of the League in that respect
were not transferred automatically to the United Nations. The
Assemblyshould therefore take steps to secure the continued appli
cation of the principles of the mandates system. As Professor Bailey
had pointed out to the Assembly on the previous day, the Lea~e
would wish to be assured as to the future of mandated territones.
The matter had also been referred to by Lord Cecil and other
delegates.
It was gratifying to the Chinese delegation, as representing a
country which had always stood for the principle of trusteeship,
that ali the Mandatory Powers had announced their intention to
administer the territones under their control in accordance with
their obligations under the mandates system untit otherarrangements
were agreed upon. It was to be hoped that the futurearrangements
to be made wüh regard to these territories woutd apply in full the
principle of trusteeshipunderlying the mandates system.
The Chinese delegation had pleasure in presenting the draft
resolution now before the Committee, so that the question could be
discussed by the Assembly in a concrete forrn and the position of
the League clarified".1 (Italics added.)
Apart from Dr. Liang's statement, there was no discussion of the
substance of the resolution, which was adopted unanimously (sub
ject to drafting), the Egyptian delegate abstaining and "making
ail reservations on behalf of his Govemment with regard to Pales
tine". 2
(e) The new draft contained what eventually became the Assem
bly's resolution concerning Mandates. The adoption of that Reso
lution by the Assembly on r8th April, 1946, was without discussion,
save that the Egyptian delegate indicated that he would abstain
from voting by reason of a reservation of his Government in regard
to the Mandate for Palestine. The essence of the reservation appears
from the following extracts from his statement:
"The opinion of my Govemment is that Palestine has intellectu
ally, economically, and politically reached a stage where it should
1
Ibid.p. 79.
• Ibid., pp. 78-79. PRELIM!NARY OBJECTIONS OF SOUTH AFRICA , 255
no longer continue under mandate or trusteeship or whatever other
arrangements may be considered .... It is the view of my Govem
ment thal mandates have terminated with the dissolution of the League
of Nations, and that, in so far as Palestine is concemed, there
1
should be no question of putting that country under trusteeship".
(ItaJics added.)
(f) Thereupon the Resolution was adopted (Egypt abstaining)
as follows:
"The Assembly:
Recalling that Article 22 of the Covenant applies to certain
territories placed under mandate the principle that the well-being
and development of peoples not yet able to stand atone in the
strenuous conditions of the modern world form a sacred trust of
civilization:
1. Expresses its satisfaction with the manner in which the organs
of the League have perforrned the functions entrusted to them
with respect to the mandates system and in particular pays tribute
to the work accomplished by the Mandates Commission;
2. RecaJls the role of the League in assisting Iraq to progress
from its status under an 'A' mandate to a condition of complete
independence, welcomes the terrnination of the mandated status of
Syria, the Lebanon and Transjordan, which have, since the last
session of the Assembly, become independent members of the world
community;
3· Recoguises that, on the terrnination of the League's existence,
its functions with respect to the mandated territories will come to
an end, but notes that Chapters XI, XII and XIII of the Charter
of the United Nations embody principles corresponding to those
declared in Article 22 of the Covenant of the League;
4· Takes note of the expressed intentions of the members of the
League now administering territories under mandate to continue
to administer them for the well-being and development of the
peoples concemed in accordance with the obligations contained in
the respective mandates until other arrangements have been agreed 1
between the United Nations and the respective mandatory powers".
1 Ibid.pp. 58-S9·
1 Ibid.pp. 58, 278-79.256 SOUTH WESTAFRICA
CHAPTER II (Continued)
Part B.
EVENTSSUBSEQUENT TO THE DISSOLUTION OF THE LEAGUEOF
NATIONS:1946-1960
THE PERIOD1946-1949
I. Over the years of the Mandate's existence a growing desire
had developed amongst the inhabitants of South West Africa for
closer association with South Africa and for termination of the
Mandate. This desire found concrete expression in resolutions
passed by the South West Africa Legislative Assembly as far back
as 1934. On the 14th May, 1943, the Legislative Assembly again
asked for termination of the Mandate and incorporation of the
Territory in the Union of South Africa. A similar resolution was
passed on 8th May, 1946. ·
Since these resolutions emanated from a body wherein the non
White sections of the population were not directly represented,
Respondent felt that they should be tully and directly consulted
as to their wishes.
Respondent had made known on a number of occasions during
1945 and 1946, its intentions as to the future of South West Africa.
1
This was done first at the San Francisco Conference in May, 1945.
In January, 1946, at the First Part of its First Session, the United
Nations General Assembly was informed, 2 and in April of that
year also the League of Nations Assembly at its final Session, 3
of Respondent's intention to consult the inhabitants of South West
Africa regarding the future of the Territory.
The consultations which were thereupon conducted, resulted
in an overwhelming majority of the non-White inhabitants of
South West Africa expressing themselves in favour of "our country
(becoming) part of the Union of South Africa"; zo8,85o were in
favour, 33,520 were against; and 56,790 could not be consulted
because of practical difficulties.
The results and the manner of consultation, as weil as a reasoned
statement on the question of incorporation, were fully set out in a
"Memorandum on the administration of South West Africa and
on the wishes of its peoples asto the future status of the Territory",
1 Vide Part A, para. 25 supra.
1 Ibid.para. 29.
1 Ibid.para.35 (b(ii). PRELIMINARY OBJECTIONS OF SOUTH AFRICA 257
submitted to the Secretary-General of the United Nations by Res
pondent in October, 1946. 1
2. In November, 1946, the South African representative (Field
Marshal Smuts) further elaborated on the question of incorpora
tion in an address to the Fourth Committee of the United Nations
General Assembly.
He deaJt, inter alia, with the fundamental concepts of the Mandate
System and stressed the importance of the wishes of the inhabitants
of Mandated terri tories as to their ultimate destin y. In emphasising
that South West Africa was "uniquely different" from other
Mandated territories, he referred to the statement by President
Wilson at Versailles 2 as to South West Africa's future association
with South Africa. ·
He advanced many reasons why incorporation would facilitate
the administration of the Territory and would also be in the best
interests of South West Africa and beneficia! to its inhabitants.
He referred to the reservation made by Respondent at the San
Francisco Conference in May, 1945. asto the future of the Territory, 3
and concluded 'by saying he was confident that the United Nations
would recognise that, to give effect to the wishes of the population
of South West Africa, would be "the logical application of the
democratie principles of political self-determination" and would
also be
"the inevitable fulfilment of a historical evolution which is in itself
designed to promote the best interests of the territory and confer
upon it the benefits of the membership of a larger community
without Joss of those individual rights and responsibilities which
the territory enjoyed under the Mandate". •
Sorne days later Field-Marshal Smuts also informed the Fourth
Committee that:
"It would not be possible for the Union Govemment as a former
mandatory to submit a trusteeship agreement in conflict with the
clearly expressed wishes of the inhabitants. The Assembly should
recognise that the implementation of the wishes of the population
was the course prescribed by the Charter and dictated by the
interestsof the inhabitants themselves. If,however, the Assembly
did not agree that the clear wishes of the inhabitants should be
implemented, the Union Govemment could take no other course
than to abide by the declaration it had made to the last Assembly
of the League of Nations to the effect that it would continue to
administer the territory as heretofore as an integral part of the
Union, and to do so in the spirit of the principles laid down in the
mandate.
1 U.N. Doc. A1123, in G.A., O.R., Fir.>t Sess., Second Part, Fourtli Comm., Part 1,
pp. 199·235-
t Quoted s11pra1'art A, para. 8.
1 Vide Part A, para. 25 supra.
' U.N. Doc. AjC. 4/<fl, in G.A ., O.R., First Sess., Second Part, Fourth Comm.,
Part 1, p. 244. SOUTH WEST AFRICA
ln particular the Union would, in accordance with Article 73,
paragraph (e) of the Charter, transmit regularly to the Secretary
General of the United Nations 'for information purposes, subject
to such limitations as security and constitutional regulationmtght
require, statistical and other information of a technical nature
relating to economie, social and educational conditions' in South
West Africa.There wasnothing in the relevant clausesofthe Charter,
nor wasit in the minds ofthose whodrafted these clauses,to support
the contention that the Union Govemment could be compelled to
enter into a trusteeship agreement even against its own view or
those of the people concerned".1
J. Apart from the expressed wishes of the inhabitants, the nume
rous other considerations relied on for incorporation, as set out in
2
the Memorandum and elaborated on by Field-Marshal Smuts in
his addresses, included the following (briefly stated):
(a) Experience had shawn that the circumstances of South West
Africa did not permit of entirely satisfactory administration
under the Mandate System-or any analogous system.
(b) The geographical features and location of South West Africa,
its vast semi-desert areas, its climate and low rainfall, and its
sparse population rendered it incapable of a separate economie
existence.
(c) Experience in two world wars had shawn that for strategie
and security reasons South Africa and South West Africa should
constitute a single unit.
(d) The various peoples of South West Africa had a close ethno
logical and national affinity with those of South Africa-a substantial
number in fact being of South African origin and South African
citizens.
(e) A large measure of integration of the administration of South
West Africa with that of South Africa-as sanctioned by Article 22
of the Covenant and the Mandate-had already taken place, and
further integration was essential if the Territory were to share
fully in the advanced technical and administrative services South
Africa could provide.
(f) South West Africa was economically dependent on South
Africa, not only for financial assistance and the subsidisation of
its economie !ife, but also as a free market for its agricultural
produce.
(g) The uncertainty as to the political future of the Territory
inevitably militated against racial tranquility and the optimum
development of the Territory.
4· In view of the above considerations Respondent considered
that the General Assembly ought to endorse the proposai for in-
1 G.A ., O.R., FiYst Sess., Second Part, Fourth Comm., Part 1, 19th Meeting, 13th
November, 1946, p. 102.
2U.N. Doc. A/123. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 259
corporation. The General Assembly, however, rejected (in Resolu
tion 65 (I)) the proposai on the ground "that the African inhabi
tants of South West Africa have not yet secured political auto
nomy or reached a stage of political development enabling them to
express a considered opinion which the Assembly could recognise on
such an important question as incorporation of this terri tory",
and recommended that South West Africa be placed under the
International Trusteeship System of the United Nations. 1
In rejecting the proposai for incorporation on this ground the
General Assembly reflected on only one aspect of the factors
favouring incorporation, namely the expressed wishes of the popu
lation, and remained silent on ali the others.
In Respondent's view the other factors, especially those relating
to the interests of the inhabitants, were of importance and should
have been given weight in the General Assembly's consideration of
the proposai, particularly if there were doubts as to the ability of
the population to express themselves.
From the !act that the General Assembly did not, in its Resolu
tion 65 (I), reflect on these factors at ail, coupled with the nature
of the discussions in the Fourth Committee, Respondent felt justi
fied in inferring that there were other reasons which had motivated
the approach of at !east sorne Mernbers of the United Nations to
the proposai for incorporation. .
The tone of the statements made in the Fourth Committee and
the General Assembly by sorne delegations was regarded by Res
pondent as an indication that political motivations, unrelated and
even detrimental to the interests of the inhabitants of South West
Africa, would be an inherent element in any supervisory system
under the United Nations. This, in Respondent's view, would
greatly hamper its task in administering the Terri tory; and as
Respondent had assumed a "sacred trust" in respect of the inhabi
tants, it had in any event to be mindful of their expressed wishes
'and their interests.
5· In response to the General Assembly's invitation to Respon
dent "to propose for the consideration of the General Assembly a
trusteeship agreement", 1 ~esponde cnonsequent! y replied by
letter (of 23rd July, r947) to the Secretary-General, inter alia,as
follows:
"the Union Government desire to reiterate their view that it is
implicit in the mandate system and in the mandate for South West
Africathat due regard shaH be had to the wishes of the inhabitants
in the administration of the Territory. The wish clearly expressed
by the overwhelming majority of ali the native races in South West
Africaand by unanimous vote on the part of the European represen
tatives of the Territory that South West Africa be incorporated in
1
G.A. Resolutio65 (I), 14th December, 1946U.N. Doc.A/64/Add.Ip. 123.
(Quotedin extenso in Applicants' Memorials, pp. 43·44).z6o SOUTH WEST AFRICA
the Union therefore debars the Union Govemment from acting in
accordance with the resolution of the General Assembly, and there
by ftouting the wishes of those'who under the Mandate have been
committed to their charge. In the circumstances the Union Govern
ment have no alternative but to maintain the status quo and to
continue to administer the territory in the spirit of the existing
Mandate". 1
In the same letter Respondent referred to a resolution adopted
by the House of Assembly of the Union Parliament, on rrth April,
I947, reading as follows:
"Whereas in terms of the Treaty of Versai!,es full powerof legis
lation and administration was conferrend on the Union of South
Africa in respect of the Territory ofSouth West Africa, subject only
to the rendering of reports to the League of Nations; and
Whereas the League of Nations has since ceased to exist and was
not empowered by the provisions of the Treaty of Versailles or of
the Covenant to transfer its rights and powers in regard to South
West Africa to the United Nations Organisation, or to any other
international organisation or body, and did not in fact do so; and
Whereas the Union of South Africa has not by international
agreement consented to surrender the rights and powers so acquired,
and bas not surrendered these by signing the Charter of the United
Nations Organisation and remains in full possession and exerctse
thereof; and
Whereas the overwhelming majority of both the European and
non-European inhabitants of South West Africa have expressed
themselves in favour of the incorporation of South West Africa
with the Union of South Africa;
Therefore this House is ofopinion that the Territory should be re
presentedinthe Parliamentof the Unionasanintegral portion thereof
and requests the Government to introduce legislation, after consul
tation with the inhabitants of the Territory, providing for its re
presentation in the Union Parliament, and that the Government
should continue to render reports to the United Nations Organi-.
sation as it has done heretofore under the Mandate". 2
The letter also referred to the fact that "the Union Government
have already undertaken to submit reports on their administration
for the information of the United Nations". •
6. In compliance with an undertaking given by Respondent at
the First Session of the General Assembly in 1946, meetings were
held throughout South West Africa during I947 to acquaint the
non-White inhabitants with the General· Assembly's resolution
65 (I). These meetings showed that the overwhelming majority
were stil in favour of incorporation. Likewise, the South West
Africa Legislative Assembly on the 7th May, 1947, unanimously
adopted a further resolution urging incorporation .
. U.N. Doc.A/334. inG.A., O.R., Stcond Sess., Fourlh Comm.p. 135.
2 Ibid., p. 134.
1 Vide para.2 supra. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 26r
The wishes of the people of South West Africa were again com
municated to the United Nations in a special report, 1 and were
further elaborated on by the South African representative in the
Fourth Committee on the 25th September, 1947. He intiinated that
Respondent:
Would not proceed with the incorporation of South ·West Africa;
Would consider itself under no legal obligation to propose a
trusteeship agreement for the Terri tory;
Could not further ignore the wishes of the great majority of the
inhabitants of South West Africa who favoured incorporation, by
placing the Territory under the Trusteeship System; and
Would continue to maintain the status quo, to administer the
Territory in the spirit of the Mandate, and to transmit to the
United Nations for its information an annual report on the adminis
tration of the Territory of South West Africa.
At the thirty-third meeting of the Committee on 27th September,
1947, in response to a request by the representative of Denmark
for amplification of Respondent's proposai regarding maintenance
of the status quo, the representative of the Union of South Africa
explained that:
"the annual report which his Government would submit on South
West Africa would contain the same type of information on the
Territory as is required for Non-Self-Goveming Territories under
Article 73 (e)of the Charter. Itwas the assumption of his Govern
ment, he said, that the report would not be considereà by the
Trusteeship Council and would not be dealt with as if a trusteeship
agreement bad in fact been concluded. He further explained .that,
since the League of Nat ions had ceased to exist, the right to submit
petitions could no longer be exercised, since that right presupposes
a jurisdiction which would only exist where there is a right of
control or supervision, and in the view of the Union of South
Africa no such jurisdiction is vest.edin the United Nations with
regard to South West Africa".'
7· In November, 1947. the South African representative dealt
in the General Assembly with the question of an alleged moral
obligation to submit a trusteeship agreement-a contention based,
firstly, on the fact that ali other Mandated territories had been
placed under the Trusteeship System or had been offered indepen
dence, and secondly, on resolutions of the General Assembly of
9th February 3 and 14th December, • 1946. He again stressed the
many and material respects in which South West Africa differed
from other Mandated territories, and emphasised that Respondent
would be acting in defiance of the wishes of the vast majority of
1 U.N. Doc. A/334/Add. 1, in G.A ., O.R., Second Sess., Fourl11Comm., pp. IJ6·J8.
1U.N. Doc. A/422, in G.A., O. R., Second Sess., Plenary Meetings, Vol. Il, p. 1538.
• G.A. Resolu/ion XI(1), in U.N. DA/6~ ..IJ.
• G.A. Resoluti65(!). SOUTH WEST AFRICA
the inhabitants if a trusteeship agreement were concluded. He
added !hat, whereas the resolution of gth February, 1946, conveyed
an invitation, and that of r4th December, rg46, a recommendation,
!hat a trusteeshi p agreement be submitted in respect of South
West Africa, his Government had "conscientiously performed" its
dut y in giving "most anxious consideration" to the recommendation,
but could not accede thereto. 1
At the same time he informed the General Assembly that
"the Union of South Africa has expressed its readiness to submit
annual reports for the information of the United Nations. That
undertaking stands. Although these reports, if accepted, will be
rendered on the basis that the United Nations has no supervisory
jurisdiction in respect of this territory they will serve to keeP.the
United Nations informed in much the same way as they will be
kept informed in relation to Non-Self-Governing Territories under
Article 73 (e)of the Charter". '
8. Despite the above, the General Assembly adopted a resolution
maintaining its previous recommendation that South West Africa
be placed under the Trusteeship System and urging Respondent to
propose for the consideration of the General Assembly a trusteeship
agreement for the Territory, motivating its resolution in the fol
lowing terms:
"Whereas it is a fact that ali other States administering territories
previously held under mandate have placed these territories under
the Trusteeship system or offered them independence". •
At the Tnird Session of the General Assembly in 1948 the South
African representative formally reiterated
"that the Union Government, alter full consideration of ali the
aspects of the matter, had once again come to the conclusion that
it would be in the interests neither of the Territory of South West
Africa and its people, nor of the Union and its people, to place the
Territory under the authority of the Trusteeship Council of the
United Nations, and that, in the circumstances, the Government
regretted not being able to comply with the request of the United
Nations Assemblyto submit, voluntarily, a trusteeship agreement". '
g. ln compliance with its earlier voluntary undertaking, Respon
dent submitted in September, 1947, a report on South West Africa
for the year 1946.
This report was submitted on the basis clearly stated in the said
undertaking, namely:
(a) that it would be for information purposes only, containing
1 G.A ., O.R., Second Ses105th Plenary Meeting, zst November, 1947. p. 632 et
stq.
1 Ibid.p. 632.
1 G.A. Resolutio141(II). Jst November, 1947, U.N. Doc. A{519, p. 47·
" G.A ., O.R., Third Sess., Fourth C76th Meeting, 9th November. 1948, p. 292. PRELIMI"ARY OBJECTIONS OF SOUTH AFRICA 263
the same type of information on the Territory as required for Non
Self-Governing Territories under Article 73 (e) of the Charter; and
(b) that Respondent did not recognise the United Nations as
a supervisory authority in respect of the Territory-the reports
not being intended for use by the United Nations as if the latter
were the supervisory authority or as if a trusteeship agreement had
in fact been entered into.
After receipt of this report, the General Assembly authorised
"the Trusteeship Council in the meantime to examine the report on
South West Africa ... and to submit its observations thereon to the
General Assembly". 1
Respondent declined an invitation by the Trusteeship Council
to send a representative to attend its examination of the Report
since such action would not have been consistent with its view
that the Council was not vested with supervisory functions in
respect of South West Africa.
Respondent, however, offered to transmit further information
in writing if requested to do so. In response to such a request,
further information was submitted; and in a covering letter of
Jist May, Respondent, inter alia:
"re-iterate(d) that the transmission to the United Nations of in
formation on South \Vest Africa, in the form of an annual report or
any other form, is on a voluntary basis and is for purposes of in
formation only. They have on several occasions made it clear that
they recognize no obligation to transmit this information to the
United Nations, but in view of the wide-spread interest in the
administration of the Territory, and in accordance with normal
democratie practice, they are willing and anxious to make available
to the world such tacts and figures as are rcadily at their disposa! ...
The Union Government desire to n~ca tllt in offering to submit a
report on South West Africa for the information of the United
Nations, they did so on the basis of the provisions of Article 73 (e)
of the Charter. This Article calls for 'statistical and other informa
tion of a technical nature' aud makes no reference to .information
on questions of policy.
In these circumstances the Union Government do not consider
that information on matters of policy, particularly future policy,
should be included in a report(or in any supplement to the report)
which is intended to be a factual and statistical account of the
administration of the Territory over the period of a calendar year.
Nevertheless, the Union Govemment are anxious to be as helpful
and as co-operative as possible and have, therefore, on this occasion
replied in full to the questions dealing with various aspects of
policy. The Union Govemment do not, however, regard this as
creating a precedent. Furthermore, the rendering of replies .on
policy should not be construed as a commitment as to future pohcy
or as implying any measure of accountability to the United Nations
on the part of the Union Govemment. In this connexion the Union
1 G.A. ResolutioI4I(II). SOUTH WEST AFRICA
Government have noted that their declared intention to administer
the Territory in the spirit of the mandate has been construed in
sorne quarters as implying a measure of international accouritability.
This construction the Union Govemment cannat accept and they
would again recall that the League of Nations at its final session in
April, 1946, explicitly refrained from transferring its fonctions in
respect of mandates to the United Nations".'
When the Trusteeship Council's observations on the Report on
2
South West Africa came before the Fourth Committee in 1948,
the South African representative referred to Respondent's earlier
reservations, and stated that, in view thereof:
"the Union could not admit the right of the Trusteeship Council
to use the report for purposes for which it had not been mtended:
stillless could the Trusteeship Council assume for itself the power
claimed in its resolution i.e. 'to determine whether the Union of
South Africa is adequately discharging its responsibilities under the
terms of the mandate ...' Furthermore, that power was claimed in
respect of a territory which was not a trust territoryan~ in respect
of which no trusteeship agreement existed. The South Afncan
delegatio3 considered that in so doing the Council had exceeded its
powers''.
The South African representative also observed that the Trustee
ship Council, in dealing with the report, apparently considered
that it had a supervisory fonction in respect of South West Africa
and that Respondent was accountable to it for the administration
of the Territory-which was not in accordance with the basis of the
undertaking ~vit rhgard to reports. ' -
ro. Respondent does not deal herein with the substance of the
Trusteeship Council's comments on the report. ' What is relevant,
however, is that those comments and the subsequent discussions
thereon did not observe the reservations under which the report had
been submitted.
Moreover, many of the conclusions contained in the Trusteeship
Council's observations were apparently based on misconceptions
asto conditions in the Territory, and the discussions in the Fourth
Committee made it clear to the South African delegation that
similar misconceptions existed also amongst sorne of the Members
of that Committee. The South African representative consequently
dealt at length with conditions in the Terri tory • in order to ac
quaint the Committee with the true facts. It was found, however,
that a majority of Members did not pay regard to the information
1 U.N. Doc. T.175. Jrd June, 1948, pp. ii-iii.
1 G.A ., O.R., ThiS~ss Su, .No. 4 (A/6oJ), pp. 42-45·
1 G.A ., O.RThird Sess., Fourth Com76th Meeting, 9th Kovember, 1948, p. 288.
t Ibid., 77th Meeting, 1oth November, 1948, p. 297.
~ Vide Part A, para. supra.
'G.A.',O.R., Third Sess., Fourth Comm.78th Meeting, uth November, IQ.fS,
p. 30S et seq. PRELIMINARY OBJECTIONS OF SOUTH AFR!CA 265
given, and sorne continued with prepared speeches based on the
Trusteeship Councils observations and the misconceptions involved
therein-a fact to which the South African respresentative drew
attention: 1
Representatives of certain States also used the occasion for
attacking Respondent's domestic policies in the Union. The South
African representative had occasion to point out that such attacks,
based on unfounded allegations, were unrelated to the welfare
of the peoples of South West Africa.
In a statement to the General Assembly on 26th November,
1948, after explaining once more the reasons why South Africa
could not enter into a trusteeship agreement, the South African
representative in conclusion recalled:
"that the League of Nations, at the last session of its Assembly,
had not referred to Trusteeship Agreements and had simply stated
that territories should be administered as heretofore until other
arrangements could be made. The Union was anxious to make
arrangements which would be satisfactory to ali concerned. AUhe
asked the General Assemblywas that it should not make his Govern
ment's task more difficult and should believe in his country's good
faith as the previous Mandates Commission had done. The Union
was not likely to do anything in connexion with the territory of
South West Africa which might earn the ill-will of other nations.
He asked the Assembly to keep the door open for other arrange
ments". 2
The majority in the General Assembly nevertheless supported
a resolution maintaining its previous requests that South West
Africa be placed under the United Nations Trusteeship System and
expressing regret that Respondent had not yet doue so. This reso
lution (227 (III)) also contained the .following recommendation:
"... Without prejudice to its resolutions of 14 December, 1946, and
1 November, 1947, that the Union of South Africa, until agreement
is reached with the United Nations regarding the future of South
West Africa, continue to supply annually information on its ad
ministration of the Territory". a
II. In a letter of nth July, 1949, to the Secretary-General,
Respondent referred to the previous explanations for its inability
to place South West Africa under the United Nations Trusteeship
System and, in.referring to resolution 227 (III), stated inter alia,
"... The recommen.dation of the General Assembly that the Union
should continue to supply iilformation on its administration of
South West Africa bas been given most careful consideration.
It will be recalled, however, that the Union Government have
at no time recoguised any legal obligations on their part to supply
information on South West Africa to the United Nations, but in a
1 Ibid.Szst Meeting, z6th November, 1948, pp. $43-44·
1 Ibid., 164th Plenary Meeting, z6th November;-'1948, pp. 589-90..
1G.A. ResoluJion 227(III), 26th November, 1948, in U.N. Doc. A/BIO, pp. 89-91.
18266 SOUTH WEST AFRICA
spirit of goodwill, co-operation and helpfulness offered to provide
the United Nations with reports on the administration of South
West Africa, with the clear stipulation that this would be done on
a voluntary basis, for purposes of information only and on the
distinct understanding that the United Nations has no supervisory
jurisdiction in South West Africa. In this spirit a report was sub
mitted in 1947. and in 1948 detailed replies were fumished to a
subsequent questionnaire, formulated by the Trusteeship Council.
It was emphasised at the time that the forwarding of information
on policy should not be regarded as creating a precedent, or con
strued as a commitment for the future or as implying any measure
of accountability to the United Nations on the part of the Union
Government. The Union Govemment also expressed their confidence
that the Trusteeship Council would approach its task in an entirely
objective manner and examine the report in the same spirit of
goodwill, co-operation and helpfulness as had motivated the Union
in making the information available.
These hopes have not been realised. Instead the submission of
information has provided an opportunity to utilise the Trusteeship
Council and the Trusteeship COmmittee as a forum for unjustified
criticism and censure of the Union Government's administration
not only in South West Africa but in the Union as weil. Inferences
and deductions have been drawn from the information submitted
which are quite inconsistent with tacts and realities. The misunder
standings and accusations to which the United Nations discussions
of this subject have given rise have had repercussions bath in the
Union and in South West Africa, with deleterious effects on the
maintenance of the harmonious relations which have hitherto
existed and are so essential to successful administration. Further
more, the very act of submitting a report has created in the minds
of a number of Members of the United Nations an impression that
the Trusteeship Council is competent to make recommendations
on matters of interna! administration of South West Africa and has
fostered other misconceptions regarding the status of this Territory.
In these circumstances the Union Govemment can no longer
see that any real benefit is to be derived from the submission of
special reports on South West Africa to the United Nations, and
have regretfully come to the conclusion that in the interests of
efficient administration no further reports should be forwarded.
In coming to this decision the Union Govemment are in no way
motivated by a desire to withhold from the world factual and other
information regarding South West Africa published in accordance
with the customary practice of democratie nations, and information
of this nature previously embodied in annual reports to the Leagne
of Nations or the United Nations will continue to be made available
to the general public in the form of statistics, departmental reports,
reportsby the Administrator to the South West African Legislature,
blue books, and other governmental publications". 1
At the Fourth Session of the General Assembly in September,
1949, the South African representative (with reference to the afore-
1 U.'N. Doc. Aj929, in G.A ., O.R.. FourJhSess., FourthAnne~.,p. 7· PRELIMINARY OBJECTIONS OF SOUTH AFRICA 267
said Jetter) dealt fully with Respondent's decision to discontinue
the submission of reports. 1
I2. In the premises aforestated the following statements by the
Applicants regarding the events over the years 1946 to 1949 are
unfounded:
(a) "The Union's announcement [thatsubmission of reportswould
be discontin2ed} signalled its repudiation of previous explicit com
mitments".
There was neither an explicit commitment nor a repudiation.
From the outset Respondent had made it clear that reports wouJd
be submitted voluntarily, for information purposes on!y and not
in recognition of any supervisory functions vested in the United
Nations.
This was Respondent's attitude throughout and was explicitly
repeated in statements to, and correspondence with, the United
Nations over the years under consideration. When therefore, the
General Assembly failed to observe the reservations attached to
Respondent's undertaking, withdrawal thereof did not involve a
repudiation of a commitment. 3
(b) "By November, I948, the Union Government was open/y
denying its obligations under the Mandate and insisting-in contra
diction ·to its statements of a year earlier-that the Mandate had
expired". •
In support of this contention Applicants refer to a statement by
Mr. Eric Louw, the representative of South Africa, in November,
1948, in which he referred to the "previous Mandate, since expired".
From the outset, and throughout the years under consideration,
Respondent had repeatedly stated its intention to observe the
"i;acred trust" which it had assumed, and to administer the Terri
tory "in the spirit of the Mandate".
In !act, the very statement of Mr. Louw, referred to above,
contained also the following:
"It is the firm intention of the South African Govemment to
administer the territory in the spirit of the mandate which was
originally conferred upon the Union, and that it will at ali times
promote to the best of its ability the wellbeingof ali sections of the
population.
In making this statement, 1 am obliged to add that the words
'the spirit of the mandate' should not be interpreted as including
1 G.A ., O.R., Fourth Sess., Fou,-thCom128th Meeting, 18th November, 1949,
p. 200.
1 Vide Applicants'Memorials,p. 47·
* The General Assembly itself in this regard rec9rded that Respondent bad
"withdrawn its previous undertaking" (G.A. Res;· 337(IV)) in preference to earlier
proposed wording objectedto by Respondent to the effect that it had "repudiated
its previous assuranceVide G.A ., O.R., Fourth Sp_ss., 269th Plenary Meeting, 6th
December, 1949, p. 535·
• Applicants'Memoiials,p. 47· SOUTH WEST AFRICA
obligations other than that stated in the preceding sentence. It is
unfortunately necessary for me to state this proviso because of the
!act that the same phrase, when used by the previous government,
was later interpreted in a manner which was not in accordance with
the intentions of the then government". 1
This attitude was repeated in the following statement of the
South African representative to the General Assembly on 6th
December, 1949:
"My Government is fully conscious of that trust, and whatever
our critics may say, it bas never deviated from the path alongwhich
it is endeavouring to lead the peoples of South West Africa to the
achievement of that degree of development which is their right and
which it is my Government's duty to ensure to them". •
On the other band, Respondent had from the dissolution of the
League taken up the attitude that the Mandate in its original form,
and with the obligation? imposed therein, particularly that of
accountability to the League of Nations, bad not survived the
League.'
Respondent, therefore, white denying that the United Nations
was vested with supervisory functions over South West Africa (an
attitude maintained throughout) at the same time intimated that
it would observe the "sacred trust" assumed under the Mandate
and would administer the Territory in the spirit of the Mandate
(also an attitude maintained throughout).
(c) "lt is apparent from the history summarized above that in the
period I946-I949, the Union's Policy concerning the Mandate under
went a marked change. At the beginning of the period, the Union
concededthe existence of the Mandate and its obligations thereunder,
including that of rendering reports to the United Nations. By the end
of the period, the Union was referring to the Mandate as 'the previous
Mandate, since expired', insisting that the administration of the
Territory was a matter solely of interna! concern, and refusing to
render reports to the United Nations". 4
Respondent's policy underwent no marked change over the period
1946-1949, particularly in that:
(i) At no time after the dissolution of the League did Respondent
concede the existence of the Mandate in its original form and as
stiJl encompassing its original obligations.
(ii) Respondent throughout denied that the United Nations was
vested with any supervisory functions in respect of South West
1 Verbatim text. A summary appears in G.A., O.R., Third Sess., Fourth Comm.,
76th Meeting, gth November,- 1948, p. 293·
1 Verbatim text. A summary appears inG.A., O. R., Fourth Sessz6gth Plenary
Meeting, 6th December, 1949, para. 9, p. 524.
1 Vide e.gstatement by Field-Marshal Smuts of November, 1946, quoted in para.
2 supra,and ex tract from letter of 23rd July, 1947, cited isupra . 5
., ApplicantsMemorials, p. 48. PRELIMINARY OBJECTIONO SFSOUTH AFRICA 26<)
Africa and throughout denied that it was obliged to render reports
to the United Nations.
(iii) Respondent throughout maintained its expressed intention
to observe the "sacred trust" which it had assumed and to adminis
ter the Territory in the spirit of the Mandate.
13. The statement by the representative of Liberia quoted at
page 47 of the Applicants' Memorials, to the effect that Respondent
wished to have the annexation of South West Africa accepted as a
"fait accompli", was unfounded and was, at the time, specifically
denied by the South African representative who said, inter alia,
the following:
"I endeavoured to prove to the Committee that not only was
the doser association between the Union and the territory, ... within
the authority conferred upon my Government by the mandate, but
also that it was not 'annexation'-the territory having retained its
separate identity ...
Yet my Govemment was accused of having unilaterally annexed
the territory and of having placed this organization before an
accomplished fact. This criticism was maintained throughout our
debates-and that despite the tacts of the case to which my dele
gation.repeatedly drew attention. Surely, argument however frank
and honest, cannat prevail under such circumstances". 1
The General Assembly, in Resolution 227 (Ill) of 26th November,
1948, took note of Respondent's assurance that its contemplated
legislation for doser association "does not mean incorporation".
Respondent had previously made it clear that it did not intend
proceeding with its proposai to incorporate South West Africa in
the face of the United Nations' rejection of that proposai.'
14. The General Assembly in 1949 decided to ask the Court for
an Advisory Opinion, but not only for the reason stated by the
Applicants, namely, that Respondent's concepts of its legal obli
gations under the Mandate were essentially at variance with those
of most other United. Nations Members -it 3 was also because the
other United Nations Members were not in agreement as to Res
pondent's obligations, particularly with regard to the submission
of a Trusteeship Agreement for South West Africa. •
THE PERIOD1950-1960
l ntroduction
15. A portion of Applicants' Memorials with the same heading
as the above ' contains a briel summary of events over the period
1 Verbatim text. A surnmary appears iG.A .O. R., Fourth Sess:z69th Plenary
.Meeting, 6th December, 1949, paras. r3 and Lf, p. 524.
1 Vide e.gparas.2 and 5 supra.
1 Applicants'MemOTials,p. 48:
" Videsummary of attitudes of Members as given in the Written Statement of the
U.S.A. in" International status of South-West Africa, Pleadings, Oral Arguments, Do
cuments", pp.122-23.
' Memorials, pp. 48-51.270 SOUTH WEST AFRICA
1950-I96o. The broad outlines of fact as presented therein are
substantially correct; but certain statements require comment with
a view to proper perspective.
(a) The importance of the "restrictive nature" of the Ad Hoc
Committee's terms of reference., will be dealt with below in the
year-by-year chronology of events. There was, however, a further
important reason, also reverted to below, for the failure of the
negotiations between Respondent and this Committee. This was
the insistence by the majority of Members in the General Assembly
that Respondent should place South West Africa under United
Nations Trusteeship-despite Respondent's objections and the
Court's Opinion that it was not obliged to do so.
(b) While the reports of the Committee on South West Africa
have in fact "annually criticised the Union sharply for the manner
in which the Union administers the terri tory", 2 the question
3
whether the criticism was justified cannot be canvassed herein .
Respondent on many occasions protested that the Committee's
findings were based on unreliable information and were unjustified.
(c) The statement that "the Union bas refused to co-operate with
the Committee" • (on South West Africa) is an over-simplification,
possibly derived from the Committee's own interpretation of the
situation. The statement is correct insofar as it signifies that Res
pondent was not prepared to accept supervision by the Committee
of the administration of South West Africa. Failure of negotiations,
however, was again due mainly to the restrictive terrns of reference
on which the Committee was to negotiate, as will be dealt with
later.
(d) The account of negotiations between Respondent and the
Good Offices Committee ' makes no mention of the fact that there
was, as between Respondent and that Commitke, agreement asto
the possibility of an approach which merited investigation, but
that the Committee's recommendation in that regard was rejected
by the majority in the General Assembly-a matter more lully
dealt with later. Moreover, the words "existing rights of the United
Nations to supervise the administration of the Mandate" • beg
the question in respect of one of the vital issues requiring nego
tiation. For reasons to be dealt with later, Respondent was unable
to accept the 1950 Advisory Opinion of the majority of the Honour
able Court, with regard to supervision, on which opinion the refer
ence to "existing rights" is apparently based.
(e) The statement that "repeated debates and resolutions have
failed to bring about the Union's compliance with the Mandate" '
11bid.. p. 49·
s Ibid., p. 50.
3 VidePart A, para.1supra.
4Memorials, p. 50.
'Ibid.,p.ji. PRELIMl"ARY OBJECTIONS OF SOUTH AFRICA 271
also involves an assumption consistently disputed by Respondent.
Respondent maintains that it faithfully honours the spirit of the
Mandate in the administration of the Territory (a matter not can
vassed herein) 1 and thal it owes no accountability to the United
Nations in respect thereof, a matter lully deal! with later.
Summary of the Court's Advisory Opinions:
r6. Applicants' summary of the Court's three Advisory Opinions
2
as set out in the M emorials does not require comment save
thal with regard to the Advisory Opinion of rrth July, rgso. Res
pondent desires to draw attention to the following:
(a) The following quotation from the Opinion of the Majority,
namely, that Respondent's obligations under the Mandate
"represent the very essence of the Sacred trust of civilization. Their
raison d'être and original abject remain. Since their fulfilment did
not depend on the existence of the LeagneofNations, they couldnot
be brought to an end merely because this supervisory organ ceased
to exist. Nor could the righi of the population to have the Territory
administered in accordance with these rules depend thereon",
was clearly intended to apply only to the obligations relati ton~
the administration of the Territory, and not to the obligatwns
relating to the machinery for implementation, i.e. the obliga3ions
to accept international supervision and to submit reports. The
last-mentioned obligations were stated by the Majority of the Judges
to be "an important part of the Mandates System". •
(b) Applicants' statement !hat
"The Court affirmed the Union's international obligations under
Article 22 of the Covenant and under the Mandate, including the
duty to render annual reports and to transmit petitions from in
habitants of the Territory, and confirrned as weil the power of the
United Nations to exercise supervisory funetions and to receive the
annual reports and petitions", &
reflects the Majority Opinion only. Two Judges (Judges MeNair and
Read), dissented, expressing the view that the supervisory powers
of the League bad not passed to the United Nations, and that
Respondent was not obliged to submit reports and transmit peti
tions to the United Nations.
Respondent will not deal here with the reasons advanced by the
Court for its tonclusions, but will do so in stating Respondent's
legal contentions in Chapters III to V below.
1 Vide Part A, para.1 supra.
1 Memoria/s,pp. 51·54·
1 "International status of South·West Africa, Advisory Opinion: I.C.J. Repo,ts
I950", p. IJJ.
t Ibid.p. IJ6.
1 Memorials,p. 52 SOUTH WEST AFRICA
Year-by-year Chrono/ogy of Relevant Events: rgso-rg6o
1950
17. When the Fourth Committee considered the Court's Ad
visory Opinion of the nth July, 1950, the South African represen
tative stated at the outset that Respondent's attitude to the
Opinion could only be defined in the light of the debate in, and any
resolution which might eventually emanate from, the General
Assembly. He assured the Fourth Committee that Respondent did
not wish to close the door to a friendly solution of a question which
had been in dispute lor so long and hoped that the United Nations
would not do so either. He pointed out that white the Court's
Opinion was entitled to the greatest respect, it was not automatically
·binding on the parties concerned, as would be a judgment.
Furthermore, since the Court had given its Opinion, important
facts had come to light bearing directly on the reasoning and con
clusions of the Court with regard to certain material points. He
contended that if these facts had been placed 'before the Court it
would probably not have come to the conclusion reached (in the
Majority Opinion) with regard to transfer to the United Nations
ofthe League's supervisory functions.
As to the .additional facts which had come to light he dealt at
length with the circumstances. surrounding, and the developments
1eading up to, the adoption by the League of its resolution of r8th
April, 1946, with special reference to the first Chinese draft reso
lution.1
He stated that the additional information had to be carefully
weighed and considered by his Government together with:
(a) the fact that severa! widely varying interpretations of the
Court's Opinion had been put forward in the Fourth Committee;
and
(b) the attitude of the United Nations in regard to the inter
national position of South West Africa as expressed in any resolu
tion by the General Assembly.
He concluded his statement as follows:
"lt would be premature to expect me to say or do anything which
could possibly be interpreted as binding my Govemment in any
way until it bas bad every opportunity of considering lully and
carefully thewhole problem in all its aspects". •
r8. White it was evident that the majority of Members of the
United Nations were prepared to accept the Advisory Opinion,
there was a difference of view in regard to the manner in which the
Opinion was to be implemented. Sorne members favoured an
immediate decision to set up an ad hoc body to deal with annual
1
tVerbatim text., A summary appears in G.A ., O.R., Fijth Sess., Fourth Comm.,
Ig6th Meeting, 4th December, 1950, para. 52, p. 364. (Vide also paras. 41-51, pp.
362-64.) PRELIMINARY OBJECTIONS OF SOUTH AFRICA 273
reports and petitions, while others felt that a basty decision would
prove ineffective, that the Fourth Committee acting unilaterally
bad no right to set up and impose supervisory machinery and that
Respondent's co-operation was essential. This resulted in the
eventual adoption of a compromise resolution (449 A {V)) accepting
the Court's Advisory Opinion and, inter alia, establishing an Ad
Hoc Committee,
(a) to confer with Respondent on the "procedural measures
necessary for the implementation of the Advisory Opinion"; and
1
(b) to examine reports and petitions.
19. Respondent could not support the adoption of this resolution,
and explained to the General Assembly that, in its view, the reso
lution, inter alia;
(a) took no account of the additional facts referred to in para
graph 17 above;
(b) established unilaterally, despite Respondent's protests, ma
chinery for the examination of reports and petitions;
(c) assigned these supervisory functions to the very body created
for the purpose of conferring with Respondent on the implemen
tation of the Court's Opinion; and
(d) restricted the terms of reference in a way which held out
little hope of fruitful discussions. 2
20. Although Resolution 449 A (V) created machinery for nego
tiation, the General Assembly on the very same date adopted
Resolution 449 B (V). again urging Respondent to place South West
Africa under the United Nations Trusteeship System.
The inconsistency of an the one band offering "negotiations"
with a view to amicable settlement of a dispute, while on the other
band making what in effect amounted to an extreme demand
relative to that dispute, namely United Nations Trusteeship for
South West Africa, was to become a regularly recurring feature
in the history of this matter.
21. Applicants' statements that,
"The Union, however,made it clear very early thal it would not act
in accordwith the Advisory Opinion ...", •
and
"The Union's refection of the Court's rulings in its AdvisoryOpinion
was made mani fest.from the outset",4
are incorrect, particularly insofar as the context appears to suggest
that such an attitude was displayed in the 1950 debates of the
1
G.A. Resolution 449 A{V), 13th Decembe1950, in G.A., O.R., FifthSess.,Sup.
No1 zo (Afrns).pp. 55-56.
3G.A., O.R., Fijth Sess., 322nd Plenary Meeting, 13th December, 1950, p. 629.
• Ibid., p. 56. emorials, p. 55·274 SOUTH WEST AFRICA
General Assembly. Indeed, Respondent made it clear at the outset
that it would be able to define its position with regard to the Court's
Opinion only alter careful consideration bad been given to the
debates and to any resolutions which might be adopted. (Vide
para. I7 above).
The observation of the representative of China, as cited by
Applicants, 1 in no way affects the significance of the additional
facts relied upon by Respondent, as will be further demonstrated in
Chapter III below.
I95I
22. Respondent, despite its opposition to Resolution 449 A (V)
and its expressed views regarding the profitability of the proffered
negotiations, agreed to confer with the Ad Hoc Committee on South
West Africa in an effort to arrive at a definite settlement of the
South West Africa question. 2
23. In the course of the discussions which ensued, the South
African representative emphasised that the Court"s Opinion was
advisory and thus not binding either upon the United Nations or
upon Respondent. He explained lully the reasons why Respondent
could not accept the Court's Opinion relating to accountability to
the United Nations as a supervisory authority in succession to the
League. Nevertheless, his Govemment realised that negotiation
would be impossible if it were to maintain its standpoint rigidly. •
24- Respondent accordingly expressed its preparedness, in
deference to the wishes of the General Assembly, to negotiate a
new international instrument embodying those obligations of the
Mandate which, in the view of the Court, related directly to the
"sacred trust" (Articles 2 to 5 of the Mandate), and, if considered
necessary, also an obligation, similar to that of Article 7 of the
Mandate, to submit to the jurisdiction of the International Court
of Justice. Thereby the difference of view asto whether the Mandate
bad lapsed or not would be rendered a matter of no further practical
importance.
