6. REPLY OFTHEGOVERNMENTO SFETIDOPIAANDLIBERIA
CHAPTER 1
STATEMENT OF THE CASE
A. This Reply is respectfully submitted to the Court by the
Governments of Ethiopia and Liberia (hereinafter sometimes
referred to as "Applicants") pursuant to an Order of the Court
dated 20 January 1964, following upon submission to the Court
by the Government of the Republic of South Africa (hereinafter
sometimes referred to as "Respondent") of its Conn/er-Memorial.
B. In their Memorials, submitted to the Court pursuant to an
Order dated 13 January rg6r, Applicants have summarized the
subject of the dispute between Applicants and Respondent.' and
the said dispute continues to exist.
C. In its Judgment of 2I December I962 in respect of the Prelimi
nary Objections, the Court declared, inter alia, "If the abject of
Article 7 of the Mandate is the submission to the Court of disputes
relating to the interpretation or the application of the Mandate, it
naturally follows that no Application based on Article 7 could be
accepted unless the said Mandate, of which Article 7 is a part, is in
force... " 2 "The unanimous holding of the Court in 1950 on the
survival and continuing effect of Article 7 of the Mandate, continues
to refl.ect the Court's opinion to-day .... " 3 "The validity of
Article 7, in the Court's view, was not affected by the dissolution of
the League, jus,t as the Mandate as a whole is still in force for the
reasons stated a.bove." 4
Notwithstanding the Opinion of the Court, Respondent persists
in its rejection of Applicants' contention that the Mandate is still
in force and that Respondent continues to have duties thereunder.'
It remains obvions that the dispute between Applicants and Res
pondent bas not been, and cannat be, settled by negotiation and,
indeed, that Respondent also disputes the J udgment of the Court.
D. In its aforesaid Judgment of 2I Decernber I962 the Court held
that Applicants
"... have a legal right or interest in the observance by the Manda
tory of its obligations both toward the inhabitants of the Mandated
Territory, and toward the League of Nations and its Members." 6
1 1, p. J2.
2 I.C.J ., ]udgment2IfDecember I962, p. 333 (hereinafter referred to as "judg-
ment").
' Id., p. 334·
4 Id., p. 335· (Itlladded.)
' Il, pp1-2,and passim.
6 Judgment, p. 3-B· REPLY OF ETHIOPIA AND LIBERIA 22I
Applicants' right and interest in Respondent's observance of its
Mandate obligations th us being of a legal character, it follows that
such right and interest is judicially determinable. The issues re
maining for adjudication upon the merits of the dispute accordingly
involve juridical interpretation of the terms of Respondent's
obligations and their application to facts which, in essence, are
undisputed. CHAPTER II
HISTORY OF THE DISPUTE SINGE rg6o
ln their Memorials, submitted to the Court in April rg6r,
Applicants have set out the history of the Mandate for South West
Africa from its origins through the rg6o Session of the United
Nations General Assembly. 1 During that Session, the General
Asscmbly adopted Resolution r565 (XV). in which the Assembly
found that Respondent had "failed and refused to carry out its
obligations under the Mandate," and concluded that the dispute
which has arisen between Applicants and Respondent "has not been
and cannat be settled by negotiation." 2
The history oi relevant events since the adoption of the foregoing
Resolution, including Applicants' efforts, through the agency and
forum of the United Nations, to settle their dispute with Respondent,
makes clear that the General Assembly's foregoing finding and
conclusion remain valid.
(r)rg6r
During the resumed rsth Session of the General Assembly, in
March rg6r, the Assembly without dissent adopted Resolution
1593 (XV). appealing to United Nations members having "particu
larly close and continuons relations" with Respondent to exert their
influence to ensure that Respondent would adjust its conduct to
its obligations and give effect to previous resolutions of the Assem
bly.3
No results having been achieved, the Assembly, in April rg6r,
adopted Resolution 1596 (XV).• The Assembly, without dissent,
noted '\vith grave concern the continuing deterioration in the situa
tion in South West Africa resulting from the continued application,
in violation of the letter and spirit of the Mandate, of tyrannical
polictes and practices, such as apartheid . ... " It decided, according
ly, to call the attention of the Security Council to the situation in
South West Africa, "which, if allowed to continue, will in the General
Assembly's view endanger international peace and security .... " 5
1
2 1, PP· 33-85.