The new international instrument would be concluded with the
three remaining Principal Allied and Associated Powers of the
First World War (France, the United Kingdom and the United
States of America) as principals and not as agents of the United
Nations. These three Powers were historically associated with the
Mandate, were permanent members of the Security Council of the
United Nations and bad a recognised position in international
affairs.4
1Ibid.,pp. 55·56.
a Vide U.N. Doc. AtAC.49JSR.2,pp. 2·4·
1Vide U.N. Docs. A/AC. 49/SR. 3 and 7·
' V .N. Doc. A/1901, in G.A ., O.R., Sixth Sess .. Annexes (Agenda iteI.38), pp. 2-I PRELIMINARY OBJECTIONS OF SOUTH AFRICA 275
25. The Committee felt that Respondent's proposais "did not
give the United Nations a sufficient role". 1 The South African
representative accordingly indicated that, alter further consider
ation, his Govemment was prepared to accept a compromise where
by the idea of a fresh agreement with the three Powers should be
sanctioned by the United Nations prior to the negotiation of such
an agreement.
This stilldid not satisfy the Committee, and alter further consi
deration Respondent intimated its willingness to have the actual
agreement submitted to the United Nations for confirmation.
The South African representative further indicated that if the
Committee considered Respondent's proposai as falling outside
its terms of reference, he would be glad to·submit to his Govern
ment any suggestion from the Committee indicating how the
proposai could be brought within the Committee's competence. 2
26. Despite the concessions offered by Respondent, the Com
mittee found the proposai unacceptable "because it did not allow
for a full implementation of the advisory opinion" and "could not
therefore be considered as within [its] terms of reference". 3
The Committee in tum proposed a draft agreement embodying
the terms of the Mandate in a modified form, and providing, inter
alia, for new supervisory machinery under the United Nations.'
27. Respondent's representative explained to the Committee
the reasons why Respondent could not accept the principle of
accountability to the United Nations embodied in the Committee's
proposai.
He emphasised that it would be virtually impossible to come to
any arrangement involving such accountability without extending
the obligations which Respondent had assumed under the Mandate.
This was evident from the broader membership, and the fundament
ally different structure, of the United Nations as compared with
the League of Nations. The most important difference in structure
was thal relating to voting procedure, in that the League rule of
unanimity did not apply in the United Nations. This was of par
ticular significance in view of the basic ideological differences
6
existing within the United Nations.
28. In a letter to the Ad Hoc Committee on the zoth September,
1951, Respondent reiterated the basic elements of the concessions
which it was prepared to make in an effort to achieve a settlement
which would "satisfy the major desires" of the United Nations and
of Respondent, and expressed regret that the Committee had felt
that the proposai would not be acceptable to the General Assembly.
1 Ibid., para. 25 (d), p. 5·
t Ibid., para. 25.
• Ibid., paoas. 26 and 27, pp. 5·6.
' Ibid., par27,pp. 5-6.
' U.N. Doc.A/AC. 49/SR. II, p. 7· SOUTH WEST AFRICA
On the other band, the Committee's proposa! did not provide for
certain requirements considered by Respondent to be basically
essential. If these were recognised, Respondent would not be un
willing to concede certain basic requirements of the United Nations,
such as the principle of international accountability and provision
for United Nations approval for any change in the international
status of the Territory.
Respondent. also reiterated the difficulties experienced in the
submission of reports to the United Nations, and pointed out that,
while it was not prepared to submit reports, information on the
1
Territory from official sources was "always availablè."
29. The Ad Hoc Committee, however, intimated that Respon
dent's proposai was "not within its terms of reference", and ex
pressed its willingness to continue negotiations on the basis of its
2
own counter-proposal.
30. Respondent remained desirons to seek a mutually satis
lactory solution. Before negotiations could, however, be resumed,
the Fourth Committee on r6th November, 1951, at the Sixth
Session of the General Assembly, granted oral hearings to peti
tioners on South West Africa. •
This decision was taken despite Respondent's repeated intima
tions that it did not accept accountability to the United Nations,
and in spite of the !act that implementation of the Court's Advisory
Opinion, including the question of petitions, was a matter on which
negotiations were still in progress; this seriously hampered nego
tiations. 4
1952
31. The Sixth Session of the General Assembly on the 19th
January, 1952, adopted Resolution 570 A (VI) reconstituting the
Ad Hoc Committee for the purpose of "conferring" with South
Africa "concerning means of implementing the Advisory Opinion".
At the same time, however, and despite Respondent's protests,
the Committee was authorised to examine reports and petitions
with regard to South West Africa.
The Assembly also reiterated its previous resolutions pressing
for South West Africa to be placed under United Nations Trustee
ship. '
32. Respondent had doubts as to the likelihood of fruitful results
ftowing from further negotiations with the Ad Hoc Committee.
1 U.N. Doc. A/1901, para. 32, 7~8.
1 Ibid., para. 33, p. 8.
3 U.N. Doc. AjC.4/190, in G.A ., O.R., Sixth Sess., Annexes (Agenda item 38), p. 17.
4 Vz"deG.A., O.R., Sixth Sess., Fourth Comm., 204th Meeting, 16th November,
1951, pp.17~19.
~G.A. Resolution 570 B (VI), 19th January, 1952, inG.A.Sixth Sess.,Sup.
No. 2o {A/2I 19) p. 64. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 277
These doubts were founded upon the following considerations,
pointed out to the United Nations on various occasions:
(a) The divergence in the views held by Respondent and the
majority in the United Nations. Respondent, while carrying out
the spirit of the "sacred trust" which it had assumed under the
Mandate, did not recognise accountability to the United Nations
in respect of its administration of South West Africa, whereas the
majority in the General Assembly held the view that Respondent
was obliged to account to the United Nations and in fact continued
to press for a trusteeship agreement for the Territory.
(b) The manner in which the South West Africa issue had been
deal! with in the United Nations, particularly the acrimony dis
played by sorne members in the debates, marred objective consider
ation and jeopardised negotiations.
{c) The restrictive nature of the Committee's terms of reference,
which left little hope for a compromise inasmuch as it required
Respondent to accept accountability (in accordance with the
Majority Opinion of 1950) as the only basis for negotiation.
Respondent was, however, desirons of arriving at an amicable
arrangement and was therefore prepared to explore ali avenues.
On being assured by the Ad Hoc Committee in 1952 that its "terms
of reference were such as to allow it to discuss any reasonable
proposai", negotiations were resumed in September, 1952. 1
33· In the circumstances Respondent hoped that its proposai
of 1951 2 would be reconsidered on its merits. In re-submitting
thal proposai the South African representative contended that
agreement had been reached in principle with regard to the revival
of the clauses of the Mandate dealing with the "sacred trust".
Moreover, Respondent had agreed on the fundamental principles
which the Committee regarded as essential, the only exception
being the handling of annual reports and petitions. In this last re
spect his Government, depending on satisfactory progress of the
negotiations, would be prepared to go somewhat further; it would
make available information on its administration to those with
whom a new instrument would be concludèd.
While the new instrument would be negotiated with the three
Principal Allied and Associated Powers as principals, its general
principles would have to be approved by the United Nations and,
if found acceptable, the United Nations would ascertain whether 3
the three Powers were prepared to act as the second party. Before
1 U.N. Doc. A/2261, Para. 7. in G.A ., O.R., Eighth Sess., Annexes (Agenda item36)
p.2.
1 Videpara. 24et seq. supra.
1 The representativof the United States of America-tonly one of the three
Powers represented on the Ad Hoc Committee-had indicatedhis Governm8nt's
willingness in principle to act as a member of the second party if the United Nâtions
agreed. Vide U.N. Doc. A/AC.4gJSR.4, p. 3· SOUTH WEST AFRICA
the new instrument could come into force the United Nations would
have to approve it, thus having a double opportunity of examining
the instrument. 1
34- The Committee enquired whether Respondent would make
available annual reports as complete as those furnished to the
League. The South African representative replied that under its
proposai, his Government would supply annually to the three
Powers information on South West Africa as complete as that
furnished to the League of Nations on the basis of the Permanent
Mandates Commission questionnaire.
Upon a further enquiry from the Committee, whether Respondent
would recognise the principle of international supervision under a
procedure as nearly as possible analogous to that under the League,
the representative stated that Respondent's attitude would depend
on the progress of the negotiations on ali the other points.
He therefore again pressed the Committee for its views on the
merits gf Respondent's proposai, stating that to facilitate agree
ment, Respondent had made considerable concessions and had
indicated its readiness, under certain conditions, to make further
proposais. '
35· While the Committee expressed its appreciation of the efforts
made by Respondent and noted that Respondent had extended its
1951 proposai, the Committee insisted on accountability to and
supervision by the United Nations because it felt that its terms of
reference so fequired. a
36. Despite the !act that the negotiations were not conclusive,
by the end of 1952 the Committee was able to record that there
was agreement in principle on the following points:
(a) That a new instrument, replacing the former Mandate for
South West Africa, should be concluded;
(b) That the new instrument should revive the "sacred trust"
contained in Articles 2.to 5 of the Mandate, with minor modifi
cations which would not affect in any way the principle of the
"sacred trust";
(c) That, under certain conditions, Respondent would make
available information on its administration of South West Africa;
(d) That such information would be as full as that once supplied
under the Mandates System; and
(e) That there should be sorne form of supervision of the ad
ministration of South West Africa. •
1 Vide U.N. Doc. Aj2261paras. II-13pp. 2-3.
2 Ibid paras. 15 and 16, pp. 3-4.
3 Ibid., par20,p. 4·
~ ibid.para. 23, p. 5· PRELIMINARY OBJECTIONS OF SOUTH AFRICA 279
37. The points of difference, as also recorded by the Committee,
were to the following effect:
(a) How supervision of the administration of South West Africa
should be carried out:
The Committee insisted on United Nations supervision, "even
though it should not exceed that which applied under the Mandates
System". On the other hand Respondent had come to the conclu
sion that any obligation which would carry with it supervision by
the United Nations, would be more onerous and would go beyond
the obligations undertaken under the Mandates System.
(b) The second party to the proposee! instrument:
Respondent could not contemplate concluding an agreement
directly with the United Nations, although the agreement which
it was preparee! to negotiate and conclude, would have to be
approved by the United Nations. On the other hand the Committee
consideree!that the agreement should be concl1ded with the United
Nations or with an agency appointed by it.
38. From the above it is clear that, far from Respondent frus
trating the Ad Hoc Committee's efforts at negotiation-as is alleged
at page 58 of Applicants' Memorials-the substantial measure of
agreement which had by the end of 1952 actually been reached
between Respondent and the Committee was due to the !act that
Respondent was prepared to make proposais and concessions in
regard thereto. Whatever frustration there was, resulted, in !act,
from the Committee's restrictive terms of reference.
1953
39· The inconclusive negotiations of 1952 were resumed in June,
1953, when the South African representative again requested that
the Committee, as a whole, state its views with regard to the essen
tial elements of Respondent's proposa!.
The Committee intimated that, inasmuch as Respondent wished
the three Powers to act as principals and not as agents of the United
Nations, the proposa! did not provide means for implementing the
Advisory Opinion, and that the Committee was therefore unable
to accept the proposa! as a basis for detailed discussion.
40. The South African representative referred again to Respon
dent's view that it would be well-nigh impossible to devise any
arrangement whereby Respondent would be accountable_ to the
United Nations for its administration of South West Africa without
extending the degree of supervision and, therefore, Respondent's
obligations. And he enquired how the Committee proposed to
cape with the difficulties in this regard, especially the absence of the
unanimitv rule in the United Nations voting procedure.
1 Ibid., pa24,p.5·z8o SOUTH WEST AFRICA
The Committee was, however, not prepared to enter into that
enquiry until Respondent had accepted the principle of United
Nations supervision. This Respondent could not do without the
assurance that its obligations would not be extended. Respondent
reiterated its willingness to consider proposais which would not
involve such extension. The Committee, however, did not attempt
to show how United Nations supervision could be devised without
extending Respondent's obligations. 1
The negotiations consequently did not lead to positive results.
41. At its Eighth Session the General Assembly, on z8th Novem
ber, 1953, rejected Res pondent' s proposal to the Ad Hoc Committee
and established the Committee on South West Africa with fonctions
2
as set out in Resolution 749 A (VIII).
These fonctions in essence amounted to
(a) exercising supervision over the administration ofthe Terri tory,
and,
(b) negotiating with Respondent for the full implementation
of the Advisory Opinion.
The South African representative explained to the Fourth
Committee that Respondent could not support this resolution, as
it required Respondent to submit to United Nations supervision
as a basis for co-operation with the Committee, left the Committee
no scope for negotiation beyond that basis, and combin3d a super
visory fonction with that of so-called "negotiations".
In the ciccumstances, those who supported the adoption of
Resolution 749 A (VIII) were aware that no co-operation with such
a Committee could be expected from Respondent; and they must,
therefore, have realized that the Committee's supervision would be
one-sided and thus defective.
42. Furtherrnore, the proffered "negotiations" were again
coupled with a resolution urging the conclusion of a United Nations
trusteeship agreement. •
1954
43· When the Committee on South West Africa invited Respon-
dent to confer with it, Respondent replied that it was
"doubtful whether there is any hope thal the new negotiations
within the scope of your Committee'sterms of reference willlead to
any positi':e results".
1
U.N. Doc. A/2475, paras. S·Ij, in G.A ., O.R., Eighth Sess., Annexes (Agenda item
362,pp.33•34·
G.A. Resolution 749 A(VIII),z8th November, I953· in G.A ., O.R., Eighth Sess.,
Sup1 No. t7(Aj1.630),pp. 26·27- (Vide alsApplicants'Memorials, pp. 59·61).
para.32,p. 306., Eight Sess., Fourtlt Comm., 363rd Meeting, 12th Novemb1953.
4G.A. Ruolution 749 B(VIII), zSth Xovember, 1953, in G.A ., O.R., Eighlh Sess.,
Sup. No. q (A_I263o}, pp. 27-28 PRELIMINARY OBJECTIONS OF SOUTH AFRICA 281
This reply was communicated to the Chairman of the Committee
in a letter dated the 25th March, 1954, wherein Respondent's reasons
for ils view were set forth in fulL' The letter is quoted at pages 62
to 64 of the Applicants' M emorials.
The Committee confirmed Respondent's doubts by replying thal
it could not
"enter int_odiscussion of proposais which are not designed to impie
ment !ully the Advisory Opinion". •
Inasmuch as this reply signified thal negotiations could only
lake place on the basis of acceptance by Respondent of United
Nations supervision, Respondent had no alternative but to decline
the Committee's invitation .
. 44· As regards the supervisory functions contemplated for the
Committee on South West Africa, Resolution 749 A (VIII) directed
thal the practices and procedures which had applied to supervision
of Mandates by the organs o3 the League of Nations should be
observed as far as possible.
lt was, however, inevitable that supervision in pursuance of the
said resolution would differ substantially from thal which had
applied under the League of Nations, particularly in the following
respects:
(a) Unlike the Permanent Mandates Commission, which was
"a commission of experts-of high standing and independent of
Governments", 4 the Committee on South West Africa was com
posed of political representatives of Member States, the selection of
individuals being left to the discretion of the States elected to serve
on the Committee. The members of the Committee, in exercising
their supervisory functions, !hus did not stand apart from the
political views of their governments.
(b) In the League the ultimate supervisory body was the Council,
the voting procedure of which was subject to the unanimity rule.
The corresponding supervisory organ in the United Nations, as
contemplated by Resolution 749 A (VIII), was the General Assem
bly, in the voting procedure of which the unanimity rule did not
apply-Article r8 of the Charter providing only for decisions by
a majority, or in the case of certain matt ers, by a two-thirds
majority. .
The combined effect of the differences mentioned in (a) and (b)
above would inevitably render supervision in pursuance of Resolu
tion 749 A (VIII) more onerous for Respondent than thal which had
applied under the League.
1 G.A., O.R., Ninth Sess., 5_up. No. 14(A/2666), Annex I(c), pp. 6-8.
1 Ibid., Annex l(d), pp. 7-8.
• Vide sub-paras. (a), (b), (c) and (d) o12:-oG.A. Resolution 749 A(VIIl).
• "South-WestAfrica-Voting Procedure, AdvisoryOpinion of june7lh; I955:
l.C.J. Reports I955"p. 95Vide also Part A, para. supra. 282 SOUTH WEST AFRICA
45. When the Committee on South West Africa requested Res
pondent to submit reports, 1this request was declined for reasons
lully stated in Respondent's letter of 25th March, 1954, ' which is
quoted in Applicants' Memorials at pages 62 to 64. Respondent's
position in this regard was further explained to the General Assem
bly at its Ninth Session, where the South African representative
pointed out that the Committee had been established despite Res
pondent's objections and that Respondent was thén invited to
co-operate on a basis unilaterally determined by a majority in the
General Assembly. His Govemment could obviously not accept an
arrangement which had been decided on against its wishes and
which failed to take into account its essential requirements. It was,
therefore, unable to recognise the Committee or the l3gitimacy of
the report which the Committee had drawn up.
With regard to petitions, Respondent's attitude was also clearly
stated in the letter of 25th March, 1954; and, in fact, Respondent
declined to participate in any United Nations proceedings con
ceming petitions.
46. In the absence of reports from Respondent, the Committee
compiled its own report, relying on information from varions official
and unofficial sources. This report contained many inaccuracies
and omissions of a serions nature, as well as erroneous conclusions.
The allegations contained in the extracts from the report, quoted
in Applicants' Memorials,' will not be dealt with here.'
Respondent did reply, in the Fourth Committee, to certain
allegations in arder to indicate that sorne of the information on
which the report was based was unreliable and that the report
reflected serions misconceptions as to conditions in South West
Africa. •
47. In 1954 the General Assembly once more adopted a resolu
tion urging Respondent to place South West Africa under United
Nations Trusteeship. 7
8
48. The statement in the Memorials alleged to have been made
by Dr. Malan (then South African Prime Minister). on the 24th
August, 1954, was in fact issued by a political party in South West
Africa~t National Party for South West Africa. It was not made
by the Prime Minister, although, as National Leader of the said
party, he had approved thereof. The statement answered a daim
1 Vide U.N. Doc.A/2666, Annex I(a), p. 6.
1 Ibid., Annex. l(c), pp. 6-7.
1 G.A ., O.R .. Ninth Sess., Fourth Comm., 407th Meeting, 15th October, 1954, para.
J6, p.66.
• At pp. 64-65.
6 Vide Part A, para1,supra.
' v,·de e.g. G.A., O. R., Ninth Sess., Fourth Comm., 407th Meeting, pp. 67-70.
7G.A. Resolution852(IX),23rd November, 1954, iG.A ., O.R., Ninlh Sess., Sup.
No1 2t(A/28go),p. 29.
Quoted in the Memcwials, p. 66. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 283
of an opposition party to the effect that the Territory had acquired
a status independent of South Africa.
49· The General Assembly in 1954 also adopted Resolution 904
(IX), in which it asked the International Court of Justice for an
advisory opinion as to whether Special Ruie F was a correct inter
pretation of the Court's 1950 Advisory Opinion: 1this rule concerned
voting procedure in the General Assembly on questions relating to
reports and petitions regarding South West Africa. Respondent did
not support this request for an advisory opinion for the reason that
it had not accepted the 1950 Opinion, especially with regard to
supervisory functions on the part of the United Nations. As Res
pondent had throughout denied that the General 'Assembly had any
supervisory powers or functions in respect of the administration
of South West Africa, Respondent was not concemed with the
voting procedure adopted by the General Assembly in the exercise
ofthe supervisory powers it had assumed in respect of the Territory
and, consequently, Respondent did not participate in the proceed
2
ings before the Court in 1955.
As the correctness or otherwise of the 1955 Advisory Opinion does
not arise for decision in the present proceedings, Respondent
refrains from commenting on the reasoning of the Court or its
conclusions in that Opinion.
1955
50. In 1955 the Committee on South West Africa again invited
Respondent,
(a) to confer with it on the implementation of the Court's 1950
Opinion; and
(b) to assist the Committee in its supervisory task; in particular
to send a report. 3
In response, Respondent referred to its letter of the 25th March,
1954, • and stated that as there had been no material change in the
position outlined therein, Respondent couid not see that negotia
tions on the basis of the Committee's restrictive terms of reference
would lead to positive results. 5
The Committee, in its reply of roth June, 1955. stated that it
couid only conclude that Respondent "is unwilling even to enter
into negotiations in order to implement fuily the Advisory Opinion". •
While this was a correct conclusion, so far as it went, Respondent
was not unwilling to negotiate with the United Nations on a basis
1 G.A. Resolution 904(IX), 23rd November, 1954, in U.N. Doc. AJ28go, pp. 55-56.
1 Vide G.A ., O.R., Tenth Sess., Fourth Comm., 491st Meeting, 31st October, 1955,
para. g, p130.
3 G.A., O.R., Tenth Sess., Sup. No. I2(A/29IJ), Annex p.a6.
" Vide para. 43supra.
1 U.N. Doc. A/29IJ, Annex l(c), p.].
1 Ibid., Annex I(d), p. 7· SOUTH WEST AFRICA
which did not as a prerequisite place impossible demands on Res
pondent-an attitude lully explained t1 the Fourth Committee by
Respondent on the 31st October, 1955.
sr. The 1955 Report of the Committee (referred to at page 6g
of Applicants' Memorials), suffered from the same defects and
shortcomings as thal of 1954. The South African representative,
however, did not
~'atte opexplain where the Committee bad erred in its conclu~
sions, since the experience of the previous year had shawn that
to do so would produce no fruitful result. Nor would he comment
on the inaccuracies and even untruths contained in the petitions
considered by the South West AfricaCommittee. The previous year,
without prejudice to his Government's standpoint on petitions, he
bad endeavoured to arouse the Fourth Committee to the serious
implications involved in the adoption of the resolutions on petitions
suggested by the South West Africa Committee. His statement,
however, had not been discussed at ail; the draft resolutions had
simply been voted on without any examination of their contents and
referred to the Generalssembly".'
52. In regard to the admission of oral hearings to petitioners on
South West Africa, Respondent's views were stated as follows:
"In the first place, the Union of South Africa did not recognise
the competence of the United Nations to consider petitions, whether
written or oral. In the second place, the system established by the
Charter made no provision for oral petitions except in the case of
Trust Territories. Lastly, there had undoubtedly been no provision
for hearings in the procedure applied by the Leaguef Nations, and
the Permanent Mandates Commissionin particular had not granted
any hearings properly so-called". •
There was, in the initial stages of the discussions at the Ninth
Session of the General Assembly, a fairly general view in the Fourth
Committee that to grant oral hearings to petitioners would not be
in accordance with the procedure of the former Mandate System
and therefore not admissible in the Committee on South West
Africa.
A draft resolution to this effect was, however, withdrawn and,
instead, the Court was requested for an advisory opinion as to
,whether it would be consistent with the Court's rgso Opinion for
the Committee on South West Africa to grant oral hearings to
petitioners. •
In view of Respondent's attitude regarding the rgso Advisory
Opinion, and as to accountabilitv to the United Nations, Respon
dent did not support the request for an advisory opinion on the
1
1ibid., para. 48, p. IJ5-Sess., Fourth Comm., 49rst Meeting, pp. 134-136.
• Ibid., sooth Meeting, 8th November, 1955. para. 42, p. r82.
• G.A. Resolution g.p(XJrd December, 1955. in G.A ., O.R., Tenth Sess., Sup.
No. I9(A/JII6)p. 24. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 285
admissibility of oral hearings, inasmuch as the request was confined
to an interpretation of the 1950 Opinion.
53- During the Tenth Session of the General Assembly, a further
resolution was adopted urging Respondent to place South West
Africa under United Nations Trusteeship. 1
1956
54- In reply to a further invitation to Respondent by the Com
mittee on South West Africa, to negotiate and to submit reports,
Respondent again referred to its earlier replies in 1954 and 1955
(Vide paragraphs 43and 50 supra) and stated, inter alia, "as there has
in the meantime been no material change in the position outlined
in my previous communications t2e attitude of the Union Govern
ment remains unchanged".
55- Applicants quote extensively, at pages 70-71 of their Menta
rials, from the Report of the Committee on South West Africa for
the year 1956. While denying that it failed in any way to observe
the spirit of the Mandate, Respondent will not deal with the alle
gations contained in the report. 3The same applies to the extracts
from petitions contained in Chapt er VI of the Memorials and
referred to at the top of page 73 thereof.
56. For a proper understanding of the extract from the state
ment of the South African Prime Minister which is quoted at page 72
of the Applicants' Memorials, it should be read in the fuller context
given hereafter, namely:
"The hon. Senator Cowley suggested that in arder to avoid
troubles in future in so far as South West Africa is concemed, we
should forthwith proceed to annex South West Africa ...
May 1say to him that the attitude of our Govemment and of the
previous Government, the Smuts Govemment was that as a result
of the disappearance of the old League of Nations bath the Smuts
Govemment, and the present Govemment have taken up the
attitude that there is no other body that has anything to say insofar
as South West Africa is concemed except South Africa itself and
that therefore it is weBwithin our power and lully within our power
to incorporate South West Africa as part of the Union. Up to now
we have declared unto the world that legally and otherwise that is
the position, but that in the meantime we are prepared, although
wedo not for one moment recognizethe rights ofthe United Nations
Organization, even should we one day incorporate South \Vest
Africa, to govem South West Africain the spirit ofthe old mandate.
So, whether we will proceed at a later stage to carry out and put
into effect what we regard as our rights over which nobody has
anything to say, that will depend on how circumstances develop
in the future". •
1G.A. Resolution94o(X), 3rd December, 1955, inU.N. Doc.A{Ju6.
1G.A., O.R., Eleventh Sess., SNo. 12(A/JI5l},Annex l(b), p. 4·
3 VidePart A, para.1 supra.
4 U. ofS.A., Pari. Deb., Senatt, V15 (1956), Cols. 363I-32.286 SOUTH WEST AFRICA
57· With regard to the extracts from the 1956 Advisory Opinion,
which are quoted at p. 72 of the Memorials, Respondent refers to
para. 52 above and will not deal with the reasons advanced by the
Court for its conclusion.
1957
58. At the nth Session of the General Assembly an attempt
was made by sorne delegations in the Fourth Committee to find a
new basis for negotiations; but as this attempt did not result in a
concrete proposai, Resolution 1059 (XI) was adopted, requesting
the Secretary-General "to explore ways and means1of solving satis
factorily the question of South West Africa."
At the same time, the Liberian representative introduced the
usual resolution urging the placing of South West Africa under
United Nations Trusteeship-eventually adopted by the General
Assembly as Resolution ross (X).'
59- Also at that session a further step was taken in an attempt
to compel Respondent to submit to the wishes of the majority in
the Assembly, namely, the adoption of Resolution ro6o (XI) in
terms whereof the Committee on South West Africa was requested
to study the following question:
"What legal action is open to the organs of the United Nations,
orto the Membersof the United Nations, orto the former Members
of the League of Nations, acting either individually or jointly, to
ensure that the Union of South Africafulfilsthe obligations assumed
by it under the Mandate, pending the placing of the Territory of
South West Africa under the International Trusteeship System?"'
In Respondent's view this task could hardly be consonant with
the functions of negotiation and supervision already entrusted to
the Committee.
6o. At the r2th Session of the General Assembly, in October,
1957, a number of delegations appealed for a new approach on the
South West Alrica question aimed at the resumption of negotiations
between South Africa and the United Nations. This culminated in
the establishment of the Good Offices Committee (United States,
United Kingdom and Brazil) to "discuss with the Government of the
Union of South Africa a basis for an agreement which would con
tinue to accord to the Territory of South West Africa an inter
national status" (Resolution II43 (XII)). '
6r. The wider terms of reference of this Committee extended the
possibility of fruitful negotiations. The prospective negotiations
1 G.A. Resolution 1059 (XI), 26th Februa1957, in G.A ., O.R., Elevwth Sess.,
Sup. No. '7 (A/3572), p. Jo.
1 Of26th February, 1957, in U.N. Doc. A/3572, pp. 28-29.
1 G.A. Resolution Io6o{XI), para. 1, 26th February, 1957, in U.N. Doc. A/3572,
p. JO.
' G.A. Resolution 1143(XII), 25th October, 1957, in G.A ., O.R., Twelfth Sess., Sup.
No. '8(A/38o5). pp. 25-26.- PRELIMINARY OBJECTIONS OF SOUTH AFRICA 287
were, however, greatly jeopardised by the concurrent adoption of
other resolutions sponsored, inter alia, by the Applicants. These
included a further resolu1ion calling for United Nations Trusteeship
for South West Africa, and a resolution caJiing for further study
of legal action on the South West Africa question. '
The inherent conflict between the act of "good offices" and the
adoption of these and other resolutions were pointed out by a
number of delegations, but attempts to suspend action on them
failed.
The attitude of Liberia is illustrated by the !act that, although
supporting the establishment of the Good Offices Committee, the
Liberian representative nevertheless "urged the members of the
Committee to consider the possibility of compuJsory jurisdiction
of the Court". '
The Ethiopian representative sponsored the resolution on legal
action and did not support the resolution establishing the Good
Offices Committee.
62. Respondent nevertheless, in pursuance of its desire to arrive
at an amicable arrangement, accepted the invitation of the Good
Offices Committee to participate in discussions with it. The nego
tiations with the Good Offices Committee took place in r958 and
will be dealt with below under that year.
63. Regarding the contents of the Report of the Committee on
South West Africa, referred to at pages 44 and 45 of the Memorials, ·
and the statement of the representative of Liberia quoted at page 46,
Respondent, while denying any violation on its part of the spirit of
the Mandate, will for the reasons previously stated not deal with
the factual questions involved therein. •
I958
64. In March, I958, the Good OfficesCommittee invited Respon
dent to enter into discussions with it in terrns of Resolution II43
(XII). Respondent indicated that, while it could not reconcile the
I957 resolutions relating to legal action and urging a Trusteeship
Agreement 5 with the act of "good offices". it was nevertheless
impressed by the presence of a more conciliatory spirit, and invited
the Good OfficesCommittee to come to South Africa for discussions.
This the Committee did, and at the conclusion of the discussions in
South Africa, the members of the Committee were invited by Res
pondent to visit South West Africa in their private capacities
which two of the members did. In the record of the discussions the
Good Offices Committee paid tribute to the "spirit of frankness,
1 G.A. Resolution II41(XIIzsthOctober, 1957, in U.N. Doc. AfJSos, pp. 24-25
s G.A. Resolution II42(XII25th October, 1957, in U.N. Doc. AJJBos. p. 25.
• G.A ., O.R., Twelfth Sess., Fourlh Comm., 659th Meeting, znd October, 1957, para.
14, p. J6.
' Vide Part A, para1 supra.
'G.A. Resolutions1141 (XII) and 1142 (XII)288 SOUTH WEST AFRICA
friendliness and desire to find a mutually acceptable basis for
agreement which animated the [South African] Government's
participation in the discussions". 1
65. In the discussions Respondent expressed its preparedness
to enter into an agreement concerning South West Africa which
would specify that the terri tory possessed an "international charac
ter", and that this character could be modified only with the consent
of both parties to the agreement -the agreement to contain pro
visions along the !ines of Articles 2to 5 of the Mandate, as weil as the
obligation to provide information on the administration of the
terri tory.
Respondent was, however, for the reasons already stated, not
prepared to accept the United Nations as the second party to such
an agreement. The Good Offices Committee, on the other band,
felt itself precluded from considering any party other than the
United Nations as the second party to an agreement. 2
66. After discussing other possibilities the Good Offices Com
mittee mentioned inter alia "a suggestion that the partitioni3g of
the Terri tory might provide the basis for a solution". Respondent
intimated that it would be prepared to investigate the practica
bility of partitioning as envisaged and, if found feasible, Respondent
would submit proposais to the United Nations.
In its report to the General Assembly, the Good Offices Committee
expressed:
"the opinion that sorneform of partition under which a part of the
Territory would be placed under a trusteeship agreement with the
United Nations and the remainder would be annexed to the Union,
might provide a basis for an agreement"; and
"the hope that the General Assembly will theretore encourage the
Government of the Union of South Africa to carry out an investi
gation of the practicability of partition, on the understanding that
if the investigation proves this approach to be practicable it will
be prepared to submit to the United Nations proposais for the
partitioning of the Territory". •
Respondent stressed, to the Good Offices Committee and the
General Assembly at its 13th Session, that the envisaged investi
gation would have to be directed inter alia at ascertaining the view
of ali the inhabitants.' And Respondent explained that its willing
ness to contemplate, in this context, the United Nations as the
second party to an agreement was due to Respondent's desire to
find a compromise, and the fact that it was inherent in the sugges
tion that the area which would be placed under United Nations
1
U.N. Doc. A/JC)OO,in G.A., O.R., Thirteenth Sess., Annexes (Agenda item 39).
pa1a. 10,p.J.
' Ibid., para47.p..8.
t Ibid., para. 52(6) and (7). p. 10.
'G.A., O.R., Thirteenth Sess.Fourth Comm., 745th Meeting, 29th September.
1958, paras. 20-23, p. 15. PREL!M!NARY OBJECT!0:-15 OF SOUTH AFRICA 289
trusteeship, would probably contain Bantu peoples only, thus
eliminating the major difficulties which had prevented Respondent
1
in the past from accepting United Nations accountability.
67. When the Report of the Good Offices Commit tee came before
the Fourth Committee at the 13th Session of the General Assembly,
Respondent appealed for discussion thereof separately from the
other aspects such as suggested legal action and the Report of the
Committee on South West Africa, so as to avoid acrimonious
debate which would not be conducive to constructive negotiation.
The majority in the Fourth Committee, including both Applicants,
however opposed a separate discussion, and moreover acceded to a
request from petitioners for oral hearings specifically on the sub
ject of the negotiations, despite the protests of Respondent and
others.
It was in such circumstances that the South African representa
tive stated:
"Even before the vote it had been apparent from the procedural
debate that a number of delegations had come to the Assembly
determined to wreck the work of the Good OfficesCommittee. Thal
course of events confirmed his Government's contention that the
forum of the United Nations was being used for the purpose of
waging propaganda and ideological warfare against a member
State. The Union Government had rwt expected those developments
when it had agreed to enter into discussions with the Good Offices
Committee; on the contrary it had expected that ils proposais would
be considered seriously and without prejudice". 2
68. A resolution was adopted (Resolution 1243 (XIII)); rejecting
the Good Offices Committee's suggestion that the partition idea
be investigated; and requestil)g it to renew discussions with Res
pondent to find a basis for an agreement which would continue to
accord to "South West Africa as a whole an international status
and which would be in conformity with the purposes and principles
of the United Nàtions", bearing "in mind the discussions at the
13th Session of the General Assembly".' (Italics added.)
6g. Again Respondent refrains from dealing with the extracts
from the Report of the Committee on South West Africa referred
to at pages 75 and 76 of Applicants Memorials. '
Jo. At the same Session, the General Assembly adopted a reso
lution, which had by now become standard, calling for South West
Africa to be placed under United Nations Trusteeship. 5
1
2U.N. Doc. AJ3900, para. 50, p8.
G.A ., O.R., Tkirteenth Sess., Fourth Comm., 747th Meeting, 3oth September, rgjS,
p3rC.A. Resolutz"on 1243(XIll30th October, HJ5S,inG.A., O.R., ThirleenthSess.,
Sup. ~o. t8 {A/4090), pJO.
" Vide Part A, para.1 supra.
5 G.A.Resolutiou 1246(Xlll),30th October, 1958, in U.N. Doc. A{4090, p. 31.290 SOUTH WEST AFRICA
1959
71. In its reply to an invitation by the Good OfficesCommittee to
renew discussions, Respondent referred to the unfortunate develop
ments at the 13th Session of the General Assembly which, in Re
spondents' view, showed that the essential elements of conciliation
and goodwill on the part of the majority of members in the General
Assembly, were absent. Respondent was nevertheless still prepared
to act in accordance with the spirit which animated the resolution
establishing the Good Offices Committee, and to collabora te with
the Committee on the basis of the terms of reference contained
in that resolution. It was difficult to see, however, what useful pur
pose could be served by renewing, under the Committee's new and
more restricted terms of reference, the discussions which had been
initiated in the previous year in such completely different circum
1
stances. 2
When, however, the Good Offices Committee replied that its
terms of reference were "not essentially different from those under
the 1957 resolution", 3Respondent indicated that, while it did not
agree with this interpretation, it would meet with the Committee. •
72. The ensuing discussions showed, however, that the Good
Offices Committee felt itself bound to consider only proposais which
would involve acceptance by Respondent of accountability to the
United Nations in respect of the Territory as a whole, and it pro
posed a formula in the following terms:
"It is agreed that further talks might be concentrated onthe nego
tiation of sorneform of agreement to which the United Nations must
be a party for the supervision of the administration of South West
Africa in a manner which would not impose greater responsibilities
on the Union Govemment or impair the rights enjoyed by it under
the Mandate".'
Respondent could not accept this formula because of its convic
tion that it would be impossible to devise, within the framework
of accountability to the United Nations, a procedure which would
not impose on Respondent obligations greater than those which
had existed under the League.
In an effort to meet the view of the Good Offices Committee,
Respondent in turn proposed the following formula as a basis for
further discussion:
"It is agreed that further talks with the Union Government
should be concentrated on negotiation with the United Nations,
through its Good OfficesCommittee, of sorne form of settlement
1 Vide U.N. Doc. A/4224, Annex Il, in G.A .,O.R., Fou,-teenthSess., Annexes(Agenda
item 38), pp. 4-5.
z In its letter of 19th June, 1959·
1 U.N. Doc. A/4224, Annex III, p. 5·
tIbid., Annex IV, p. 5·
3Ibid., para10, p.2. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 291
regarding South West Africa, which would not impose greater (or
more onerous) responsibilities on the Union Government or impair
any of the rights conferred upon it by the Mandate in 1920, it being
understood that such discussions w!ll be without prejudice to the
juridical positiontakenup by the Union in the past",'
The Good Offices Committee felt that this proposai did not im
prove the position, and reported to the General Assembly !hat
"it has not succeeded in finding a basis for an agreement under
its terms of reference". 2 (Italics added).
Thus negotiations were once more frustrated by the restrictive
terms of reference of the negotiating agency.
73· When the report of the Good Offic C omsmittee 3 was dis
cussed at the 14th Session of the General Assembly, the South
African representative expressed his Govemment's "real regret"
thal it had not been possible to find a basis for agreement, and
informed the Fourth Committee thal:
(a) The South Alrican delegation would at the next session, as it
had done at the r4th Session, again participate in the discussion
of the report of the Committee on South West Africa.
{b) The South Alrican Government would make available ta the
United Nations blue books (officialreports) and other reports issued
by the South West A/rica Administration, Hansards (Parliamentary
Proceedings).of bath the South African Parliament and the Legis
lative Assembly of South West Africa; and other documents con
cerning the administration of the Territory which are required to
be laid before the South African Parliament and the Legislative
Assembly.
(c) The South African Government remained ready to enter into
discussions with an appropriate United Nations ad hoc body that
might be appointed alter prior consultation with the South African
Govemment and which would have a full opportunity to approach
its task constructively, pro viding lor fullest discussion of ali possi
bilities.
In giving these undertakings the South African representative
emphasised that Respondent could only carry them out within a
framework of co-operation and he expressed the hope that further
developments would not force Respondent to re-assess its attitude. 5
74· The atmosphere was unfortunately marred by subsequent
developments including the following:
(a) Resolution 1360 (XIV) • (sponsored, inter alia, by Ethiopia)
was adopted which, although apparent! y designed to create machin-
1
2 Ibid., paraJ4, p. J.
1 Ibid., para16, p.4·
U.N. Doc. A(4224.
t G.A ., O.R., Fourteenth Sess., Fourth Comm., 924th Meeting, 26th October, 1959,
pa6a. 2,p.221.
8 Ibid.
G.A. Resolution IJ6o{XIV)17th !'-iovember, 1959, inG.A.,OFourteenthSess.,
Sup. No. I6(A/4354l.pp. 28-29.292 SOUTH WEST AFRICA
ery for negotiation, contained paragraphs condemnatory of Re
spondent. On the "negotiation" aspect Respondent was invited to
"enter into ncgotiations with the United Nations through the Com
mittec on South \Vest Africa, which is authorized under its terms
of reference to continue negotiations with the Union, or through any
other committee which the General Asscmbly may appoint, with a
view to placing the Mandated Territory under the International
Trusteeship System";
and requested to
"formulate for the consideration of the General Assembly, at its
fifteenth session, proposais which will enable the Mandated Terri
tory of South West Africa to be administered in accordance with
the principles and purposes of the Mandate, the supervisory lune
tians being exercised by the 1nited Nations according to the terms
and intent of the Charter".
The South African representative pointed out to the Committee
!hat Respondent could hardly be expected to enter into negotiations
when the resolution also contained paragraphs censuring the South
African Govemment. Furthermore the terms of reference laid dawn
for the negotiations implied on!y trusteeship. He continued,
"the Committee was weil aware of the Union's attitude towards a
possible trusteeship agreement; even the Court's opinion, adopted
by the General Assembly, indicated that the Union was not obliged
to enter into a trusteeship agreement. There was therefore, no
question of the Union considering a trusteeship agreement. As
operative paragraph 3 envisaged supervision according to the terms
and principles of the Charter, it also aimed at supervision by the
Trusteeship Council. Moreover, the terms of reference of the United
Nations body which was to be entrusted with those negotiations
seemed rouch too restrictive, more restrictive in fact than the present
terms of reference of the Good OfficesCommittee. The South African
delegation would therefore ... vote against the draft resolution as a
whole". 3
(b) Together with others, bath Applicants also sponsored a
resolution designed to encourage 1\!ember States to institute legal
action against Respondent. This resolution, inter alia, drew
"the attention of Member States to the conclusions of the special
report of the Committee on South West Africa covering the legal
action open to Member States to refer any dispute with the Union
of South Africa concerning the interpretation or application of the
Mandate for South West Africa to the International Court of Justice
for adjudication in accordance with Article 7 of the Mandate read
in conJunction with Article 37 of the Statute of the Court".'
• Ibid., para2.and 3, p. 29.
1 G.A ., O.R., FourteeJZih Sess., Fourth Comm., 931st ::\Ieeting, 29th October, 1959.
para.48, p.254·
a G.A. Resolution 136I(XIV),17th N"ovember, 1959, in U.N. DQc. A/4354· p. 29. PRELIM!NARY OBJECT!O"S OF SOUTH AFR!CA 293
The South African delegation had pointed out in vain that this
resolution was not consonant with a conciliatory spirit necessary
for successful negotiation. 1 Other delegations also feared that this
resolution would have a deleterious effect and a formai proposai
was made to postpone consideration thereof until the rsth Session;
but alter an appeal to the sponsors by the representative of Liberia,
the proposai to postpone consideration was withdrawn. 2
75. The General Assembly also adopted the annual resolution
(sponsored, inter alia, by Liberia) calling for the Territory to be
placed under United Nations Trusteeship. 3
76. With regard to the extracts from the Report of the Committee
on South West Africa referred to at page 79 of Applicants' Memorials,
it is desired mere!y to record that, without prejudice toits juridical
position, Respondent did at the 14th Session of the General Assem
bly deal with certain allegations and information contained in the
Report. This was done to draw attention to the mis-statements
and the unjustified conclusions in the Report, as well as to show
that Respondent's refusai to supply information was due to its
inability to accept United Nations accountability and not to a
desire to hide the facts. '
The Apphcants allege at page 81 of the Memorials that the South
African Representative "made no real attempt to deal with the
practice of apartheid. Nor did the Union dispute the existence of
an interlocking series of legislation which the Committee deemed
oppressive". Respondent did not intend or attempt to deal !ully
with the various allegations and conclusions in the Report of the
Committee on South West Africa, inasmuch as Respondent did
not recognise supervisory authority as vested in the United Nations,
and was not accounting to the United Nations in that sense.
Respondent will not deal here with the allegations in the said
Report. '
1960
77. When the Committee on South West Africa invited Respon
dent to negotiate with it in tenns of Resolution 1360 (XIV), • Re
spondent on 29th July, 1960, replied:
"The Union Government have repeatedly expressed their desire
to find a solution which would be acceptable to ali the parties con
cemed. To this end the Union Govemment have, over a period of
years, made concrete proposais and expressed their willin~ eoss
examine others. The Union Government continue to destre that
1
1 G.A., O.R., Fourteenth Sess., Fourth Comm., YMeeting, para50,p. 2.54·
3 Ibid.93~nd Meeting, 30th October, 1959, para. 1, p. 259.
G.A. Resolutio1359 (XIV), 17th November, 1959, in U.N. Doc. A/4354, p. 28.
• G.A.,O.R., Fourteenth Sess.Fourth Comm., RRJrd, gr 4th, 915th, 916th and
911tVide Part A, para1supra.
• Vide para. 74(a) supra.294 SOUTH WEST AFRICA
this matter be settled and in addition to making certain helpful
offers to the Fourth Committee las! year, recorded once more the
Union's readiness to enter into discussions with an apptopriate
United Nations ad hoc body !hat may be appointed alter prior
consultation with the Union Government, and with terms of refer
ence which would allow the fullest discussion and exploration of all
possibilities.
This offer did not, however, find a positive response and the
Assembly instead adopted resolution 1360 (XIV) which laid down
tenns of reference for negotiation with the Union which were most
restrictive. The Union's representative pointed out, before the
adoption of the resolution, that the terms of reference were far more
restrictive than those of the Good OfficesCommittee and he voted
against the adoption of the resolution. Youwilltherefore understand
that the Union Government could not sec any possibility of fruit
fui results flowing from negotiations which required the Union to
place 'South West Africa under the International Trusteeship
System'-terms of reference which prescribed the end result in
advance.
The Union Government still believe that negotiations on the basis
proposed would not lead to any positive results.
The Union Government would, however, wish to reiterate their
readiness to enter into discussions with an appropriate United
Nations ad hoc body that may be appointed alter prior consultation
with the UnionGovemment and whichwould have a fullopportunity
to approach their task constructively, providing for fullest discus
sion and exploration of ail possibihties-on the understanding of
course, that this is without prejudice to the Union's consistently
held stand on the judicial (juridical] aspect of theissue". 1(Italics
added.)
78. Respondent had intended reiterating the above offer at the
15th Session of the General Assembly which was to mee! sorne
weeks later. A request by Respondent for early consideration of the
South West Africa question was, however, not acceded to by the
Fourth Committee and by the time it did come up for discussion,
Applicants had instituted these proceedings.
In the light of this event the South African representative in
formed the Fourth Committee that, since the Committee's discus
sion on South West Africa was likely to traverse the same field as
that covered by the proceedings instituted by Applicants, the
matter was, in Respondent's view, sub iudice and should, therefore,
not be discussed by the Committee. The South African representa
tive argued his contention at sorne length, painting out that dis
cussion, and adoption of resolutions, might have a prejudicial effect
on the judicial proceedings and could be construed as an attempt
to usurp the functions of the Court. The Committee rejected Res
pondent's proposai for an adjournment of the debate pending the
conclusion of the judicial proceedings-the Applicants voting
against the proposai for adjournment.
1 G.A., O.R., Fifteenth Sess.,No. 12(A/4464), Annex Il Cp.58. PRELIMI!'IARY OBJECTIONS OF SOUTH AFRICA 295
The South African representative then informed the Committee
that his delegation could not be a party to discussion of a matter
which was the subject of a judicial action pending in the Court,
since in doing soit would itself be violating the sub judice rule. 1
In view of these events it was not possible for Respondent to
deal further with its offer to explore "ali possibilities"
79· At page 82 of the Memorials, Applicants give an account of
certain events at the "Second Conference of lndependent African
States" at Addis Ababa in June, rg6o. The relevance of these events
to the proceedings before the Court is not apparent, save that the
Liberian Representative's reference to the determination of his
Government "on behalf of ali African States to pursue further
action to get this terri tory placed under the Trusteeship provisions
of the Charter", appears to confirm that in the so-called negotiations
with Respondent over the years, there bad been but one objective
on the part of Applicants, namely, United Nations Trusteeship for
South West Africa.
8o. Applicants also refer at page 84 of their M emorials to General
2
Assembly Resolution r565 (XV). This Resolution was adopted
alter the filing with the Court of the Applications in these proceed
ings. Respondent therefore does not intend dealing with the con
tents thereof, save to state its strongest objection to the reliance
which Applicants, in referring to this Resolution, apparently place
on the conclusion of the majority in the General Assembly that
"the dispute which bas arisen between Ethiopia, Liberia and other
Member States on the one band, and the Union of South Africa on
the other, relating to the interpretation and application of the
Mandate bas not been and cannot be settled by negotiation". 3
Sr. Respondent refrains from dealing with the extracts from
the Report of the Committee on South West Africa as quoted at
pages 83 and 84 of the M emorials. •
SU:\IMARY
82. Respondent's submissions with regard to the facts dealt with
in this Chapter are stated in Chapters III to VI below, in each case
to the extent relevant to the Objection considered in such Chapter.
There remains;however, to be dealt with the following statements
by the Applicants in a summary at the end of Chapter II of their
Memorials:
1 G.A ., O.R., Fijteenth Sess., Fourlh Comm., 1049th Meeting, 14th November, tg6o,
paras. 39-66, ppzg6~gg.
1 Of t8th December, 196o, in G.A ., O.R., Fijteenth Ses s., Sup. No. 16(A/4684),
pp. 31-J2.
1 Vide also para. 8 of Chap. VI infra.
t Vide Part A, para1 supra.zg6 SOUTH WEST AFRICA
(a) "Upon the dissolution of the League of Nations the Union did
not conceal ils desire to annex the Territory".
In paragraphs r to IO of Part A above, Respondent indicated
thal the Mandate for South West Africa gave effect to a compromise
arrangement which involved, inter alia, thal C Mandates were, in
their practical effect, not far removed from annexation. Respondent
has further shown in this Chapter that it considered doser associ
ation between South Africa and the Territory to be a natural
development and thal it never made a secret of its conviction thal
the interests of the inhabitants would best be served thereby. At
the lime of establishment of the United Nations and even before
the dissolution of the League, Respondent clearly announced its
view thal the Mandate should be terminated and the Territorv
incorporated in the Union. Respondent's proposai to that effeci,
supported by the wishes of the inhabitants, was however rejected
by the United Nations in 1946.
(b) "Instead, short/y after the United Nations refusai to permit in
corporation of the Territory, the Union contended that the United
Nations had no rights of supervision, or other powers, with respect
to the Territory".1
Respondent's contention was in conformity with a general under
standing to that effect amongst Members of the League and of the
United Nations, a2d given expression to before and after dissolution
of the League.
(c) "The Opi11ion of the Court being unsatisfactory to the Union,
the latter denounced the Opinion as being in error, and proclaimed its
intention not to comply therewith".1
Respondent did not "denounce" the Opinion, nor did it "pro
daim" an "intention not to comply" therewith.
Respondent advanced reasons why it could not accept certain of
the conclusions in the Opinion, the most important reason being
!hat certain vital information was not before the Court when the
Opinion was given. Although Respondent could not accept the
Opinion in toto, it nevertheless made concrete proposais and con
sidered counter-proposals in an endeavour to find an acceptable
arrangement.
(d) "There followed years of patient, tlwugh unavailling (sic), efforts
on the part of the General Assembly to obtain implementation of
the Opinion, by means of negotiation and appeal". 1
L Applicants'Mrmorials, p.Rf1.
2 As will he further dealt with in Chap. Ill, 32(c) and (d) and 3infra. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 297
and,
"H aving concluded after fourteen years of fruitless efforts to obtain
compliance on the part of the Union with the Mandate, thal ils dispute
with the Union has not been and cannat be settled by negotiation ..."
As regards the implication contained in the last-mentioned state
ment, to the effect that there has not been compliance with the
Mandate on the part of Respondent, reference is made to sub
paragraph (e) below.
The allegations conceming "unavailing efforts" and "fruitless
efforts", and the conclusion that there is a·dispute which cannot
be settled by negotiation, are dealt with in Chapters V and VI
below.
(e) "The Committee's repeated findings of Union violations of the
Mandate and recommendations thereon have been as unavailing as the
Committee's efforts to negotiate'', and other allegations at page 86
concerning alleged violations of the Mandate.
Respondent denies that its administration of the Territory has
not been in conformity with the provisions of the Mandate. For the
reasons stated in paragraph I of Part A above, Respondent refrains
from dealing with the substance of the Applicants' allegations in
this regard.
1Ibid., p87.
20 SOUTHWESTAFRICA
CHAPTER III
FIRST OBJECTION
THE MANDATE,As A "TREATYoR CoNVENTION IN FoRcE", HAs
LAPSED.
INTRODUCTORY
I. Respondent deals in this Chapter with its First Objection,
namely, that the "Mandate for German South West Africa",
upon Article 7 of which the Applicants' daim to jurisdiction is
founded, has lapsed, in the sense and to the extent that it is no
longer "a treaty or convention in force" within the meaning of
Article 37 of the Statute of the Court.
2. Applicants seek to found their daim to jurisdiction of the
Court upon Article 7 of the Mandate agreement and Article 37
of the Statute of the Court. 1They suggest that regard is also to be
had to Article 8o, paragraph I, of the United Nations Charter; but
inasmuch as the latter is an interpretation clause only, to the effect
that Chapter XII of the Charter is not to be construed as altering
certain existing rights or instruments, Applicants could not seek
to base anything positive thereon.
Article 7 of the Mandate agreement, in its second paragraph,
provided as follows:
"The Mandatory agrees that, if any dispute whatever should arise
between the Mandatory and another Memberof the League of Na
tions relating to the interpretation or the application of the provisions
of the Mandate, such dispute, if it cannot be settled by negotiation,
shaHbe submitted to the Permanent Court of International Justice
provided for by Article I4 ofthe Covenantof the LeagueofNations".
Article 37 of the Statute of the Court reads:
"Whenever a treaty or convention in force provides for reference
of a matter to a tribunal to have been instituted by the League of
Nations, or to the Permanent Court of International Justice, the
matter shall, as between the parties to the present Statute, be
referred to the InternationalCourt of Justice."
Inasmuch as Article 7 of the Mandate agreement provided for
reference to the Permanent Court of International Justice, which
is no longer in existence, Article 37 of the Statute is a necessary
link in the chain of Applicants' contention that jurisdiction is now
vested in the International Court of Justice. For the purposes of
1 Vidl ApplicantMemOYials,p. 88. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 299
Article 37 it is necessary that Applicants establish not general/y,
that an obligation to submit to jurisdiction can be said to exist in
sorne way or another, but specifically that it exists as a provision
of a "treaty or convention in force". And thus the basic contention
advanced by Applicants in regard to jurisdiction is, indeed, that
"The Mandate, including Article 7 thereof, is in force, and is a
'treaty or convention' within the meaning of Article 37 of the
Statu te of the Court"-'
Respondent submits that Applicants are unable to substantiate
this contention.
3· That the Mandate agreement came into existence, and oper
ated during the life-time of the League of Nations, as a "treaty or
convention", can be regarded as common cause. The issue as
raised in this Objection is whether such operation continued after
the dissolution of the League.
In the 1950 Advisory Opinion the Court in effect held that, in
addition to its operation as a treaty or convention, the institution
known as the Mandate for South West Africa acquired an objective
or "real" existence, as constituting a special status for the Territory,
and that in this objective or "real" aspect the Mandate survived
the dissolution of the League. '
The correctness or otherwise of this proposition does not require
to be reviewed for the purpose of Respondent's Objection to juris
diction-as will appear from reasons dealt with hereinafter. Irres
pective of the question whether the Mandate as an institution
survived the League in an objective or "real" sense and, if so,
with what exact content and to what exact extent, Respondent
contends that in its aspect of operating as a treaty or convention
the Mandate for South West Africa Iapsed upon dissolution of
the League, and that for this reason Applicants' daim to juris
diction must fail.
4· In developing this contention, Respondent will deal with
the matter in the following parts:
A. The contractual nature of the origin of the Mandate and of
the obligations created thereby for the Mandatory (the ward
"contractual" being used in the sense of relating to international
agreement, whether bilateral "treaty" or multilateral "convention").
This part will also refer to the two broad categories into which the
obligations may be said to fall, viz:
(i) Substantive, relating directly to the administration of the
Territory; and 0
(ii) Procedural, relating to supervision by League organs regard
ing observance of the substantive obligations.
1 Ibid.
1 "Internationastatus of South-WesAjrica,Ad'Visory Opinion:I.C.J.R_eports
I95o",pp. 132, 154-57. 165-66.
' SOUTH WEST AFRICA
300
B. The International Person or Persons for whom the Mandate
as a treaty or convention involved rights or legal interests correl
ative to the 1\landatory's obligations. Respondent's submission will
be !hat the circle in this respect was limited to
(i) the League of Nations, regarded as an international legal
persona, or
(ii) the 1\lembers of the League, in their capacity as such, or
(iii) bath (i) and (ii).
C. The effect of dissolution of the League upon the Mandatory's
procedural obligations (A (ii) supra). Respondent's submission will
be !hat these obligations were by their very content dependent for
their fulfilment upon the existence of the League, that on dissolu
tion of the. League they lapsed through impossibility of perfor
mance, and !hat they were not replaced by, or modified into,
similar obligations to submit to supervision by the United Nations
or any other organisation.
D. The effect of dissolution of the League upon the 1\landatory's
substantive obligations (A (i) supra). Respondent's submission will
be !hat although these obligations were not by their content
dependent for fulfilment upon the existence of the League, the
only International Person or Persons for whom the Mandate as
a treaty or convention involved rights correlative to the said
obligations, were the League of Nations and/or its 1\lembers in
their capacity as such; that due to dissolution of the League its
rights lapsed; and that for the same reason States !hat had been
1\lembers of the League, could no longer daim to possess rights or
legal interests by virtue of a treaty or convention that had rendered
such rights or legal interests dependent on membership in the
League.
E. Final observations on the effect of the conclusions arrived
at in Parts C and D upon Applicants' claim to jurisdiction. Respon
dent's submission will be that whether or not objective or "real"
obligations survived the League, and whatever the possible nature
and scope of such obligations, the Mandate agreement is no longer
"in force" as a "treaty or convention" within the meaning of
Article 37 of the Statute.
A. CONTRACTUAL ÜRIGIN AND EFFECT
5· By Article 22 of the Covenant of the League of Nations, the
Signatory Powers agreed that what subsequently came to be known
as the "Mandaté System" was to be applied to certain colonies and
possessions, including South West Africa. 1
As was indicated in Chapter II above, the agreement as even
tually set forth in Article 22 was a compromise arrived at after
1 Part A, para2·10.
, PRELIMINARY OBJECTIONS OF SOUTH AFR!CA 301
much travail at the Paris Peace Conference of rgrg. The history
of the Article explains also why its provisions were in certain
respects vague and lacking in legal precision. Nevertheless the
broad trends of what was intended, as distinct from certain ques
tions of detail, seem reasonably clear.
The Article conimenced with setting out the signatories' agree
ment thal to the colonies and territories in question "there should
be applied the principle that the well-being and development of
[the inhabitants] form a sacred trust of civilization". It further
recorded their agreement thal "securities for the performance of
this trust" should be embodied in the Covenant.
The second paragraph of the Article stated thal "the best method
of giving practical effect to this principle" would be to "entrust"
the "tutelage" of the "peoples" concemed to suitable "advanced
nations", willing to accept it, who would "exercise" it "as Manda
tories on behalf of the League".
The wording of the Article as a whole, as weil as ils historical
background, suggest strongly that these references to "trust",
"tutèlage" and "Mandatory" were not intended to bear technical
legal meanings, by exact or close analogy to municipal law insti
tutions of trust, tutelageand mandatwn. So, for instance, the English
word "trust", which is capable of a technicallegal meaning as weil
as of a more general ordinary meaning, depending on context, was
rendered in the French version by the word "mission", meaning in
this context "task" or "undertaking", and thus confirming thal
a non-technical connotation of "trust" was intended. The concep
tion, also, of the "tutelage" of a backward people or community
by an "advanced nation" could at most have been intended in a
broad, metaphorical sense. It is significant that in the actual
Mandate agreements later entered into, the words "trust" and
"tutelage" did not appear at ali. Even in the case of the words
"Mandatory" and "Mandate", which were retained in the Mandate
agreements themselves, the analogy, if any, with a private law
mandatum was probably intended to b'eof the broadest and most
general nature only. The more detailed and technical aspects of the
private law institution could hardly have been known to the Peace
Conference as a whole-as distinct possibly from certain of its
members-and cannot therefore fairly be presumed to have been
inte.nded· to be incorporated in its covenants It was probably by
reason of considerations such as these thal the Majority of the
Court, in the rgso Advisory Opinion expressed the view thal it was
"not possible to draw any conclusions by analogy from the notions
of mandate 1n national law or from any other legal conception of
that law".
It seems, then, that what was said in the opening paragraphs of
Article 22 concerning a "sacred trust" and "tutelage", must be
1 "Internationastatus of South-WeA/rica,Advisory Opinion: I.C.J.Reports
I950",p. IJ2.302 SOUTH WEST AFRICA
regarded as being descriptive of the idealistic or humanitarian
objectives involved in the Mandate System, and that the reference
to "Mandatories on behalf of the League" is to be understood as
affording a broad indication of the method whereby those objec
tives would be sought to be attained. It is, therl'fore, to the more
detailed provision in Article 22 for "securities for the performance
of this trust" that regard must be had in order to determine the
juridical content of the Mandate System as envisaged by the
signatories to the Covooant.
6. On analysis the following "securities" are found embodied
in the further provisions of Article 22:
(a) Although the Mandatories were to have authority and control
in respect of the territories concemed, 1 in other words (at any rate
in the case of B and C Mandates) title or power of government and
administration, ' this would vary according to circumstances 3 and
would be subject to conditions. 1
(b) The said conditions would be directed towards a two-fold
purpose, namely, ·
(i) to provide certain "safeguards in the interests of the indi
genous population", and
(ii) to secure certain interests or benefits for Members of the
League and their nationals. '
(c) More particularly, the conditions mentioned in regard to B
and C Mandates as directed towards safeguarding the interests of
the indigenous population were:
"... conditions which will guarantee freedom of conscience and
religion,subject on!y to the maintenance of public order and morais,
the prohibition of abuses such as the slave trade, the arms traffic
and the liquor traffic, and the prevention of the establishment of
fortifications or military and naval bases and of military training
of the natives for other than police purposes and the defence of the
5
territory ..."
(d) Specifically directed towards the interests or benefit of
Members of the League and their nationals, would be conditions
to "secure equal opportunities for the trade and commerce of
other Members of the League". 6 This so-called "open door" clause
would not, however, apply in regard to C Mandates. 7 It is further
evident that certain of the conditions mentioned in (c) above as
directed towards indigenous interests, could in addition serve the
1Art. 22(8).
' Ibid .. (5) and (6).
' !Md., (3) and (8).
• Ibid., (6) and (5)·
6 Ibid., (5) read with (6).
' Ibid., (5).
: Vide limitative words at the end of Art. 22(6). PRELIMINARY OBJECTIONS OF SOUTH AFRICA 303
interests of League Members (e.g. the restrictions upon traffic in
arms and ammunition and upon fortification and armament).
(e) The Mandatory was to be under an obligation to render to
the Council of the League "an annual report in reference to the
1
territory committed to its charge". A Permanent Mandates
Commission would receive and examine the reports and advise
the Council "on ali matters relating to the observance of the
mandates". 2
(f) The "degree of authority, control, or administration" to be
exercised by the Mandatory was to be "explicitly defined" in each
case-by agreement between Members of the League or by the
Council. 3
7. It will be observed that Article 22 did not itself purport to
put the Mandate System into operation. It set forth the agreed
idealistic objectives of the System, agreed methods whereby it
would be put into operation and agreed features which would be
incorporated therein. The provisions of Article 22 clearly envisaged
that concrete steps would have to be taken for the complete con
stitution of the System, namely, towards entrusting the "tutelage"
of the inhabitants of particular territories to particular "advanced
nations", ' constituting those "nations" as "Manda tories on behalf
of the League", ' and explicitly defining the degree of authority,
3
control or administration to be exercised by them; and those
provisions prescribed conditions which were in this process to be
imposed as obligations upon the Mandatories, substantive/y in the
interests of the Mandated peoples and Members of the League, •
and procedurally with a view to international supervision over the
"observance of the mandates," i.e. over the exercise of the substan
7
tive powers and compliance with the substantive obligations.
In other words, Article 22 was an agreement between Members
of the League as such, regarding a Mandate System to be constituted
in pursuance thereof. The System itself, however, would begin to
opera te only upon the agreement of the respective Mandatories as
such (not necessarily Members of the League) to undertake specifie
Mandates in respect of particular territories, and to accept specifi
cally defined rights and obligations in connection therewith.
8. The concrete steps envisaged by Article 22 were duly taken,
in the following arder:
(a) The Principal Allied and Associated Powers (in whose favour
Germany was to renounce her overseas possessions by Articles n8
1 Art. 22(7).
2 Ibid., (9).
' Ibid., (8).
4 Ibid., (2}.
1 Ibid.
' Vide Art. 22(5)nd (6) and para. 6 supra.
' Art. 22(7) and (9)- SOUTH WEST AFRICA
and ng of the Treaty) allocated the varions territories to different
Mandatories, and, inter alia, decided on May 7th, rgrg, that the
1
Mandate for South West Africa should be held by Respondent.
(b) Draft Mandate instruments were considered by the Principal
Allied and Associated Powers and, alter agreement \\~t the desig
2
nated Mandatories, submitted to the Council of the League. In
the case of South West Africa the agreement between the Principal
Powers and the Mandatory appears from the second and third
paragraphs of the preamble of the instrument as finally approved. 3
(c) The Council of the League confirmed the Mandates, ' thereby
constituting the designated Mandatories as "Mandatories on behalf
of the League".
(d) The Council further, in pursuance of Article 22 (8), defined
the terms of the Mandates in the manner set out in the instruments
of Mandate '· This was generally in accordance with the drafts
submitted, subject to very minor alterations, if any. • And such
alterations must also have received the assent of the Principal
Powers and the Mandatories; for the final instruments record the
defined terms as being in accordance with those "proposed" by
the Principal Po7ers and "agreed" to and "undertaken" by the
Mandatories.
g. The provisions of the .Mandate for German South West
Africa, as defined by the Council on r7th December, 1920, and
agreed toby the Mandatory, were typical of C Mandates. They can,
for convenience, be grouped as follows:
(a) Mandatory's title: The preamble set out that there was
conferred and confirmed, in accordance with Article 22 of the
Covenant "a Mandate ... toadministerthe territoryaforementioned",
which the Mandatory had undertaken "to exercise ... on behalf
8
of the League". Article 2 provided that "the Mandatory shall have
full power of administration and legislation over the Territory
... as an integral portion of the Union of South Africa, and may
apply the laws of the Union to the territory, subject to such local
modifications as circumstances may require".
(b) Mandatory's substantive obligations: These were set out in
Articles 2 to 5. Article 2 imposed the general obligation to "pro
mote to the utmost the material and moral well-being and the
social progress of the inhabitants". Articles 3, 4 and 5 imposed
1
2Ibid.Chapter II, Part A, para. 7 supra.
1 Annex B infra and L. of N., 0.].,1921, p. Sg. Vide also Preambles to other
C Mandates in Lof N., 0.].,1921,pp. 84-94.
" End of Preamble of Mandate for South West Africa and also of other CMandates,
footnote 3supra.
6 Vide end of Preamble.
1 Wright, op.cit.p. 114.
7Vide Preambles of C Mandates.
1 Paras. 2and 3 of Preamble. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 305
conditions as contemplated in the portion of Article 22 (5) of the
Covenant ciled in paragraph 6 (c) above-those in Article 3 relating
to "the prohibition of abuses such as the slave trade, the arms
traffic and the liquor traffic"; those in Article 4, to the prevention
of fortification and military training of natives other !han for police
and defence purposes; and those in Article 5, to freedom of con
science and religion. Article 5 was worded with reference, not only
to freedom of conscience and worship on the part of the inhabitants,
but also to allowing ali missionaries who were "nationals of any
State Member of the League of Nations" to enter into, !ravel and
reside in the Territory for the purpose of prosecuting their calling.
While ail the obligations imposed by Articles 2 to 5 were "safe
guards ... in the interests of the indigenou·s population", certain
of the provisions (e.g. those of Article 5 relating to missionaries)
appear to have been intended to secure and serve in addition the
interests of Members of the League and their nationals.
(c) Mandatory's Procedural Obligations: Article 6 imposed the
obligation to render to the Council of the League, toits satisfaction,
an annual report "containing full information with regard to the
territory, and indicating the measures laken to carry out the obli
gations assumed under Articles 2, 3, 4 and s".
(d) Amendment of Mandate Provisions: Article 7 provided thal
the consent of the Council of the League was required for any
modification of the terms of the Mandate.
(e) Compulsory ]urisdiction for Adjudication of Disputes: Ar
ticle 7 also set out the Mandatory's agreement to the submission
to the Permanent Court of International Justice ofdisputes between
itself and another Member of the League of Nations, insofar as
they related to the interpretation or application of the provisions
of the Mandate and could not be settled by negotiation. It will
be observed that in Article 22 itself there was no such provision
for compulsory jurisdiction. In the Mandate instruments the rele
vant clause providing for such jurisdiction in each case commences
with the words: "The Manda tory agrees ... "
ro. Thal the Mandate for German South West Africa operated,
during the lifetime of the League, as an international treaty or con
vention, cannot admit of doubt. Indeed, from what Applicants state 1
at page 88 of their Memorials, this appears to be common cause.
Respondent wishes to stress both the contractual origin of the
Mandate agreement and the fact thal it gave rise to contractual
international rights and obligations.
(a) Contractual Origin:
As was observed above (paragraph 8), the Mandate agreements
received the assent or approval of the Principal Allied and Associaled
1 Vide para.2supra.306 SOUTH WEST AFRICA
Powers. the respective Mandatories and the Council of the League.
The Principal Powers acted in pursuance of the power of disposai
conferred upon them by Articles n8 and II9 of the Treaty of
Versailles. And the Council of the League acted in terms of authori
sation conferred upon it by Article 22 (8) of the Covenant, which
was a convention between ali League Members.
(b) Contractual Consequences:
It was by agreement to the terms of the respective Mandate
instruments that the Mandatories obtained the rights and accepted
the obligations set forth therein. These rights and obligations were
international in that they were valid against, and owed to, other
International Persans (as will be further discussed in paras. 13 to
17 below); and they were contractual through being contained in
the provisions of the Mandate agreements, to which they owed
their legal force.
rr. Insofar as the rgso Advisory Opinion stressed the objective
or "real" aspect of the Mandate institution, as involving a: special
status for the Territory, 1 it seems clear that such "real" aspect
was additional to the contractual and did not displace it. In other
words ail the rights and obligations provided for in the Mandate
agreement were contractual-in the sense of existing between
subjects of International Law by reason of an operative treaty or
convention. But some only of those rights and obligations in
addition acquired a "dispositive" or "real" aspect. This is rendered
clear particularly by Sir Arnold McNair at page rs6 of the Opinion
where, after citing or stating the effect of alithe provisions of the
Mandate for South West Africa, he said:
"In addition to the persona! rights and obligations referred to
above, it also created certain 'real' rights and obligations". (Italics
added. ')
The learned Judge proceeded ta indicate that the latter were
"certain rights of possession and government ... " and "certain
obligations binding every State that is responsible for the control
of territory ... "3 (Italics added.)
On this approach to the matter, there could be controversy as to
which rights and obligations feil into the "real" category as pertain
ing to status, and which did not; there can, however, be no contro
versy about the fact that ali rights and obligations contained in
the provisions of the Mandate agreement were contractual.
12. The obligations were imposed by Articles 2 to 6 of the
Mandate agreement and, as was noted above, • feil into the following
two categories, namely:
1 Ibid., para3·
t "Inter11ational status of South-West Africa, Advisory OpinI.C.j.Rep01'1S
I930", p. 156.
Ibid.
4 Vide paras. g(b) and (c) supra. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 307
(a) Substantive, relating directly to the administration of the
Territory (Articles 2 to 5); and
(b) Procedural, relating to supervision by the Council of the
League in respect of observance by the Mandatory of the substan
tive obligations (Article 6).
The substantive obligations can again be subdivided into two
groùps, as follows:
(i) Ail the obligations involved benefit for the inhabitants of the
area;
(ii) Sorne of them, however, at !east potentially involved benefit
also for Members of the League and their nationals.
It would be somewhat diflicult to draw a ·hard and fast line as
far as group (ii) is concemed. Clearly falling within its ambit would
bJ' the provision in Article 5 for freedom of entry into and travel
and residence in the Territory to be allowed to "al! missionaries,
nationals of any State Member of the League of Nations"; the
restriction in Article 4 upon military training of the natives and
fortification of ·the Terri tory; and possibly also the provision in
Article 3 for the control of traflic in arms and ammunition.
But even this list is not necessarilv exhaustive. Certain of the
other obligations, primarily intended for the benefit of the inhabit
ants, might well under particular circumstances of application or
breach affect the interests of a Mernber State or its nationals: th us,
for instance, widespread liquor traflic in the Territory might
sometimes affect the nationals or dependents of a League Member
in a neighbouring territory.
B. INTERNATIONAL PERSON OR PERSONS THAT ACQUIRED RIGHTS
OR LEGAL INTERESTS
13. The question of the International Persan or Persans that
acquired contractuaJ rights or legal interests, correlative to the
Mandatory's aforesaid contractual obligations, can best be answered
with reference to the following potential holders of rights or legal
interests:
(a) The Principal Allied and Associated Powers;
(b) The League of Nations, viewed as an entity distinct from its
Members and endowed with international legal capacity; and
(c) The Members of the League of Nations.
The situation conceming the inhabitants of the Territory as
possible holders of rights or legal interests is dealt with in Part E
below.
14. The Principal Allied and Associated Powers:
Although the group of States known at the time as the Principal
Allied and Associated Powers participated, under that name, in the SOUTH WEST AFRICA
establishment of the Man1ate System, in the manner and to the
extent indicated above, the terms of the respective Mandate agree
ments did not, either by themselves or as read against the back
ground of Article 22 of the Covenant, provide for any function to
be fulfilled by the Principal Powers as such. In other words the
agreements did not confer rights or impose obligations .upon the
Principal Powers as a body or group, or as individual States because
of their membership of that body or group. Their role as Principal
Powers was apparently intended to be transitional only, viz. to
exercise their power of disposai over the ex-enemy territories in
such a way as to get the Mandate System established in respect of
the territories. Their co-operation was particularly necessary with
a view to the establishment of the respective Mandatories' title to
the territories. Having done what was necessary from their side to
achieve that purpose, their fonction as Principal Powers in this
respect was fulfilled; in the operation of the System itself the role
contemplated for them would be that of individual Mandatories,
or of Members of the League, 2 or of both.
rs. The League of Nations:
In determining whether the League was a party to and derived
contractual rights from the Mandate agreements, the first question
of importance is whether the League was to be regarded as a legal
persona and a subject of International Law.
There is a strong body of juridicai opinion in favour of an af
firmative answer to this question.
As Schwarzenberger states:
"ln the case of comprehensive international institutions, such as the
League of Nations or the United Nations, 'at present the supreme
type of international organisation', it is reasonable to assume that
such an institution is intended to exercise and enjoy 'functions and
rights which can only be explained on the basis of the possess-ion of a
large measure of international personality and the capacity to operate
upon an international plane'". s (ltalics added.)
Schwarzenberger's quotations are from the Reparation for in
juries su!Jeredin the service of the United Nations, Advisory Opinion
of April nth, I949·'
This Opinion dealt with the 1946 "Convention on the Privileges
and Immunities of the United Nations", the terms of which created
rights and duties between each of the signatories and the United
Nations Organisation.
1 • 1 Para. 8.
2Art. 4 of the Covenant provides that they will also be permanent members of
the Council of the League.
3Schwarzenberger, G. International Law (3rd ed.), Vol. 1, p. 138.
' "Reparation for injuries sutfered in the service of the United Nations, Advisory
Opinion: I.C.j.Reports I949", p.179- PRELIMINARY OBJECTIONS OF SOUTH AFRICA 309
The Court held:
"It is difficult to see how such a convention could operate except
upon the international plane and as between parties possessing
international personality.
In the opinion of the Court, the Organization was intended to
exercise and enjoy, and is in fact exercising and enjoying, functions
and rights which can only be explained àn the basis ofthe possession
of a large measure of international personality and the capacity
to operate upon an international plane. It is at present the supreme
type of international organization, and it could not carry out the
intentions of its founders if it was devoid of international person
ality. lt must be acknowledged that its Members, by entrusting
certain functions to it, with the attendant duties and responsibili
ties, have clothed it with the competence required to enable those
functions to be effectively discharged.
Accordingly, the Court has come to the conclusion •that the
Organization is an international person. That is not the same thing
as saying that it is a State, which it certainly is not, or that its
legal personality and rights and duties are the same as those of a
State. Stillless is it the same thing as saying that it is 'a super-State,'
whatever that expression may mean. It does not even imply that
all its rights and duties must be upon the international plane, any
more than all the rights and duties of a State must be upon that
plane. What it does mean is that it is a subject of international law
and capable of possessing international rights and duties, and that
it ·has capacity to main tain its rights by bringing international
1
daims".
That the League of Nations was an international legal persona,
was accepted in the "Communications from theSwiss Federal Council
concerning the diplomatie immunities to be accordedto the staff of the
League of Nations and of the International Labour Office", of Sep
tember rSth, rgz6. 2
Article r thereof read:
"The Swiss Federal Goven1ment recognises that the League of
Nations, which possesses international personality and legal capa
city, cannot, in principle, according to the rules of international
law, be sued before the Swiss Courts without its express consent".
On zoth September, rgz6, the Council took note of this arrange
3
ment.
Quincy Wright stated:
"There remains the possibility that the League is itself a perso
nality capable of contracting obligations and acquiring rights, apart
from its members. This is the most generally accepted theory ..." •
1 Ibid.
2 L. of N., 0.].,1926, p. 1422.
3
4 Ibid., pp. 1407, 1422.
Wright, op. cit.p. 366. Vide the various authoritiquoted in footnote 52{a) on
that page. Vide also Starke,J. G. An Introduction to InternationalLaw (3rd ed.),
p. 57; Verdross, A. Die Verfassung der V61kerrechtsgemeinschaft (1926), p. 51;
Williams, J. F. "The status of the League of Nations in International Law",
l.L.A ., Rep.,XXXIV (rg26), p. 688-Bg.310 SOUTH WEST AFRICA
Oppenheim stated:
"The question of the legal nature of the League was a matter of
considerable controversy. The predominant opinion was that the
League, while being a juristic persan sui generis, was a subject of
International Law an1 an International Person side by side with
the several States".
If, in consonance with the above authorities, the view is accepted
that the League was an international legal persona, it must follow
that the League itself was a party to the Mandate agreements and
dPrived contractual rights therefrom correlative to the obligations
impùsed upon the respective Mandatories. Article 22 (2) of the
Covenant rendered clear that the respective Mandatories would
fulfil their functions "as Mandatories on behalf of the League".
Consequent!y, on the premise of "the League" being a legal persona,
the Council's role in entering into the Mandate agreements with the
respective Mandatories, in pursuance of Article 22 (8) of the Cave
nant, would be of the nature of an agency performed on behalf of
the League, whereby the latter would be constituted a party to the
Mandate agreements. In fact, each of the Mandate instruments
records in its preamble the Mandatory's undertaking to exercise its
Mandate "on behalf of the League of Nations"; and it was such a
Mandate that was in each case confirmed by the Council as "the
said Mandate", and the terrns of which were defined by the Council
in pursuance of Article 22 (8) of the Covenant.
Briefly, then, the situation is !hat if the League was a legal
persona, it }Vouldthrough the agency of its Council have been a
party to the Mandate agreements, and the obligations imposed
upon the respective Mandatories by those agTeements would, as
contractual obligations, be owed to the League.
r6. The Members of the League:
(a) If the League of Nations should for any reason be regarded
not as a legal persona but as a voluntary association of States
having no legal personality distinct from that of its Members, then
the expression "Mandatories on behalf of the League" would from
a strict! y legal point of view have to be regarded as inexact. It
would then have to be construed as meaning Mandatory on behalf
of the States associated in the League as Members thereof. And the
Council's action in entering into the Mandate agTeements with the
respective Mandatories in pursuance of Article 22 (8) of the Cave
nant, would have to be seen as an agency performed on behalf of
the Members of the League, in their capacity as such, authorised
by them through their agreement to Article 22 (8) of the Covenant.
(b) On the basis, however, of the League of Nations being
regarded as a legal persona, on whose behalf the Council acted in
1 Oppenheim, L. International Law (8th ed.), Vol. 1, p. 384. Vide the authorities
quoted in footnot2. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 3II
entering into the Mandate agreements, the position of Members
of the League with regard to those agreements becomes more
difficuJt to define. That the League Members did not participate
directly in the conclusion of those agreements, is clear. They did
not through their Govemments sign the Mandate agreements, or
observe the ordinary processes of ratification in regard thereto, or
in any other manner signify their assent as individual parties to
the agreements. Were they then, on the basis under discussion,
to be regarded as having acquired any rights or legal interests
under, and in pursuance of, the Mandate agreements? Various
possibilities fall to be distingnished in this regard:
(i) Insofar as the League itself, as a legal persona, was a party
to whom the Mandatories' obligations were owed, it could take no
decision or action without participation therein by its Members,
in accordance with the provisions of the Covenant and rules of
procedure inade thereunder. In other words, Members of the League
couJd participate in the proceedings of the League and thereby
influence or determine the League's decisions and actions as a
party to the Mandate agreements. In this sense, then, and to this
extent, Members could be said to have had a certain right or locus
standi in regard to League proceedings conceming Mandates. But
this wouJd be a right of League Members in their relationship inter
se and with the League: it wouJd not be a right or legal interest
derived from the Mandate agreements and exercisable as against
the Mandatories.
(ii)Reference was made in paragraph 12 above to the fact that
certain of the substantive obligations imposed upon the Mandatory
for South West Africa involved potential benefit for Members of
the League and their nationals as well as for the inhabitants of the
Territ ory; it is possible tha t they were intended to achieve such
a result. This applied in the case of ail Mandates, and included in
the A and B Mandates the important "open door" obligation to
allow "equal opportuniti es for .the trade and commerce of other
Members of the League". In the case of obligations of this nature
there may well have been a contemplation of rights or legal interests
on the part of League Members vis-à-visthe respective Mandatories.
IfLeague Members are to be said to have acquired contractual
rights in this regard, the basis would have had to be agency by the
Council of the Leagne. In other words, Article 22 (8) of the (ove
nant would have to be viewed as authorising the Coimcil to act not
only on behalf of the League (in respect of allterms of the prospec- •
tive Mandate agreements), but also on behalf of Members of the
League to the extent of securing for them such rights as may
fairly be said to have been contemplated for Members in Article 22.
On this basis, then, rights correlative to the obligations in question
wouJd have been acquired by League Members through the agency
of the Council of the League, and League Members wouJd be pro
tanto co-parties to the Mandate agreements.312 SOUTH WEST AFRICA
Fai!ing this basis, however, the provisions imposing the obliga
tions under discussion could possibly be regarded as stipulations
by the League Council in favour of League Members, available
for acceptance and utilization by them if and when they wished
in which sense ihen it could be said that Members of the League,
though not parties to the agreements, had legal interests in respect
thereof.
(iii) Insofar ashe substantive obligations discussed in paragraph
12 above could operate for the benefit of the inhabitants only,
there would be no potential reasons, corresponding to those dis
cussed in (ii) above, for regardingthe Members of the League either
as co-parties with rights under the Mandate agreements, or as the
holders oi legal interests stipulated for their benefit.
17. The situation as regards the International Person or Persons
who acquired contractnal rights or legal interests from the Mandate
agreements, can therefore in Respondent's submission be sum
marised as follows:
1a) On the basis that the League of Nations was not a legal persona.
Ali the contractual obligations imposed upon the Mandatory
would have been owed to the Members of the League, in their capa
city assuch, who would consequent! y have held the rights correlative
to the obligations.
(b) On the basis that the League of Nations was a legal persona.
(i) Ali the contractual obligations imposed upon the Mandatory
would have been owed to the League of Nations, who would have
held the rights correlative thereto.
(ii) The· Members of the Leagtte, in thez"rcapacity as such, could
have had contractual rights or legal interests vis-à-vis the Mandatory
only insofar as the latter's obligations were intended to operate for
the benefit of Members and their nationals as weil as of the inhabi
tants of the Territory. Insofar as the obligations were imposed for
the benefit of the inhabitants only, the Members would have had
no right or legal interest vis-à-vis the Mandat ory: they would mere!y
have had a right inter se and vis-à-vis the League to participate in
League proceedings regarding Mandates.
In Part D·below Respondent will further develop the argument
that insofar as Members of the League acquired rights or legal
interests from the Mandate agreements, they did so only in their
capacity as Members of the League and for such time as they might
remain Members.
C. EFFECT OF DISSOLUTION OF THE LEAGUE UPON THE MANDATORY'S
PROCEDURAL OBLIGATIONS (OBLIGATIONS RELATIVE TO LEAGUE
SUPERVISION)
18. Although, as submitted in paragraph 5 above, the authors
of the Covenant did not intend any close or technical analogy with PREL!M!XARY OBJECTIONS OF SOUTH AFRICA 313
municipal law institutions of trust, tutelage and mandatum, the
Mandate System did provide certain features of broad resemblance
to those institutions. The resemblance to trust and tutelage lay
in the vesting in the Mandatories of title and powers of adminis
tration, subject to conditions which involved obligations to utilize
the powers for the benefit and progress of under-developed peoples.
The resemblance to mandatum was supplied by the notion that
the Mandatories would, in the exercise of these civili<ing functions,
act "as Mandatories on behalf of the League", and more specifically
by the provision requiring them to report to the Council of the
League relative to observance of their obligations in that regard.
r9. In the history of the government and development of back
ward countries and their inhabitants, this element of League super
vision provided for in the Mandate System was an innovation
generally recognised to be of great importance.
The application of the "sacred trust" and "tutelage" conceptions
in this sphere was nothing new. Following on views expressed by
1
earlier writers, the colonial policies of western powers were, as
from the r8th century, described by various statesmen as civilizing
missions involving duties of trusteeship and guardianship towards
the colonies and their inhabitants. 2
These declarations were generally recognised to be of a moral
character and as involving no consequences in International Law.
P. T. Furukaki expressed the position thus:
"Heretofore certain powerful states of superior civilization have
attributed to themselves a civilizing mission among backward
peoples. France, for example, admits and practices the theory of
the colonization-tutelage. But this isa purely moralduty, voluntari!y
accepted by the colonizing state as a politic means of justifying
in the name of civilization the conquest and the administration of
colonial territories difficult to justify from the democratie point of
view. This duty has been envisaged as the consequence of the
suzerainty over the colony. It allows sovereignty in its full integrity
to remain in the colonizing3govemment which has to render account
to no one for its action".
Towards the end of the r9th century, during the period of the
so-called "scramble for Africa" on the part of colonial powers,
varions international conventions were entered into between them
in relation to, irzteralia, the welfare of native peoples. The General
Act of the Berlin African Conference of r885 provided in Article 9
thereof that the slave trade was "forbidden" by "the principles
1 Vide Chowdhuri, R. N. lntu·national Mandates and Trusteeship Systems, (1955),
pp. 16·18.
a Ibid.,pp. 18·22. Vide also Toussaint,C. E. The Trusteeship System of the
United Nations (1956), pp. 5·8; Haop.cil., pp. 97-100; Bentwich, N. The Mandates
System (1930), p. 4·
1 Furukaki, P. T. "Nature juridique des mandats internationaux de la Société
des Nations", Bib. Un. (July-December, 1926), p. 385, as cited by Wright,
op. ciJ., PP· 536-37.
21 SOUTH WEST AFRICA
of international law as recognised by the signatory Powers"; and
in regard to the area known as the Conventional Basin of the Congo
the powers undertook towards each other not only to apply the
"open door" principle but also
"to watch over the preservation of the native tribes and to care
for the improvement of the conditions of their moral and material
wellbeing, and to help in suppressing slavery, and especially the
slave trade". (Article6.) 1 ·
Later international conferences, mainly at Berlin and Brussels,
in the years 1890, 1899, 1900, 1906, 1907 and 1912, resulted in the
recognition as between the signatory powers of principles andrules
relating to abolition of slavery and the slave trade and to regulation
of the importation of arms and trade spirits into Africa. 2
Although it is in a sense correct to say that by these conventions
the welfare of backward peoples was rendered "a matter of inter
3
national concern", there were as yet no sanctions to the conven
tions. As Bentwich puts it:
"The signatory Powers bad no defined means of intervening if
things were done contrary to the convention; and, io !act, they did
not interfere". "
According to commentators this weakness led to evasion and
inadequate observance of the conventions. ' Moreover it gave rise
to uncertainty as to the exact manner in which certain aspects of
the conventions were to be viewed-more particularly whether, in
providing for native welfare in covenants as between civilized
States, the conventions were to be regarded as giving rise to legal
obligations in International Law or whether they resorted in the
sphere of morality only.
The Mandate System, whilst also containing provisions in accord
ance with the "sacred trust" and "tutelage" ideals, sought to
overcome this weakness and uncertainty by the introduction, in
accordance with the mandatum conception, of international accoun
tability in the form of League supervision. And thus it was that
Wright commented:
"The distinctive feature ot"thesystem isundoubtedly the League's
supervision. The priociples of trusteeship and tutelage have olten
been avowed before and sometimes practised but .only as self
limitations". •
1
General Act of the Berlin African Conference, Art. 6. (Referred to in Hall,
op.1cil., p. 104.)
Vide Hall,op.cit.,pp. 10'2-04Toussaint, op.cit., pp8-9; Chowdhuri, op. cit.,
ppa Toussaint,top.cit., p. 9., 5·
" Bentwich, op.cil., p. 5·
1 VideHall, op.cil.p. 104-os.
1Wright, op.cit.p. 64. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 315
And commentators generally are agreed that it was through
the provision for League supervision that the Mandatories' obliga
tions in respect of the welfare of the mandated communities became
"juristically sanctioned". 1
20. Although commentators frequently employ the broad de
scriptive terms "League supervision" and "supervisory functions
of the League", such phraseology did not occur in the relevant
provisions of Article 22 of the Covenant or of the Mandate agree
ments. These provisions were as follows:
(a) Artide 22 (7) of the Covenant: "In every caseof mandate, the
Mandatory shall render to the Councilan annual report in reference
to the territory committed to its charge".
(b) Article 22 (9) of the Covenant: "A permanent Commission
shall be constituted to receive and examine the annual reports of
the Mandatories and to advise the Council on all matters relating
to the observance of the mandates".
(c) Article6 of the Mandate for South West A/rica, (and corres
ponding provisions in other Mandate instruments). "The Mandatory
shall make to the Councilof the League of Nations an annual report
to the satisfaction of the Council, containing full information with
regard to the territory, and indicating the measures taken to carry
out the obligations assumed under Articles 2,3, 4 and 5".
(d) These specifie provisions are further to be read in the light of
(i) the provision in Article 22 (2) that the "tutelage" should be
exercised by advanced nations "as Mandatories on behalf of
the League", and
(ii)the Mandatories' undertakings (as set out in the preamble of
the Mandate instruments) to exercise their Mandates "on behalf
of the League of Nations".
The "supervisory functions of the League" spoken of by commen
tators was a concept in essence derived from the obligation, im
posed upon the Mandatories by the above provisions, to report
with reference to the Territory and to the measures taken to carry
out the substantive obligations. The.reports would (by implication)
reguJarly be considered by the Permanent Mandates Commission
and the Council of the League with a view to ensuring observance
of the Mandates, if necessary by Council resolutions directed to
that end.