G.A. Res. 1565 (XV), 18 December rg6o, G.A.O.R. 15th Sess., Supp. No. 16
at331-32 (A/4684). (The full text of the Resolution is set out in 1, pp. 84-85.)
G.A. Res. 1593 (XV), 16 March 1961, G.A.O.R. 15th Sess., Supp. No. 16 A at
7 4AG.A. Res. 1595 (XV), 7 April 1961, G.A.Q.R. 15th Sess., Supp. i\o. 16 A at
7 (A/4684/Add. ,).
5 Id., para. 7· This decision was carried out by communicafrom the Secrc
tary-General ta the President of the Security Council (S/4787) (rz April rg6r). REPLY OF ETHIOPIA AND LIBERIA
223
The Assembly "rejected'' Respondent's refusai to co-operate with
the United Nations in the implementation of the General Assem
bly's resolutions concerning South West Africa and requested the
Committee on South West Africa to discharge the tasks entrusted
toit '\vith the co-operation of the Government of the Union of South
Africa if such co-operation is available, and without it if necessary. " 1
Respondent's deniai of permission to the Committee to visit the
Territory in arder to investigate the situation prevailing thcre
(a task which the General Assembly had invited the Committec
to undertake 2) compelled the Commit tee to conduct its inquiries
outside the Mandatee! Territory itself.
The Commitlee submitted a special report on its investigative
missîon, 3in which the Committee found, inter alia:
"... South Africa is the only State in the world today to practicc
racism as an official policy, not only within its boundaries but
throughout the Mandated Tcrritory of South West Africa. This
form of racial segregation and discrimination, known as apartheid,
has bcen repeatedly condemned by the United Nations, by world
public opinion, and by ail those who appeared before the Committce
during its visit to Africa.
"This policy is the most pervasive feature of the administration of
the Mandated Territory and extends to all aspects of life of the
Native population .... "·~
The Committee's conclusions, particularly relevant to the issues in
dispute between Applicants and Respondent, are:
I. "The South African Government has from the beginning
made plain its determination to annex the Mandated Territory
entrusted toits care for the benefit of the Native inhabitants, and has
engaged unilaterally in a progressive integration and incorporation
of the Mandated Territory into South Africa, without a proper
consultation of the inhabitants of the Territory and without the
consent of the United Nations ....
2. "The Committee has found no indication that the South
African Govcrnment intends to change its policies and practices
in the Mandated Territory and it is convinced that the continuerl
administration of South West Africa by the South African Govern
ment will prevent the political, economie, social and educational
development of the vast majority of the population for whom the
5
Mandate was designed."
The General Assembly, by Resolution r702 (XVI) of rg Decem
ber rg6r,' noted with approval the foregoing special report of the
1
2 Id.,para. 5·
G.A. Res. 1568 (XV), 18 December 1g6o, G.A.O.R. 15th Sess., Supp. No. r6
at333 (A/4684).
4 G.A.û.R. r6th Sess., S.W.A. Comm., Supp. No. I2A (A/4926).
5 Id., p.zo.
Id., pp.21-22.
~>G.A.û.R. r6th Sess., Supp. No. 17 at 39 (A/sroo).(The Resolutionwas adop
ted by a vote of go ta r (Portugal)with four abstentions.)224 SOUTH WEST AFRICA
Committee on South West Africa, and also noted, '\vith increased
disquiet, the progressive deterioration of the situation in South
West Africa as a result of the ruthless intensification of the policy of
apartheid . ... "
The Assembly established a United Nations Special Committee
for South West Africa, chargee!, inter alia, with the task of achieving
as an objective:
"The repeal of all laws or regulations confining the indigenous
inhabitants in reserves and denying them ail freedom of movement,
expression and association, and of all other laws and regulations
1
whichestablishand maintain theintolerable system of apartheid. ... "
The Assembly requested the Special Committee to visit the
Territory and urged Respondent "to co-operate lully with the
Special Commitl:ee and with the United Nations" in executing the
Resolution.