Moreover the Council, without express provision to that effect
in the Covenant or the Mandate· instruments, accepted that the
consideration of petitions regarding alleged grievances about
observance of the Mandates by the ·Mandatories would form part
of its functions as the supervisory organ. And it laid down in that
regard the rules of procedure alreadv refêrred to above. ' Briefly
1 Vide e.g.Furukaki, as citedby Wright, op."cït.p. 537; Bentwich.op. cil,
p.1·
Vide Chap. II,.Part A, para. supra.316 SOUTH WEST AFRICA
these involved that petitions from inhabitants were to be forwarded
through the respective Mandatories, who could then at the same
time fumish their comments, and that petitions from other sources
were to be addressed to the Chairman of the Permanent Mandates
Commission, who was to decide whether they merited attention
and, if so, to forward them to the Mandatory concemed for comment.
Thus the regular consideration of reports and of petitions and
the Mandatories' comments thereon, with a view to securing ob
servance of the Mandates, constituted League supervision correla
tive to the Mandatories' obligations to report and account to the
Council. Without the imposition of this obligation on the Manda
tories, there would be no justification for an inference that the
League Council was intended to exercise a "supervisory function",
or for speaking of any obligation to submit to such supervision.
So, by contrast, Article 23 (b) of the Covenant of the League
imposed upon League Members the obligation "to secure the just
treatment of the native inhabitants of territories under their
control". But in the absence of any additional provisions requiring
the Members affected by Article 23 (b) to act in this respect as
Mandatories on behalf of the League, and to render reports to the
League indicating the measures taken to comply with the obligation
undertaken in that sub-article, nobody has ever suggested that the
League was given a supervisory function with reference to that
obligation or that the Members in question were obliged to submit
to any such supervision.
It is evident, therefore, that the essence of League supervision or
the supervisory functions of the League was the Mandatories' obli
gation to report and account to the Council of the League in respect
of compliance with the substantive obligations pertaining to ad
ministration of the territories and protection and development of
the inhabitants. The further obligation relative to supervision, viz.
to forward petitions, was purely subsidiary and dependent on the
!act that the Council was the supervisory organ-which fact in tum
depended on the obligation to report and account.
zr. The source and origin of this obligation to report and account
was contractual, the Mandatories becoming bound thereto by their
agreement to the Mandate instruments. 1The other party or parties
to the agreements would have been,
(a) the League of Nations, viewed as a legal persona, or
(b) the States associated in the League as Members thereof-if
the League should not be viewed as a legal persona. '
Even on the basis of the League being viewed as a legal persona,
the obligation to report and account might be regarded as being
intended, inter alia, for the benefit of Members of the League, insofar
as their substantive rights or legal interests might be affected
1 Vide particularly pa10supra.
1 Videparas.~3-1 supra. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 317
thereby. A third possibility is therefore that Members, in addition
to the League, could have bad a right or legal interest correlative
to 'he Mandatories' obligation to report and account-on the same
principles as discussed in paragraph 16 (b) (ii) supra relativP tn the
substantive obligations there dealt with.
Thus the other party or parties to the Mandate agreements may
briefly be said to have been the League andjor its Members.
22. By nature and content, too, the obligation and the right cor
relative thereto were of a purely contractual or "Persona/" nature,
as distinct from "real" rights and obligations. The obligation was
not in any way constitutive of the status of the Territory or of the
Mandatory's title thereto, as might be said of other aspects of the
Mandate System. It was not part and parce! of the substantive
obligations involved in the "sacred trust" and "tutelage", but an
obligation to report and account in respect of the observance of
those substantive obligations. Although considered of great practical
importance, as bas been indicated above, 1its severability from the
substantive obligations involved in the "trust" and "tutelage" is
manifest-as is also illustrated by the examples of earlier inter
national conventions mentioned in paragraph 19 supra.
In the Advisory Opinion of 1950 there seemed to be· general
agreement (in Respondent's respectful submission, correctly,) that
the obligation to report and account did not fall within the category
of "real" rights and obligations relating to the status of the Terri
tory. Sir Arnold MeNair express!y classified it as "persona!", and
did not include it amongst "real" rights and obligations involved
in status. 2 The same distinction seems to have been intended in the
Majority Opinion at page 133, where a line was drawn between
obligations "direct! y related to the administration of the Territory",
representing the "very essence of the sacred trust of civilization",
and on the other band those "related to the machinery for imple
mentation", "closely linked to the supervision and control of the
League", and corresponding to "the securities for the performance
of this trust". From page 136 it appears that by this latter class was
meant particularly the obligation to report and account to the
Council, there described by the Court as "an important part of the
Mandates System". Similarly, Judge Read distinguished the "legal
duties which were concerned with ... supervision and enforcement"
as a special class, and rendered it clear that they were severable
from the rights and duties pertaining to status. 3
23. By its content the obligation required the Mandatories to
report and account to a specifie supervisory body, constituted and
functioning under the provisions of a particular international con-
t Vide para. 19 supra.
2 "International status of South-West Africa, Aduisory Opinion: l.C.J. Reports
I950",pp. 156-57·
' Ibid., pp. 164-66.318 SOUTH WEST AFRICA
vention. It was not an obligation to submit generally to "inter
national supervision" or to supervision by the "international com
munity" or "the Family of Nations" or "the civilized nations of
the world" or the like. It was an obligation to report and account
to a specifie organ of a specifie organisation ofcertain ofthe nations
of the world, viz.the Council of the League of Nations.
The implications of this feature are of major importance. The
League was constituted by a Covenant, the provisions of which
were known to the Mandatories, and to which al! Mandatories were,
initially, signatories.he constitution of the Council and the manner
in which it was to function were laid dawn in the Covenant. As has
been noted above, 1 the provisions of the Covenant in that regard
required, inter aliaunanimity, as a general rule, for Council decisions
(Article 5), and an invitation to any Member of the League not
represented on the Council to be represented at any meeting during
the consideration of matters special!y affecting the interests of that
Member (Article 4). The Council would in regard to Mandates .be
assisted and advised by a permanent Commission (Article 22 (9)). It
was to supervision through machinery governed, inter aliaby these
provisions of the Covenant, and to no other, that the Mandatories
consented to submit.
The practical importance of the fact that the obligation related
to specifie supervisory machinery, is illustrated by certain state
ments made by delegates at the Paris Peace Conference. It will be
recalled that on 30th January, rgrg, when the compromise ar
rangement regarding the Mandate System was arrived at, the South
African Prime Minister, General Louis Botha, stated that:
"Personally he felt very strongly about the question of German
South-West Africa. He thought that it differed entirely from any
question that they had to decide in this conference,but he would be
prepared to say that he was a supporter of the document handed
in !hat moming, becausehe knew that, if the idea fructi(ied, the League
of Nations would consist mostly of the same people who were present
there thot day, who understood the position and who would not make
it impossible for any mandatory to govern the countrThat was why
he said he would accept it". • (Italics added.)
To this explanation by General Botha, added significance is lent
by earlier. statements of the British Prime Minister, Mr. Lloyd
George, and President Wilson of the United States of America,
in the Council of Tenon 28th January, rgrg, as follows:
"MR.LLOYD GEORGE said !hat he agreed with M.Clemenceauthat
if the League of Nations were made an executive for purpos_esof
goveming, and charged with functions which it would be unable to
perform, it would be destroyed from the beginning. But he bad not
so interpreted the mandatory principle when he bad accepted it.
1
1 Vide Chap. II, Part A, pa12.supra.
Ibid., para. 6. PRELIMINARY OBJECTIONS OFSOUTHAFRICA 319
PRESIDENT WILSON said he too had not 50 interpreted it.
MR.LLOYD GEORGEc,ontinuing, said that he regarded the system
merely as a general trusteeship upon defined conditions. Only when
those conditions were scandalously abused would the League of
Nations have the right to interfere and to cali on the mandatory
for an explanation. For instance, should a mandatory allow foui
liquor to swamp the territories entrusted to it, the League of
Nations would have the right to insist on a remedy of the abuse". '
This contemplation of a conservative approach to the possibility
of League interference with Mandatory govemment, became a reali
ty upon the establishment of the League. On 5th August, rgzo, the
Council of the League unanimously adopted a report by M. Hymans,
which included the following passage:
"The Annual Report stipulated for in Article 7 should certainly
include a statement as to the whole moral and material situation
of the peoples under the Mandate. It is clear, therefore, that the
Council also should examine the question of thewhole administration.
In this matter the Couneil witt obviously have to display extreme
prudence, so that the exercise of its rights of control should not provoke
any iustifiable complain.ts, and thus increase the ditftculties of thetask
undertaken by the Mandatory Power". • (Italics added.)
The Permanent Mandates Commission was constituted with a
view specially to securing an impartial and non-politicaJ approach
to the exercise of the supervisory functions. Reference bas been
made above to the independence and the individuaJ merit of the
members of the Commission, and to their expressed endeavour to
exercise their authority
"less as judges from whom critical pronouncements are expected,
than as collaborators who are resolved to devote their experience
and their energies to a joint endeavour". 3
The dual function of supervision and co-operation was again
stressed in later reports, • and observed in practice. •
The Council of the League seldom took any action in regard to
Mandates sùpervision save on the basis of the .Commission's advice,
and usually accepted it when given; resolutions were tactfully
worded as suggestions or invitations to Mandatories; • and due to
the considerable representation of 1\landatory Powers on the Council,
it was in generallikely to be sympathetic to the Mandatories' .point
of view. 7 Thus the agreed supervisory machinery was in !act very
carefully checked and balanced so as to render unlikely any in
jurions, biassed or unfair interference with Mandatory govemment.
1
1 L.rof N., Council, Min., VIII, p. r87.ence, I9I9, Vol. Ill, pp. 769-70.
1 L. of N.o.]., 1921, pp. 1124-25. Vide also Chap. II, Part A, para. 14 supra.
' P.M.C., Min., VIII, p. 200 and Wrightop.cil., pp. 196-97.
' Wright, op.cil.pp. 199-200 and Hallop.·cit., p. zog.
• Wright, op.cil., p. I28.
1 Ibid., pp. 87-89.320 SOUTH WEST AFRICA
24. In paragraphs 2r to 23 above emphasis has been laid on:
(a) the contractual origin of the obligation to report and account,
being agreement between the respective Mandatories and the League
of Nations and/or its Members;
(b) the purely contractual or "personal" nature of the obligation;
and
(c) its specifie content as relating to particular and carefully devised
supervisory machinery, with important practical implications tending
towards considerate treatment of the Mandatories in the exercise of
the supervisory functions.
It seems self-evident that during the lifetime of the League no
Mandatory could have been required to submit to supervision by
any other international organisation as regards performance of its
functions under the Mandate. If,for example, a group of Nations
which did not join the League had formed an organisation of their
own, with objectives similar to those of the League and with organs
capable of exercising a supervisory function in regard to the govern
ment of Mandated territories, it could surely not have been contend
ed that the Mandatories, having agreed to submit to "international
supervision" by League organs, must for that reason be regarded
as obliged to submit to "international supervision" by sorne organ
of the parallel organisation. Such a contention would seek to
attribute to the Mandatories an obligation to which they had never
agreed. Sinùlarly it could not have been contended that the Manda
tories would, without fresh consent on their part, be obliged to
submit to "international supervision" by sorne other international
organisation in !act established and having for its members largely
the same States as the League of Nations-such as, for instance,
the International Labour Organisation. Again such a contention
would seek to attribute to the Mandatories an obligation substantial
ly different from that agreed toby them in the Mandate instruments.
Even within the League of ·Nations organisation, an alteration
in the supervisory machinery provided for in the Covenant could
not be imposed upon the Mandatories without their consent-e.g.
an alteration transferring the supervision from the Council to the
Assembly, or providing that the Council could in matters of Man
date supervision arrive at valid decisions by a simple majority
or by a two-thirds vote. For again such an alteration would seek
to impose upon the Mandatories an obligation of a content different
from that agreed toby them in the Mandate instruments. Article 26
of the Covenant did provide for amendments to the Covenant,
through ratification by the Members whose representatives com
posed the Council and a majority of the Members whose represent
atives composed the Assembly: but it proceeded to provide that
no such amendment would bind a Member siguifying dissent there
from, although the dissentient would then cease to be a Member
of the League. At worst, therefore, a Mandatory refusing to agree PRELIMINARY OBJECTIONS OF SOUTH AFRICA 321
to an alteration in supervisory machinery could !ose its member
ship in the League, but the alteration could not be rendered binding
upon it as a Mandatory without its consent-given either expressly,
or tacitly through acquiescence without dissent in a Covenant
amendment in terms of Article 26.
25. Regard has been had above to the resolution adopted by
the Assembly of the League of Nations on r8th April, 1946, whereby
the League was dissolved with effect as from 1 the next day, save for
the purpose of the liquidation of its affairs.
As a result of this resolution the League of Nations and al! its
organs ceased to exist, and it accordingly became impossible for
any Mandatory to comply with the obliga.tion that had been im
posed upon it by the Mandate agreements to report and account
to the Council of the League, or with the subsidiary obligation to
forward petitions to it from inhabitants of the Territory. Respon
dent contends that in the result the said obligations lapsed. As
was stated by Judge Read in his Separate Opinion,. 1950:
"It was.no longer possible for the Union to send reports to a
non-existent Council, or to be accountable to, or supervised by, a
non-existent Permanent Mandates Commission". 1
2ti. Applicants, however, in their Memorials in effect contend
that the obligations "continue" in force in a modified form, viz.
as obligations to report and account and forward petitions to the
General Assembly of the United Nations, which must for the pur
poses of the said obligations be regarded as the new supervisory
authority. ' Applicants rest their case in this regard entirely on the
Majority Advisory Opinion of 1950 and ask for re-affirmation
thereof. •
Respondent contends respectfully that the general considerations
which normally operate in favour of affirmation of a previous
advisory opinion, are in this case outweighed by certain special
considerations to the contrary. The first and foremost of these is
that vital factual information was not placed before the Court for
the purposes of its Advisory Opinion in 1950. The information in
question casts clear light on the real intent involved in the final
resolution of the Assembly of the League of Nations regarding
Mandates, dated r8th April, 1946, and also on the corresponding
general intent and understanding on the part of the Members of
the United Nations at the time of its formation and during the early
years of its existence. Knowledge on the Court's part of the facts
in question would, in Respondent's submission, almost certainly
1 Vide Chap. II, Part A, para. 32 supra.
2 "Internationalstatus of South- West AfricAdvisory Opinion: 1.C.j.Reports
I950", p.166.
1 Vide Applicants' submission No2 (p. 197 of the Memorials) read with pp. 52,
53, 95-103ofthe Memorials.
4 Vide Chap. IV of the Memorials.322 SOUTH WEST AFRICA
have led to a conclusion contrary to thal arrived at in the Majority
Opinion. The information and ils significance will be deal! with
below. Respondent must also point out, with respect, !hat there
were in any event two Minority Opinions on this question. In the
critical comment of writers on International Law-which may also
have been based on fuller information regarding the relevant tacts
than the Court bad at its disposa! in 1950-the weight of opinion
appears to favour the reasoning and the conclusions arrived at
in this regard in the Minority Opinions. In al! the circumstances a
de nova and thorough consideration of the whole question seems
essenlia!.
27. Il will he recalled thal the United Nations Charter was
drafted at San Francisco during the period 25th April to 25th June,
1945, and came into force on 24lh October, 1945-i.e. sorne six
months before the League of Nations was dissolved. As was indi
cated in Chapter II above, the United Nations was a new inter
national organisation which had for ils Members sorne, but not al!,
of the Members of the League of Nations at that lime, plus sorne
States thal were not then, and a large number !hat never bad been,
Members of the League. 1 Although it in many respects adopted
principles and objectives identical or similar to those of the League
of Nations, it was not a successor in law to the League; indeed two
of ils major founder Members were known to he strongly averse to
succession in law. 2 Alter the Charter and the new organisation
had commenced to function, and upon dissolution of the League,
certain League assets were laken over by the United Nations and
certain League activities were "assumed" and continued by it;
but this was effected by special agreements and arrangements
pertaining to those assets and activities, and again in language 3
which intentionally avoided any impression of succession in law.
In providing for the establishment of a Trusteeship System which
would, in a broad sense, correspond to the Mandate System of the
League of Nations, the United Nations Charter created supervisory
machinery which differed very materially from thal which had
operated under the Covenant in respect of Mandates. In the
Trusteeship System the supervision of first instance would not be
by a commission of independent experts, but by a Trusteeship
Council consisting of governmental representatives of Member
States. 4 And the ultimate supervisory authority would not be
a Council in which Mandatory Powers exercised strong influence
and in which a unanimity rule prevailed, but either the General
Assembly of the United Nations,' which could arrive at decisions
by a bare majority or, on important questions, by a two-thirds
1 VideChap. II, Part A, paras. 23 and supra.
2 Ibid., para. 24.
3 Ibid., para28 (c), 31-34.
" Art. 86 of the Charter.
1 Ibid .. Arts. 85, 87-89. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 323
majority, 1 or the Security Council in the case of trusteeship over
2
"strategie areas", in which event decisions could be ta ken by
seven affirmative votes including those of the live permanent
members 3out of a total of eleven. •
By the same reasoning as is set forth in paragraph 24 above, it
seems evident that no Mandatory could, by reason of its agreement
in 1920 to report and account to, and thus to submit to the super
vision of, the Council of the League of Nations, now be held obliged
to report and account to, and submit to the supervision of, the
United Nations or any of its organs. The content of the latter obli
gation would be materially different, in substance as well as in form,
from that agreed to in 1920 by the Mandatories; and for this reason
alone it follows that a Mandatory could only have become bound
to such an obligation by fresh agreement and consent thereto.
28. The question, therefore, whether Respondent is obliged to
report and account to, and submit to the supervision of, the General
Assembly of the United Nations, in essence resolves itself into an
enquiry whether Respondent by any binding juristic act bas
consented to such an obligation.
29. Although the enquiry as thus posed essentially concerns
Respondent's consent to an obligation as postulated, it must of
necessity also have reference to another aspect, viz. to whom such
an obligation if any, would now be owed by Respondent. (The
Majority Advisory Opinion of 1950 does not expressly refer to this
aspect of the question.) As was demonstrated above 5 the obliga
tion to report and account to the Council of the League of Nations
was, by the Mandate agreement, owed by the Mandatory to the
League andfor its Members. As from the dissolution of the League
in 1946, there was no longer such a conception as "the League and/
or its Members". The new obligation would consequently also have
to be owed to new parties.
It is theoretically possible that, in contemplation of the disso
lution of the League in 1946, the Mandatory could have agreed
with the League, as representing its Members, or directly with the
then Members of the League, to continue to be bound to them, i.e.
the then League Members, by an obligation to report and account,
and that the supervisory authority in terms of such an obligation
would be sorne organ of the United Nations. But such an agreement,
in order to be effective alter the dissolution of the League, would
have bad to bind the Mandatory to the States in question indepen
dently of their membership of the League, in other words to those
States individually or as an ad hoc group or as Members of the new
1 Ibid.Art. 18.
2 Ibid., Art. 83.
3 Ibid., Art. 27 (3).
4 Ibid.Art. 23.
5 Para. 21 read with paras. 13-17..:)24 SOUTH WEST AFRICA
organisation, the United Nations. (In this last event the obligation
would not be owed to ali States that were Members of the League at
the time of its dissolu1ion, inasmuch as ali of them did not join
the United Nations).
A second theoretical possibility is that the new obligation could
be owed to the United Nations andjor its Members. To that end
would be necessary an agreement between the Mandatory and the
United Nations and/or its Members, casting upon the Mandatory
the obligation to report and account to sorne organ of the United
Nations.
A third possibility would be something of the nature of a·tripar
tite agreement involving consensus as between (i) the Mandatory,
(ii) the League and/or its Members at the time of its dissolution,
and (iii) the United Nations and/or its Members. The result could be
an obligation owed by the Mandatory to one or to both of the other
groups of parties to the agreement (except for the League itself),
depending on the intent apparent from the agreement.
Any other possibilities would have to be mere variants of the
above three. And the enquiry is therefore directed towards ascer
taining whether Respondent at any time bound itself by agree
ment, either with the Members of the League at the time of its
dissolution (directly or via the League as representing them), or
with the United Nations and/or its Members, or with both these
groups, to an obligation as postulated. Such an agreement could
conceivably have been either part and parce! of general multi
partite conventions concerning the formation of the United Nations
andjor the dissolution of the League, or special as between Respon
dent and others who could conceivably be parties thereto as
aforestated.
30. The United Nalions Charter:
There has never been any suggestion that the provisions of the
Charter of the United Nations by themselves rendered Respondent
obliged to the United Nations or the other Members thereof to
report and account to, or to be subject to the supervision of, any
organ of the United Nations with regard to performance of its
functions under the Mandate for South West Africa. In this respect
there appears to have been general agreement in the Advisory
Opinion of 1950. The Majority Opinion particularly emphasised
that:
"The Charter has contemplated and regulated only a single
system, the International Trusteeship System. It did not contem
plate or regulate a co-existing Mandates System". 1
The whole of the portion of the Opinion in which this statement
occurred (answer to Question (b)) was concurred in by Judge
1 VideChap. II, Part A, para. supra.
2 "Internationastatus of South-West A frica, A.dvisory Opl.C.j.Reports
.1950"p. 140. PREL!MINARY OBJECTIONS OF SOUTH AFRICA 325
McNair and Judge Read; and the particular statement was agreed
to by Judge de Visscher,' Judge Krylov 8 and apparently aJso
Judges Zorici6 and Badawi Pasha (whoconcurred in the dissenting
opinion of Judge de Visscher). ' It is borne out entirely on reference
to the Charter. The provisions of the Charter make no mention of
anything pertaining to supervision in regard to Mandates. They
do make provision for supervision of administration· under the
Trusteeship System, but render it clear that this would apply only
to cases in respect of which trusteeship agreements are entered
into. ' Quite clearly they impose no obligation upon any Mandatory
to enter into a trusteeship agreement, as was(with respect, correctly)
held by the majority of Judges in the Advisory Opinion in 1950.
In any event Respondent had at the San Francisco Conference
when the Charter was being drafted, rendered clear and explicit
that it did not intend to place South West Africa under United
Nations Trusteeship. •
In the circumstances it is manifest that, by agreement to the
Charter, Respondent did not agree to any United Nations super
vision of the performance of its functions under the Mandate.
Furthermore, inasmuch as the Charter provided for supervisory
machinery only in respect of trusteeship agreements voluntarily
entered into, there would have bad to be sorne further appropria te
arrangement, in amplification or possibly even amendment of the
Charter, if United Nations supervision was to be brought about
regarding any Mandate or Mandates not converted into Trusteeship.
31. United Nations Resolutions of ]anuary-February, I946,
pertaining to assumption of certain League functions and establish
ment of the Trusteeship System.
(a) These resolutions and their history, as deaJt with in Chapter
II above, ' in the first place clearly demonstrate that the United
Nations did not consider itself to be an automatic successor in law
to any League functions, and consequently that in its contempla
tion the assumption and continuation of any League function by
it would have to be a matter of active arrangement. Indeed, in
contrast with assets, which were to be "transferred" in terms of
the mutually adopted "common plan", • the earlier idea ofa "trans
fer" of certain functions and activities was abandoned in favour
of one of "assumption" by United Nations organs of certain func
tions and powers. •
1 Ibid., pp. 146 and 164 respectively .
• Ibid.p. I86 .
• Ibid., pI9I.
• Ibid., p. 145.
1 Arts. 77 and 79 of the Charter.
7 VideChap. II, Part A, paras. 25-26 supra.
Ibid.paras. 27-29.
• Ibid.paras. 27-28. and 32.326 SOUTH WEST AFRICA
(b) The second feature of importance is that in Resolution No. XIV
as finally adopted by the General Assembly on rzth February,
1946, the statement of.general willingness to ensure the continued
exercise of League functions was carefully limited to fzmctions of a
non-political character. 2 This would obviously not include the
function of supervision regarding Mandates. The only portion of
the Resolution under which such function could possibly fall would
be Part I, 3, C which read as follows:
"C. Functions and Powers under Treaties, International Conven
tions, Agreements and Other Instruments Havt'ng a Political Character
The General Assembly will itself examine, or will submit to the
appropriate organ of the United Nations, any request from the
parties that the United Nations should assume the exercise of
functions or powers entrusted to the League of Nations by treatiêS,
international conventions, agreements, and other instruments
having a political character".3
In other words, for the assumption of a supervisory function
regarding Mandates, the procedure envisaged by the Resolution
would involve a "request from the parties" to the respective
Mandates, and a decision acceding to the request by the General
Assembly or other United Nations organ considered to be the ap
propriate one.
(c) Even, however, insofar as the said Part I, 3, C of Resolution
No. XIV supplied a method whereby it might be possible, at the
initiative of the parties to the Mandates themseives, to effect an
assumption of supervisory functions in respect of Mandates by sorne
United Nations organ, it seems unlikely that there could have been
a real contemplation that the method would be utilized to !hat end
at ali. The procedure envisaged in the Resolution would be extremely
cumbersome if applied to the case of Mandate agreements. For the
parties to such agreements would iriclude the League of Nations
andjor ali of its Members, sorne of whom did not join the United
Nations:' consequently a "request from the parties" would not be
a matter of easy accomplishment. It is in the circumstances not
surprising to find in the history of Resolution XIV that it was not
designed for Mandates supervision at ali-at any rate as far as its
proposers were concerned. For it will be recalled !hat the Resolution
was based on a recommendation of the United Nations Preparatory
Commission, which in turn had considered a prior report from its
Executive Committee. 'The relevant portion of the Executive Com
mittee's Report, had stated, inter alia, that
1 G.A. Resolution XIV, 12th February, 1946, in U.N. Doc. App.35-36. Cited
in Chap. II, Part A, para. 28supra.
1 Part 1, para. 3, A and B of the Resolution.
1 U.N. Doc. A{64, p. 35·
<~VideChap. II, Part A, para. supra.
6 Ibid.para. 28 (a) and (b). PRELIMINARY OBJECTJONS OF SOUTH AFRICA 327
"Since the questions arising from the winding up of the Mandate
s)•stem are deal! with in Part III,1Chapter IV, no recommendation
on this subject is included here".
"Part III, Chapter IV" as there referred to formed part of the
history leading eventually to Resolution No. XI, adopted at the
same session of the General Assembly, on 9th February, 1946, which
next requires consideration.
(d) The said "Part III, Chapter IV" of the Executive Committee's
Report deal! with the establishment of the Trusteeship System. It
will be recalled thal a recommendation was made therein for the
establishment of a Temporary Trusteeship Committee, one of whose
functions would be to
"advise the General Assembly on any matters that might arise
with regard to the transfer to the United Nations of any functions
and responsibilities hitherto exercised underthe Mandates System".z
The recommendation regarding establishment of the Temporary
Trusteeship C3mmittee was, however, rejected by the Preparatory
Commission; and no other proposai regarding investigation of, or
machinery for, the possible "transfer to" or "assumption by" the
United Nations "of any functions and responsibilities hitherto exer
cised under the Mandates System", was substituted for the rejected
4
proposai. Resolution XI as adopted in effect merely urged expe
dition in the submission of proposed trusteeship agreements by "the
States administering terri tories now held under Mandate".
(e) In adopting Resolution No. Xl the Assembly knew beforehand
!hat such proposed agreements would not be submitted in respect
of ali Mandated territories. Express reservations bad been made by
the South African representative • indicating an intention on the
part of his Govemment to refrain from placing the Mandated
Territory under United Nations Trusteeship and to seek recognition
for incorporation thereof in the Union. From reservations made by
the representative of the United Kingdom, ' the future of the
Palestine Mandate was known to be uncertain. Furtherrnore, the
Pacifie Islands under Japanese Mandate were occupied by the
United States and no decision had been come to as to their future.
In addition the representatives of the United Kingdom and France
bad indicated that their Govemments' willingness to place certain
Mandated territories under United Nations Trusteeship depended
6
upon their being able to obtain satisfactory terms.
1 Doc. PC/EX/II3{Rev. 1,p. no.
t Ibid., p. 56.
t Vide Chap. Il, Part A, para. 29 supra.
4 Vide text in Chap. II, Part A, para. 29supra.
1 Chap. Il, Part A, para. 29 (d) and supra.
• Ibid., para. 29 (f).328 SOUTH WEST AFRICA
(f) In ail the circumstances, the silence on the part of the United
Nations in regard to supervision of Mandatory government is
significant.lts Members were aware that time would elapse before
the coming into effect of the Trusteeship System, and that there
could be no certainty that ail Mandated territories would end up
as Trust territories (sub-paragraph (e)supra). Yet no attempt was
made to arrive at a general arrangement either for interim super
vision (alter dissolution of the League) regarding Mandated terri
tories until they should become Trust territories, or for any super
vision at ail in respect of Mandated territories which might not
become Trust territories. The United Nations made elaborate
provision for the "assumption" of certain League functions and
powers, and transfer to it of League assets, knowing, however, that
its Resolution (No. XIV) in this regard was neither designed for,
nor really practically suited to, supervisory functions in respect'of
Mandates (sub-paragraph (c) supra). A specifie proposai envisaging
investigation and recommendation conceming possible "transfer"
nothing substitutedunfor it (sub-paragraph (d)asupra).tThe inference
seems inescapable that the omissions were deliberate. 1t is highly
unlikely that it would have been possible to achieve a general
arrangement applicable to ail Mandated territories in view of the
widely varying circumstances pertaining to them and the differing
intentions of the Mandatory States in regard to their future-with
the result that the matter perforee had to be left tospecialarrange
ment, if any, to be arrived at in each particular case.
(g) However that might be, the contents and history of Reso
lutions XI and XIV clearly show that, at the time oftheir adoption,
being shortly prior to dissolution of the League of Nations
(i) there had been no agreement between Respondent and the
United Nations and/or its Memberswhereby Respondent consented
funetions under the Mandate;n regarding the performance of its
(ii) that the only provision made on the part ofthe United Nations
whereby such agreement could possibly come about, if at al!, was
that contained in Part 1, J,C of Resolution XIV, envisaging a
request therefor by the parties to the Mandate and agreement
thereto by a United Nations organ; and
(iii) that in viewofthe repeated reservations made by Respondent,
the Members of the United Nations must have realised that the
prospects of Respondent being a party to such a special request
were remote.
32. Relevant League of Nations Resolutions during last Session of
its Assembly, 8-r8th April, I946:
The texts of the relevant Resolutions that were adopted by the
League Assemblyon 18th April, 1946,are set out abovein Chapter II,
Part A, paragraphs 33, 34 and 35 (f). PRELIMINARY OBJECTIONS OF SOUTH AFRICA 329
(a) As will appear from the preamble of the Resolution relating
to assumption by the United Nations of League functions and
1
powers arising out of international agreements, the Assembly of
the League had "considered" the United Nations General Assembly
Resolution No. XIV of the 12th February, 1946, on the same
subject. ' The League Resolution in question, as did the one follow
ing upon it and set out in paragraph 34 of Part A of Chapter II
above, specificaJJyconfined itself to functions, powers and activities
of a non-political character, and contained provisions designed to
facilitate assumption of such functions, powers and activities by
the United Nations in terms of its Resolution XIV. It remained
silent in regard to functions and powers arising out of international
agreements of a political character, as dealt with in Part 1, 3, C of
the United Nations Resolution No. XIV. The inference seems clear
that the League Assembly considered that that was a matter in
regard to which it had no role to play, and which was to be left to
the ad hoc treatment envisaged by Part 1, 3, C of United Nations
Resolution XIV. In other words, the League Assembly clearly knew
that the United Nations wished each case involving political
tunctions to be dealt with separately, by way of a request by the
interested parties to the United Nations and consideration thereof
by the United Nations Assembly or other appropria te organ: and
if it contemplated or intended transfer of such functions to the
United Nations in any other manner, it couJd be expected to have
said so.
(b) This was exact!y what had been contemplated in the first draft
proposai by China concerning Mandates. 1The second paragraph of
the draft mvited the League Assembly to express the view that
"the League functions as supervisory organ for mandated territories
shouJd be transferred to the United Nations after dissolution of the
League in order to avoid a period of interregnum in the supervision
of the Mandated territories". The third paragraph invited it to
recommend submission of annual reports by the Mandatories to
the United Nations until the Trusteeship Council shouJd be consti
tuted. Here, then, was a proposal involving a course of action
differing from that contemplated in Part 1,3,C, ofthe United Nations
General Assembly Resolution No. XIV: instead of separate consider
ation by United Nations organs of separaie requests from parties
interested in particular Mandates, the proposaJ envisaged transfer to
the United Nations .of supervisory functions in respect of aU
Mandaied territories and submission to the United Nations of reports
by all Mandatories.
It seems quite clear that such 'lproposai couJd not have obtained
the unanimous support required for a League Assembly Resolution.
1
1The League resolution erroneously refers to the date as t6th February, 1946.
1 VideChap. II, Part A, para.(c)supt'a.
22330 SOUTH WEST AFRICA
By reason of the reservation stated by South Africa in regard to
South West Africa-being, in effect, that neither a Mandate System
nor a Trusteeship System should in future apply to the Territory
the Union could not support the original Chinese proposai. 1 Nor
does it seem that that proposai could have received the support of
the United Kingdom, which, in terms of the statement by its repre
sentative, reserved its future intentions in regard to Palestine. 2
Furthermore, the reservation by the representative of Egypt 3 was
to the effect that Mandates would, in his Government's view,
terminate with the dissolution of the League, and that Palestine
must in any event be considered to have outgrown the need for
being governed under Mandate or Trusteeship: thus it also seems
most unlikely that Egypt could have supported the original Chinese
proposai.
(c) In the light of the above considerations, the significance of the
fact that the original Chinese draft was dropped after informai
discussions and replaced by an agreed draft, which was then unani
mously adopted, is self-evident. It will be observed that in paragraph
3 of the Resolution, as·adopted, 4 the Assembly "recognises" that
on dissolution of the League its functions with respect to Mandated
territories will come to an end, and it "notes" the existence in the
Charter of the United Nations of principles "corresponding to" those
of Article 22 of the League Covenant: but it says nothing in regard
to transfer to the United Nations of the League's functions with
respect to Mandates, or of assumption or continuation of such
functions by the United Nations. In paragraph 4 it expresses a
contemplation of "other arrangements" that may be "agreed be
tween the United Nations and the respective manda tory powers";
and as regards the interim period, pending such agreement upon
"other arrangements", it "takes note" of the "expressed intentions"
of those powers to continue
"to administer [the territories] for the well-being and development
of the peoples concerned in accordance with the obligations con
tained tn the respective mandates".
In ali the circumstances, the only inference that can be drawn
is that the omissions in the adopted Resolution, as compared with
~he original Chinese draft, were intentional. The proposer of that
draft had also envisaged an interim period, described by Dr. Liang
on the gth April, 1946, as follows:
"in view of the tact that the Trusteeship Council of the United
Nations bas not yet been appointed and was not likely to be set up
for sorne time", 6
1
1 Vide statementtof Viscount Cecil of Chelwood as cited in Chap. II, Part A,
para. 35 (b) (supra.
s Vide Chap. II, para. 35 (esupra.
~ Vide text in Chap. II, Part A, para.(fsupra.
• Vide Chap. II, Part A, para. (c). PRELIMINARY OBJECTIONS OF SOUTH AFRICA 33I
and described in the last paragraph of the draft itself as
"until the trusteeship council shaHhave been constituted". 1
It was specifically in respect of this interim period that the
proposer of the original draft wished
"to avoid a period of interregnum in the supervision of the Mandated
territories",1
and consequently invited the Assembly
(i) to express the view "!hat the League functions as supervisory
organ for mandated territories should be transferred to the United
Nations",
and
(ii) to recommend "thal the mandatory powers ... shaHcontinue
to submit annual reports on these territories to the United Nations".
Instead, as indicated above, the adopted Resolution in respect
of such interim period confined itself to stating that the Assembly
"takes note" of "expressed intentions" "to administer the territories"
in a certain manner.
That the representative of China was himself fully aware of the
significance of the contras!, appears from what he said upon intro
ducing the eventual agreed draft, on rzth April, 1946, as compared
with his earlier speech on the gth April, 1946. • He emphasised (on
rzth April) that the functions of the League in respect of Mandates
"were not transferred automatically" to the United Nations and
that the Assembly "should therefore take steps to secure the con
tinued application of the princip les of the mandates system".
But instead of moving from this foundation to the earlier proposal
"recommending that the mandatory powers should continue to
submit annual reports ... to the United Nations", he then stated
that, as the Australian representative bad pointed out the previous
day, the League "would wish to be assured" as to the future of
Mandated territories. He referred to statements by representatives
of other Mandatory States, and described as "gratifying" the fact
that ali bad "announced their intention to administer the terri
tories under their control in accordance with their obligations
under the mand,..te system until other arrangements were agreed
upon". His comment on the substance of the matter concluded
that "it was to be hoped" that "the principles of trusteeship under
lying the mandate system" "would" be applied to the territories
"in full" by "the future arrangements to be made".
Clearly then, the conclusion is mescapable that there was in the
final result a deliberate refrainment from attempting to secure a
1 Ibid.
2 Ibid.,Videsecond para. of draft.
' Ibid., para. 35 (d).
' Ibid., para. 35 (c).332 SOUTH WEST AFRICA
general transfer to the United Nations of League supervisory
functions in respect of Mandates not converted into Trusteeship,
and even from attempting to secure a recommendation that reports
should in respect of such Mandates be rendered to the United
Nations. The intention must have been to leave to such "other
arrangements", ifany, asmay be"agreed" ineachcase,thepossibility
of the assumption by the United Nations of supervisory powers in
respect of Mandates not converted into Trusteeship-in other
words, to the ad hoc method which was the only possibility provided
for by the United Nations General Assembly in Part I, 3, C of its
Resolution XIV of the 12th February, 1946.
(d) The above conclusions are further confirrned by the fact that
none of the "expressed intentions" of Mandatory States referred
to in paragraph 4 of the Resolution included an intention to report
to the United Nations pending such "other arrangements": they
were confined to administration of the territories in accordance
with obligations regarding protection and promotion of the well
being and development of the inhabitants, and certain of the
statements strongly suggested that there would be no reporting
pending the "other arrangements". Thus the statement 1 of the
South African representative pointedly referred to "the disappear
ance of those organs of the League concemed with the supervision.
of mandates, primarily the Mandates Commissionand the League
Council", as something which would "necessarily preclude complete
compliance with the letter of the Mandate"; and immediately
before, he had stated an intention of continued administration
by the Union in accordance with the obligations of the Mandate,
for the advancement and promotion of the interests of the inhabi
tants, "as she has done during the past six years when meetings of
the Mandates Commission could not be held" (and when reports
were in fact not rendered). The Australian representative also
stated, 'inter alia,that
"Alter the dissolutionofthe LeagueofNationsandthe consequent
lpossibleta continue the Mandates System in its entirety".ll(Italics
added.)
And the United Kingdom's intention was expressed as being
''to continue to administer these territories in accordance withthe
general princip/eof the existing mandates". • (Italics added.)
(e) In view of the above, the conclusion is clear that the relevant
resolutions of the Assembly of the League of Nations at its last
session did not embody any agreement, either express or implied,
between Respondent and the League and/or its other Members,
1 Ibid., para. 35 (ii).
• Ibid., para. 35 (b) (i). PRELIMINARY OBJECTIONS OF SOUTH AFRICA 333
whereby Respondent was rendered obliged to report or account to,
orto submit to the supervision of, any organ of the United Nations
relative to performance of its functions under the Mandate. On the
contrary, the indications point to a mutual understanding that,
pending "other arrangements" which may be "agreed" upon
between the United Nations and Respondent, there would be no
reporting or accounting or supervisory authority. Such "other
arrangements" could potentially, as far as the League Resolution
was concerned, caver a variety of possibilities such as,
(i) recognition of a new status for the Territory, such as was being
proposed by Respondent, or independence, or partition as in the
case of Palestine; or
(ii) a Trusteeship Agreement; or
(iii) theassumption" by the United Nations, in terms of Part I,
3, C of its Assembly's Resolution XIV of 12th February, 1946, of
supervision regarding continued Mandatory administration of the
Territory in pursuance of a request to that end.
33. Negotiationssubsequentto dissolutionof the League:
The evidence shows that subsequent events never led to any
agreement whereby Respondent was rendered obliged to submit
to the supervision of any United Nations organ.
"Other arrangements", as contemplated by the Resolution of
the last League Assembly, were never "agreed" upon between the
United Nations and Respondent. The United Nations was not
prepared to agree to an arrangement whereby recognition would be
given to incorporation of South West Africa in the Union, nor to
other proposais subsequently made. 1 On the other hand, Respon
dent, for the reasons explained in Chapter II above, ' was not
prepared to agree to Trusteeship for the Territory. And there never
was, in terms of Part I, 3, C of the United Nations General Assem
bly's Resolution No. XIV of 12th February, 1946, any "request
from the parties" or agreement thereto by any United Nations
organ as to "assurnption" by the United Nations of supervisory
functions regarding continued Mandatory administration of the
Territory.
In Chapter II, Part B above, the history is dealt with of Respon
dent's undertaking, later withdrawn, to submit statistical and
other information "in accordance with Article 73, paragraph (e),
of the Charter". Article 73 (e), where it applies as a matter of law,
does not involve an obligation to submit to "supervision". The
whole of Article 73 comprises a counterpart in amplified form of
Article 23 (b)of the League Covenant, in respect of which, as indi
cated above in paragraph 20, no obligation concerning supervision
applied. The same situation was intended to apply in Article 73
2 Vide Chap. II, Part B, paras. 4, 41 and 68 supra.
Ibid., para. 5· SOUTH WEST AFRICA
334
of the Charter; and it is to this end that paragraph (e) thereof
emphasises that the transmission is to be "for information pur
1
poses".
In the present case there was a purely voluntary undertaking to
furnish information "in accordance with" or "on the basis of" 2
Article 73 (e), coupled with an express deniai of liability to submit
to United Nations supervision, and with an understanding that
the information was not to be dealt with as if a trusteeship agree
ment had, in fact, been concluded. 3 Inasmuch as the United
Nations neither accepted nor observed the conditions attached to
the undertaking, in which circumstances the undertaking was
withdrawn, 4there was never any consensus ad idem or agreement,
even as regards the furnishing of information in accordance with
Article 73 (e), much Jess as regards Respondent being obliged to
submit to supervision on the part of the United Nations.
34·Practice of States :
During the years immediately after establishment of the United
Nations and dissolution of the League, the practice of States
showed a general understanding that the League supervisory powers
in respect of Mandates had not been transferred to, or assumed by,
the United Nations. ·
(a) The Trusteeship Agreement for the Mandated Territory5of
Nauru was entered into as late as November, 1947, i.e. more than
two years after the Charter had come into force; and the United
Kingdom withdrew from the administration of Palestine only as
6
from the 15th May, 1948. Yet no reports were in the interim period
submitted to the United Nations in respect of either terri tory. And,
as far as the United Nations records show and Respondent is aware,
no State ever suggested that such reports should be submitted
either in respect of these territories or in respect of any other
Mandated territories during the period after dissolution of the
League and prior to "new arrangements" being "agreed" upon
in regard to them.
(b) The case of Palestine is of particular significance inasmuch as
it was investigated and reported upon by a United Nations Special
Committee, consisting of representatives of eleven Members of the
United Nations. 7 In its Report, dated the 3rd September, 1947,
1
2 Vide Hall, op. cit., pp. 285-86, 288-Sg.
Vide Chap. II, Part B, paras2,6, 7 and g.
a Ibid.
1 Ibid., p;ua11.
1Vide C.A., O.R., Second Sess., Sup. No10(A{402{Rev. 1).
The Mandate terminated on 15th May, 1948. The last British troops left from
Haifa on 30th June, 1948. Vide Keesing's ContemporaryArchives, Vol. VII (1948-
1970), p. 9354·
Australia, Canada, Czechoslovakia, Guatemala, lndia, Iran, the Netherlands,
Peru, Sweden, Uruguay and Yugoslavia. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 335
this Committee clearly expressed its understanding that there was,
as from the dissolution of the League, no supervisory authority in
respect of the administration of Palestine and no obligation on
the part of the Mandatory to submit to any supervision. This
appears abundantly from the following extracts from the Report,
ali from portions unanimous!y agreed to by the Commit tee:
"Following the Second World War, the establishment of the
United Nations in 1945and the dissolution of the League of Nations
the following year opened a new phase in the history of the manda
tory regime. The mandatory Power, in the absence of the League
and its Permanent Mandates Commission, had no international
authority to which il might submit reportsand generallyaccountfor the
exercise of its responsibilities in accordance with the terms of the
Mandate. Having this in mind, at the final session of the League
Assembly the United Kingdom representative declared that Palestine
would be administered 'in accordancewith the general principles'of1
the existing Mandate until 'fresh arrangements had been reached' ".
(Italics added.)
After recommending unanimously that:
"The Mandate for Palestine shall be terminated at the earliest
practicable date",
the Commit tee commented as follows:
"It may be seriously questioned whether, in any event, the
Mandate would now be possible of execution. The essential feature
of the mandates system was that it gave an international status
to the mandated territories. This involved a positive element of
international responsibility for the mandated territories and an
international accountabilityto the Coùncil of the League of Nations
on the part of each mandatory for the well-being and development
of the peoples of those territories. The Permanent Mandates Com
mission was created for the specifie purpose of assisting the Council
of the League in this function. But the League of Nations and the
Mandates Commission have been dissolved, and there is now no
means of discharging fully the international obligationwith regardto a
mandated territory other thon by placing the territory under the Inier
national Trusteeship System of the United Nations.
The International Trusteeship System, however, has not auto
matically laken over the functions of the mandates system with
regard to mandated territories. Territories can be placed under
trusteeship only by means of individual trusteeship agreements
approved by a two-thirds majority of the General Assembly.
The most the mandatory could now do, therefore,in the event of the
continuation of the Mandate, would be w carry out ils administration,
in the sPirit of the Mandate, without being able to discharge its inter
national obligations in accordance with the intent of the mandates
system. At the time of the termination of the Permanent Mandates
Commission in April, 1946, the mandatory Power did, in !act,
declare its intention to carry on the administration of Palestine,
1G.A., O.R., Second Sess., Sup. 11, Vol. I (A/364), p26-27. SOUTH WEST AFRICA
pending a new arrangement, in accordance with the general princi
ples of the Mandate. The mandatory Power has itself now referred
the matter to the United Nations". 1 (Italics added.)
{c) The above Report on Palestine contained, inter alia, also a
special note by Sir Abdur Rahman, representative of India. The
following passage occurred therein :
"Moreover, the international machinery in the form of the
Permanent Mandates Commission,which had been created for the
purpose of scrutinizing the actions of the mandatory Powers, and
to which they were bound to submit annual reports, has, along
with the League of Nations, ceased to exist.There are no means IYy
which the international obligations in regarto mandates can be dis
charged1Yythe Uniled Nalions.
The Mandate bas in any case become infructuous, and must, in
my opinion, go. Whether it could be superseded by any other system
w1thin the present Charter is a different matter, and will 1e dealt
with when I consider the solution of the present problem". (Italics
added.)
{d) At an earlier stage, on 22nd November, 1946, the represent
ative of New Zealand had clearly expressed a similar understanding
that, in the case of a Mandate not converted into Trusteeship, there
was no question of United Nations supervision. The statement was
made in a sub-committee of the Fourth Committee, during the
Second Part of the First Session of the General Assembly, in a
debate concerning a draft Trusteeship Agreement for the Territory
of Western Samoa, held under Mandate by New Zealand, and was
as follows:
"New Zealand, altho~ ht would be most co-operative, could
not be forced to amend 1ts draft agreement. The result of disap
proval of the draft agreement by the General Assembly would be
that New Zealand would carry on, as in the past, its sacred trust
to lead the peopleof Samoa in their orderly progress towards self
government. In this eventuality, New Zealand would have to carry on
without the priviltge of the supervisiIYthe United Nations which il
desired".3 (Italics added.)
{e) On 2nd April, 1947, during the 124th meeting of the Security
Council, a similar understanding emerged from statements made by
the representative of the Union of Soviet Socialist Republics. He
was participating in discussion of a draft trusteeship agreement for
the former Japanese Mandated Islands, more particularly with
reference to a Polish amendment to insert in the preamble the
words:
"Whereas Japan has violated the terms of the above mandate
of the League of Nations and has thus forfeited her mandate".
1 Ibid.p. 43·
1 Ibid.Vol. II '(A/364/Ad1), p38.
G.A.,O. R., First Sess., Second Part, Fourth Comm., Part Il, Fifth Meeting,
22nd November, 1946, p. 28. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 337
Mr. Gromyko's statement, on behalf of the Soviet Union, con
tained the following:
"It seems to me that there is no need for such an amendment.
There t·sno continuity, either legal or otherwise, between the mandatory
system of the League of Nations and the Trusteeship System laid
down in the United Nations Charter.There istherefore nothing which
might entitle the Security Council to discuss this question, let alone
take any decisionson it. The mandatory system of the League of
Nations is distinct from the Trusteeship System which the United
Nations is now trying to establish". (Italics added.)
After referring to "a difference in the fundamental principles" of
the two systems, he proceeded:
"It seems tome, moreover, that in this connexion we should not
Josesight of the fact that, since there is no continuity such as would
permit and justifythediscussionofthisquestionbythe SecurityCouncil,
the latter cannot investigate the substance of the matter. For the
reasons which I have just stated, the Security Council is not compe
tent to decide to what extent ]apan may have violated the conditions
of the mandate system and1the dulies involved in the administration
of mandated territories". (Italics added.)
(f) On 19th March, 1948, during the 271st meeting of the Security
Council, in a debate regarding Palestine, the same understanding
emerged once again from a statement by the representative of the
United States of America, as follows:
"The United Nations does not automatically faU heir to the
·responsibilities either of the League of Nations or of the Mandatory
Power in respect of the Palestine Mandate. The record seems to us
entirely clear that the United Nations did not take over the League of
Nations Mandate tystem". • (ltalics added.)
(g) The understanding which emerges from the above written
and oral statements made on behalf of a large number of States,
Members of the United Nations, in a variety of circumstances and
situations, and within a relatively short time after the establish
ment of the United Nations and the dissolution of the League,
when the events were still reasonably fresh in memory, in Respon
dent's submission effectively refutes any suggestion of tacit agree
ment as between Members of the United Nations or other interested
parties to the effect !hat Mandatories would be subject to United
Nations supervision in respect of Mandates not converted into
Trusteeshi p.
35· The Advisory Opinion of I950:
(a) The Majority of the Members of the Court came to the
conclusion:
1 S.C., O.R., Second YeaNo. 31, 124th Meeting, :znd April, 1947, p. 648.
z Ibid., Third Year, Nos. 36·51, 271st Meeting, Jgth March, 1948, p. 164. SOUTH WEST AFRICA
"thal the General Assemblyof the United Nations is legally quaiified
to exercise the supervisory functions previously exercised by the
League of Nations with regard to the administration of the Terri
tory, and thal the Union of South Africa is under an obligation to
submit to supervision and control of the General Assembly and to
render annual reports to it''.1
At the next page followed a consequential conclusion regarding
petitions, viz :
"In view of the result at which the Courthas arrived with respect
to the exercise of the supervisory functions by the United Nations
and the obligation of the Union Govemment to submit to such
supervision, and having regard to the fact that the dispatch and
examination of petitions form a part of that supervision, the Court
is of the opiniomthat petitions are to be transmitted by that Go
vernment to the General Assembly of the United Nations, which is
legally qualified to deal with them".
The Court's reasoning in support of its above main conclusion,
is set out at pages 136 to 137 of the Report. It commences with a
recognition of
"the fact that the supervisory functions of the League with regard
to mandated territories not placed under the new Trusteeship
System were neither expressly transferred to the United Nations
nor express!y assumed by that organisation".
Then follow what in the Court's words "nevertheless ... seem to
be decisive reasons" for its conclusion. These can briefly be summa
rised as follows:
(i) The obligation to accept "international supervision" and to
submit reports is an important part of the Mandate System-con
sidered by the authors of the Covenant to be required for effective
performance of the sacred trust; and similarly regarded by the
authors of the Charter relative to the International Trusteeship
System. The "necessity for supervision" continues despite disap
pearance of the League. The "obligation to submit to supervision"
cannat be admitted to have disappeared "merelybecausethesuper
visory organ has ceased to exist", when the United Nations has
another international organ performing similar, though not identical,
supervisory functions.
(ii).These general considerations" are confirmed by Article 8o (1)
of the Charter, which cannat "effectively safeguard" the rights of
the peoples of Mandated territories without international super
vision and a duty to render reports to a supervisory organ.
(iii) In its Resolution of 18th April, 1946, concerning Mandates,
the Assembly of the League of Nations gave expression to a "corre
sponding view". In the Court's view "this resolution presupposes that
1 "Internationalstatus of South-West A/ricAdvisory Opinion: l.C.j. Reports
1950", p.137· PRELIMINARY OBJECTIONS OF SOUTH AFRICA 339
the supervisory functions exercised by the League would be taken over
by the United Nations".
(iv) The General Assembly of the United Nations is rendered
competent to exercise such supervision and to receive and examine
such reports by Article ro of the Charter.
(b) It seems evident that the Court could not have mean! that
each of the above four "reasons" was to be regarded as in itself
affording full justification for the conclusion arrived at.
So, for instance, Reason No. (iv) is concerned merely with the
determination within the United Nations of an organ which would
be competent to undertake the supervision. But this "reason" has
no relevance in the enquiry unless there should be an obligation to
submit to United Nations supervision. The General Assembly is said
to be such a competent organ by reason of Article roof the Charter,
which is a general provision as follows:
"The General Assembly may discuss any questions or any matters
within the scope of the present Charter or relating to the powers
and functions of any organs provided for in the present Charter,
and, except as provided in Article 12,may make recommendations
to the Members of the United Nations or to the Security Council
orto both on any such questions or matters."
Clearly the relevance of Article ro depends on the prior question
whether a supervisory power in respect of the Mandate for South
West Africa is a "question or matter within the scope of the ...
Charter" or a "power" or "function" of any "organ provided for in
the ... Charter". And !hat, in turn, is just another way of putting
the question whether the Mandatory is under an obligation to
submit to United Nations supervision in respect of the adminis
tration of South West Africa. Reason No. (iv) above, obviously does
not purport to touch upon this question, but, on the contrary,
assumes !hat it has already been affirmatively answered by Reasons
Nos. (i), (ii)nd (iii).
(c) Similarly Reason No. (i)does not appear to have been intended
as justification, by itself, for the conclusion that Respondent is
under an obligation to submit to United Nations supervision. On
analysis this Reason in the first place emphasises the importance of
the element of international supervision in the Mandate System.
Although the phrase "necessity for s-upervision" is used, the word
"necessity" is clearly employed in the relative sense of necessary for
etfective performance of the sacred trust, and not in the absolute
sense of necessity for the existence of the sacred trust or of the
Mandate. This is rendered clear, not only by the wording of Reason
No. (i) in the Opinion, but also by the earlier finding in the same
Opinion, that the Mandate was stiJl in existence because of the fact
that the substantive obligations of the Mandatory, contained in
Articles 2 to 5 of the Mandate, and representing the "very essence
of the sacred trust", "did not depend" for their fulfilment "on the340 SOUTH WEST AFRICA
existence of the League," and "cou/d not be brought1ta an end mere/y
because this supervisory organ ceased ta exist". Thereby the Court
itself indicated the severability of the Mandate or "sacred trust"
itself from supervision over the performance thereof-and it would
have been inconsistent had it later suggested thal supervision was
an absolute necessity in the sense !hat the Mandate or "sacred trust"
could not exist without it. In effect then, "necessity", in the context
of Reason Nb. (i), was intended to mean no more than desirability
with a view ta effective performance. Reason No. (i) proceeds to point
out that this desirability continues to exist despite the disappearance
.of the League. And it further, in effect, signifies that the mere !act
of dissolution of the League did not bring about a situation in which
there could not possibly be an obligation to submit to supervision,
inasmuch as there was now in existence an organ of a new inter
national organisation, the United Nations, performing similar super
visory lunchons.
On a fair interpretation Reason Ne..(i) signifies no more than the
above. What is said in the course of Reason No. (i) is immediately
afterwards described as "these general considerations". Apparent! y
the purpose thereof was to demonstrate firstly a general likelihood
(because of the importance and desirability of international super
vision) that the interested parties would have intended to keep alive,
after dissolution of the League, the obligation to submit to inter
national supervision in respect of Mandatory administration; and
second/y, that there was an appropriate organ of a new organisation
which the parties may well have intended to be the successor to the
supervisory function. Read in this way, Reason No. (i) would not,
in itself, lead to the conclusion that Respondent is under an obli
gation to submit to supervision by the General Assembly of the
United Nations; it would merely consist of general considerations
tending to support a possible inference of a tacit agreement between
the interested parties, whereby such an obligation was imposed upon
Respondent; in other words, it would be mere supporting material
for the reasons following upon it.
If Reason No. (i) is read as purporting to be full justification, in
itself, for the Court's conclusion in question, it would have to be
interpreted as meaning in effect that because international super
vision is desirable, therefore the Court holds that it must exist; and,
that because the United Nations has an organ performing super
visory fonctions under a Trusteeship System, which are similar to,
though not identical with, the supervision previously exercised by
the League organsin respect of Mandates, therefore the Court holds
thal a Mandatory previously obliged to submit to League super
vision must now be obliged to submit, in respect of its Mandate, to
supervision of the United Nations organ (and that so, despite the
!act thal the Mandatory is not obliged and may not be willing to
1"Internationastatus of South-WesAfrica,Advisory Opinion: J.C.J. Reports
I950",p. 133. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 341
submit to the Trusteeship System). If this were what the Court
meant, it would involve violation of the most fundamental and
elementary principles of law which the Court was under a duty to
apply in terms of Article 38 of its Statute: for the Court would
then have forsaken its function of deciding in accordance with law
and would have assumed the role of a legislator; and it would
further have ignored the universal principle of law and logic that
a party which by agreement accepts an obligation of a certain
content, cannot, merely by that reason and without fresh consent
or agreement on its part, be held liable to an obligation of a sub
stantially different content. 1 It is not reasonable to suppose that
the Court would thus have failed in its functions.
Nor does it seem that the Court could have intended to apply the
principle that an obligation is not extinguished by impossibility of
performance when the impossibility affects only one of two or more
equivalent methods of compliance therewith. The said principle
cannot find application in the present case, for the reasons stated in
paragraphs 24 and 27 above. The obligation was not one to submit
to "international supervision", but to the specifie supervision of the
League organs. Submission to United Nations supervision would
be a different obligation in substance as weil as in form, and not a
mere equivalent method of complying with the same obligation.
That there were certain inherent and unavoidable differences,
appears to have been acknowledged by the Majority of the Court
in the 1955 Advisory Opinion, particularly in the following passage:
"The voting system is related to the composition and functions
of the organ. It forms one of the characteristics of the constitution
of the organ. Taking decisions by a two-thirds majority vote or by
a simple majority vote is one of the distinguishing features of the
General Assembly, while the unanimity rule was one of the dis
tinguishing features of the Council of the League of Nations. These
two systems are characteristic of different organs, and one system
cannat be substituted for the other without constitutional amend
ment. To transplant upon the General Assembly the unanimity
rule of the Councilof the League would not be simply the introduc
tion of a procedure, but would amount to a disregard of one of
the characteristics of the General Assembly. Consequently the
question ofconformîty ofthe voting system of the General Assembly
with that of the Council of the League of Nations presents insur
mountable difficulties of a juridical nature".
In the result it seems evident that the interpretation of Reason
No. (i) is to be preferred whereby it was intended merely to provide
supporting material for the reasons following upon it.
1
Vide paras. 23 and 27 supra asto the material difference in form and substance
one to submit to United Nations supervision.pervision in respect of Mandates and
t "South-West Africa-Voting Procedure, Advisory Opinion of june 7th, I955:
l.C.j.Reports I955", p. 75·342 SOUTH WEST AFRICA
(d) Reason No. (ii), by its wording, is intended as confirmation
of the "general considerations" contained in Reason No. (i). Ar
ticle 8o, paragraph r, of the Charter reads as follows:
"r. Except as may be agreed upon in individual trusteeship
agreements, made under Articles 77, 79 and Sr, placing each
territory under the trusteeship system, and until such agreements
have been concluded, nothing in this Chapter shall be construed
in or of itself to alter in any manner the rights whatsoever of any
states or any peoples or the tenns of existing international instru
ments to which Members of the United Nations may respectively
be parties".
The gist of the Article is !hat existing rights and instruments
would not be affected by anything "in this Chapter ... in or of itself".
In other words, the Article does not purport to "maintain" or
"safeguard" existing rights and instruments against anything not
contained "in this Chapter". If, for instance, an existing right or
instrument should be extinguished, say by common consent of the
interested parties or by impossibility of performance or the like, the
provisions of Article 8o (r) would not, nevertheless, keep them alive.
The matter is very aptly put by joseph Nisot:
"This expression (mat'ntains)is likely to lead to a misconception
as to what Article So, interpreted in accordance with its wording
and spirit, really means. The only purpose of the Article is to
prevent Chapter XII ofthe Charter from being construed as in any
manner affecting or altering the rights whatsoever of States and
peoples, as they stand pending the conclusion of trusteeship agree
ments. Such rights draw their judicial !ife from the instruments
which created them: they remain valid in so far as the latter are
themselves still valid. If they are maintained, it is by virtue of
those instruments, not by virtue. of Article 8o, which confines
itself to providing !hat the rights of States and peoples-whatever
they may be and to whatever extent they may subsist-are left
untouched by Chapter XII";
and,
"But, even supposing it did maintain anything, Article Bo could
only maintain whatever existed. It could neither resurrect extinct
rights nor create new ones". 1
That the Court in rgso was itself lully aware of the true meaning
and effect of Article 8o (r), appears from what was stated about this
provision earlier in the Majority Opinion:
"It is !rue that this provision only says that nothing in Chapter
XII shall be construed to alter the rights of States or peoples or the
terms of existing international instruments". a
1
International Status of South· West Africa", S.A .L.j., Vol. 68, Part 3 (August, 1951),
pp. 278·79·
2 "International status of South·West A{rica: Advisory Opinion: I.C.J. Reports
I950", pp. 133·34· PRELIMI!'IARY OBJECTIONS OF SOUTH AFRICA 343
It cannat, therefore, be assumed that the Court, in referring to
Article 8o (r) in its Reason No. (ii), intended to apply the provisions
thereof to a purpose and effect for which, as the Court was aware,
they were not intended: this would again be tantamount to legis
lation instead ofinterpretation and application of the law.
How, then, is the reference to Article 8o (r) in Reason No. (ii) to
be understood? The answer seems to be, again, that the Court was
concemed merely with a "general consideration" of probability,
concerning a possible underlying, tacit intent or contemplation on
the part of the authors of the Charter, rather than with the effect
of the express provision as inserted in the Charter by them. In its
earlier reference to Article 8o (r), at page 134, the Court had said that
"as far as mandated territories are concerned ... this provision
presupposesthat the rights of States and peoples shall not lapse
automatically on the dissolution of the League of Natians. It
obviously was the intention to sajeguard the rights of States and
peoples under ali circumstances and inallrespects, untileach territory
shouldbe placed under the Trusteeship System". (Italics added.)
This "presupposition" and "obvious intention" clearly refer not
to the contents of Article 8o (r), but to something tacit which in the
Court's view must probably have been in the minds of the authors
of the Charter. In dealing with Article 8o (r) in its Reason No. (ii),
the Court referred back to what it had said earlier and added that
"the purpose must have been to provide a real protection for those
rights" (italics added), i.e. including "international supervision"
and a duty to render reports to a "supervisory organ". Clearly this
"purpose" also refers not to the contents of Article 8o (r), but to
the tacit presupposition or intent considered by the Court to have
probably existed in the minds of the authors of the Charter.
In other words, the Court was arguing from what it considered
to be probabilities inherent in objective features referred to by it
in its Reasons Nos. (i) and (ii),and seeking to drawfrom those proba
bilitiesan inference of tacit agreement between the parties to the
Charter of the United Nations to the effect that Mandatories would
be obliged to submit to the United Nations supervision, pending
Trusteeship or other agreements with the United Nations. And, in
Reason No. (iii), it sought to draw a similar inference of a corre
sponding tacit agreement on the part of the Members of the League
of Nations at the time of its dissolution. Respondent contends that
neither of these inferences could have been. justified or would have
been drawn, had the Court been lully info~m oefail the relevant
facts.
(e) In his judgment in the case of Rex v. Blom, Judge Watermeyer,
a South African Judge of Appeal and later Chief Justice of the
Union, stated as follows:
"In reasoning by inference there are two cardinal rules of logic
which cannat be ignored :344 SOUTH WEST AFRICA
(r) The inference sought to be drawn must be consistent with
ali the proved facts. If it is not, the inference cannat be drawn.
(2)The proved tacts oshould be such that they exclude every
reasonable inference from them save the one sought to be drawn.
If they do not exclude other reasonable inferences, then there must
be a doubt whether the inference sought to be drawn is correct''. 1
These rules of logic are clearly of general application. In particular
they are applied by Courts of civilized States to the question whether
a tacit agreement, or a tacit term in an express agreement, can
justifiably be inferred or implied in a given case. The English Courts
are in this regard generally guided by the "leading case" of Hamlyn
v. Wood, in which Lord Justice Kay said as follows:
"The Court ought not to imply a term in a contract unless there
arises from the language of the contract itself, and the circU:nl
stances under which it is entered into, such an inference that the
parties must have intended the stipulation in question that the
Court is necessarily driven to the conclusion that it must be implied".2
To a similar statement in his judgment, Lord Esher had added:
"It is not enough to say that it would be a reasonable thing to make
such an implication. It must be a necessary implication in the sense
that I have mentioned". 3
A fresh exposition was given by Lord Wright in his judgment
in the House of Lords in Luxor, Ltd. v. Cooper, as follows:
"It is agreed on ali sides that the presumption is against the
adding to contracts of terms which the parties have not expressed.
The general presumption is that the parties have expressed every
material term which they intended should govern their agreement,
whether oral or in writing. It is weil recognised, how~v .trh~t
there may be cases where obviously sorne term must be 1mphed if
the intention of the parties is not to be defeated, sorne term of
which it can be predicated that 'it goes without saying', sorne term
not expressed, but necessary to give to the transaction such business
efficacy as the parties must have intended. This does not mean
that the court can embark on a reconstruction of the agreement
oh equitable principles; or on a view of what the parties should, in
the opinion of the court, reasonably have contemplated. The impli
cation must arise inevitably to give effect to the intention of the
parties. These general observations do little more than warn judges
that they have no right to make contracts for the parties. Their
province is to interpret con tracts".<~ .
(f) When regard is bad to the considerations set out in the above
quotations, it is self-evident that in the absence of knowledge of
certain relevant facts, a conclusion arrived at in reasoning by
1Rex v. Blom, 1939 A.D. r88, at pp. 202-03.
1Hamlyn é- Co.v. Wood & Co., (1891) 2Q.B. 488, p. 494·
3 Ibid., at p. 491. ·
' Luxor, Ltdv. Cooper (1941 (1) A.E.R.33), at pp. 52-53. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 345
inference may be vitally different from what it would be if ail the
facts were known and considered.
In what appears to have been its crucial Reason, No. (iii), for
arriving at its conclusion under consideration, the Court inferred
that the League Assembly Resolution conceming Mandates, adopted
on r8th April, rg46, "presupposes that the supervisory functions
exercised by the League would be taken over by the United
Nations". Thereby the Court presuma biy meant that there must .
have been a tacit agreement to that effect between the parties to
the Resolution. Similarly, as observed above, the factors involved
in the Court's Reasons Nos. (i) and (ii) were apparently relied upon
towards inferring a corresponding tacit agreement on the part
of United Nations Members, to the effect that Mandatories would
be obliged to submit to United Nations supervision pending or
failing Trusteeship or other agreement. It seems quite evident that,
with knowledge of certain crucially important facts that were not
placed before the Court in rgso, the Court could not possibly have
arrived at these conclusions by inference. Of particular importance
amongst the facts and material not presented to the Court in rgso,
were the following (in time sequence):
(i) Respondent's express reservation of nth May, 1945, at the
1
San Francisco Conference during the drafting of the Charter, which,
by itself and together with the reservations in the Preparatory Com
mission and later at the First Part of the First Session of the General
Assembly in London during January, rg46, 2 rendered quite clear
that there was on Respondent's part no tacit agreement to, or acquie
scence in, trusteeship under or supervision by the United Nations.
(ii) The rejection by the Preparatory Commission of its Execu
tive Committee's proposai for a Temporary Trusteeship Committee,
without substitution of anything regarding possible transfer to,
or assumption by, the United Nations of any "functions under the
3
Mandates System", which factor, together with the other aspects
of the history of Resolutions XI and XIV, as dealt with in para
graph JI above, negatives a tacit intention on the part of the United
Nations that such functions would be transferred or assumed. •
(iii) The facts conceming the original proposai by China at the
final session of the Assembly of the League of Nations, and the
subsequent withdrawal thereof and substitution therefor of the
Resolution actually adopted. ' The or-ig-inalCh-ineseproposai sought
to achieve by express resolution what the Court considered to be the
1 Vide para. JOsupra and Chap. Il, Part A, paras. 25-26 supra. The text of the
memorandum set out in Chap. II, Part A, para. 25 supra was before the Court in
1950, but the Court was not informed of the further paragraph set out in footnote I
at p. 26 supra.
1 Vide para.JI (e) supra and Chap. II, Part A, para. 29 (d) and (e) supra.
1 Vide para. 31 (d) supra.
' Vide particularly para. 31 (f) supra.
6 Videpara. 32 (b)and (c)supra.
23 SOUTH WEST AFRICA
tacit intention of the parties. But it had to be withdrawn because it
becameplain thal certain of the parties would not agreethereto. Hence
this history by itself renders plain that there was no room for a
tacit intention as inferred by the Court; and together with the
other factors dealt with in paragraph 32 (d) and (e) above, it
shows that the tacit understanding was the reverse, viz. that
pending "other arrangements" there would be no obligation to
report and account.
(iv) The unanimous comments of the United Nations Special
Committee on Palestine, composed of eleven Members of the United
Nations, and the statements by representatives of various States
during various debates at the United Nations, as set forth in para
graph 34 (b) to (f) above. These comments and statements show
most unmistakably a general (or at !east very widespread) und~r
standing amongst Members of the United Nations that no super
visory functions regarding Mandates (not converted into Trustee
ship) had been taken over, and thus refute any suggestion of a
general tacit intention to the contrary.
Had the above tacts been known to the Court in 1950, it seems
inconceivable that the Court could have arrived at its conclusion
regarding an obligation on Respondent's part to submit to United
Nations supervision.
36. Dissent from 1950 Opinion concerning Supervision:
(a) Minority Opinions:
Even on the basis of the tacts before the Court in 1950, two of its
1\lembers, Sir Arnold McNair and Judge Read, were not prepared to
subscribe to the finding that Respondent is obliged to submit to
a supervisory power on the part of the United Nations, and gave
full reasons for their dissent.1 As far as Respondent is aware, these
reasons and the conclusions drawn from them have invited no
adverse criticism from writers on International Law. On the con
trary, they find considerable support in the critical comments of
such writers-as will appear from sub-paragraph (b) below. Further
more, the additional factual information now brought into consider
ation, 2 confirms the correctness of the result arrived at in these
Minority Opinions.
(b) Opinions of Writers:
(i) Even before the 1950 Advisory Opinion, Hall, in dealing with
the effect of the dissolution of the League upon Mandates, stated,
inter alia:
"... the supervisory (unctions of the League had come to an end
before the supervisory functions of the United Nations could begm
to operate, especially since the plan for a temporary trusteeship
1
"Internationastatus of South-West Africa, Advisory Opinion: l.Reports
I910", pp. 159-62, 166-73·
Vide para. 35 (supraand earlier pacas. there referred to. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 347
committee had been rejected in the Preparatory Commission of the
United Nations" . 1
In referring to the original proposai of the Chinese delegate at
the last session of the League Assembly, which was not adopted, he
quotes the Chinese delegate as saying that the Charter "made no
provision for assumption by the United Nations of the League's
functions" under the Mandate System. 2
And he commented finally in regard to the League Assembly
Resolution of r8th April, 1946:
"The significance of this resolution of the League Assembly
becomes clearer when it is realized that for many months the most
elaborate discussions bad been taking plfi:ce between the govern
ments as to the exact procedure to be adopted in making the
transition between the League and the United Nations. It was the
function of the Prepara tory Commission and the committees succeed
ing it to make recommendations on the transfer of functions,
activities, and assets of the League. Ali the assets of the League had
been carefully tabulated. Ali ils rights and obligations thal could
be bequeathed to the United Nations and which the latter desired
to take over were provided for in the agreements that were made.
But in the case of mandates, the League died without a testament". 3
(ii) In january, 1951, very shortly alter the 1950 Advisory
Opinion, Manley O. Hudson wrote as follows:
"To support its additional conclusion that the Union of South
Africa is obliged to submit to the supervision of, and to render
annual reports to, the United Nations, the Court relied upon a
resolution adopted by the final Assembly of the Leagne of Nations
on April r8, 1946, which was said to presuppose 'thal the super
visory functions exercised by the League would be taken over by
the United Nations'. This is hardlv borne out by the tex! of the
resolution, however. Nor is the succ~~ of shioGenneral Assembly
a necessary consequence of its competence under Article 10 of the
Charter to which the Court refers". •
and,
"The Court seems to have placed emphasis on the competence
of the General Assembly to exercise supervision and to receive and
examine reports. Such competence can hardly be doubted. Yet it
does not follow from the conclusion thal the General Assembly
'is legalJy qrialified to exercise the supervisory functions previously
exercised by the Leagne of Nations', thal the Union of South Africa
is under an obligation to submit to supervision and control by the
General Assembly, or thal it is obligated to render annual reports
to the General Assembly". '
I Hall,op.cil.p. 272.
s Ibid.pp. 272-73.
3 Ibid.p. 273.
4 Hudson, M. O. "The Twenty-ninth year of the:World Court", A .].I .L., Vol. 45
(1951), p. IJ.
6 Ibid.p. 14. SOUTH WEST AFRICA
And regarding the applicability and effect of Article 8o (r) of the
Charter he remarked:
"Article 8o (r) of the Charter seems to be the principal basis of the
Court's conclusion that the Union of South Africa must report to
the General Assembly. This Article provided that, until the con
clusion of Trusteeship Agreements, nothing in Chapter XII of the
Charter should 'be construed in or of itself to al1:nany manner the
rights whatsoever of any states or any peoples or the terms of existing
international instruments' (italics supplied). The text clearly shows
an intentionthat Chapter XII should not effect any alteration of rights
or terms. This intention was 'entirely negative in character'. The
provision served an obvious purpose when Chapter XII of the
Charter was drawn up: the Mandate was still in force at thal time:
as the League of Nations had not then been dissolved, any alteration
of the existing situation was a matter for its consideration. Article
8o (r) was a precautionary provision designed to negative the
accomplishment of any change in the existing situation by reason
of Chapter XII 'in or of itself'. It is not surprising thal Judge
MeNair found it 'difficult to see the relevance of this article'.
Yet the Court gave an affirmative effect to Article 8o (r), turning
it into a positive 'safeguard' for maintaining the rights of states
and the rights of the peoples of the mandated territory. This is the
more notable because at a later stage the Court stressed the
'entirely negative' character of Article 8o(2),declining to say that
the latter imposed a positive obligation on the Mandatory even to
negotiate with a view to the conclusion of a Trusteeship Agree
ment.
No attention was paid by the Court to the fact that certain
states, which as Members of the former League of Nations may
have 'rights' under Article22of the Covenant and under the Mandate
itself,ad no responsibility for the Charter and have never become
Members of the United Nations. For example, Finland, Ireland and
Portugal, which were represented at the final session of the Assembly
of the League of Nations in 1946, are in this category. If their
rights are 'maintained' by Article 8o (r) of the Charter, they have
no voice in the supervision to be exercised by the General Assem
bly". 1
(iii) In August, 1951, followed the article by Joseph Nisot already
referred to in paragraph 35 (d) above. Apart from the comment
already cited there concerning Article 8o of the Charter, the
~earn eudthor stated:
"Now, what, in actuality, were the rights derived by peoples
from the Mandate and from Article 22 of the Covenant? They were
not rights to the benefit of abstract supervision and control. They
consisted of the right to have the administration supervised and
controlled by the Council of the League of Nations, and, in particular,
the right to ensure that annual reports were rendered by the man
datory Power to the Council of the League of Nations, as it was, and
the right to send petitions to the Secretariat of the League of Nations.
1 Ibid. PRELIMDIARY OBJECTIONS OF SOUTH AFRICA 349
What bas become of these rights? They have necessarily disap
peared as a result of the disappearance of the organs of the League
1Council, Permanent Mandates Commission, Secretariat).
The Court could not correctly conclude that such rights bad been
maintained by Article So, except by contending at the same time
that for the purposes of the Mandate for South West Africa, the
said organs had survived the dissolution of the League.
·... Being unable, and for good reasons, so to contend, the Court
creates new rights. To the Court, the right of peoples 'maintained'
by Article So is linked to the United Nations Organisation...
According to its thesis, it is because Article 8o 'maintains' the
rights of peoples that these, though linked to the League, must now
be deemed linked to the United Nations! To infer this from a text
worded as is Article So amounts to assuming that, with respect to
the mandates system, the United Nations stands as the legal
successor of the League, an assumption inconsistent with the dis
cussions of San Francisco and with the very fact that the Charter
provides for the conclusion of trusteeship agreements". 1
Regarcling the resolution of the rSth April, 1946, of the League
Assembly, he continued:
" ... one fails to see how this statement can provide any support
for a suggestion !hat it was the Assembly's opinion that a manda tory
Power, though not bound by a trusteeship agreement, was under
an obligation to submit to supervision and control by the United
Nations. This was no more the opinion of the Assembly of the
League of Nations !han that of the General Assembly of the United
Nations, which, by its resolution of gth February, 1946, urged the
conclusion of trusteeship agreements, implying that no implemen
tation of the principles of the trusteeship system-therefore, no
supervision or control-was possible in the absence of such agree
1
ments".
In the final portion of this part of the article, Nisot referred to
the failure of the authors of the Charter
"to provide for international supervision with respect to the obli
gations incumbent on a mandatory State, should it elect not to
conclude such an agreement" (i.e. Trusteeship Agreement).
He concluded:
"This Jack of foresight has resulted in the present situ:J.!ion,which
the Court attempts itself to redress, stepping out of its role as
interpreter of the law to assume that of legislator". •
(iv) Georg Schwarzenberg er commented, inter alia, as follows:
"... the World Court was faced with the issue of whether the United
Nations had become responsible for the discharge of the supervisory
function which the League had formerly exercised in relation to the
1Nisot, S.A .L.J., Vol. 68 (1951), p. 279.
' Ibid., 280.
3Ibid., p281.350 SOUTH WEST AFRICA
only still surviving mandate. In support of a positive answer, the
Court could neither rely on any general principle of succession
between international persans nor any relevant transaction betWeen
the two collective systems... The still missing link with the United
Nations was provided by the Court's interpretation of Article So
of the Charter of the United Nations. It was admitted in the majori
ty Opinion!hat 'thisprovision only says that nothing in Chapter XII
shall be construed to alter the rights of Statesor peoplesor the terms
of existing international instruments'. Still, with the assistance of
a somewhat debatable presupposition and 'obvions' intentions, the
last gap was bridged. It is not surprising thal Judge McNairshould
have found it 'difficult to see the relevance of this Article'.
Having filled the legal void which separated the supervisory
functions of the League of Nations from those of the United Nations,
the Court 1roceeded with its self-imposed task of 'judicial legis
lation' ".
Again the criticism of the Majority Opinion of 1950 was possibly
in a large measure derived from the feature that the Court did not
have all the relevant facts before it in 1950.
37. Respondent submits th at the Court will in this case, for the
reasons advanced above, conclude !hat Respondent's obligation,
derived from the Mandate agreement, to report and account to, and
submit to the supervision of, the Council of the League of Nations,
lapsed upon dissolution of the League and bas not been replaced by
any similar obligation to submit to the supervision ofany organ of
the United Nations or any other organisation or body.
D. EFFECT OF DISSOLUTION OF THE LEAGUE ON THE MANDATORY'S
SuBSTANTIVE OBLIGATIONS
38. In Part B of this Chapter Respondent stated the submission
that the only International Persans with whom the Mandate agree
ment could have been contracted as parties to a treal y or convention,
and who could have derived rights or legal interests therefrom vis
à-vis the Mandatory, were the League of Nations and/or its Members.
39· The League itself could have been a party to the agreement,
deriving rights therefrom against the Mandatory, only on the basis
ofthe League being regarded as a legal persona,and, naturally, only
for such time as it existed as such. It must follow, then, thal upon
dissolution of the League it could no longer be a party to a treaty
or convention, and no obligations could any longer be owed to tl.
lt follows further that, on the premise stated in paragraph 38 above,
only the situation as regards League Members requires further con
sideration with a view to determining whether the Mandate could
possibly, as a treaty or convention, have survived the League.
1 Schwarzenberger,op.cit. (3rd ed.), Vol. l101-02. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 351
If, on the premise of the League being a legal persona, League
Members were not co-parties to the respective Mandate agreements,
those agreements would have been ordinary bilateral treaties which,
on the demise of one party thereto (i.e. the League) would have
terminated or become void. 1
If it be assumed, however, that League Members did become
parties or co-parties to the Mandate agreements, this could only have
been on one or other of the bases discussed in paragraph r6 above.
On this assumption Respondent will proceed to deal firstly with the
premise stated in paragraph 38 above, viz. that apart from the
League, no International Persons, other than League Members,
could have acquired contractual rights or obligations against the
Mandatory, and will thereupon develop the submission that the
League Members could have obtained their contractual rights or
legal interests vis-à-vis the Mandatory only in their capacity as, and
for the duration of their being, Members of the League.
40. The history of the Mandate agreement itself shows thal no
States other than League Members could have been partiesthereto
save for the limited participation of the Principal Allied and Associa
led Powers, which did not, however, result in any rights or legal in
terests for them as Principal Powers 2 The Council of the League, in
agreeing with the respective Mandatories, acted in pursuance of
Article 22 (8) of the Covenant, which was a Convention as between
League Members. 3 Insofar as Article 22 (8) could be regarded as
being an authorization to the Council to act on behalf of States as
distinct from the League itself, 'it remained an authorization to
represent League Members and League Members alone. The only
manner, therefore, in which non-Member States could in any
possible sense become parties to the Mandate agreements, would be
by joining the League as Members thereof. As was stated by Sir
Arnold McNair,
"As regards States which are not members of the League, the
basic !act is that the Covenant and the mandates are pactaquae
tertiis nec nocent nec prosttnt, and it is not open to a group of States
to create a new international institution and then to demand that
other States should recognize it''.'
41. On analysis it will be found !hat the Covenant of the League
and the Mandate instruments made in pursuance thereof, bear out
1
Vide Oppenheim, op. cit. (8th ed.), Vol. I, p. 944; Schwarzenberop.,cit.
(3rd ed.), Vol. 1, 176;MeNair, A. D. The Law of Treaties-BritishPractice and
Opinions {1938), pp. 389, 390, 405 and 433; Starke, op. cit(Jrd ed.), p. 324;
François,J. P. A. Grondlijnen van het Volkenrecht (2nd ed.), p. 349·
' Vide para. 14 supra.
4 Ibid., para10.
Ibid., para. 16 (a) and (b) (ii).
Wright,aQ."Treaties Conferring Rights in Mandated Territories", A.J.lVol. 18lso
(October, 1924), pp. 786-87.352 SOUTH WEST AFRICA
lully that States other than Leagùe 1\fembers were not intended to
derive contractual rights or legal interests from their provisions.
The Covenant provided, inter alia, as follows with regard to
1\fembership in the League:
(a) "The original Members of the League of Nations shall be
those of the Signatories which are named in the Annex to this
Covenant and also such of those other States named in the Annex
as shall accede without reservation tothisCovenant". (Article r(r).)
(b) "Any !ully self-governing State, Dominion or Colony not
named in the Annex may become a Member of the League if its
admission is agreed toby two-thirds of the Assembly, provided ..."
(Article1 (2).)
(c) "Any Member of the League may, alter two years' notice
of its intention so to do, withdraw from the League, provided ..."
(Article1 (3).)
(d) "Any Member of the League which has violated any cave
nant of the League may be declared to be no longer a Member of
the League by a vote of the Council concurred in by the Repre
sentatives of ali the other Members of the League represented
thereon". (Article 16 (4).)
(e) "No such amendment [to the Covenant) shall bind any
Member of the League which signifies its dissent therefrom, but in
that caseit shall ceaseto be a Memberofthe League". (Article26 (2).)
The Covenant did not mention, in so many words, the possibility
of dissolution of the League, but Article 3 in general terms em
powered the Assembly to deal with any matter within the sphere of
action of the League.
42. In ali except four of the Articles of the Covenant (the ex
ceptions being Articles 2,g, 21 and 24) the expression "1\fember(s)
of the League" is employed; and that so in dealing both with rights
and benefits conferred on 1\fember States and with obligations and
duties imposed on them. As examples the following are mentioned:
Article 3: Assembly consists of Representatives of "the 1\fembers
of the League". "Each Member of the League" has one vote.
Article 4: Representation in the Council for the Principal Powers
and "four other 1\fembers of the League" to be elected by the
Assembly.
Article 6: Obligation imposed upon "the 1\fembers of the League"
to contribute to expenses of Secretariat in accordance with ap
portionment.
Article 7: Diplomatie privileges and immunities of Representa
tives of "1\fembers of the League".
Arricle 8: Obligation upon "the Members of the League" to
interchange ii.forrnation as to arrnaments, etc.
Article 12: Obligation upon "the 1\fembers of the League" to
submit disputes between themselves to arbitration. · PRELIMIXARY OBJ ECTIO:<S OF SOUTH AFRICA 353
Article 15:Obligation upon "~lembe of the League" to submit
disputes between themselves to the Council of the League.
Article22: Equal opportunities for trade and commerce of "other
Members of the League".
43· Certain provisions of the Covenant were such that non
~lember ofsthe League could benefit from them, in an indirect
manner or by the grace of the League or its Members. Thus pro
motion of the League's general abject "ta achieve international peace
and security" 1would certainly benefit ali nations, whether Members
of the League or not. But this factor would not, by itself, enable
such non-Member States to daim that they were parties to the
Covenant or that its provisions conferred any rights or legal inter
ests upon them, as little as they would have been preparee! to accept
a suggestion that the provisions of the Covenant imposee! any legal
obligations upon them.
Throughout the Covenant the intention was clear that insofar as
its provisions conferred rights or legal interests or imposee! legal
obligations upon States, they did so with reference only to Members
of the League. There were no provisions capable of being interpretee!
as stipulations for the benefit of non-Member States, resulting in
"legal interests'' being vested in such States, and capable of being
turned into rights by acceptance or exercise on their part. The
basic purpose of the authors of the Covenant in that regard was
obvious, viz. to reserve rights and legal interests for such States as
were, inter alia, willing to accept also the obligations of Membership.
Significant illustration was afforded by the provisions of Articles
16 and 17 of the Covenant. Article 16 provided that a Member
resorting to war "in disregard of its covenants under Article 12,
13 or 15", would be deemed, ipso facto, to have committed an act
of war against ali other Members of the League: the latter would
then be obligee! to take certain action against the "covenant-break
ing State" and to support one another in that regard. Articles 12, 13
and 15 relatee! to methods of peaceful settlement of disputes, but
only disputes between Members of the League: bence Article 16
applied only where a Member had failed to resort to those methods
relative to such disputes. Article 17 proceeded to deal with disputes
between a Member and a non-Member State, or between non
~lembe States inter se, in arder to make, for such cases, provision
corresponding to that contained in Article 16. But as a prerequisite
it prescribed that nori-Members involved in such a dispute should
be "invitee! to accept the obligations of membership in the League
forthe purposes of such dispute, upon such conditions as the Council
may deem just". Upon acceptance of the invitation the provisions
of Articles 12 to r6 would apply, with such modifications as the
Council might deem necessary: in other words, the non-Member
1
Preamble of the Covenant.354 SOUTH WEST AFRICA
State(s) would then have the benefit of those provisions, on the same
basis as League Members, but only after acceptance of corresponding
Members' obligations. In the event of a non-Member's refusai to
accept the obligations of membership for the purposes of a dispute,
and resorting to war against a League Member, the provisions of
Article r6 would apply "as against" it: in other words the non
Member could then experience the detriment envisaged by Article r6
(for protection of a League Member), but could not invoke the
benefit thereof upon being attacked by another State.
44· In terms of Article 22 of the Covenant the "tutelage" en
trusted to Mandatories over Mandated territories would be exer
cised "on behalf of the League".
The Mandatories were, therefore, in terms of Article 22, to be
responsible to the League-in other words, either to a distinct inter
national entity existing apart from its Members, or to a collection
of States which together formed an association. On either supposition
non-Members would again be excluded from the circle of inter
national pe_rsonsintended to acquire rights against the Mandatory.
45· The distinction between the position of Members and non
Members, as above observed, in the provisions of the Covenant,
was maintained in the Mandate agreements made in pursuance of
the Covenant. In the preambles the Mandatories undertook to
exercise their Mandates "on behalf of the League". Although non
Members could here also benefit indirectly or by grace of the
Mandatories, they would not be able to point to any provision
intended to operate in their lavaur and conferring upon them a
legal interest or right against the Mandatories. There could on their
part be no daim, as of right, for substantive benefits such as "open
door" facilities or acceptance of missionaries that were their nation
ais. It was in keeping with this Jack of substantive right or legal
interests on the part of non-Members that procedural facilities with
a view to enforcement of substantive rights and interests were also
confined to League Members (i.e. participation in League super
visory activities and the bringing of contentious proceedings in the
Permanent Court of International Justice under the clauses in the
various Mandates corresponding to Article 7 in the Mandate for
South West Africa).
46. The practice of States and of the League itself bears out that
non-Members were not intended to acquire rights or legal interests
from the Covenant or the Mandate agreements. Thus,
(a) The United States of America, which did not join the League,
entered into separate treaties with certain Mandatories in arder to
1
secure the same rights in the territories as Members of the League.
1 Vide MeNair, C.L.J., Vol. III (1928), p. ·157; Wright, op. cit., p. 55· PREL!MINARY OBJECTIONS OF SOUTH AFRICA 355
(b) When Gennany, in 1925, prior to becoming a Member of the
League, raised a complaint about Mandatory administration by
Belgium in Ruanda-Urundi, the Council of the League declined to
reply thereto, and the Belgian Govemment rejected the complaint,
inter alia, on the express grounds thal the Covenant "confers rights
only upon States which are Members of the League of Nations", and
that "until German y is a Member of the League of Nations, she has
no title to intervene". •
(c) Wright 2 refers also to an Allied exchange of notes with
German y before the signature of the Covenant as clearly suggesting
that Members only would be entitled to the benefits of the Covenant.
One of the notes stated, inter alia, that "as soon as Germany is
admitted to the League she would enjoy the benefit of these pro
visions" (i.e. of Article23).
47· Just as Leagae membership was a necessary qualification for
a State to obtain any right or legal interest under the Mandate
agreement vis-à-vis the Mandatory, the intention of the parties to
the Covenant and to the Mandate instruments was equally clear
that membership was a necessary qualification for a State to retain
such right or legal interest.