The Assembly decidee! to cali the Resolution to the attention of
the United Nati.ons Security Council, "in the light of paragraph
7 of Resolution r5g6 (XV)." 2
Three additional resolutions concerning South \Vest Africa were
adoptee! by the General Assembly on rg December rg6r, ali without
dissent, attesting to the pervasive and deep concern with which the
membership of the United Nations, including Applicants, viewed
Respondent's failure to observe its obligations under the Mandate.
The first of thcse, Resolution 1703 (XV1), noted "with deepest
disappointment and regret" the policy and method pursued by
Respondent in its administration of the Terri tory and called upon it
immediate! y to desist from further acts of force designee! to suppress
political movements or enforce apartheid in South West Africa, to
refrain from prosecution of Africans on political grounds, and to
ensure the free exercise of political rights for ali sections of the
population.
The second, ncsolution r704 (XVI),' dissolved the Committee on
South West Africa, inasmuch as its functions were assumee! by the
United Nations Special Committee on South West Africa.
The third, Resolution 1705 (XVI),' established a special edu
cational and training program for indigenous inhabitants of South
West Africa. It invitee! the United Nations Specialized Agencies to
offer assistance, facilities and resources to South West Africa and
invitee! member states to make scholarships available. The Assembly
thus recognized the inadequate standards, facilities and objectives
1
Id., para. z(d). (Italîcs added: the italicized clause was added to the draft
of the Resolutionby amendment introduced by the United States.)
3G.A. Res. 1703 (XVI), 19 December 1961, G.A.O.R. 16th Sess., Supp. No. 17
at 40 (A/5100); (adopted wîthout objection).
4G.A. Res. 1704 (XVI), 19 December xg6r, G.A.û.R. x6th Sess., Supp. No. 17
at 41 (A/sroo); {adopted unanimously).
5G.A. Res. 1705 (XVI), 19 December rg61, G.A.O.R. x6th Sess., Supp. No. 17
at 41 (A/sroo); (adopted unanimously). REPLY OF ETHIOPIA AND LIBERIA 225
with respect to the education of the indigenous inhabitants of the
Terri tory.
During the discussion of the question of South West Africain the
Fourth Committee of the General Assembly, Respondent's then
Foreign Minister, Mr. Eric H. Louw, declared Respondent's
intention to invite three past Presidents of the General Assembly,
in their persona! capacities, to visit the Mandated Territory "to see
for themselves whether there exists any threat to international
peace and security, or whether there is any truth in the allegations
relating to military terrorization, the existence of an explosive
situation and planned extermination." 1
The General Assembly, however, did not favour snch a procedure,
nor even an alternative one advanced by certain members (though
without comment or comrnitment on Respondent's part) whereby
the three past Presidents would have been nominated by the
President of the Assembly in consultation with Respondent, and
with wider terms of reference thau those snggested by Respondent,
as quoted above.
(2) rg6z
Reference has been made to the establishment, by the r6th
Session, General Assembly, of the United Nations Special Committee
for South West Africa and to the tasks entrusted to such Special
Committee. 2
Certain events taking place thereafter, notably the circumstances
attending a nine-day visit to the Territory by the Chairman and
Vice-Chairman of the Special Committee, generated confusion and
controversy which are wholly immaterial to the issues in dispute
between Applicants and Respondent in the present Proceedings.
Respondent, in commenting upon the aforesaid Resolution IJOZ
(XVI), relies upon a joint communiqué, allegedly issued at the
conclusion of the visit, as demonstrating "that the factual assump
tions on which the said resolution of the General Assembly was
based, were entirely fallacious ... " and that "no probative value
cau attach to purported statements or conclusions of fact in the
reports and resolutions .... "3 ·
The actuai circumstances surrounding the briel visit (the itinerary
of which was fixed by Respondent); the preparation of the "joint
communiqué" at the conclusion thereof; the acrirnonious, though
temporary, misunderstanding between the Chairman and Vice
Chairrnan as to bath occurrence and substance; and the ultimate
1
It is to be noted that, except for the concern expressed by the General Assembly
that the present situati"if allowed to continuwill,in the General Assembly's
view endanger internationalpeace and security,"(Resolution1596 (XV), (supra,
ritory was that of the former Foreign Minister himself, rather than that of the
General Assembly.