As far as the Covenant is concerned, reference may again be made
to the provisions referred to in paragraph 42 above. The clear,
grammatical and natural construction of those provisions is that
the expression "Member of the League", wherever it appeared in
the Covenant, contained within itself a qualification, namely
membership, which had to be satisfied at the lime when the provisions
of the Covenant were sought to be i.nvoked, either for the exercise of
a right or for the enforcement of an obligation due by another.
Any of the provisions referred to as examples in paragraph 42
can be used to demonstrate the absurd results that would fol!ow if
this construction were not adhered to, e.g: if the construction were
to be that States which were at any time Members, would retain
the covenanted rights or obligations despite and alter Jossofmeinber
ship. The fol!owing illustrations should suffice:
The ex-Member would retain a seat and vote in the Assembly
(Article 3), and could be elected a Member of the Council (Article 4);
it could continue to be held liable for a contribution to the expenses
of the Secretariat (Article 6); and despite the !act that it may have
been expelled (in pursuance of Article r6) for an act of war, Members
would still be obliged to submit information to it in regard to their
annaments, military, naval and air programmes (Article 8).
It is, therefore, abundantly clear from the Covenant that the
rights and benefits conferred on Member States would continue to
be held by aState on!y while it continued to be a Member; and that,
1
Vide L.of N., 0.].,1927, pp. JI6-17Vide also Wright,op.cil.,pp. 493-94;
Hall,op.cil.p. 140.
2 \Vright, op. cit., pp. 494-95. SOUTH \VEST ;\FRIC:\
likewise, obligations and dulies imposed would be binding on a
State as long as its membership continued and no longer-hence the
proviso in the last paragraph of Article r of the Covenant to the
effect that a Member is allowed to withdraw voluntarily, on the two
years' notice there prescribed, on/y if "ali its obligations under this
Covenant shall have been fulfiJJ.,d at the time of its withdrawal".
48. Again the same intention as in the Covenant is manifest from
the provisions of the Mandate agreements entered into in pursuance
of the Covenant.
1
(a) The very concept of a "Mandatory on behalf of the League",
tends to negative any contemplation of rights or legal interests being
retained by a State alter Joss of its membership in the League.
(b) Attention should be drawn again to the different bases upon
which it might be possible at ali for rights or legal interests to be
vested in League Members, as distinct from the League itself.
The first of these would be that the League is not regatded as a
legal persona. On this basis the concept of a "Mandatory on behalf
of the League" would have to be interpreted as meaning really a
Mandatory2on behalf of theStates associated in the League as Members
thereof; this would logically confine Members' rights to the duration
of their membership, otherwise the description would become inapt
as saon as certain mernbers left the League: for then the Mandat ory
would be a Mandatory "on behalf of League Members and certain
other States". In the late 1930's this would have mean! that the
Mandates would have been held also "on behalf of" sorne fitteen States
3
other than League Members. Moreover, inasmuch as League
~le bmers would in their very covenant of association have authorised
the Council to act as an agent on their behalf in entering into the
Mandate agreements, the only natural construction would be that
the authority was confined to rendering them parties to the agree
ments for the purposes of their association in the League-in other
words, for as long as they should be Members of the League.
The second basis upon which the matter is to be considered is that
the League is regarded as a legal persona and therefore as the party
primarily represented by the Council in the contracting of the
;\landate agreements. lt would be surprising if, on this basis,
Members could have obtained rights more durable than on the
basis of the League not being a legal persona and they themselves
being the principal parties represented by the Council. And, indeed,
this cannat be so. For, on this basis, an intention to confer a right
or legal interest upon Members themselves can only be arrived at
by inference from the fact thal certain of the provisions of the
Mandate agreements would appear to have been intended for their
1 Art.:n of the Covenant and the Preambles to the :\landate agreements.
2 Videpara. 16 (asupYa.
3 Vide\Valtersop. cit.Vol. I, pp. 64-65. PRELIMINARY OBJECTIO:<S OF SOUTH AFRICA 357
1
benefit. They would not, however, be able to point to any pro
vision justifying an inference that they were intended to continue
to enjoy the interests independently of their membership in the
League.
(c) Strange anomalies, similar to those discussed in paragraph 47
above, would be involved in a suggestion that a State would
continue to hold rights or legal interests by virtue of the Mandate
agreements alter Joss of membership in the League. Such a State
may have been expelled because of belligerency, and would then
nevertheless be entitled to cali the Mandatory to task conceming
fortification ofthe Territory or militai}' training of the natives. Or
the cause of expulsion may have been a flagrant breach of the
obligation undertaken in Article 23 (e) "to secure and maintain
freedom of communications and of transit and equitable treatment
for the commerce of ali Members of the League": and yet such State
could then still insist on freedom of entry, residence and movement
in the Mandated territory for its nationals as missionaries, and in
the case of A and B Mandates, on "open door" privileges for ali its
nationals.
49· For the above reasons the conclusion follows that insofar as
Members of the League were parties to andfor the holders of rights
or legal interests conferred upon them by the Mandate agreements,
they, in pursuance of the manifest intention of the agreements
themselves, ceased to be such parties and !ost such contractual
rights or legal interests when they ceased to be Members of the
League upon dissolution thereof.
E. FINAL OBSERVATIONS oN EFFECT oF Co"cLUSioxs ARRIVED
AT IN PARTS C AND D
so. The effect of the conclusions stated in Parts C and D above is
that, upon the dissolution of the League, the Mandate for South
West Africa lapsed in so far as its previous existence as an operative
treaty or convention was concemed. Part C demonstrated that the
procedural obligations, pertaining to supervision by the Council of
the League, were dependent for performance on the existence of
the League and lapsed for that reason upon its dissolution. Part D
demonstrated that the substantive obligations lapsed insofar as
they were contractual obligations owed to other international
persons: they could not be owed to a non-existent League; and
insofar as they may have been intended to be owed to States, they
were not covenanted to be owed to any States not Members of
the League. If the League had been a legal persona which could
have been a party to a treaty or convention, it ceased to be so on
its dissolution and its Members ceased to have the qualification in
consequence whereof they might have been parties.
Consequent! y there ceased to be "in force" a "treaty or conven-
1 Vide para16 (b) (iand (iisupra.358 SOUTH WEST AFRICA
tion": the party or parties with whom the agreement had been con
1
tracted, feil away, as weil as the contractual obligations undertaken
vis-à-vis them; and there were no longer "provisions" to the "inter
pretation or application" of which a compulsory jurisdiction
clause could have reference.
It follows further that insofar as any powers, rights and obli
gations may have survived the dissolution of the League, this would
have to be in an objective or "real" sense independent of the
operation of a treaty or convention.
sr. The fact that upon the dissolution of the League the inhabit
ants of the Mandated territories continued to exist as communities
for whose benefit administration in accordance with the "sacred
trust" was intended, does not affect the above conclusion. Whatever
might have been the position of the peoples inhabiting A Mandated
areas, 2the inhabitants of a C Mandated area could not on ordinary
principles of international customary law be regarded collectively
as an international person or separately as international persons.
The possibility exists that individuals, though not ordinary or
full subjects of International Law, can by agreement between States
be the bearers of rights in International Law in a sense and to an
extent intended by the parties to such agreement. Whether such
intent exists in a particular case, is always a matter for interpre
3
tation of the agreement in question. The general trend of opinion
appears to be that rights in International Law cannot be considered
to have been conferred upon individuals unless there is covenanted
for them procedural capacity to pursue their interests in an inter
national political and/or judicial forum. •
In the case of the C Mandate agreements, although obligations
imposed upon the Mandatories were undoubtedly intended for the
benefit of the inhabitants of the territories, there is nothing to
indicate that rights in International Law vis-à-vis the Mandatories
were intended to be conferred upon them. Certain writers suggest
that the inhabitants were, in a sense, accorded such rights in that
they were permitted the facility of petitioning the League. 5 It is
to be recalled, however, that there was no provision for such petitions
either in the Mandate agreements or in the Covenant of the League.
The Mandatories did not by international agreement undertake any
obligations relative to petitions by inhabitants. Insofar as the rules
of procedure regarding petitions, as laid down by the Council,
required petitions from inhabitants to be forwarded through the
respective Mandatories, this was in reality directed towards affording
the Mandatories an opportunity of commenting on the contents of
1
Vide Part D, paragraph 39 supra, and the authorities quoted in footno1on
p.2I39 supra.
As to which vide Wright, op. cit., p. 460.
InternationalPersonality of Individuals", A.j.I.LVol. 50, (1956), pp. 536,561.f the
" Ibid.
6 Vide e.g.Wright,op. cit.p. 457· PRELIMINARY OBJECTIONS OF SOUTH AFRICA 359
1
the petitions. If there could be said to have been an obligation
upon the Mandatories to forward the petitions to the League, the
obligation was of a procedural nature only, concerning the Manda
tories' relationship with the League; and it was not of the nature
of an obligation towards the inhabitants undertaken by treaty or
convention. Moreover, although inhabitants could submit petitions,
they had no capacity of pursuing such petitions in the proceedings
of the League itself; even consideration of the petitions depended
entirely upon the will of the Members and Organs of the League.
In ali these circumstances it seems erroneous to suggest thal the
facility for submitting petitions was to be regarded as a right in
International Law. vested in the inhabitants vis-à-vis the Manda
tories.
However, even if such a suggestion could be countenanced, the
"right" involved therein would have been dependent entirely on
the existence of the supervisory body. Upon the dissolution of the
League and the consequent lapse of the Mandatories' obligation to
report and account to the Council as supervisory organ. the very
basis of the suggested "right" on the part of the inhabitants also
feil away.
In the result no possibility exists of the inhabitants having rights
which involve any procedural capacity for them in an international
fomm, whether political or legal. If they could possibly be said to
have rights in International Law in any other sense, such a pro
position would have to be founded on sorne basis other than inter
national treaty or convention.
52. Although there could be controversy on the question whether
the "sacred trust" and "tutelage" intended for the benefit of the
inhabitants are now to be regarded as falling within the realm of
International Law at ali, or whether they are matters of domestic
law or of morality only, 2a decision thereon is not necessary for the
purposes of Respondent's objection to jurisdiction in the present
case. For that question concerns the nature and scope of aspects
of the Mandate institution which could only exist, if at ali, inde
pendently of the continued operation of the Mandate as a treaty or
convention-also referred to in the Advisory Opinion of 1950 as
corresponding to "real" rights and obligations. 3Whatever nature
and extent may be assumed for such aspects of the Mandate
institution, the contention that the Mandate has ceased to opera te
as a treaty or convention is not affected.
53· As has been referred to in paragraph 2 above, Applicants
rest their daim to jurisdiction on Article 7 of the Mandate for
South West Africa, read with Article 37 of tbe Statute of the Court.
Respondent has also pointed out that inasmuch as Article 7 pro
vided for reference to the Permanent Court of International Justice,
2 VideChap. II, Part A, para. supYa.
Vide e.guncertainty expressed by the United Nations Special Committee on
Palestine, para. 34 (b) supra.
a Vide para. 3 supya. SOUTH WEST AFRICA
Article 37 of the Statute is a necessary link in the chain of Appli
cants' claim, 1and that Applicants must therefore perforee base
sucb daim on the contention that the obligation to submit to
compulsory jurisdiction, as originally covenanted in Article 7 of
the Mandate agreement, still exists as a provision of a "treaty or
conve1ltionin force''.
A contention thal the obligation in question survived the disso
lution of the League as an aspect of the Mandate institution which
was independent of the continued operation of the Mandate as a
treaty or convention, would in Respondent's submission be un
tenable .•An obligation of a State to submit to the jurisdiction of
an international Court at the instance of specifi.ed other States,
must rest on operative agreementor consent to that effect-in other
words it must necessarily be "contractual" in nature and cannot
possibly be said to be something "real" pertaining to tille ta or the
status of a territory. So, also, Article 7 of the Mandate for South
West Africa bound Respondent as long as it was part of an operative
convention or treaty, and no longer. But even if such a contention
could be tenable, it would not avait the Applicants, inasmuch as
it would not bring their claim within the provisions of Article 37
of the Statute.
54- For the reasons that have been advanced in this Chapter,
Respondent submits that the basic premise of the Applicants' daim
to jurisdiction does not apply. The Mandate could have survived
the League of Nations, if at aU, only as an institution existing
independently of treaty or convention. In the sense thal the
Mandate was, in the time of the League of Nations, a treaty or
convention with "provisions" operating between international
persans, which "provisions" could give rise to disputes between the
parties thereto or between the Mandatory and States having legal
interests therein, and which provisions included in their number an
Article 7, providing for reference of such disputes to the Permanent
Court of International Justice-il is in the sense of being such a
treaty or convention thal the Mandate has lapsed and is no longer
"in force" within the meaning of Article 37 of the Statute of the
Court.
tIbid., par2. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 361
CHAPTER IV
SECOND OBJECTION
THE ALLEGED DISPUTE Is NOT BETWEEN RESPONDENT AND
"ANOTHER MEMBER OF THE LEAGUE OF NATIONS" IN TER~! OSF
ARTICLE 7 OF THE MANDATE.
1. ln this Chapter Respondent deals with its Second Objection,
namely, that even if there could be said to exist a "treaty or con
vention in force", in terms of Article 37 of the Statute of the Court,
to the provisions of which Article 7 of the Mandate could have
application, the Applicants have no locus standi inasmuch as they
both ceased to be Members of the League of Nations at its dissolu
tion in April, 1946.1
2. Each of the Mandate instruments contained identical pro
visions (save for an addition in the case of the Mandate for Tan
ganyika) for compulsory jurisdiction of the Court, in the following
terms:
"The Mandatory agrees that, if any dispute whatever should
arise between the Mandatory and another Member of the League of
Nations relating to the interpretation or the application of the
provisions of the Mandate, such dispute, if it cannot be settled by
negotiation,shaH be submitted to the Permanent Court of Inter
national Justice provided for by Article4 of the Covenant of the
League of Nations".
For the Court to have jurisdiction by virtue of the aforesaid
provisions there must be concurrence of ali the following essential
conditions, namely:
(a) there must be a "dispute";
(b) the dispute must exist "between the Mandatory and another
Member of the League of Nations";
(c) the dispute must relate to "the interpretation or application
of the provisio.ns of the Mandate";
(d) it must be estàblished that the dispute "cannot be settled by
negotiation".
This particular Objection involves only the one essential require
ment mentioned in (b) above, namely, that because Applicants are
not Members of the League of Nations the alleged dispute is not
with "another Member of the League of Nations".
1
Vide Applicants' Memorials, p. go.362 SOUTH WEST AFRICA
3· In construing the expression "another Member of the League
of Nations" in Article 7 of the Mandate agreement, the following
accepted rules of interpretation are applicable:
(a) The Mandate instrument records the terms of the Mandate
as "defined" by the Council of the League of Nations, acting for
the League andjor its Members on the one hand, and accepted by
the Mandatory on the other hand. 1
In the interpretation thereof effect must accordingly be given to
the common intention of the parties, which must be ascertained
from the language used by them, read in the light of the circum
stances prevailing at the time when the instrument was drafted and
the Mandate accepted upon the terms therein defined. 2 Circum
stances arising thereafter, unless and except insofar as they result
in an alteration of the terms of the Mandate by agreement of the
parties concerned, cannot be relied upon to give any article in the
Mandate instrument a meaning other than that which it was
originally intended to have. 3
(b) The doctrine of in pari materia permits of reference to con
temporaneous instruments covering the same field as, and inti
mately linked with, the Mandate instrument in question as an
aid towards ascertaining the intention involved in a particular
provision in the Mandate.
Thus in the M avrommatis Case where the Court was concemed
with the interpretation of an article in the Mandate for Palestine,
reference was made to the Mandate for Tanganyika. 4
(c) There must be observance of the rule that international
engagements purporting to confer jurisdiction on the Court ought
to be strictly interpreted, and unless it is clear that the parties
agreed to confer jurisdiction over the concrete case, jurisdiction
should be declined. •
1 Vide Preamble to the Mandate.
t Vide Interpretatiof the Convention of I9I9 concerning Employment of Women
duringthe Night, P.C.!.]Ser.A{B, Fasc. No. 50, 15th November, 1932, p.383-"the
words have no value exceptas an expression of the intention of the parties"; MeNair,
op. cil., p. 185. On contemporaneity, vide Fitzmaurice, G. "The Law and Procedure of
the International Court of Justice 1951-4: Treaty Interpretation and other Treaty
po1nts", B. Y.B.I.L(1957), pp. zo3-04, 212.
Sir Gerald Fitzmaurice stresses in this respect what he tenns "the principle of
Contemporaneity" as "a major principle" of treaty interpretatinter alia, for
the reasonthat "Unlike private contracts, the average duration of whicrela~
tively short, treaties may endure for considerable periods and even for centuries".
(B. Y.B.I.L.('957). pp. 203-04).
• The Mavrommatis Palestine Concessions, P.C.I.J., Ser. A, No. 2, 30th August,
1924. Vide dissenting opinions of Judges Moore and de Bustamante at pp. 61 and 82
respectivelyVide also Interpretation of the Convention of I9I9 concerning Employ
ment of Women during the Night, P.C.I.J ., Ser. A{B, Fasc. No. 50, 15th November,
1932, pp38o~81.
• Case concerning the Faclory at Chorzôw, P.C.I.J ., Ser. A, No. 9, 26th July, 1927,
p. 32; Phosphates in Mcwocco, P.C.~r. .A{B, Fasc. No. 74, 14th ]une, 1938, pp.
23~24 R;osenne, S. The International Court of Justi(1957), pp. 260,JI8~2o.
Vide a1so The Mavr~mati Palestine Concessions, P.C.I.J ., Ser. A,2,oJoth
August, 1924, pp.r6~19. ,...
PRELIM!NARY OBJECTIONS OF SOUTH AFR!CA 363
As Lauterpacht states:
"The Court . . . has emphasised repeatedly the necessity for
extreme caution in assuming jurisdiction, which must be proved up
to the hilt. NumerousJudgments show the Court as 'bearingin mind
the fact that its jurisdiction is limited, that it is invariably based on
the consent of the respondent and only exists in so far as this
consent has been given'. ' Nothing should be done whlch creates
the impression that the Court, in an excess of zeal, bas assumed
jurisdiction where none bas been conferred upon it".2
4· The provisions of Article 7 of the Mandate could be invoked
by other Members of the League of Nations for the enforcement
of the Mandatory's obligations in which they had a legal interest,
insofar as such interest was intended to be justiciable.
In Chapter Ill above the legal interest of Members in the obli
gations imposed on the Mandatory were stated to have been as
follows, depending on whether the League of Nations was a legal
persona or not, viz:
(a) On the basis that the League was not a legal persona, all the
contractual obligations would have been owed to the Members
of the League, who would then as Members have had a legal interest
in the observance by the Mandatory of all such obligations. 3
(b) On the basis, however, that the League was a legal persona,
the said obligations would have been owed to the League itself;
and Members of the League would have had a legal interest in
such obligations vis-à-vis the Mandatory only insofar as the latter's
obligations were intended to operate for the benefit of Members
and their nationals (in addition to operating for the benefit of the
inhabitants of the Mandated terri tory). •
It is not necessary for the purposes of this Objection to deal with
the nature and compass of the disputes intended to be justiciable
under the compulsory jurisdiction clause, a matter which will be
dealt with fully in Chapter V below. It is, therefore, unnecessary
in considering this Objection, to decide whether the legal interests
of Members were as stated in paragraph (a) above or as stated in
paragraph (b) above and to what extent such interests were in
tended to be justiciable.
Although Respondent denies, for the reasons stated in Chapter
V below, that the alleged dispute raised by Applicants is justiciable
under the compulsory jurisdiction clause, Respondent will for the
purposes of the argument in this Chapter assume the widest possible
ambit (during the lifetime of the League) of Members' legal interests
and of the compulsory jurisdiction clause. In other words, Respon
dent will for the said purposes assume that Members of the League
1 As quoted from theMavrommatis Case.
2 Lauterpacht The Development of International Lawbythe International Court
{1958),p.91.
:sVideChap. III, para. 17 (a) read with para.supra.)
t Ibid.para. 17 (b) read with para. 16 (b). SOUTH WEST AFRICA
had a legal interest in ali the substantive obligations imposed by
the Mandate, even where these obligations were intended solely
for the benefit of the inhabitants, and will also assume that the
compulsory jurisdiction clause was intended to apply in respect of
ali such obligations.
Respondent's submission is that, on the wide assumption stated,
and a fortiori on the basis of any narrower ambit of Members' legal
interests and of the compulsory jurisdiction clause, the Applicants
are not qualified to invoke the said clause in that neither of them
is "another Member of the League of Nations".
s. The Mandate agreements were entered into in pursuance of
Article 22 of the Covenant of the League of Nations. In Chapter
Ill above it has been shawn that upon a proper and detailed
analysis of the Covenant the expression "Member of the League"
wherever it appears in that document contains within itself a
qualification, namely, membership, which must be satisfied at the
time when the provisions of the Covenant are sought to be invoked
both for the exercise of a right and for the enforcement of an obli
gation due by another. 1
Likewise it has been shawn that, insofar as the Mandate instru
ments incorporated obligations for the benefit of Members of the
League, such benefits were intended to be enjoyed by aState on!y
while it continued to be a Member. '
Upon termination of its membership aState ceased to be qualified
for the enjoyment of such benefits and therefore !ost its legal in
terest in the observance of the said obligations. In respect of obli
gations imposed sole!y for the benefit of the inhabitants of Mandated
territories the position was exactly the same insofar as other
Members of the League had any legal interest in the observance
thereof by the Mandatories. Upon termination of3membership such
legal interest would also have disappeared.
It is precisely for the reasons aforestated that the compulsory
jurisdiction clauses in the Mandate instruments were so worded
as to make the provisions thereof available to Members of the
League only. Once aState ceased to be a Member of the League it
!ost its legal interest in the administration of the Mandates' and
the very reason for affording it a voice in the affairs of Mandated
territories would have disappeared. Such a State would then have
no right to participa te in League debates or resolutions concerning
Mandates and would not be entitled to implead the Mandatory
before the Court in terms of the compulsory jurisdiction clause.
That State would stand in exactly the same position as a State
which, never having been a Member of the League and therefore
2 VideChap. III, paras. 41-44, 4supra.
3 Ibid., paras. 45. 46, 48.
Ibid., para. 49·
' Except for a Mandatory in respect of its own Mandate. PRELDII>IARY OBJECTI0>1S OF SOUTH AFRICA 365
never having had a legal interest in the administration of Mandated
territories, was not intended to exercise any rights vis-à-vis the
~landato eiyer in the Organs of the League or by judicial
process.
6. In looking at the matter from the viewpoint of the parties
to the Mandate instruments, it could never have been the intention
of the Council of the League that a State which had ceased to be
a Member of the League, should be entitled to implead before the
Court a Mandatory of the League with regard to the administra
tion of a Mandated territory-a matter in which such State, by
reason of termination of its membership, had no further legal
interest. Any contrary view must permit of the strange result that
such a State, though having no longer a seat in the League of
Nations and being unable to raise in the League for its consider
ation a matter concerning the interpretation or application of the
provisions of the Mandate, could nevertheless raise the very same
matter in contentions proceedings before the Court, possibly even
in conflict with an attitude unanimously resolved upon by the
Council.
Nor can it be conce1ved that the respective Mandatories, in
agreeing to the terms of the compulsory jurisdiction clause, in
tended to accept compulsory jurisdiction at the instance of a State
which, though at one time a Member of the League, had ceased to
be such.
The above observations would be ali the more forcible if it should
be held (contrary to the submission in Chapter V below) that the
compulsory jurisdiction clause entitled a State to refer to the Court
also matters which did not affect itself or its subjects, but solely
concerned the interests of the inhabitants of the Mandated terri tory.
The Mandatory, even though it may have been exercising its
Mandate in complete accordance with the views of the League, may
nevertheless then still have been obliged to entertain negotiations
with, and be subject to judicial proceedings instituted by, a State
which was no longer a League Member and which held a view with
regard to aspects of Mandate administration in conflict with that
of the Mandatory and the League itself.
This could not have been the intention of the parties to the
Mandate instruments ..
That the League itself regarded membership as a qualification
for the questioning by another State of the administration of
lllandated terri tories is evidencedy the League's refusai to answer
the complaints of Germany, made when the latter was not a
Member of the League, with regard to the administration by Bel
gium of the lllandated territory of Ruanda-Urundi. 1
Itis submitted that the League would have adopted the same
attitude if this question had arisen alter termination of Germany's
1A matter dealt with in Chap. Ill, para. 46 supra. SOUTH WEST AFRICA
membership of the League, and that Germany would not then,
upon the League's refusai to entertain its complaint, have been
entitled to raise the same complaint in contentious proceedings
before the Court.
7· It is submitted that by application of the doctrine of in pari
materia support for the contention advanced by Respondent is
found in the use of the expression "Member of the League of Na
tions" in the provisions of ali the Mandate instruments.
This expression was used in ali the B and C Mandates where
provision was made for rights of entry, movement and residence
to be enjoyed by missionaries who were nationals of "any State
Member of the League of Nations".'
Pursuant to paragraph 5 of Article 22 of the Covenant, ali the B
Mandates provided for equal opportunities for the trade and com
merce of other "M embers of the Leag"e of Nations" in the said
Mandated territories. 2
Somewhat similar provisions in favour of "M embers of the
3
League of Nations" were contained in sorne of the A Mandates.
In ali the aforesaid provisions the expression "M ember of the
League of Nations" could have been used in one sense on!y, namely
Members at the time when the intended privilege was sought to
be enjoyed, and not as including States which had ceased to be
Members of the League.
There is not one instance in which the said expression was used
in another sense in any other provision of the Mandate instruments.
When, therefore, the compulsory jurisdiction clause in each of
the Mandate instruments contained an identical expression, it
seems evident that, in the absence of a clear indication to the
contrary, it was intended to bear in that clause the same meaning
as in the other provisions of the Mandate instruments.
8. If, despite the considerations mentioned in paragraphs 6 and 7
above there should still be uncertainty as to whether it was intended
that a State which had ceased to be a Member of the League should
be entitled to invoke the compulsory jurisdiction provision in the
Mandate instruments, then it is contended that, in conformity
with the rule of strict interpretation as mentioned in paragraph 3 (c)
above, a conclusion that the Court has jurisdiction would not be
justified.
A contention to the effect that a State which is in fact no longer
a Member of the League, could nevertheless daim still 'tobe "an
other Member of the League of Nations" within the meaning of
1
Videe.gBritish Mandate for Tanganyika (A8);Belgian Mandate for Ruanda
Urundi (Art. 8); Mandate for German Samoa (Art. 5); Mandate for South West
Af1iVidee.g. British Mandate for Togoland (Art. 6); British Mandate for Tangan
yik.a(Art. 7}; Belgian Mandate for Ruanda-Urun{Art. 7). (U.NDoc. A./70.)
• Vide e.g. Mandate for Syria and the Lebanon (II);Mandate for Palestine
(A<t. 18)(U.N. DocA/70.) PRELJMINARY OBJECTIONS OF SOUTH AFRICA 367
Article 7 of the Mandate Agreement, must, to say the !east, rest on
a strained and unnatural interpretation of that Article. Such an
interpretation is in general to be avoided, but more particularly
so in the case of a compulsory jurisdiction clause, which requires
strict interpretation.
g. For the reasons aforestated, it is submitted that on a proper
construction of Article 7 of the Mandate for South West Africa it
follows not only from the clear and unambiguous language of the
Article, but also by application of the accepted rules of interpre
tation that a State is entitled to refer to the Court a dispute such
as mentioned in the said Article on!y if at the time when the pro
visions of the Article are invoked that State is a Member of the
League of Nations.
10. In their treatment of this aspect of jurisdiction theApplicants:
(a) make the submission that as Members of the League, they
had a legal interest in the proper exercise of the Mandate;
(b) state that the question before the Court is whether their legal
interests have survived the dissolution of the League;
(c) submit that the phrase "'another Member of the League of
Nations' as used in Article 7 of the Mandate should be construed
as referring to former members of the League, as weil as to members
of the United Nations". 1(Italics added.)
For the purposes of this Objection, Respondent does not dispute
that during the lifetime of the League, the Applicants, as Members
thereof, had certain legal interests in the proper exercise of the
Mandate. 2
For the reasons previously herein stated, Respondent submits
that the said interests did not survive the dissolution of the League:
once the Applicants' membership of the League terminated, they
!ost their legal interests; and having !ost their legal interests they
stood in the same position as States that had never been Members
of the League.
But in any event the decisive question relative to jurisdiction
is not whether Applicants' interests have survived the dissolution
of the League, but whether Applicants have the qualification
(membership of the League) which the parties to the Mandate
instrument (i.e. the Council of the League and the Mandatory)
intended, accordirig to the express provisions of Article 7, that
prospective applicants should have in order to invoke the said
Article. Clearly the answer to the question is in the negative.
Applicants' submission as to the construction of the expression
"another Member of the League of Nations" as used in Article 7
is untenable in law because:
1 Applicants' Memorials, go.
1 Videpara. 4 supra.368 SOUTH WEST AFRICA
(i) it requires the insertion in the Article of words not meant to
be there (i.e. the words "former" as well as "and members of the
United Nations"); and thereby, in effect, attributes to the Council
of the League and to the Mandatory in the year 1920 when the
Mandate terms were agreed upon, knowledge of the dissolution of
the League and the establishment of the United Nations which
came about sorne twenty-five years thereafter;
(ii) by such insertion of words the scope of the Article is altered
in arder to make provision for something contrary to the clear
intention of the Council of the League and the Mandatory-i.e.
interference with Mandate administration by States not being
Members of the League;
(iii) it would result in the subjection of the Mandatory to juris
diction which the Manda tory bad never consented to.
On the Applicants' approach to this matter, Article 7 must be
construed not as a provision in an instrument framed at the in
ception of the League of Nations, when dissolution of the League
and creation of the United Nations were not in contemplation, but
as an instrument framed at the time of, and in contemplation of,
the dissolution of the League-which in !act it is not.
II. The Applicants' submissions on this aspect of jurisdiction
include a reference to the 1950 Advisory Opinion of the Court.
In the proceedings in Court in connection with the said Opinion,
Dr. Steyn, who appeared on behalf of Respondent, advanced the
contention that by reason of the dissolution of the League there
were no longer any States which could invoke Article 7 of the
Mandate. He appears to have regarded this contention as a legal
proposition which did not require further argument. The opinion
of the majority of the judges with regard to the application of
Article 7 of the Mandate was expressed in the following passage of
the Opinion, viz:
"According to Article 7 of the Mandate, disputes between the
mandatory States and another Member of the League of Nations
relating to the interpretation or the application of the provisions of
the Mandate, if not settled by negotiation, should be submitted to
the Permanent Court of International Justice. Having regard to
Article 37 of the Statute of the International Court of Justice, and
ArticleSo, paragraph r, of the Charter, the Court is of opinion thal
this clausein the Mandate is still in forceand thal, therefore,the Union
of South Africa is under an obligation to accept the compulsory juris
diction of the Court according to those provisions". (Italics added.)
It is not clear what conclusion was intended to be conveyed by
the words italicized above. 2
1 "Internationastatus of South-WestA/rica,Advisory Opinion:I .C.J. Repoyts
I950",p. 138.
2 As was also pointed oby Rosenne,op. cit., p. 282. PRELIM!NARY OBJECTIONS OF SOUTH AFRICA 369
As has been stated in paragraph 1 above, Respondent assumes
for the purposes of the argument in this Chapter that, contrary to
the contention advanced in Chapter III above, the Mandate, in
cluding Article 7, stiJl exists as a treaty or convention in force.
If the words in the Court's Opinion, as italicized above, werc
intended to mean that Article 7 stiJl stands as part of the Mandate
instrument and that the Manda tory would be obliged to accept the
jurisdiction of the Court according to the provisions of Article 7,
then, upon the assumption aforestated, the literai correctness of
what the Court stated cannat be denied. But in the application of
the provisions of Article 7 it must then follow that the Mandatory is
obliged to accept the jurisdiction of the Court on!y at the instance
of Members of the League of Nations~an snce the dissolution
of the League there are no longer States of that capacity.
If, on the other hand, the words in question were intended to
convey an opinion that the Mandatory is obliged to accept the
jurisdiction of the Court at the instance of a State which is no
longer a Member of the League, then it is submitted, with respect,
that no reason in law is advanced, or can be advanced, to arrive at
that conclusion.
Article 37 of the Statu te of the Court reads as follows:
"Whenever a treaty or convention in force provides for reference
of a matter to a tribunal to have been instituted by the League of
Nations, or to the Permanent Court of International Justice, the
matter shall, as between the parties to the present Statute, be
referred to the InternationalCourt of Justice".
This Article goes no further than to substitute the International
Court of Justice for the Permanent Court of International Justice
in treaties and conventions containing a reference to the latter.
Its effect could merely be to read Article 7 of the Mandate as if
it provided as follows:
"The Mandatory agrees that, if any dispute whatever should
arise between the Mandatory and another Member of the League of
Nations relating to the interpretation or the application of the
provisions of the Mandate, such dispute, if it cannat be settled by
negotiation, shall be submitted to the International Court of
Justice".
When Article 37 of the Statute of the Court was accepted by the
Signatories to the Charter of the United Nations in the year 1945,
the League of Nations was stiJl in existence and it continued in
existence until April, 1946. Article 37 of the Statute does not in
terms, and was not intended to, amend treaties or conventions by
altering qualifications upon which the right to refer a dispute to
a tribunal or the Court was dependent--il merely substitut.ed a
new forum for the adjudication of disputes. 1
1"A mbatielos case (jurisdistjudgment of july zst, 1952 : 1.C.j. Reports 1952",
p. 39· Vide also Hudson, A .jVol. 45 (1951), p. 15; Rosenne, op. cil., p. 282. SOUTH WEST AFRICA
370
Article So, paragraph r, of the Charter, also accepted by the
Signatories to the Charter when the League of Nations was still in
existence, merely provides that nothing in Chapter XII of the
Charter (dealing with the International Trusteeship System)
"shall be construed in or of itself to alter in any manner the rights
whatsoever of any States or any peoples or the terms of existing
international instruments to which Members of the United Nations
may respectively be parties".
This Article deals therefore with the construction and application
of Chapter XII of the Charter and does not, and was not intended
to, serve in the interpretation of other instruments, nor to effect
alterations in other instruments. 1
To suggest that Article So, paragraph r, of the Charter has any
bearing on the question whether States, not being Members of the
League of Nations, can exercise rights under Article 7 of the Man
date, would be to apply Article So, paragraph 1, for a purpose for
which it was not intended; and to conclude that by virtue of the
said paragraph, Article 7 of the Mandate is still in force (in the
sense that its provisions can be invoked by States not being Mem
bers of the League of Nations) would run counter to the very object
embodied in Article So, paragraph I,of the Charter.
12. The Applicants further quote in support of their submissions,
certain statements extracted from the Separa te Opinion of J udge
McNair. 2
Respondent cannat, with respect, accept the said statements as
being correct legal conclusions, and with regard thereto the fol
lowing submissions are made:
(a) Judge McNair's statement:
"Every State which was a Member of the League at liu lime of ils
dissolution still has a legal interest in the proper exercise of the
Mandate". • (ltalics added).
judge McNair does not appear to have taken into account the
very basis upon which States were accorded a legal interest in the
administration of the Mandate, namely membership of the League.
From this basis, as indicated in paragraph 5 above, it followed that
membership was a qualification for the continued existence of that
legal interest and in the result also a qualification for enforcement
of that interest through. the compulsory jurisdiction provision in
the Mandate instrument.
Ali States who were Members of the League at its dissolution,
like ali States that had ceased to be Members prior to dissolution,
!ost the qualification for having a legal interest in the adminis-
1 Vide Hudson, A.J.l.L., Vol. 45 (1951), pp. 14·15; Nisot, S.A.L.J.Vol. 68
(1951), pp. 278·79; Schwarzenbergeop. ci(3rd ed.), Vol. 1, p. ros.
1 Applicants'Memorials,p. go.
1 "InternationalsJatus of South-West A/ricoAdvisory Opinion: l.C.J. RepOYts
I950", p. 158. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 371
!ration of the Mandate, and therewith their right to invoke Article 7
of the Mandate automatically clisappeared.
The leamecl Juclge clid not state upon what reasoning a distinc
tion could in law be drawn, as he apparently dicl, between League
Members which ceasecl to be such prior ta the dJssolution of the
League and States which, though Members at the time of disso
lution, ceased to be such by reason of dJssolution.
There can in law be no distinction, because in whatever way
membership terminated the result was the same, namely a loss of
the erstwhile legal interest and of the qualification provided for
in Article 7 of the Mandate.
(The comment in this paragraph applies also to the view expressecl
by Juclge Read in his Separate Opinion namely:
"... the legal rights and interests of the Membersof the League in
respect of the Mandate survived with one important exception-in
the case of Members thal did not become parties to the Statute of
this Court, their right to implead the Union before the Permanent
Court lapsed".) 1
(b) Judge McNair's statement:
"... I have endeavoured to show thal the agreement between the Man
datory and other Members of the League embodied in the Mandate
is still 'in force'. The expression 'Member of the League of Nations'
is descriptive, in my opimon, not conditional, an1 doesnotmean'solong
as the League exists and they are Members of il' ".(Italics adcled).
Even if the view expressecl in the first part of the above passage
is correct, namely, that the agreement between the Mandatory and
other Members of the League is still in force, it can only be in force
in accorclance with its provisions, and its provisions accord the
benefit of Article 7 only to Members of the League of Nations.
As already shown, the Mandate instrument provided for the
exercise and enjoyment of rights by Members of the League, but,
only as long as they continuee[ to be Members.
To say that Article 7 of the Mandate must be so interpretee[ that
the expression "Member of the League of Nations" is descriptive and
not conclitional, is in direct conflict with the intenclecl meaning of
that expression not only in each and every one of the Mandate
instruments, but also in the whole Covenant. The absurd conse
quences which woulcl follow from such an interpretation have been
clemonstrated in paragraphs 47 and 48 (c) of Chapter III above.
Moreover, as a description, the expression, in the context of
Article 7, would be meaningless unless qualifiee[ with reference to
a point of time, and the following comment by Manley O. Hudson
seems justified :
"Judge McNair expressed the view thal this expression is
'descriptive, not conditional', and that it does not mean so long as
2 Ibid., 169.
Ibid .. pp. 158·59. 372 SOUTH WEST AFRICA
the Leagt<eexists and they are Members of it. Yet what States does
it describe? Does the phrase mean another State which was a
Member of the League of Nations on December 17, 1920? If so,
Brazil would be included, though it withdrew from the League of
Nations in 1923, and Egypt and Mexicowould be excluded because
they were admîtted to the League of Nations at later dates. Does
the phrase now mean another State which was a Member of the
League just prior to its dissolution? Judge McNair seems to have
been willing to givet this import. Yet sorne States in this category
for example, Portugal, whose territory borders on South West
Africa-may not now be 'States entitled to appear before the
Court'. ln any event, the meaning is so imprecise that perhaps the
Court might have shawn more hesitance in declaring the replacement
to be made in the second paragraph of Article 7 of the Mandate". '
To this criticism can be added the comment, that if the descrip
tion applies, as judge McNair appears to have applied it, at the
date of dissolution of the League, there must be attributed to the
framers of the Mandate instrument a contemplation of dissolution
of the League and sorne special arrangement for the maintenance
of the Permanent Court of International justice after the disso
lution ofthe League or for the establishment of sorne other tribunal
in the place thereof. Alternatively, the description would have had
to apply to al! States that at sorne time or another were Members
of the League-and then it is not clear on what basis Judge McNair
excluded States that had ceased to be Members prior to disso
lution, as he apparently did.
The Applicants' submission thal "the basic principles of the
Mandate System and the means devised by the League of Nations
for their enforcement affirm the soundness of this [Judge McNair's]
reasoning", ' can only be based on a misconception. The basic
prin ciple of the Mandate System was the administration ofMandated
territories by Mandatories who consented to administer the said
territories subject to explicit conditions and to certain agreed and
accepted forms of supervision.
Even if the functions of the Court under Article 7 of the Mandate
can be regarded as of a supervisory nature (contrary to Respondent's
contention in Chapter V hereafter), then in neither of the forms of
supervision devised by the League of Nations and agreed toby the
respective Mandatories was it interided that States which were not
Members of the League should have any participation: they were
denied any say in the supervision exercised by the League itself
and in terms of the respective Mandate instruments they were not
included as States entitled to invoke the so-called supervision of
the Court.
13· In the premises aforestated Respondent respectfully submits
that, although certain views were expressed in the 1950 Advisory
1 Hudson, A.J.l.L.VoL 45 (1951), p. 16.
2 Applicants' Memorials, p. go. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 373
Opinion with regard to the aspect of jurisdiction dealt with in this
Chapter, the matter requires reconsideration in full, inasmuch as:
(a) it was not formuJated as a specifie question for the Court's
consideration and was not fully dealt with in the argument presented
to the Court for the purposes of the said Opinion;
(b) the considerations dealt with in paragraphs 3 to g above may,
in the absence of a full argument, not have been present in the mind
of the Court;
(c) the view expressed in the Opinion of the Majority of the
Court is not clear, and it is not apparent from the Opinion what
relevance Article So, paragraph I,of the Charter had in the mind
of the Court;
(d) the views expressed by certain of the Judges in their Separate
Opinions are open to the criticism advanced in paragraph I2 above;
and
(e) on this aspect also the rgso Opinion was critically received by
writers on International Law (as referred to in paragraphs II and 12
above).
14. The remainder of the Applicants' submissions on this aspect
of jurisdiction can be summarised as follows:
(a) each Member of the League of Nations had a legal interest in
the administration of the Mandate;
(b) such interest was to be exercised ultimately through invoking
the compulsory jurisdiction of the Court;
(c) judicial supervision is an indispensable feature of the Man
date System since, if administrative supervision should fail, there
is no other method of enforcing the "sacred trust";
(d) if the Mandate is in force, judicial supervision must likewise
be in force, since the former is empty without the latter;
(e) unless the Applicants are entitled to institute a contentious
proceeding there is no method of obtaining an enforceable decision.
If that were so, judicial supervision over the Mandate would be
a nullity.
It is not disputed that each 11ember of the League of Nations
had certain legal interests (as deal! with in paragraph 4 above) in
the administration of the Mandate, and that in terms of Article 7
of the Mandate each such Member could invoke the compulsory
·jurisdiction of the Court for the enforcement of such legal
interests.
The Applicants' further reasoning is, however, based on the
premise that "judicial supervision is an indispensable feature of the
Mandate System". Whether the function of the Court under the
compulsory jurisdiction clauses in the Mandates can be regarded as
of a supervisory nature will be dealt with in Chapter V hereafter.
But, even assuming for the purposes of the argument in this Chapt er374 SOUTH WEST AFRICA
that it could be so regarded, Respondent denies that it was an
indispensable feature of the Mandate System.
Article 22 of the Covenant made specifie provision only for ·
supervision by the League of Nations, and even that form of
supervision was regarded by the Court in the rg5o Advisory
Opinion as an "important part", 1 and therefore, by deduction from
that Opinion, not an indispensable feature of the Mandate System.
If judicial supervision had been considered by the framers of the
Covenant to have been a very important, let alone indispensable,
feature of the Mandate System, one would have expected mention
thereof to have been made in the Covenant.
In any event there is no reason why the Mandate, as an institu
tion, cannat continue in existence without a form of judicial
supervision. In this respect Respondent respectfully draws atten
tion to the fact that the Applicants seek to identify, in essence, the
Trusteeship System under the United Nations with the Mandate
System under the League of Nations; 2 and it is interesting to note
that in sorne Trusteeship Agreements there is no provision for
compulsory jurisdiction of the Court.
So, for instance, despite the fact than an article on compulsory
jurisdiction similar to Article 7 of the South West Africa Mandate,
appeared in the former Japanese Mandate (Article 7), the United
States did not include an analogous article in the draft Trustee
ship Agreement for that territory proposed by it to the Security
Council. 3 Nor was this omission ever commented on during the
relevant debates in the Security Council, let alone rectified. •
Similarly, articles relating to the compulsory jurisdiction of the
Permanent Court of International Justice did appear in the Mandate
instruments for Nauru and New Guinea-but analogous articles
did not appear in the draft Trusteeship Agreements for these terri
tories submitted to the General Assembly by Australia. Here also
the lengthy debates in the General Assembly do not reveal that
there were any proposais by Members of the United Nations
including both Applicants-that this omission be rectified on the
ground that judicial supervision is indispensable. In this instance
the omission was more pertinently brought to the General Assem
bly's attention by the fact that the other draft Trusteeship Agree
ments which were simultaneously considered and approved, did
contain such articles.
In the light of these events it does not seem that "judicial super
vision" was regarded by the Members of the United Nations as an
"indispensable feature" of the Trusteeship System.
1 ·:;nternationastatus of South-West Africa, AdvisoOpinion: l.C.j.Reports
I950 , p. IJ6.
1 Applicants' Memorials, pp. 104·105.
3 S.C., O.R., Second Year, Sup. No. 8.
" S.C.,O.R., Second YeaNos. 20,23, 25, 30 and 31. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 375
If, contrary to the Applicants' contention, judicial supervision
is not an indispensable feature of the Mandate System, then, what
ever its importance may be, the Applicants' premise would be
wrong and the whole argument formuJated thereon would collapse.
If, however, the Applicants should be correct in their premise,
the further reasoning that, because judicial supervision is an in
dispensable feature of the Mandate System, then, if the Mandate is
still in force, judicial supervisionmust likewise be in force, shows an
illogical approach to the whole enquiry before the Court. The very
fact that an indispensable feature of the System is no longer oper
ative may weil provide support for Respondent's argument as
contained in Chapter III above, that the Mandate has lapsed in
the sense there stated.
In any event, it does not follow, because judicial supervision
may be desirable, or even indispensable, that that consideration
coniers jurisdiction on the Court.
Compulsory jurisdiction of the Court can only arise by consent
of the Mandatory and that consent was given only to the extent
and upon the terms stated in Article 7 of the Mandate.
To ask the Court to hold !hat compulsory jurisdiction exists,
not by virtue of the consent of the party impleaded before the
Court, but by virtue of a so-called necessity for such jurisdiction,
is to demand the performance of a function beyond the competency
of the Court. 1
15. In the premises it is submitted that the Court has no juris
diction to hear, or adjudicate on, any of the matters raised by the
Applicants, in their Applications and M emorials inasmuch as the
Applicants, not being Members of the League of Nations, are not
entitled in law to invoke the provisions of Article 7 of the Mandate
and have, accordingly, no locus standi before the Court.
1 Vide Art. 3of the Statu te of the Court in terms whereof the jurisdiction of the
Court, save in so far as it is founded on declarations in accordance with Art. 36(2),
comprises only cases which the parties refer to it and all matters specially provided
lorin the Charter or in treaties or conventions in force. SOUTH WEST AFRICA
CHAPTER V
THIRD OBJECTION
THE ALLEGED CoNFLICT oR OISAGREEMENT Is NOT A "DISPUTE"
AS Is ENVISAGED IN ARTICLE 7 OF THE MANDATE.
1. Respondent's Third Objection, dealt with in this Chapter, is
that the alleged conflict or disagreement between Applicants and
Respondent is not a "dispute" as envisaged in Article 7 of the Man
date.
Before proceedings could be instituted by a Member of the League
of Nations under the provisions of Article 7 of the Mandate, there
had to be, in terms of the said Article, a "dispute" between tha:t
Member and the Mandatory relating to the interpretation or appli
cation of the provisions of the Mandate.
With r~gar td the subject-matter of the alleged dispute, the
Applicants' Memorials contain the following statement:
"The Applicant alleges, and the Union bas denied, thal the
Union has violated and is violating Articles 2, 4, 6 and 7 of the
Mandate. There is therefore a dispute concerning both the inter
pretation and the application of these Articles of the Mandate''.1
For the reasons hereinafter set forth, Respondent contends that,
because of its subject-matter, the alleged conflict or disagreement
isnot a "dispute" envisaged for adjudication by the Court in terms
of Article 7 of the Mandate-more particularly in that the said
conflict or disagreement does not affect any material interests of
the Applicant States or their nationals.
lt will be assumed for the purposes of this Objection that, despite
the dissolution of the League, Applicants would still be entitled
to invoke the provisions of Article 7 in an appropriate case.
2. As a matter of logic, conflicts between parties are generally
justiciable only when their rights or legal interests are involved.
Courts of law are not concerned with conflicts, differences of
opinion or opposite views unconnected with the rights or legal in
terests of the litigants1t is submitted that the position is the same
in International Law. International Courts exist for the adjudi
cation and settlement of daims arising from legal rights or legal
mterests and are not there for judicial expression on differences of
opinion or on conflicts of views between States, unrelated to their
legal rights or interests.
The Court, of course, has a discretion to respond to a request for
an advisory opinion on any legal question, even though the question
may not involve legal rights of the organisation or body which asks
for the opinion; but that is so by virtue of specifie provisions in the
1 Applicants' Memorials, p. 91. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 377
Charter of the United Nations (Article g6) and the Statute of the
Court (Article 65). Advisory opinions are an exceptional form of
process and the right to request such an opinion is limited to the
General Assembly, the Security Council and other Organs of United
Nations and Specialised Agencies which may be authorised by the
General Assembly to make such a request. States h"ve no such
right. The position with regard to advisory opinions was the same
in the Permanent Court of International Justice, also by virtue
of express provision in the Covenant of the League of Nations
(Article 14) and the relevant Rules of Cour~. 1
3· There is no indication in Article 7 of the Mandate instrument,
or in any other part thereof, that the word "dispute" was intended
to convey a notion other than the generaliy accepted legal meaning;
namely, a disagreement or conflict between the Mandatory and
another Member of the League concerning the legal rights or legal
interests of the latter in the provisions of the Mandate.
The words "any" and "whatever" flanking the word "dispute"
in the Article, cannot give to the latter word a meaning wider than
its ordinary connotation in law.
In the M avrommatis Case the Permanent Court of International
Justice, in dealing with Article 26 of the Mandate for Palestine
(which clause is identical to Article 7 of the Mandate for South
West Africa), defined the word "dispute" as "a disagreement on a
point of law or fact, a conflict of legal views or of interests between
two persons". 2
The Court was, however, careful in demonstrating that the Appti
cant had itself a right or legal interest in the subject-matl't!r of the
dispute then before the Court. ·
Thus said the Majority of the Court:
"It is an elementary principle of international law that a State is
entitled to protee! ils subjects, when injured by acts contrary to
international law committed by another State, from whom they
have been unable to obtain satisfaction through the ordinary
channels. By taking up the caseofoneofils subjects and by resorting
to diplomatie action or international judicial proceedings on his
behalf, a State is in reality asserting its own rights-its right to ensure,
in the persan of its subjects, respect for the rules of international law". •
(Italics added.)
In each of the five dissenting judgments in the said case, although
there is no direct statement to that effect, the reasoning of the
individual Judges indicate a contemplation of a legal right or
interest as a requirement for locus standi of the applicant, and
consequently for jurisdiction of the Court.
1
1 Asreferred toby Rosenneop.cit.pp. 441-43.
The Mavrommalis Palestine ConcessionsP.C.I.J ., Ser. A, 2,30th August,
1914,p.II.
Ibid., p12.
25 SOUTH WEST AFRICA
Th us Lord Finlay stated:
"There can be no doubt as to the class of case which primarily,
at ali events, this article was intended to meet. There are a number
of provisions of the Mandate under which it is highly probable
that questions may arise between different Members of the League
of Nations. Article 5 forbids placing any Palestine territory under
the control of any foreigu Power. Sorne Member of the League
might allege that this provision had been violated to its prejudice.
Article 9 provides that the judicial system of Palestine shall assure
to forei~n as wsell as to natives a complete guarantee of their
rights. IJuestionsmi~h trise at any time with another Member of
the League as to whether the judicial system is so constituted as to
afford this guaranteetoits subjects. Article r8 forbids aU discrimina
tion against the nationals of any State, Member of the League of
Nations, or against the goods originating in or destined for any
such State, and provides for freedom of transit across the mandated
area. Questions may arise between the Mandatory and another
Member of the League as to the observance of this article ...
. . . Under aU these heads there are endless possibilities of dispute
between the Mandatory and other Members of the League of
Nations, and it was highly necessary that a Tribunal should be
provided for the settlement of such disputes. Article 26 provides
the Tribunal for this purpose". 1(Italics added.)
Judge Moore:
"The first condition-the existence of a dispute between the
Mandatory and another Member of the League-is not merely by
the filing of a suit by the one government against the other in this
Court. There must be a pre-existent difference certainly in the sense
and to the extent that the government which professes to have been
aggrieved should have stated its claims and the grounds on which
they rest, and that the other government should have had an
opportunity to reply, 1nd if it rejects the demands, to give lts
reasons for so doing". (Italics added.)
Judge de Bustamante:
"It should also be noted that the Greek Government asks for
nothing for itself and that in the case reference is always made to
an indemnity to be paid, not to the Greek Government, but to the
beneficiary under the concessions". ' (Italics added.)
and:
"Whenever Great Britain as Mandatory performs in Palestine
under the Mandate acts of a general nature affecting the public
interest,the Members of the League-from which she holds the
Mandate-are entitled, provided that aU other conditions are
fulfilled, to have recourse to the Permanent Court. On the other
hand, when Great Britain takes action affecting private interests
and in respect of individuals and private comparues in her capacity
1 Ibid., p42-43.
1 Ibid., p. 61.
a Ibid., p. 77. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 379
as the Administration of Palestine, there is no question of.a juridical
relation between the Mandatory and the Members of the League from
which she holds the Mandate, but of legal relations between third
Parties who have nothing to do with the Mandate itself from the
standpoint of public law". 1 (Italics added.)
Judge Oda:
"Since the Mandate establishes a special legal relationshipit is
natural that the League of Nations, which issued the Mandate,
should have rights of supervision as regards the Mandatory. Under
the Mandate, in addition to the direct supervision of the Council
of the League of Nations (Articles 24 and 25) provision is made for
indirect supervision by the Court; but the latter may only be
exerdsed at the request of a Member of the League of Nations
(Article 26). Itis therefore to be supposed that an application by
such a Membermust be made exclusively with a view to the protec
tion of general interests and that it is not admissible for a State
simply to substitute itself for a private persan in arder to assert his
private daims". ' (Italics added.)
Judge Pessôa:
"The Parties which may appear before the Court being States,
it cannat be called upon to protèctthe rights of individualsbut only
those of States". (Italics added.)
The fact that Judges de Bustamante and Oda in their reasoning
made the obiter statement that Members of the League stand
in a special legal relationship to the Mandatory and can, therefore,
implead the Mandatory before the Court in matters of general in
terest or with regard to acts of a general nature affecting the public
interest (a question to be dealt with in paragraph 5 hereafter),
does not detract from the present argument. For they also recog
nised the necessity of a legal right or interest (flowing, as they
considered, from the aforesaid special legal relationship) for locus
standi on the part of the applicant anct. therefore, as a requirement
for jurisdiction.
4· Neither of the Applicants in the present case contend, nor
can they in the circumstances validly contend, that they as States
are, directly or through their subjects, affected by any of the acts
alleged to have been committed by Respondent in violation of the
provisions of the Mandate.
They bath, however, found their cases as to locus standi on a
contention that they (as former Members of the League of Nations)
have a legal interest in the matters submitted for adjudication;
namely, "a legal interest in seeing to it through judicial process
that the sacred trust of civilization created by the Mandate is not
violated". •
1 Ibid., p. 81.
~ Ibid., p. 86.
3 Ibid., p. 88.
" Applicants' Memorials, pp. 91-92. SOUTH WEST AFRICA
This contention can be sound only if, upon a proper construction
of Article 22 of the Covenant and the Mandate instrument, it must
be concluded:
(a) that the individual Members of the League were intended to
have a legal interest in the observance by the Mandatory of the
conditions imposed in the Mandate for the benefit of the inhabitants
of the Territory, even in cases where the breach of these obligations
by the Mandatory did not affect the material interests of individual
League Members, either direct!y or through their nationals;
and,
(b) that, in view of the said legal interest each Member of the
League, if it considered that the Mandatory was not observing its
obligations towards the inhabitants, was entitled not only to raise
the matter in the League for its consideration and attention, but
also to institute with regard thereto contentious proceedings against
the Mandatory in terms of Article 7 of the Mandate.
Both these propositions require careful consideration.
The proposition under (a) above depends for its correctness to
a certain extent, though not ent!rely, on the question whether the
League of Nations was a legal persona. If it was not a legal persona,
then the proposition in (a) above would appear to be correct, inas
much as the obligations mentioned in the said paragraph could then
have been owed only to the Members of the League. 1
There is, however, strong authority for the view that the League
of Nations was a legal persona having, apart from its Members, a
legal capacity. '
If this view is correct, then the obligations imposed for the benefit
of inhabitants would primarily, in any event, have been owed to
the League, on whose behalf the Mandatory undertook to exercise
the Mandate. Although the League Members would then be en
titled, by virtue of their membership, to participate in the League's
supervision of the observance by the Mandatory of the aforesaid
obligations, they would individually vis-à-vis the Mandatory have
had no legal interest therein. Theoretically it is possible to conceive
that the League, in contracting with the Mandat ory, acted not
only on its own behalf, but also on behalf of its Members and mem
bers-to-be, in obtaining for them, by way of agency or by way of a
contract for the benefit of the Members as third parties, a legal
interest in the aforesaid obligations in addition to its own interest
therein. The following indications in Article 22 of the Covenant
and in the Mandate, however, seem to exclude that theory, viz:
(i) that the Mandate was to be exercised on behalf of the League
only; and not on behalf of the League·and its Members; 3
1 Vidt Chap. III,para. 17(a),r.w. para. r6 (supra.
1 Ibid.para. 15·
• Para.2 of Art22 of the Covenant and the Preamble to the Mandate. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 381
(ii) that the consent of the Council of the League was reqnired
for modification of the terms .of the Mandate; and not also the
consent of the Members of the League. •
Moreover, the whole conception of legal rights with regard to the
same obligations being vested both in the League as a legal persona,
as weil as in the individual Members of the League, seems unreal
especially in view of the possible conflicts and anomalies which
could arise in the exercise of such rights by the League as well as
by its individual Members, as indicatoo in paragraph 5 below.
The better view would seem to be that it was onJy the League,
as a legal persona, that acquired a legal interest in the obligations
imposed in the Mandate for the benefit of the inhabitants of the
territory, save insofar as the said obligations were intended to
operate for the benefit also of League Members or their nationals,
in which case they, too, would have had an interest in the obser
vance of those obligations. 2
If this view is correct then Applicants cannot be said to have a
legal interest in the alleged acts of violation of the Mandate com
plained of by them, as such acts concern onJy the inhabitants and
do not affect the Applicants or their nationals.
But even if it is concluded that they have such a legal interest,
the further question raised in sub-paragraph (b) above remains
to be dealt with, namely, whether that legal right or interest was
intended to be enforceable by judicial process in terms of Article 7
of the Mandate.
s. In construing Article 7 of the Mandate with regard to juris
diction ratione materiae, the rules of interpretation mentioned in
Chapter IV, paragraph 3 supra with regard to jurisdiction ratione
personae are equally applicable. An interpretation of Article 7 in
accordance with the said ruJes leads to the conclusion that the said
Article was not intended to have the meaning and effect assigned
thereto by the Applicants, namely, that the Article entitles the
Applicants to institute contentious proceedings with regard to
matters which concern only the inhabitants of the Mandated
Territory and do not affect the material interests of the Applicants,
either directly or through their nationals. The reasons for this
contention are the following:
(a) According to paragraph 1 of Article 22 of the Covenant
"securities for the performance of" the "sacred trust of civilization"
were embodied in the Covenant.
Paragraph 2 of Article 22 stated the mandate conception. Para
graphs 4. 5 and 6 thereof then dealt with the Mandated territories
in three categories, indicating in general terms the powers and
functions of the Mandatories in each of the three categories, thus:
t Art. 7 of the Mandate.
2 VideChap. III, para. 17supra. 382 SOUTH WEST AFRICA
(i) the so-called A Mandates in respect of territories former/y
belonging to the Turkish Empire (Paragraph 4):
"the rendering of administrative advice and assistance by a Man
datory";
(ii} the so-called B Mandates in respect of Central African terri
tories,(Paragraph 5):
The Mandatory to be "responsible for the administration of the
terri tory" under certain conditions;
(iii) the so-calleC Mandates in respect of South West Africa and
certain South Pacifie Istands (Paragraph 6):
to be "administered under the laws of the Mandatory as integral
portions of its territory" subject to the conditions mentioned in
respect of the B Mandates in the interests ofthe indigenous popula
tion.
Paragraph 8 of Article 22 provided that "The degree of authority,
control or administration to be exercised by the Mandatory shall,
if not previously agreed upon by the Members of the League, be
explicitly defined in each case by the Council of the League". (ltalics
added.)
With regard to supervision of the Mandatories in the exercise of
their Mandates the only provisions contained in the Covenant were
the following:
"In every case of mandate, the Mandatory shaH render to the
Council an annual report in reference to the territory committed
to its charge";
(Paragraph 7 of Article 22.)
and
"A permanent Commission shall be constituted to receive and
examine the annual reports of the Mandatories and to advise the
Councilon ali matters relating to the observance of the mandates."
(Paragraph 9 of Article 22.)
There was no mention, either in Article 22 or in any other part
of the Covenant, of a form of "judicial supervision", or of any form
of supervision other than that to be exercised by the League itself.
(b) Pursuant to Article 22 of the Covenant, the Council of the
•League, by the express provisions of the respective Mandate
instruments, explicitly defined the degree of authority, control or
administration to be exercised by each Mandatory.
Except in the case of the A Mandates, where the legislative and
administrative powers of the Mandatories differed from case to
case, ali the Mandate instruments vested plenary powers of legis
lation and administration in the respective Mandatories subject
only to certain particular obligations stipulated in the said instru
ments. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 383
Thus in the case of ali B Mandates the Mandatories' powers of
legislation and administration were recorded in the following
terms:
"The Mandatory shall be responsible for the peace, order and good
government of the territory, and for the promotion to the utmost
of the material and moral well-being and the social progress of its
inhabitants".' (Italics added.)
In the Mandate for Tanganyika the following sentence was
added:
"The Mandatory shall have full powers of legislation and ad
ministration". 1
The powers conferred in ali the C Mandates were recorded as
follows {the Mandate for South West Africa being quoted as an
example): 3
"The Mandatory shall have 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 may apply
the laws of the Union of South Africa to the territory, subject to
such local modifications as circumstances may require." (Article 2.)
In the express terms of the Mandate instrument the Mandatory
for South West Africa was therefore vested with complete powers
of government, i.e. both legislative and administrative, over the
Mandated Territory.
The only limitations or restrictions on, or directions in respect of,
such powers could lie in the particular obligations mentioned in
the Mandate instrument. These were:
(i) Promotion to the utmost of the material and moral well
being and the social progress of the inhabitants. (Article 2.)
(ii) Prohibition of the slave trade and forced labour. ContD!llof
traffic in arms. Prohibition of the supply of intoxicating spirits and
beverages to natives. (Article 3.)
(iii) Restriction upon military training of natives and the esta
blishment of military and naval fortifications. (Article 4.)
(iv) Freedom of conscience and free exercise of ali form!i. of
worship, and rights of certain missionaries in the territories.
{Article 5.)
Other than the aforementioned obligations, the only duty im
posed on the Mandatory was the rendering of annual reports to
the Council of the League. {Article 6.)
The aforesaid obligations and the duty to report were provided
for in the Mandate instrument pursuant to the provisions of the
Covenant.
1 Vide Art2 ofthe British Mandate for the Cameroons. (U.N. Doc. A/70-)
1 Vide Art. 3 of the British Mandate for Tanganyika. (U.N. Doc. AJ7o.)
1 Vide Annex B infra. SOUTH WEST AFRICA
When, therefore, the Covenant of the League, in pursuance
whereof the Mandate instruments were entered into, did not pro
vide for a form of judicial supervision, it seems highly unlikely
that the provisions of Article 7 of the Mandate were intended to
introduce such a form of supervision, especially in view of the im
plications which, as indicated hereinafter, would necessarily flow
from such a form of supervision.
(c) Furthermore, there appears to have been no need for a form
of judicial supervision in additionto the supervision by the League
envisaged in the Covenant, and given ef'tect to in the Mandate
instruments.
The League itself was !ully empowered to deal with ali matters
pertaining to the administration of Mandated territories and, when
any legal question was involved concerning the interpretation or
application of the provisions of the Mandate, could itself request an
advisory opinion from the Court.
It seems most unlikely that the Council could have considered
that, in addition, there would be a need for judicial supervision of
the nature contended for by the Applicants. Such a view on the
Council's part would have been tantamount to an acknowledge
ment, in advance, of probable failure by it to perform adequately
the supervisory functions entrusted to it; and the Council must
have been alive to the danger of conflict or interference with its
own supervision, as dealt with below.
(d) It could hardly have been the intention that, in addition ta
the supervisory functions of the League, each and every Member
State would individually stand in the position of a custodian of the
rights of the inhabitants of the Mandated territories.
One cannat conceive of the Council of the League intending,
and the respective Mandatories agreeing to, interference by indivi
dual Member States through a form of judicial process with the
policies adopted by the Mandatories in the application of the pro
visions of their Mandates-interference which could touch on ali
aspects of government policy and political situations involving the
inhabitants of Mandated territories.
The position of a Mandatory ·would surely have been an ex
tremely individious one, if, having accounted to the League for its
administration of the Mandated territory and having satisfied the
League on matters affecting the inhabitants, it could then still
be subject to the attack of individual Members of the League which
might choose to disagree with the Mandatory (and perhaps even
with ail other League Members) as regards legislative acts and
administrative measures affecting the inhabitants, and then raise
disputes for judicial decision thereon.
An analysis of the functions entrusted to the varions Organs of
the League in its supervision of Mandate administration, and the
implications resulting therefrom, support a deniai of the contention PRELIMINARY OBJECTIONS OF SOUTH AFRICA 3ll5
that the Court was intended to act as an independent supervisory
authority at the instance of individual Member States.
The role played by the respective Organs of the League with
regard to supervision of Mandates is described as follows in a League
of Nations publication:
"During the discussion upon the Secretary-General's annual
report on the work of the League, it is permissible for any delegation
to draw the attention of the Assembly to sorne point in the chapter
concerning mandates and even to move that this chapter be referred
to one of the Assembly Committees where an exhaustive discussion
may ensue ... The discussion in the Assembly usually leads to the
adoption of a resolution laying stress on sorne particular aspect of
the discharge of the mandates, formulatir\g some wish addressed
to the Council, the Mandates Commission or the mandatory Powers,
etc.
Thus the role of the Assembly consists in the exercise of a certain
moral and very general influence in this domain. Its function may
be said ta be to maintain touch between public opinion and the
Council.
The right to take decisions in regard to mandate questions belong.
however, to the Council. It exercises its supervision with the aid of the
Permanent Mandates Commission,instituted by the Covenant itself.
The Covenant provides that this Commission is 'to receive and
examine the annual reports of the Mandatories and to advise the
Council on ali matters relating to the observance of the mandates'. 1t is
therefore essentially an advisory body-a body whose duty it is to
examine and report-designed to assist the Council in carrying out
its task. Its work is preliminary in character. Constitutionally, it has·
no power to take decisions binding on themandatory Powers or taaddress
direct recommendationsta them. Its conclusions are not final until they
have been approved by the Council". '(Italics added.)
If, then, Article 7 were given such a wide construction as to
entitle any Member State, at its own instance, to cali in the aid of
the Court for the purpose of functioning as a supervisory authority,
the effect would have been to accord to such State individual powers
exceeding those of both the Mandates Commission and the Assembly
of the League.
Whereas the Mandates Commission, a competent body of experts,
was not even entitled to address recommendations to a Mandatory,
any Member of the League would, under this construction, have
been entitled to demand from the Mandatory the adoption of a
suggested course of action, bound with the threat of judicial pro
ceedings if the Mandatory should refuse.
And similarly whereas the Assembly, composed of ali the Member
States, could take no decisions in regard to Mandate questions,
any Member of the League would have been entitled to decide,by
itself, upon measures to be adopted or not to be adopted by a
Mandatory and seek to enforce its own decision by judicial process.
1
The Mandates System-Origin-Principles-Applicationp. 35· SOUTH WEST AFR!CA
But even more: if a question should have arisen as to the desir
ability or otherwise of adopting a particular policy in Mandate
administration, it would have mattered little if such a poliçy were
considered unwise by the Mandates Commission, or discussed and
outvoted in the Assembly, or rejected by the Council-for a single
Member holding isolated views could then still have ignored the
weighty body of opinion in the League and the resolutions resulting
therefrom, and have forced a Mandatory to adopt that particular
policy or account to the Court as the final supervisory body.
Furthermore, if the Mandatory, placed in the position aforestated
by a particular Member of the League which was not satisfied with
the League's views, should have ventured to negotiate with that
Member in order to avoid litigation, a result could have followed
with which the League as the supervisory body entirely disagreed.
And if there should have been more than one Member State de
fiecting from the body·of opinion in the ·League; but which, inïà
se, held different views as to varions policies of administration or
asto the manner of application of a particular policy, how.would
the ·Mandatory have negotiated ·with such States? Concessions
made tô one Member could then still be rejected by the other, and
the Mandatory's willingness to effect changes and to negotiate for
a settlement would have been of no avait, resulting in its having to
defend judicial proceedings instituted by one or the other or per
haps both.
The very idea of such negotiation sounds unreal-and this would
,apply not only in such complicated circumstances as just discussed
but in any case involving negotiation with another State regarding
matters of internai policy as applied in legislative acts and adminis-
trative measures. ·
(e) Insofar as the Mandatory's acts in the Mandated territory
could at ail be questioned in the interest of the inhabitants, the
League of Nations would have been the only appropriate body to
consider and deal with matters of policy and political doctrines
applied in legislative acts andjor administrative measures.
The Applicants' contention necessarily means that Article 7 of
the Mandate subjected the Mqndatory to judicial enquiry concem
ing its application of each and every one of the provisions of the
Mandate, including Article 2 thereof-which provided that the
Mandatory "shall promote to the utmost the material and moral
well-being and the social progress of the inhabitants of the terri
tory". This would then mean that the Court could have been
required to pronounce on aU matt ers of policy affecting the material
and moral well-being and the social progress of the inhabitants,
which would often have involved decisions of a purely political
nature.
The functions of Courts of Law do not normally extend to the
realm of politics; and where a legislature or an administrative body PRELIMINARY OBJECTIONS OF SOUTH AFRICA 387
acts within the scope of powers conferred upon it, it is not the
function of Courts of Law to enquire into the policy or soundness
of its acts.
This general princip le was recognised in the case of Jerusalem
Jaffa District Governor and another v. Murra and others, as being
applicable also in regard to the administration of the Mandated
Territory of Palestine under that Mandate. In regard to certain
measnres of expropriation applied by the Mandatory, the Privy
Council stated:
"Their Lordships agree that in such a case, and in the absence of
exceptional circumstances, justice requires that fair provision shall be
made forcompensation. But this dependsnot uponany civilright, but
(as the Chief Justice said) upon principles of sound legislation; and
it cannot be the duty of the Court to examine (at the instance of
any litigant) the legislative and administrative actsf the Adminis
tration, and to consider in every case whether they are in accordance
with the view held by the Court as to the requirements of natural
justice".1
With regard to the functions of International Courts, Rosenne
states, with reference to decisions both of the Permanent Court
of International Jus tice and of the present Court:
"In the firstplace,it cannot tooolten beemphasizedthat theCourt is
a Court of Justice and not of ethics ormorais orof politicalexpediency.
Its function is to 'declare the law'. Its pronouncements are solely
concemed with the law as it is, and 'it is not for the Court to pro
nounce on the political or moral duties' which its conclusions on the
law may involve". z
Respondent is mindful of the !act that legal questions are olten
encompassed or intertwined with political issues, and that the
jurisdiction of the Court, if other\\ e~tSblished, would not for
that reason be ousted. It is, however, foreign to the essential nature
and purpose of the Court to entertain matters of a pure!y political
character.
In the premises it would indeed be strange to find that the Council
of the League, which defined the terms of the Mandates, and the
respective Mandatories which accepted the Mandates, had intended
that the Court should be vested with powers to act at the instance
of any Member of the League, as an umpire in pronouncing upon
the soundness of the Mandatories' legislative acts and administra
tive measures involving the material and moral well-being and the
social progress of the inhabitants of the Mandated Territories. It
is submitted that it could not so have been intended.
Upon any contrary view it must follow that the Court would have
had to act as a tribunal for adjudication of conflicts, forrnulated
1
1926 A.C. 3'2!, p. 328.ict Governor and anothv.Suleiman Murra and others.
1 Rosenne,op.citpp. 62-63. SOUTH WEST AFRICA
up<Jndifferences in current political views, concerning the adminis
tration of a particular Mandated Territory.
Moreover, the decision of the Court relating to policy at a parti
cular moment would have been binding on the Mandatory, which
thereafter might have been unable to adapt its administration to
meet changed circumstances, orto adopt new policies advantageous
to the inhabitants; or"the Mandatory might, at !east, have been
unwilling to do so for fear of being again impleaded for an alleged
violation of the provisions of the Mandate.
6. Each of the Mandate instruments contained provisions
apparently intended to operate also for the benefit of Member
States, for example, the "open door'' provisions in the A and B
Mandates, and the provisions in ali Mandates for the freedom of
movement of missionaries, nationals of Members of the League.
Each of the said instruments also contained other provisions,
primarily intended for the benefit of the inhabitants of the Mandated
Territory, the non-observance of which could, however, also have
affected Member States or their nation'\ls, such as the provision
with regard to slave trade. For example, if a Mandatory, in breach
of the last-mentioned provision, permitted slavery to be practised
and, in so doing, allowed the subjects of a neighbouring Member
State to be subjected thereto in the Mandated Terri tory, its breach
could have affected that Member State.
Itwould be natural and in accordance with the recognised func
tions of the Court, for a compulsory jurisdiction provision to be
inserted in the Mandate instruments for the protection of Member
States, insofar as they would be affected directly or through their
subjects by a breach of the aforesaid provisions. And it is contended
that the compulsory jurisdiction clauses were inserted in the
Mandates for that very purpose.l There is,.however, no justification
for giving Article 7 ofthe Mandate the wide and peculiar construc
tion contended for by the Applicants. Bearing in mind the recog
nised lunchons of the Court, the language used in Article 7 does not
justify such a construction. If it had been the intention that each
and every Member should be appointed an individual custodian
of the interests of theinhabitants of Mandated terri tories, and that
the Court should function as a supervisory body in respect of
Mandate administration, the Mandate instruments would surely
have provided so in clear terms.
Nor, in view of the implications discussed above, could such a
wide construction be justified with reference to the likely intention
of the Council of the League and the respective Mandatories.
In any event, inasmuch as the considerations mentioned above
must at !east leave a grave doubt as to whether a conflict of the
1 Vide in this respect the statement by Lord Finlay quoted in para. 3 supra with
regard to the class of case whîch, in his opinion, the compulsory jurisdiction clause
was intended to meet. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 389
nature now raised by the Applicants was intended to be included in
the provisions of Article 7 of the Mandate, it is respectfully sub
mitted that, in observance of the rule which calls for a strict inter
pretation of consents to jurisdiction, the Court shouJd decline juris
diction in the present case.
7. ln support of their contention as to the construction of Ar
ticle 7 of the Mandate, the Applicants rely, in the first place, on a
statement by Quincy Wright. 1
The learned author first raises the question as follows, giving
neither an affirmative nor a negative answer thereto:
"Whether every member ofthe Leaguecan beconsidered to have a
legal interest in the observance of the mandate, entitling it to raise a
dispute and eventually to invoke the Court's jurisdiction even
where no citizen and no material interest of its own is involved, has
not been decided. It might be argued thal the interest of every
member of the League in maintaining the complete integrity of the
Covenant and the mandate is suflicient. Undoubtedly the Council
could ask the Court for an advisory opinion on the interpretation of
any clause in the mandates but the Court might, according to its
1
jurisprudence refuse to respond to the request".
Later there appears the statement quoted by the Applicants:
"Every member of the League can regard its rights as infringed
by every violation of the mandatory of its dulies under the mandate,
even those primarily for the benefit of natives, and can make repre
sentations which ifnot effective will precipitate a dispute referable
to the Permanent Court of International Justice if negotiation !ails
to settleit". '
This statement is, however, immediately followed by a qualifi
cation in the following terms:
"The additional paragraph in the submission article of the Tan
ganyika mandate may seem to cast doubt on this conclusion". 3
The author then deals with the particular provision in the Tan
ganyika Mandate, and ends the whole enquiry as follows:
"But League members have a right thal natives of the areas be
treated as prescribed by the mandates, thus the article would seem
broad enough to caver daims presented by League members in
behalf ofsuch natives". •
From the above it is clear that the author does not state his
views with conviction, nor in any event, does he appear to have
given careful consideration, as has been done in paragraph 5
above, to the serions implications resulting from such a view, not
1 Applicants'Memonals, p.92.
t Wright, op.cil.p. 158.
1 Ibid., p. 475-
4 Ibid., p. 476.390 SOUTH WEST AFRICA
on!y insofar as the Mandatory was concerned, but also with regard
to the functions of the Court and those of the League of Nations.
Other scholars who have written on the subject either hold the
view that the provision in question does not confer jurisdiction in a
matter in which the particular Member State bas neither personally
nor through its subjeds a material interest, or raise doubts there
anent. 1
8. In further support of their contention the Applicants refer to
the M avrommatis Case and make the following statement:
"In the Mavrommatis Case, the Court took it for granted that
Article 26 of the Palestine Mandate (as stated above such Article is
identical toArticle·7ohhe Mandate herein) embraced disputes per
taining to the welfare of the inhabitants of the mandated territory.
The issue discussed by the Court was whether 'disputes relating to
the interpretation or application of the Mandate' included daims
made on behalf of a national not an inhabitant of the territory". •
They then proceed to quote two passages in the dissenting
Opinions of Judges Oda and de Bustamante. It is submitted that
the Applicants' statement in this respect is wrong.
In the M avrommatis Case the on!y point •in issue was whether
the Applicant, the Government of the Greek Republic, could, by
virtue of Article 26 of the Mandate for Palestine, implead before
the Court the Mandatory in connection with daims made against
the latter by one .Mavrommatis, a national of the Applicant State.
The majority of the Court held that the Applicant was so entitled.
A minority of five judges dissented.
Nowhere in the written Judgment of the Majority of the Court is
there the !east indication of support for the Applicants' statement
that the Court took it for granted that the compulsory jurisdiction
clause embraced disputes pertaining to the welfare of the inhabi
tants of the Mandated terri tory.
Indeed the contrary is suggested by the following passage from
the Judgment of the .Majority of the Court:
"Although the provisions of the Mandate possessa special charac
ter by reason of the fact !hat they have been drawn up by the Coun
cil of the League of Nations, neither of the Parties has attempted to
argue that a Member of the League of Nations cannot renounce
rights whichhe possessesunder the terms of the Mandate". '
Having so stated, the Court proceeded to deal with the matter
before it as if Members of the League could renounce the rights
conferred upon them.
1 Vide Feinberg, N. La juridiction de la Cour Permanente de JuInternationale
dansleSyslèmedesMandaJs(t930),pp.20J-04;McNair,C.L.J., Vol. Ill (1928), p. 157;
Wessels, L.H. Die Mandaat vir Suidwes-Ajrika,(1938), pp. II 1-12; Schwarzen
be2ger, op.cit. (3rd ed.), Vol. 1,IO.oJto7-o8.
1 Applicants' Memorials,p. 92.
The Mavrommatis Palestine ConcessionsP.C.I.J., Ser. A, No2,30th August,
1924, p. JO. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 391
With regard to the aforementioned view of the Court, Schwarzen
berger states as follows:
"This statement would also appear to cover the right to submit
disputes on the interpretation and application of such provisions to
the World Court. Thus, the Workl Court interpreted such rights
as strict!y individualistic rights which had been granted to members
in their own interest and which, therefore, theywere free to renounce.
By implication, the Court rejected the view that these rights were
part of any international quasi-arder, that is to say, jus cogensin
accordance with the intentions of the parties to the governing treaty
instruments in the interest, for instance, of the execution of an
international trust". 1
ln the premises it is submitted that the Applicants have no cause
for saying, and, in !act are wrong in saying, that the Court in the
Mavrommatis Case "took it for granted that Article 26 of the Pales
tine Mandate ... embraced disputes pertaining to the welfare of the
inhabitants of the mandated territory". 2
Of the live dissenting Judges in the Mavrommatis Case only two,
namely Judge de Bustamante and Judge Oda expressed views in
those portions of their Separate Opinions, quoted in paragraph 3
above, which can be regarded as supporting the contention of the
Applicants. These views were, however, entirely obiter dicta, stated
without motivation and apparently without consideration of the
matters mentioned in paragraph 4 above and the implications dealt
with in paragraph 5 above.
Of the other three dissenting Judges, Lord Finlay indicated the
class of case which, in his opinion, the Article was, primarily at ali
events, intended to meet, and did not include therein actions
brought in the interests of the inhabitants; Judge Moore did not
touch upon the question, and Judge Pessôa's view that the Court
could not in terms of Article z6 of the Palestine Mandate be called
3
upon to protect"the rights of individuals, but only those of States,
does not support the Applicants' contention in the present case.
9· On this aspect of jurisdiction reference is also made by the
Applicants to the following passages extracted from the oral
argument addressed to the Court by Dr. Steyn, representative of
Respondent, in connection with the Advisory Opinion of 1950 on
the International status of South West Africa, namely,
"It was only in their capacitv as Membersof the League that third
States were competent to uphold the rights of the inhabitants of
mandated territories or to daim rights for themselves in those terri
tories",
and
1 Schwarzenberger,op.cit. (Jrd ed.), Vol.104.p.
s ApplicantsMemorials,p. 92.
1 Videextract from his Separa te Opinion quoted in supra.3392 SOUTH WEST AFRICA
"Nor have individual Members of the United Nations any locus
standi in respect of the administration of South West Africa. They
could have had such a locus standi only as Membersof the League".
It is upon the strength of these extracts that the Applicants
state "the Union has nonetheless conceded that Article 7, if in
force, entitled League members to institute proceedings to uphold
the rights of inhabitants of the Territory".'
Upon a proper reading of the above passages in the context of
the whole of Dr. Steyn's argument, it is clear that the Applicants
are wrong in stating that Respondent thereby conceded that
League Members could institute proceedings in the Court to uphold
the rights of inhabitants of the Territory. Dr. Steyn propounded
the argument that as the "Mandate was not an agreement between
the Union Government and every individual Member of the League,
but between the Union Government and the League as a distinct
international entity", League Members were not separa te parties
to the Mandate. '
He then stated:
"As Membersof the League they all bad, of course, a certain locus
standi in regard to the Mandate, but when they ceased to be meru
bers, as all of them eventually did, upon dissolution of the League,
they los! also thatlocus standi". '
3
There are also other passages to the same effect and a reference
to the League and the Members of the League as "the only parties
with any locus standi in regard to mandates". '
In using the words "locus standi", insofar as Member States were
concerned, he was referring to the right of Members to participate in
the proceedings of the League as the supervisory body in respect
of Mandates, and not to their right to institute judicial proceedings
under Article 7; this latter aspect he dealt with as follows: · ·
"The League having expired, there are no Membersof the League
whocan daim rights in respect ofthe administration ofthe Territory.
And finally, there is no State legally competent to refer disputes
relating to the interpretation oi the application of the provisions of
the Mandate to the International Court ofJustice, the competence to
do so having been limited by Article 7 of the Mandate to Membersof
the League". '
With regard to the rights of the peoples of South West Africa,
Dr. Steyn again mentioned the rights of Member States to partici
pate as Members in the League's supervision of the Mandates and
he referred to Articles II (2) and rg of the Covenant, under which
1Vide Applicants' Memorials, p. 93·
'"International status of South-West A/rica, Pleadings, Oral ArgumentDocu-
ments", p. 275.
3 Ibid., pp. 278 and 280.
4 Ibid., 280.
' Tbid., p. 288. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 393
matters could be raised by Members for the consideration of the
1
Assembly and the Council. Thereafter, he again referred to the
rights of Members under the compulsory jurisdiction clause. 2
It is against the above background that the passages quoted by
the Applicants should be read. When Dr. Steyn stated:
"The League itself was no longer there to exercise its supervisory
funetions, and third States who were Members of the League had lost
their locus standi when the League dissolved itself. It was only in
their capacity as Members of the League that third States werecom
petent to uphold the rights of the inhabitants ofmandated territories
orto daim rights for themselves in those territories", 3
he was not referring to judicial process but to the participation in
the exercise of supervisory functions in the League itself. The very
example mentioned by him in support of his argument, namely, the
refusa] of the League to entertain the complaints of German y made,
not to the Court, but to the League, makes this clear. And, when he
stated:
"Nor have individual Member ~f the United Nations any locus
standi in respect of the administration of South West Africa. They
could have had such a locusstandi only as Membersof the League", 3
he again meant by "locus standi" as he had throughout his argu
ment, the right of participation as Members of the League in the
League's supervisory functions, and not "locus standi" in judicial
proceedings before the Court. 4 '
ro. The kind of disputes justiciable under Article 7 of the Man
date was not a matter specifically raised in the questions submitted
to the Court for its Advisory Opinion in rgso. The matter was not
canvassed in argument and the Court did not express any opinion
thereon; save that certain of the Judges in their Separa te Opinions
used language conveying a notion of judiciaJ supervision under
Article 7 of the Mandate ' thereby implying the exercise of rights
under Article 7 by Members of the League in the protection of
inhabitants of the Territory.
For the reasons advanced above, it is submitted that Member
States had no such right. AJthough the Court's function under
1 Ibid.,p.289.
1 Ibid., p290.
1 Ibid.
t Applicants' reference, in a footnote top. 93 of their Memorials, to an extract from
a statement by the Union's representative in the Fourth Committee on 7th December,
1950, is not relevant to this aspect of jurisdiction. In any event it is to be read in the
context of the statement as a whole, from which will appear that the representative
was not stating an attitude of his Government-whichas he stressed, was still to be
determined-but was referring to one aspect of the effect of the 1950 Advisory
Opinion of the Court.
5 Vide e.g. Sir Arnold MeNair in "Intet'natùmal staof South-West A/rica:, Ad!
SOt'yOpinion: l.C.jRepot'lI950", p. 158.394 SOUTH WEST AFRICA
Article 7 of the Mandate has colloquially been referred to as "judi
cial supervision", it is not an exact legal description of that function.
In this respect Respondent refers to the following comment by
Schwarzenberger who, in comparing the approach of the Court in
the 1950 Advisory Opinion with that which the Permanent Court
adopted in the Mavrommatis Case (as dealt with in paragraph 8
above), states:
"While the International Court of Justice did not deal expressly
with this aspect of the matter, it is significant that it should have
chosen the right of members to submit such disputes to the World
Court as one of the two illustrations which were meant to prove the
essentially international character of the functions entrusted to the
mandatory. This change in emphasis becomes still more apparent in
Judge McNair'sSeparate Opinion, which attributes to this right, as
distinct from the administrative supervision of mandatories by the
League Council, the character of judicial supervision of the manda
tories by the World Court. If this right wasgranted to members in a
functional capacity rather than in their own interests, could they
renounce it? If so, does this not suggest that the term 'judicial
supervision' in juxtaposition with 'administrative supervision' is a
euphemism? If not, how can the two dicta be reconciled unless on the
assumption of a difference in approach to the nature of this inter
national trust and on a basis of a more profound insight gained into
this phenomenon since 1924?" 1
11. In the premises aforestated it is submitted that, inasmuch as
the Applicants do not allege, and indeed, cannot validly allege, that
they as States, are affected either directly or indirectly through
their subjects by the alleged violation of Articles 2, 4, 6, and 7 of
the Mandate by Respondent, they have no locus standi and the
Court has accordingly no jurisdiction to enquire into, and adjudi
cate upon, the alleged acts of violation.
1 Schwarzenberger,op. cil(3rd ed.), Vol.],104. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 395
CHAPTER VI
FOURTH OBJECTION
THE ALLEGED CoNFLICT oR DisAGREEMENT Is NOT A "DisPUTE"
WHICH "(ANNOT BE SETTLED BY NEGOTIATION" WITHIN THE MEAN
ING OF ARTICLE 7 OF THE MANDATE,
r. Respondent deals in this Chapter with its Fourth Objection,
namely, !hat the alleged conflict or disagreement is not a "dispute"
which "cannot be settled by negotiation" in the sense of Article 7
of the Mandate.
For the purposes of this Objecticm it will be assumed that, despite
the dissolution of the League of Nations, the Applicants, as former
Members of the League, have retained the rights which by Article 7
of the Mandate were conferred on them as Members; and it will
further be assumed !hat the subject-matter of the alleged conflict
or disagreement concems the interpretation or application of the
provisions of the Mandate.
In order to invoke Article 7 the Applicants must then still
establish affirmative!y !hat there is a "dispute" between them and
Respondent, and that that dispute "cannot be settled by nego
tiation".
2. In their Memorials Applicants formulate the alleged dispute
as "a disagreement on points of law and fact, as weil as a conflict
of legal views and interests", particularised as follows:
(a) Applicants have maintained at ali times that the Mandate
is in force; Respondent that the Mandate has lapsed.
(b) Applicants have insisted that Respondent has violated the
Mandate; Respondent has denied doing so.
(c) Applicants have contended that the United Nations has
supervisory powers over Respondent as Mandatory; Respondent
has repeatedly rejected this contention.
(d) Applicants have asserted a legal interest in, and the right to
abject to, the manner in whichRespondent administers the Territory;
Respondent insists that it alone has a legal interest in what occurs
in the Territory. '
In support of their contention that a dispute exists between them
and Respondent concerning these matters, Applicants do not allege,
nor indeed can they allege, that there has at any time been an
exchange of views or statements of attitude directly between them
and Respondent through the ordinary and recognised diplomatie
t'Memor1als, p. 89. SOUTH WEST AFRICA
channels. Instead, the Applicants rely on correspondence between
Respondent and the United Nations, and on debates in, and re
solutions and reports of, various Organs and Agencies of the United
Nations, conceming South West Africa and the administration
thereof, in which said correspondence and debates Respondent ex
pressed views in conflict with those held by other Members of the
United Nations, including the Applicants. 1
Likewise, in support of their contention that the alleged dispute
cannat be settled by negotiation, Applicants do not rely, nor in
fact can they rely, on negotiations conducted direct!y between them
and Respondent through diplomatie channels; because no such
negotiations were conducted. Instead, the Applicants refer in this
respect ta certain abortive negotiations and attempts at negotiation
between, on the one hand the Ad Hoc Committee, the Good Offices
Committee, the Fourth Committee of the General Assembly and
the Committee on South West Africa, and, on the other hand,
2
Respondent.
The question arises whether from the events in the United
Nations and its Organs and Agencies, as narrated in Part B of
Chapt er II of the Applicants' Memorials, and as amplified andjor
qualified by Respondent in Chapter II Part B above, an affirmative
conclusion can be drawn that there exists between the Applicants
and Respondent a "dispute", and that that dispute "cannat be
settled by negotiation".
3· In theM avrommatis Palestine Concessions Case the Permanent
Court of International justice considered the essential requirements
for jurisdiction under Article 26 of the Mandate for Palestine, the
provisions of which Article were identical ta those of Article 7 of
the Mandate for South West Africa. The Majority of the Court in
that case defined a dispute as a "disag;eement on a point of law or
fact, a conflict of legal views or of interests between two persans". 3
In applying that definition to the circumstances of the case, the
Majority held that a dispute between Mavrommatis and the Manda
tory, the subject-matter and particulars whereof had been stated
and dealt with in negotiations between the said parties, became a
• dispute between a Member of the League and the Mandatory in
terms of the compulsory jurisdiction clause in the Mandate when
the Greek Govemment took up the case on behalf of Mavrommatis,
'who was a Greek subject.
This conclusion was based on the principle of International Law
that a State is entitled ta protect its subjects when injured by acts
contrary to International Law committed by another State, and
the view that, by taking up the case of its subject, the State is in
reality asserting its own rights.
1 Ibid., Part (1)of Chap. III read with Part Bof Chap. Il.
1 Ibid., para. B, p. 93·
1 The Mavrommalis Palestine ConcessionsP.C.I.J ., Ser. A, 2,3oth August,
1924,p.1I. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 397
In their Judgment the Majority of the Court expressed the fol
lowing views:
"The Court realises to the full the importance of the rule laying
down that only disputes which cannot be settled by negotiation
should be brought before it. lt recognises, in fact, that before a
dispute can be made the subject of an action at law,its subject-matter
sho<tldhave been clearly defined by means of diplomatie negotiations.
Nevertheless, in applying this rule, the Court cannot disregard,
amongst other considerations, the vicws of the States concerned,
who are in the best position to judge asto political reasons which may
prevent the settlement of a given dispute by diplomatie negotiation.
\Vhen negotiations between the private persan and the authorities
have already-as in the present case-defined all the points at issue
between the two Governments, it would be incompatible with the
flexibility which should characterise international relations to re
quire the two Governments to reopen a discussion which has in fact
alrcady taken place and on which they rely". '(ltalics added.)
The J udges who dissented from the conclusion that in that
particuJar case there was a dispute which could not be settled by
negotiation, expressed their own views as to the essential require
ments before a conflict could be regarded as a dispute and one
which could not be settled by negotiation in the sense of the com
pulsory jurisdiction clause. Th us said Lord Finlay:
"Article 26 does not make it a condition to the jurisdiction of the
Court that there should have Jii,eennegotiations with a view to
settling the dispute between the two Powers, but it does make it a
condition that the dispute is one which cannot be settled by nego
tiation. There may be sorneexceptional cases in which itcan be predi
cated that from special circumstances it is obvious that negotiations
would be a mere waste of time, but the present is not such a case. 1f the
Government of Greece had really taken up the Mavrommatis matter
and made it a subject of negotiation with Great Britain, who can say
that a seUlement would not have becn arrived at? ...
A State which has undertaken a Mandate under the League of
Nations had gratuitously taken upon itself a very arduous task and
full effect must be given to the provisions of the Mandate for the
protection of the Mandatory from litigation on any !ines other than
those laid down in the Mandate".' (Italics added.)
And J udge Moore:
"There must be a pre-existent difference, certainly in the sense and
to the extent thal the govemment which professes to have been
aggrieved should have stated ils claims and the grounds on which they
rest, and that the other government should have had an opportunity to
reply, and if it rejects the demands, to give ils reasons for so doing.
M oreover,ifit rejectssorneof thedemands, but admits others, it is entitled
toknow why thecompromise thus o[jeredis not acceptable.These proposi
tions, tested by the ordinary conceptions of fair dealing as between
1 Ibid., p15.
a Ibid., pp. 41-42. SOUTH WEST AFRICA
man and man, should seem to be self-evident; nor would it be diffi
cult to cite cases in which governments have abandoned their daims
on considering the arguments adduced on the other side.
The condition in question ['which cannot be settled by negotia
tion'] does not mean that the difference must be of such a nature
that it is not susceptible of settlement by negotiation; nor does it
mean that resort to the Court is precluded so long as the alleged
wrong-doer may profess a willingness to negotiate. The clause must
receive a reasonable interpretation; but an interpretation cannat be
reasonable which in effect nullifies the condition.
Moreover, in deciding whether suchnegotiation has taken place,the
Court is not at liberty to interpret the word 'negotiation' as a process
by which governments are enabled to evade their obligations. Al
though this superficial view may to sorne extent popularly prevail,
yet, in the intemationalsphere and in the sense of mternationallaw,
negotiation is the legal and orderly administrative process lry which
governments, in the exercise of their unquestionable powers, conduct
their relations one with another and discuss, adjust and settle, their
differences". ' (Italics added.)
Judge Pessôa :
"Negotiation consists of debate or discussion between the repre
sentatives of rival interests, disçussion during which each puts for
ward his arguments and contests those of his opponent.
It must further be remarked that under Article 26 of the Mandate,
the mere !act thal negotiations have taken place between the two
Govemments does not suffice to bring a question within the juris
diction of the Court; it is further indispensable that either the confiict
from its very nature cannat be settled lry negotiation or else thal nego
tiations shall have failed.The !act of requiring such negotiations is, as
I have already stated, a tribute to the sovereignty of nations; the
principle is that ali disputes shall be settled between the nations
concemed themselves. The Court can only interpose its authority
when such solution is recogriizedas impossible". • (Italics added.)
From the views expressed both by the Majority of the Court and
those Judges in the Minority referred to above, the following general
propositions with regard to the application of the compulsory juris
diction clause in the Mandate for Palestine, and for that matter in
ail the Mandates, would appear to be clear (the Judges merely
1 Ibid.,pp. 6I-6J.
Ibid.,p. 91.Vide also"Interpretation of Peau Treaties, Advisory Opinion: l.C.J.
Reports I950", p. 74 and "Interpretation of Peace Treaties (second phase), Advisory
Opiniati: I.C.J. Reports I950", p221et seq.;Green, L. C.International Law Through
the Cases(:znd ed.)pp. 329 et seq.790 ets~q. ';nterhandel Case, judgment of March
:liStI959: l.C.j. Reports I959", pp. 21, 22, 35, 6o-61. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 399
disagreeing as to application thereof to the circumstances of that
case), namely:
Before a dispute can be justiciable;
· (a) its subject-matter must have been clearly defined; 1
and
(b) the Mandatory must have been afforded an opportunity to
negotiate with the object of settling the dispute. And, except in the
rare type of case where from the very circumstances or the nature
of the dispute it is clear that the dispute cannot in fact be settled
by negotiation, either the Mandatory must have failed to avail
itself ofan afforded opportunity to negotiate, or, the Mandatory
having so availed itself, the negotiations must have resulted in a
deadlock, before it can be said that the dispute is one which cannot
be settled by negotiation.
It is necessary to apply these propositions to the facts in the
present case. In so doing, it will be both logical and convenient to
deal separately with that part of the Applicants' case which com
prises disa~emen t srely on points of law. as distinct from that
part which also involves a disagreement on facts.
4· The disagreements purely on points of law included in Appli
cants' alleged dispute are those set forth in paragraph 2,sub-para
graphs (a), (c) and (d), above. Respondent does not dispute that
Applicants, in participating in debates in and resolutions of Organs
and Agencies of the United Nations, have contended that the
Mandate is in force, that the United Nations bas superv.isory
powers over Respondent as Mandatory and that they have a legal
interest in, and right to object to, the manner in which Respondent
administers the Territory. Neither does Respondent dispute that
it has, in debates in the Organs and Agencies of the United Nations
and in correspondence with the United Nations, made clear its
stand in rejecting the aforesaid contentions. Respondent, however,
denies that the dispute conceming the aforesaid points of law is one
which cannot be settled by negotiation.
Applicants do not make the case, as indeed they cannot, that
the aforesaid matters of confiict are, either in their very nature or
by reason of special circumstances, impossible of settlement by
negotiation; on the contrary they base their case on alleged frus
tration of efforts at negotiation on the part of Organs of the United
Nations and Agencies of the United Nations appointed for the very
purpose of, inter alia, negotiating with Respondent in regard
thereto. Respondent, however, contends that it bas not been affor
ded a real opportunity of negotiating, as is contemplated in Article
1 A similar view is exprebyeGoodrich and Hambro who state-"A dispute
can properly be consider~d a disagreement or matter at issue between two or
more States which bas reached a stage at which the parties have formulated claims
and counter-claimssuffi.ciently definite to be passed upon by a court or other
body set up for purposes of pacifie settlem(Goodrich and Hambro,op. cit.
(2nd ed.), p. 249).400 SOUTH WEST AFRICA
7 of the Mandate, with the object of settling the said dispute; and,
in that regard, Respondent makes the following submissions:
(a) Instead of raising the aforesaid matters direct!y with Respon
dent, Applicants thought fit to join with other Members of the
United Nations in discussing the said matters in the United Nations
Organs and in appointing United Nations Agencies vested with
certain powers to negotiate with Respondent thereanent. The terms
of reference of these Agencies were, however, of a restrictive nature
or were restrictively interpreted. Thus:
(i) The Ad Hoc Committee was appointed, inter alia, to confer
with Respondent on the "procedural measures necessary for the
implementation of the Advisory Opinion" of the Court. 1 This was
modified in 1952, to conferring with Respondent "concerning means
2
of implementing the Advisory Opinion".
(ii) The terms of reference of the Committee on South West
Africa were similarly limited to the continuation of negotiations
"in order to implement fully the Advisory Opinion". 3
(iii) The terms of reference of the Good Offices Connnittee were
originally of a Jessrestrictive nature, 'which resulted in at !east one
proposai acceptable to Respondent being formulated for consider
ation by the General Assembly. 5But this proposai was rejected by
the Assembly and the terms of reference of the Committee were then
amended to finding a basis for an agreement which would "continue
to accord to South West Africa as a whole an international status
and which would be in conformity with the purposes and principies
of the United Nations", bearing in mind "the discussions at the
thirteenth session of the General Assembly". 8 Eventually the Good
Offices Committee had to report that it "has not succeeded in
finding a basis for an Agreement under its terms of reference". 1
(Italics added.) .
By limiting the powers of these Agencies in the manner afore
stated, the compass of their respective fields of negotiation was
restricted, and, correspondingly, the opportunity for negotiation
afforded to Respondent was limited to that extent. Thus, despite
Respondent's repeated objections the possibility of a settlement of
the dispute by negotiation was substantially reduced by the regular
process of restricting in advance the scope of the proffered "oppor
tunity for negotiation".
Furthermore, the Ad Hoc Committee, while insisting that
Respondent should in principle accept United Nations supervision
1 Vide Chap. II, Part B, para. 18 supra.
3 Ibid., para. 31.
Ibid., para41.
5 Ibid., para6o.
Ibid., para. 66.
7 Ibid., para. 68.
Ibid., para. 72. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 401
as a basis for negotiation, declined, despite repeated requests on
the part of Respondent, to show how machinery for such super
vision could be devised without subjecting Respondent to obliga
1
tions more onerous than those assumed under the Mandate. Nor
did the General Assembly suggest any solution to this difficulty.
In thal very respect the Court in its 1950 Opinion had als6 stated
that:
"The degree of supervision to be cxcrcised by the General Assem
bly should not ... cxceed thal which aplied undcr the Mandates
System, and should conform as far as possible to the procedure fol
lowed in this respect by the Cotmcil of the League of Nations". 2
In the negotiations which did lake place Rèspondent repeatedly
drew attention to the broader membership and the fundamentally
different structure of the United Nations as compared with the
League of Nations, with special emphasis on the non-application
of the unanimity rule. (Vide paras. 27 and 44of Chapter Il, Part B,
above.) Respondent's view !hat United Nations supervision would
extend ils obligàtions, was reinforced by the forrn of supervision
actually devised which, if Respondent had acquiesced therein,
would have made its task more onerous. (Vide e.g. those mentioned
in paragraph 44 of Chapter II, Part B, above.)
In effect, therefore, the insistence upon prior acceptance by
Respondent of United Nations supervision mean! insistence
upon the acceptance of more oncrous obligations as a prerequisite
for negotiations.
(b) The Ad Hoc Committee and the Committee on South West
Africa, in addition to being entrusted with the function of negotia
tion, were vested with powers, ·the exercise of which was in direct
conflict with their office of negotiation.
Thus: (i) Part of the functions of the Ad Hoc Committee was to
examine reports and petitions with regard to South West Africa
3
and report thereon to the General Assembly.
(ii) A similar task was entrusted to the Committee on South
West Africa. 4 In 1957 this Committee's functions were extended
to embrace also the study of legal action against Respondent. 5
Respondent had protested against the conferment on, and
exercise of, these powers and functions by Agencies constituted to
negotiate for a settlement of a dispute, the very nature of which
involved a manifest denia! by Respondent of the right of super
vision which the United Nations sought to exercise through these
Agencies. •
1 Ibid., par40.
1 "hzternationastatus of S-:Ju- est Africa,Aduisory Opinion:l.C.J.Reports
I9j0",p. 1]8.
3 v,·de Chap. Il, Part B, paras. 18 and 31 supra.
4 Ibid., para. 41.
5 Ibid., para. 59-
8 Ibid., paras. 19, 41 and 74(b). SOUTH WEST AFRICA
Despite Respondent's protestations, these Agencies, while in
viting Respondent to negotiate, were at the same time acting, in
the exercise of those conferred powers, as if Respondent was obliged
to submit to United Nations supervision. It is submitted that there
by a circumstance was created which contributed to the frustration
of the very object of the negotiations, namely, a settlement of the
dispute.
Moreover, these Agencies were created and controlled by the
Fourth Committee of the General Assembly, which established
their terrns of reference and passed judgment on the results of the
negotiations. But it was also to the Fourth Committee that these
Agencies had to render an account of their divergent functions, the
ensuing debates on which were invariably marred by the intrusion
of disturbing features (e.g.oral hearings of petitioners) and proce
dures which gave rise to an atmosphere which was not conducive to
fruitful results in negotiation. Respondent on 1any occasions drew
attention to this unsatisfactory situation.
(c) Throughout the whole period of so-called negotiations there
was, furthermore, the repeated request of the General Assembly
that Respondent should submit South West Africa to United
Nations Trusteeship. lndeed, the annually repeated resolutions
urging Respondent to conclude a trusteeship agreement, ' and
even censuring Respondent for not yet having done so, 3 suggested
that the majority of Members of the United Nations would not be
satisfied with any settlement of the dispute which would not result
in the Territory being brought within the United Nations Trustee
ship System-and that so despite the Court's Opinion that Respon
dent was not obliged to do ·SO.
In fact the most recent General Assembly resolution offering
negotiations implied United Nations Trusteeship as the only
arrangement which the majority of the General Assembly would
accept.'
The Applicants in particular have shown by their actions, in
sponsoring and supporting relevant resolutions of the General
Assembly, that they were insistent on having South West Africa
placed under United Nations Trusteeship. Liberia's attitude is
further confirmed by the statement of the Liberian representative
referred to at page 82 of Applicants' Memorials.•
The insistence on the extreme of a trusteeship agreement must
have had the effect of conditioning the Organs and Agencies of the
United Nations and its individual Members in a direction of thought
which militated against the settlement of the dispute on any other
basis.
1
2 Ibid., paras. 30, 32{b) and 67.
3 Ibid., para10.ter alia, paras. 2, 8, 10, 20, 31, 53 and 70.
4 Ibid., para. 74·
6 Ibid., para. 79· PRELIMINARY OBJECTIONS OF SOUTH AFRICA 403
(d) Respondent for its part had, as the record of events in
Chapter II, Part B, above shows, repeatedly expressed its desire to
find a solution to the disagreement which would be acceptable to
ali parties concemed.
With the abject of finding such a solution Respondent had over
the years made concrete proposais involving concessions from its
side and expressed its willingness to examine others. 1The majority
in the United Nations had, however, acted in a manner calculated
to frustra te negotiations by-restricting the terms of reference of
the Agencies appointed to negotiate; conferring supervisory and
other extraneous functions on the negotiating agencies; allowing
negotiations to be disturbed by accusatory debat es am! procedures;
requiring prior acceptance of United Nations supervision by Re
spondent; and persistent! y urging the extreme end result namely
United Nations Trusteeship.
Respondent nevertheless recorded, and as recent!y as July, rg6o,
reiterated its readiness to enter into discussions with an appropriate
United Nations ad hoc body with terms of reference which would
allow full discussion on, and exploration of, ail possibilities. 2
This offer by Respondent elicited no reaction on the part of the
United Nations or the Applicants, and has therefore never been
probed.
s. Respondent, therefore, denies the implication conveyed in the
Applicants' Memorials 3 that it was responsible for frustration of
negotiations attempted on the part of the Organs and Agencies of
the United Nations. On the contrary, Respondent respectfully
submits that, in the premises aforestated, it was not afforded a real
and genuine opportunity to negotiate with the abject of settling
the dispute in question. Respondent accordingly denies that the
alleged dispute in respect of the matters stated in paragraph 2 (a),
(c) and (d) above is one which cannat be settled by negotiation, or
that any conclusion to that effect can be drawn from the narrative
of events contained in theM emorials of the Applicants 'as qualified
and amplified in Chapter II, Part B above.
6. With regard to the disagreement or conflict on the one point
which is not pure!y a question of law, namely, the alleged violation
by Respondent of the Mandate, the position is somewhat different.
Again, in this respect, Applicants did not avail themselves of
the ordinary diplomatie channels to bring complaints and raise
disputes concerning Respondent's administration of South West
Africa, but participated with other Members of the United Nations
in debates and resolutions conceming such administration. Partici
pation therein was not confined to States which as Members of the
1 Ibid., paras. et seq36 and 73·
1 Ibid., paras. 77 and 78.
1 Memorials, p. 93·
4 Ibid.pp. 43-87. SOUTH WEST AFRICA
League of Nations had, prior to its dissolution, a legal interest in
the administration of the Territory, but was shared in also by
States which had never been Members of the League, and had at no
time had any such interest.
Respondent, on the other hand, had from the inception of the
United Nations and throughout, adopted and maintained the
attitude that the United Nations had no supervisory functions or
powers in relation to the administration of the Terri tory and that
Respondent was not obliged to account to the United Nations for
its administration. In strict conformity with its attitude, Respondent
throughout refused to submit reports on the basis of accountability
to the United Nations. lthad undertaken in 1946 to submit reports
for information purposes only, but this undertaking was withdrawn
when the conditions under which it had been given were not ob
served by the United Nations in dealing with the report for the
year 1946. 1
Also in conformity with its stated attitude Respondent throughout
refused to deal in the United Nations with complaints regarding,
and criticism of, its administration of the Territory. On a number of
occasions Respondent, withoüt prejudice to the legal position
adopted by it, participated in debates concerning its administration,
but only for the stated purpose of demonstrating that the complaints
and criticism were based on unreliable information and without a
proper conception of conditions prevailing in the Territory. 2
Respondent, however, throughout denied that it had violated the
provisions of the Mandate and repeatedly stated that, in conformity
with its expressed intention, the Territory was being administered
in the spirit of the Mandate.
In view of Respondent's attitude as to non-accountability to the
United Nations, and as no arrangement had been come to in terms
whereof Respondent was obliged to recognise supervisory authority
as being vested in any Organ or Agency of the United Nations,
Respondent did not state its case in opposition to the allegations
concerning the administration of the Territory; nor have there
been any negotiations whatsoever concerning the complaints
involved in such allegations. In the premises, it is submitted that
whatever differences may, from debates in the United Nations,
appear to exist between Respondent and the Members of the
United Nations, including Applicants, as to certain aspects of the
administration of the Territory, those differences are not so defined
as to constitute a dispute cognisable by the Court in terms of
Article 7 of the Mandate.
In any event, even if the said differences can at ali be regarded
as constituting a dispute in terms of Article 7, it cannot be said that
that dispute is one which cannot be settled by negotiation. The
1
Vide Chap. II, Part B, paI supra.
:aIbid., para10,46 and 76. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 405
recommendations of the United Nations urging Resporident to
submit reports and to account for its administration of the Terri tory,
and statements made in debates by individual Members concerning
such-administration, did not constitute opportunity for negotiation
as envisaged in Article 7 of the Mandate agreement.
7- For the reasons aforestated Respondent submits that the
Court has no jurisdiction to adjudicate upon the alleged dispute as
particularised at page 8g of the Applicants' Memorials.
8. In conclusion of this aspect of jurisdiction Respondent raises
its strongest objection to the reliance placed by the Applicants on
Resolution No. 1565 (XV) of the General Assembly adopted on the
r8th December, rg6o, insofar as the said resolution contains a
conclusion that "the dispute which has arisen between Ethiopia,
Liberia and other Member States on the one hand and the Union of
South Africa on the other, relating to the interpretation and appli
cation of the Mandate has not been and cannat be settled by
negotiation". 1
This resolution was adopted alter the Applicants had filed with
the Court their respective Applications in which it was alleged that
a dispute existed which could not be settled by negotiation.
Whatever importance the Applicants may attach to this con
clusion, it is merely an expression of opinion on the part of a major
ity of the Members in the General Assembly, and the reference
thereto by the Applicants presumably for the pnrpose of influencing
the Court is submitted to be improper. In the decision of the Court
as to whether jurisdiction under Article 7 of the Mandate agreement
has been established or not it should bear no weight, and Respon
dent respectfully requests that the Court ignore the reference
thereto by the Applicants.
' MemorialJ, pp. 85. Sg and 93- SOUTH WEST AFRICA
SUBMISSIONS
For ali or any of the reasons set out in these Preliminary Objec
tions, the Government of the Republic of South Africa submits that
the Governments of Ethiopia and Liberia have no locus standi in
these contentions proceedings and that the Honourable Court has
no jurisdiction to hear, or adjudicate upon, the questions of law
and fact raised in the Applications and Memorials ; and prays
that the Court may adjudge and determine accordingly.
{Signed) j.P. VERLOREN VAN THEMAAT.
Agent of the Government of the Republic
of South Africa. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 407
Annexes to the Preliminary Objections filby the Government of the
Republic of South Africa
AnnexA
ARTICLE 22 OF THE COVENANT OF THE LEAGUE
OF NATIONS
[See AnnexA to the Memorial,p.200, supra]
Annex B
MANDATE FOR GERMAN SOUTH WEST AFRICA
[See Annex B to the Memorial, p.20I, supra] SOUTH WEST AFRICA
Annex C
LIST OF THE RELEVANT DOCUMENTATION
1. League of Nations
A. Minutes of the Council, sess. VIII, 1920, pp. 183, 18s, 187.
B. Reco"rdsof the Assembly, sess. I, 1920, p. 320.
C. Official journal, 1920 (No. 8), p. 87; 1921, pp. 84-94, II24-2S;
1923, p. 300; 1924, p. 1287; 1926, pp. 1407, 1422, 1S33; 1927,
pp. 316-17,348, II20; 1929, p. 1467; 1930, pp. 838-39.
D. Officialjournal, Special Supplement No. 194, 1946, pp. 28,32-34.
43, 47, s8-S9, 76, 78-79. 2so, 278-79. z8r.
E. Minutes of the Permanent Mandates Commission, sess. 1, 1921,
pp. S, 21; II, 1922, pp. 91-92; HI, 1923, p. 2IS; VI, 192S, p. 6o;
VIII, 1926, p. zoo; XXVI, 1934, p. so: XXVII, 193S. pp. 1S3.
161, 229; XXIX, 1936, p. 137: XXXI, 1937, p. 192.
F. OTHER.
I. The Covenant of the League of Nations.
2. The Mandates System-Origin-Principles-Application (Ge
neva, 194S). pp. 34, 3S et seq.
3· The League Hands Over (Geneva, 1946,) pp. 61, 63.
Il. United Nations
A. Documents of the United Nations Conference on International
Organization, San Francisco, 194S, (London/New York: United
Nations Information Organizations, 194S). Vol. 1, p. 630;
Vol. S. pp. 300, 31S-16; Vol. 10, p. 434·
B. UNITED NATIONSPREPARATORY COMMISSION1,946.
r. Committee 4, Summary Records, pp. 39-40.
2. Comm·ütee7, Summary Records, pp. 2-3, ro-II.
3· journal, p. 131.
4· Doc. PCJEX/II3/Rev. 1, 12th November, 194S. pp. 5S-S6,
108-rr, 114.
s. Doc. PCfzo, 23rd December, 194s, pp. 49, uS.
C. GENERAL AssËMBLY.
I. Resolutions.
XI (1). 9th February, 1946, in U.N. Doc. A/64, p. 13.
XIV (1), 12th February, 1946, in U.N. Doc. A/64,
pp. 3S-36.
6s (I). 14th December, 1946, in U.N. Doc. A/64/Add.·
1, pp. 123-24.
141(II), 1st November, 1947, in U.N. Doc. A/s19,
pp. 47·48. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 409
227 (III). 26th November, 1948, in U.N. Doc. A/8ro,
pp. 8g-9I. .
337 (IV), 6th I)ecember, 1949. in U.N. Doc. A/12SI,
p. 44·
449 A(V), 13th December, 19so. in G.A.. O.R., Fifth
Sess., Sup. No. 20 (A/177S). pp. SS-s6.
S70 B(VI), 19th January, 19S2, in G.A.,O.R., Sixth Sess.,
Sup. No. 20 (A/2rr9), p. 64.
749 A(VIII). 28th November, lgS3. in G.A., O.R., Eighth
Sess., Sup.No. 17(A/263o), pp. 26-27.
749 B(VIII), 28th November, 19S3. in U.N. Doc. A/2630,
pp. 27-28.
8S2 (IX). 23rd November, 19S4. in G.A., O.R., Ninth
Sess., Sup. No. 21(A/289o), p. 29.
904 (IX), 23rd November, 19S4. in U.N. Doc. A/2890,
PP· ss-s6.
940 (X), 3rd December, 19SS.in G.A., O.R., TenthSess.,
Sup. No. 19(A/3rr6), p. 23.
942 (X). 3rd December, 19SS. in U.N. Doc. A/3rr6,
p. 24.
ross (XI), 26th February, 19S7. in G.A., O.R., Eleventh
Sess., Sup. No. 17(A/3S72), pp. 28-29.
IOS9 (XI). 26th February, 19S7. in U.N. Doc. A/3S72.
p. 30.
106o (XI), 26th February, 19S7. in U.N. Doc. A/3S72,
p.30.
II4I (XII), 2sth October, 19S7. in G.A., O.R., Twelfth
Sess., Sup. No. 18(A/38os). pp. 24-2s.
II42 (XII), 2Sth October, I9S7. in U.N. Doc. A/38os.
p. 2S.
II43 (XII), 2sth October, 1gs7. in U.N. Doc. A/38os.
pp. 2S-26.
1243 (XIII). 30th October, 19S8, in G.A., O.R., Thirteenth
Sess., Sup. No. 18(A/4090), p. 30.
I246 (XIII). 30th October, 19S8, in U.N. Doc. A/4090,
p. 3!.
I3S9 (XIV), 17th November, I9S9. in G.A., O.R., Four
teenth Sess., Sup.No. 16(A/43S4). p. 28.
1360 (XIV). 17th November, 19S9. in U.N. Doc. A/43S4.
pp. 28-29.
1361 (XlV), 17th November, 19S9. in U.N. Doc. A/43S4.
p. 29.
IS6S (XV), 18th December, 1960, in GcA.,O.R., Fifteenth
Sess., Sup. No. r6(A/4684), pp. 31-32.
2. Plenary Meetings.
G.A., O.R., First Sess., First Part, rrth Plenary Meeting, pp.
161-79; r2th Plenary Meeting, pp. 179-87; 14th Plenary Meet-
27410 SOUTH WEST AFRICA
ing, pp. 200-28; I5th Plenary Meeting, pp. 228-4o; 16th Plenary
Meeting, pp. 241-57.
G.A., O.R., Seccmd Sess., Vol. I, 105th Plenary Meeting, pp.
591-65r.
G.A., O.R., Third Sess., 164th Plenary Meeting, pp. 577-92.
G.A., O.R., Fourth Sess., 269th Plenary Meeting, pp. 523-37.
G.A., O.R., Fifth Sess.,322nd Plenary Meeting, pp. 627-32.
3· Fourth Committee Meetings.
G.A., O.R., First Sess., First Part, Fourth Comm., 3rd Meeting,
pp. 7-11.
G.A., O.R., First Sess., Second Part, Fourth Comm., Part I,
r9th Meeting, pp. 96-107.
G.A., O.R., First Sess., SeccmdPart, Fourth Comm., Part II,
Fifth Meeting, pp. 26-32.
G.A.,O.R., Third Sess., FourthComm., 76th Meeting, pp. 287-97;
77th Meeting, pp. 297-306; 78th Meeting, pp. 307-20; 81st Meet
ing, pp. 340-54.
G.A., O.R., Fourth Sess., Fourth Comm., 128th Meeting, pp.
199-208.
G.A.,O.R., Fifth Sess., FourthComm., 196th Meeting, pp. 359-67
G.A., O.R., Sixth Sess., Fourth Comm., 204thMeeting, pp. 17-19.
G.A., O.R., Eighth Sess., Fourth Comm., 363rd Meeting, pp.
301-08.
G.A., O.R., NinthSess., FourthComm., 407th Meeting, pp. 61-70.
G.A., O.R., Tenth Sess., Fourth Comm., 491st Meeting, pp. 129-
36; 5ooth Meeting, pp. 179-83.
G.A., O.R., Twelfth Sess., Fourth Comm., 659th Meeting, pp.
35-40.
G.A., O.R., Thirteenth Sess., Fourth Comm., 747th Meeting,
pp. 23-25.
G.A., O.R., Fourteenth Sess., Fourth Comm., 883rd Meeting,
pp. 5-7; 914th Meeting, pp. 161-66; 915th Meeting, pp. 167-73;
916th Meeting, pp. 175-79; 918th Meeting, pp. 185-90; 924th
Meeting, pp. 221-22; 931st Meeting, pp. 249-58; 932nd Meeting,
pp. 259-63.
G.A., O.R., Fifteenth Sess., Fourth Comm., 1049th Meeting,
pp. 293-99·
4· Ad Hoc Committeeon South West Africa.
U.N. Doc. AjAC.49/SR. 2, (1951).
U.N. Doc. AjAC. 49/SR. 3, (1951).
U.N. Doc. A/AC. 49/SR. 4, (1951).
U.N. Doc. A/AC. 49/SR. 7, (1951).
U.N. Doc. AjAC. 49/SR. II, (1951).
U.N. Doc. A/1901, in G.A., O.R., Sixth Sess., Annexes (Agenda
item 38), pp. 2-II. PRELIMINARY OBJECTIONS OF SOUTH AFRICA 4II
U.N. Doc. A/2261, in G.A., O.R., Eighth Sess., Annexes(Agenda
item 36), pp. 1-29.
U.N. Doc. A/2475, in G.A., O.R., Eighth Sess., Annexes(Agenda
item 36), pp. 31-48.
5· Committee on South West Africa.
G.A., O.R., Ninth Sess., s,.pNo. 14(Aj2666).
G.A., O.R., Tenth Sess., Sup.No. IZ(A/2913).
G.A., O.R., Eleventh Sess., Sup. No. 12(Aj3151).
G.A., O.R., Fifteenth Sess., Sup.No. 12(A/4464).
6. GoodOfficesCommitteeon South West Africa.
U.N. Doc. A/3900, in G.A., O.R., Tkirteenth Sess., Annexes
(Agenda item 39), pp. 2-10.
U.N. Doc. A/4224, in G.A., O.R., Fourteenth Sess., Annexes
(Agenda item 38), pp. 1-5.
7· Special Committeeon Palestine.
G.A., O.R., Second Sess., Sup. No. II, Vol. I(A/364).
G.A., O.R., Second Sess., Sup. No. n, Vol. II(A/364/Add. 1).
8. Miscellaneous.
U.N. Doc. A/123, inG.A., O.R., First Sess.,SecondPart, Fourth
.Comm., Part I, pp. 199-235.
U.N.Doc. A/C. 4/41,inG.A.,O.R.,FirstSess.,SecondPart, Fourth
Comm., Part I, pp. 235-44.
U.N. Doc. A/334, in G.A., O.R., Second Sess., Fourth Comm.,
pp. 134-36.
U.N. Doc. A/334/Add. 1, in G.A., O.R., Second Sess., Fourth
Comm., pp. 136-38.
U.N. Doc. A/422, in G.A., O.R., Second Sess.,PlenaryMeetings,
Vol. II, pp. 1537-43.
U.N. Doc. A/929, in G.A., O.R., Fourth Sess., Fourth Comm.,
Annex, pp. 7-12.
U.N. Doc. AjC.4/190, in G.A., O.R., Sixth Sess., Annexes
(Agenda item 38), p. 17.
D. SECURITY COUNCIL.
s.e .• O.R., Second Year, No. 20, II3th Meeting, pp. 407-15;
No. 23, n6th Meeting, pp. 463-85; No. 25, n8th Meeting,
pp. 513-16; No. 30, 123rd Meeting, pp. 615-39; No. 31, 124th
Meeting, pp. 641-80.
S.C., O.R., Second Year, Sup. No. 8, pp. 69-74.
s.e .•O.R., Tkird Year, Nos. 36-sr. 271St Meeting, pp. 154-72.
E. TRUSTEESH!P (OUNCIL.
G.A., O.R., Second Sess., Sup. No. IO (A/402/Rev. 1).
G.A., O.R., Third Sess., Sup.No. 4 (Aj6o3).
U.N. Doc. T/175, 3rd june, 1948.412 SOUTH WEST AFRICA
F. 0THER.
r. The Charter of the United Nations.
2. The Statute of the International Court of Justice.
3· U.N. Doc. A/70, October, 1946 (Terms of League of Nations
Mandates).
4· Everyman's United Nations, Sixth Edition (New York:
United Nations Officeof Public Information, 1959), pp. 4-6.
Ill. Union of South Africa and Republic of South Africa
r. Union of South Africa, Parliamentary Debates, Senate, Vol. I5
(1956), Cols. 3631-32.
2. The Republic of South A/rica Constitution Act, No. 32 of r96r,
Sections I,3 and I2I.
IV. United States of America
Papers Relating to the Foreign Relations of the United States: The
Paris PeaceConference, rgrg, I3 Vols. (Washington: United States
Govemment Printing Office,.1942-47), Vol. III, pp. 741-42, 769-70,
785-86, 788, 79S-96, 799-Soz; Vol. V, p. soS.
V. Books and Pamphlets
r. Baker, R. S. Woodrow Wilson and World Settlement, 3 Vols.
(New York: Doubleday, Page and Co., 1922-23), Vol. III,
pp. ro8-ro, 126-zg.
2. Beer, G. L. African Questions aJthe Paris PeaceConference,ed.
by L. H. Gray (New York: Macmillan, 1923), pp. 431, 443-
J. Bentwich, N. The Mandates System (London: Longmans,
Green and Co., rg3o). pp. 4-5.
+ Chowdhuri, R. N. International Mandates and Trusteeship
Systems (The Hague: Martinus Nijhoff, I95Sl. pp. r6-zz.
s. Feinberg, N. La Juridiction de la Cour Permanente de Justice
Internationale dans le Système des Mandats (Paris: Rousseau,
1930), pp. 203-04.
6. François, J. P. A. Grandlijnen van hel Volkenrecht, Second
Edition (Zwolle: N.V. Uitgevers MijW. E. J.Tjeenk Willink,
1957), pp. 233, 349·
7· Goodrich, L. M. and Hambro, E. Charter of the United Nations,
Second Edition (London: Stevens and Sons, 1949), pp. 3-rS,
249·
8. Green, L. C. International Law Through the Cases, Second
Edition (London: Stevens and Sons, 1959), pp. 329 etseq.,
790 etseq.
9· Hall, H. D. Mandates, Dependencies and Trusteeship (London:
Stevens and Sons, 1948), pp. I7 et seq., 97-roo, roz-os. 140,
r74, zog, 272-73. zSs-86, z88-8g.
ro. Hobson, J. A. Towards International Government (London, I9IS). PRELIMISARY OBJECTIOSS OF SOUTH AFRICA 413
II. Kennedy, W. P. M. and Schlosberg, H. ]. The Law and Custom
of the South African Constitution(London: Humphrey Milford,
1935), pp. 514-15.
12. Lauterpacht, H. The Development of International Law l>ythe
International Court (London: Stevens and Sons, 1958), p. 91.
13. Lloyd George, D. The Truth about the Peace Treaties, 2 Vols.
(London: Victor Gollancz, 1938), Vol. 1, pp. rr4-23, 530; Vol.
Il, p. 766.
14. Logan, R. W. The African Mandates in World Politics
(Washington: The Public Affairs Press, 1948), pp. 1-2.
15. Margalith, A. M. The International Mandates (Baltimore:
Johns Hopkins Press, 1930), pp. 33-34.
16. McNair, A. D. The Law of Treaties-British Practice and
Opinions (Oxford: The Clarendon Press, 1938), pp. 185,
389-90, 405, 433·
17. Miller,D. H. The Drafting of theCovenant, 2 Vols. (New York:
G. P. Putnam's Sons, 1928), Vol. 1, pp. 186, 190; Vol. II,
pp. 213-28, 273, 283, 285, 306, 313, 323-24, 355·
18. Mohr, E. G. Die Frage der Souveriinitiit in den Mandats
gebieten (Borna-Leipzig: Universitiitsverlag von Robert Noske,
1928), p.4·
19. Oppenheim, L. International Law: A Treatise, Vol. 1, Eighth
Edition, ed. by H. Lauterpacht (London: Longmans,. Green
and Co., 1955), pp. 384, 944·
20. Rosenne, S. The International Court of Justice-An Essay in
Politicaland Legal Theory (Leyden: A. W. Sijthoff's Uit
geversmaatschappij, 1957), pp. 62-63, 260, 282, 318-20, 441-43.
21. Schneider, W. Das V6lkerrechl1icheMandat (Stuttgart: Ans
land und Heimat Verlags-Aktiengesellschaft, 1926), p. 14.
22. Schwarzenberger, G. International Law, Third Edition
(London: Stevens and Sons, 1957), Vol. 1, pp. 101-02, ro4-05,
I07-08, 138, 176.
23. Smuts, J. C. The League of Nations: A Practical Suggestion
(London: Hodder and Stoughton, 1918), pp. 12, 15.
24. Spiegel, M. Das Volkerrecht1icheMandat und seine Anwendung
auf Paliistina (Vienna: Leuschner and Lubensky, 1928),
pp. 8-9.
25. Starke,. J. G. An Introduction to International Law, Third
Edition (London: Butterworth and Co., 1954), pp. 57, 324-
26. Temperley, H. W. V. (ed.) A History of the PeaceConferenceof
Paris, 6 Vols. (London: Hodder and Stoughton, 1920-24),
Vol. 1, p. 195; Vol. Il, pp. 233-34; Vol. III, p. 95; Vol. VI, p. 502.
27. Toussaint, C. E. The Trusteeship System of the United Nations
(London: Stevens and Sons, 1956), pp. S-9·
28. Townsend, M. E. The Rise a·nd Fall of Germany's Colonial
Empire (New York: Macmillan, 1930), pp. 363-69, 377-78.
29. Verdross, A. Die Verfassung der Volkerrechtsgemeinschaft
(Wien und Berlin: Verlag von Julius Springer, 1926), p. .SI. SOUTH WEST AFRICA
30. Walters, F. P. A History of the League of Nations, 2 Vols.
(London: Oxford University Press, 1952), Vol. I, pp. 64-65.
31. Wessels, L. H. Die Mandaat vir Suidwes-Afrika ('s-Graven
hage: Martinus Nijhoff, 1938), pp. III-I2.
32. Wright, Q. Mandates Under the League of Nations (Chicago:
University of Chicago Press, 1930), pp. 3, 15-23, 55, 64, 87-89,
rr4, r28, rs8, r96-97, 199-200, 319-39, 366, 457, 46o, 475-76,
493-95,536-37·
VI. Articles
I. Anonymous. "New Guinea-Most Backward Trust Area",
United Nations Review, Vol. r, No. 3 (September, 1954),
pp. 31-36; at p. 31.
2. Anonymous. "A Formidable Task in New Guinea: Peaceful
Penetration Continued in Primitive Trust Territory", United
Nations Review, Vol. 2, No. 3 (September, 1955), pp. 33-44;
at p. 34·
3· Fitzmaurice, G. "The Law and Procedure of the International
Court of Justice 1951-4: Treaty Interpretation and other
Treaty Points", The British Year Book of International Law,
Vol. XXXIII (r957), pp. 203-93; at pp. 203-04 212.
4· Furukaki, P.T. "Nature juridique des mandats internationaux
de la Sociétédes Nations", Bibliothèque Universelle et Revue
de Genève (July-December, 1926), pp. 381-90; at p. 385.
s. Hall, H. D. "The Trusteeship System", The British Year Book
of International Law, Vol. XXIV (1947), pp. 33-71; at pp. 44-46.
6. Hudson, M.O. "The Twenty-ninth Year of the World Court",
The American journal of International Law, Vol. 45 (January,
r95r), pp. r-36; at pp. 13-r6.
7· Jennings, R. Y. "The International Court's Advisory Opinion
on the voting procedure on questions concerning South West
Africa", Transactions of the Grotius Society, Vol. 42 (1956),
pp. 85-97; at p. 92.
8. Keesing's Contemporary Archives, Vol. VII· (r948-r9so), at
p. 9354·
9· Korowicz, M. St. "The Problem of the International Person
ality of Individuals", The American journal of International
Law, Vol. 50 (1956), pp. 533-62; at pp. 536, 56r.
ro. MeNair, A. D. "Mandates", The Cambridge Law journal, Vol.
III, No. 2 (1928), pp. 149-60; at p. I57·
rr. Nisot, J. "The Advisory Opinion of the International Court of
Justice on the International Status of South West Africa",
The South African Law journal, Vol. 68, Part 3 (August, 1951),
pp. 274-85; at pp. 278-8r.
12. Potter, P. B. "Ori9!n of the System of Mandates under the
League of Nations', The American Political Science Review,
Vol. XVI, No. 4 (November, 1922), pp. 563-83. PRELIMINARYOBJECTIONSOF SOUTHAFRICA 415
13. Rappard, W. E. "The Mandates and the International Trustee
ship Systems", Varia Politica (Zurich: Editions Poligraphiques
S.A., 1953), pp. 181-90; at pp. 182, 184-
Rolin, H. "Le Système des Mandats Coloniaux", Revue de
Droit International et de Législation Comparée, Vol. XLVII
(1920},No. 1, pp. 329-63; at pp. 356-57.
15. Van Asbeck, F. M. "International Law and Colonial Adminis
tration", Transactions of the Grotius Society, Vol. 39 (1953),
pp. 5-37; at p. 14.
16. Williams, ]. F. "The Status of the League of Nations in Inter
national Law", International Law Association, Report of the
34th Conference (1926), pp. 675-95; at pp. 688-89.
17. Wright, Q. "Treaties Conferring Rights in Mandated Terri
tories", The American Journal of International Law, Vol. 18
(October, 1924), pp. 786-87.
(The Publications enumerated under Il 1 above were filed with
the Registrar of the Court in accordance with Article 43 of the Rules
of Court. The other documentation was available in the Library of the
Court. For convenience, photostatic extracts from League of Nations
documents, United Nations documents and Articles quoted were also
filed.) SOUTH WEST AFRICA
TABLE OF CASES CITED
1. PERMANENT COURT OF INTERNATIONAL jUSTICE
r. Eastern Carelia Case, P.C.l.J., Ser. B, No. 5, 23rd July, 1923.
2. The Mavrommatis Palestine Concessions, P.C.I.J., Ser. A, No. 2,
30th August, 1924, pp. II-12, 15-19, JO, 41-43. 61-63, 77. 81-82,
86, 88, 91.
3· Case concerning the Factory at Chorz6w, P.C.I.J., Ser. A, No. g,
26th July, 1927, p. 32.
4· Interpretation of the Convention of I9I9 concerning Employment
of Women during the Night, P.C.I.J., Ser. A/B, Fasc. No. 50,
15th November, 1932, pp. 377, 380-81, 383.
5· Phosphates in Morocco, P.C.I.]., Ser. A/B, Fasc. No. 74, 14th
June, 1938, pp. 23-24.
II. INTERNATIONAL CouRT oF ]usneE
I. "Reparation for injuries su{fered in the service of the United
Nations, Advisory Opinion: I.C.]. ReportsI949, p. r74'', at p. 179·
2. "Interpretation of Peace Treaties, Advisory Opinion: I.C.J.
Reports I950, p. 65", at p. 74·
3· "Internationat status of South-West Africa, Pteadings, Orat
Arguments, Documents", pp. 122-23, 275, 278, 280, 288-90.
4· "International status of South-West Africa, Advisory Opinion:
I.C.j. Reports I950, p. I28", at pp. 132-34, 136-38, 140, 145-46,
154-62, 164-73, 186, 191.
s. "Interpretation of PeaceTreaties(secondphase), Advisory Opinion:
I.C.j. Reports r950, p. zzr".
6. "Ambatielos case (jurisdiction), judgment of ]uly ISt, I95z:
I.C.J. Reports I95Z, p. z8", at p. 39·
7· "South-West Africa-Voting Procedure, Advisory Opinion of
june 7th, I955: I.C.J. Reports I955, p. 67'', at pp. 75, 95, 100-01.
8. "Interhandel Case, Judgment of March zrst, I959.' I.C.j. Reports
r959, p.6", at pp. 21-22, 35, 6o-61.
III. ÜTHER
I. Hamlyn <5oCo. v. Wood & Co. (1891) 2 Q.B. 488, at pp. 491, 494·
2. ]erusatem-]a{fa District Governorand another v. Suleiman Mu"a
and others, 1926 A.C. 321, at p. 328.
3· Rex v. Blom, 1939 A.D. r88, at pp. 202-03.
4· Luxor, Ltd. v. Cooper (1941 (1) A.E.R. 33), at pp. 52-53.
Preliminary Objections filed by the Government of the Republic of South Africa