2 G. A. Res. 1702 (XVI) (supra, p. 223, footnote 6).
3 Il, p. 4·226 SOUTH WEST AFRICA
understanding between them, embodied in a jointly-signed Report
ta the Special Committee, are a1i fully set forth in a Report of the
Special Committee itself, and, as Respondent concedes, "ta canvass
them fully woulcl be a lengthy process which could serve no purpose
in these proceedings." 2
What is of relevant, and indeed decisive, significance arc their
jointly-approved conclusions, based upon "what they saw and heard
during their visi.t to the Mandated Territory," 3 and in particular
their joint conclusion:
"That the administration of the Mandated Territory by the
South African Government has been and continues to be pervaded
by the rigorous application of apartheid in ali aspects of !ife of the
African population, resulting not only in their being racially segre
gated and di3criminated against and in their being deprived of ali
basic human rights and fundamental frcedorns, but also in the
complete subordination of their paramount intercsts to those of a
4
small minority of Europeans."
The Special Committee, in ils own Report,' submitted to the
GeneralAssemblyon 14 September rg6z, pointed the obvious moral
to be learned from the confusion and controversy attending the
visit of its Chairman and Vice-Chairman. The special Committee
thought it "obvious" thal
"... il will be difficult, if not impossible, to secure the complete
implementation of the General Assembly's resolution unless and
until a United Nations presence can be established in the Mandated
Territory by the granting ta the Special Committee or other organs
or sub-organs a'nd the specialized agencies of the United Nations of
ample freedom to enter and leave the Mandated Territory." 6
On the basis of its own evaluation of available information and
evidence, notably including Respondent's avowed legislative and
administrative practices and policies, the Special Committee con
cluded:
"The situation in the Mandated Territory has continued to be
dominated by the policy of apartheid which has been intensified
and made more systematic in recent years. Under this discrimina
tory policy, certain inadequate areas are reserved as the homelands
of the indigenous groups. Outside th ose areas, the country is regarded
as belonging to the White population and the presence of indigenous
1 G.A.O.R. 17th Sess., Sp. S.W.A. Comm. Supp. No. 12 (A/5212).
2 Il,p.4·
3 A/5212, p. 7 (footnote I of this page, supra).
4 Ibid. It should be noted that nothing in the record of their visit,including
relevant correspondence and statements set forth in extenso in the cited Report,
at pp. 17-23, or in the alleged "jointcommuniqué" issued at the end of their visit,
îs in any way inconsistent with, or in derogation of, the conclusion in their joint
report, quoted above.
5 Id.,p. rs.
6 Ibid. The Special Committee's conclusion conlirms the necesstty, more
full y discussed below (pp. 239-240, 525-539) for effective United Nations supervision
over the Mandate a3 an essential feature of the Mandate institution. REJ:>Y OF ETHIOPIA A:-lD LIBERIA 227
inhabitants is considered to be temporary and as not giving grounds
for political or related rights. The entry of indigenous inhabitants
into the area outsidc the reserves, in particular into urban areas,
and their continued residence there, are regulated by a pass system.
ln town, they live in segregated townships and locations and,
except for a fcw minor activitics in those townships or locations1
have no economie possibHHies other than wage labour."
The Report of the Special Committec was the subjcct of twenty
four meetings of the Fourth Committee of the General Assembly,
during which petitioners were heard, communications relating to
South West Africa were considered, full debate on the question
took place, and a draft Resolution was considered and adoptcd
without dissent.'
The General Assembly condemned "the continued refusa! of the
Government of South Africa to co-operate with the United Nations
in the implementation of Resolution IJOZ (XVI)' as weil as other
resolutions concerning South West Africa."• The Assembly assigned
the tasks of the United Nations Committee for South West Africa
totheCommittee ofSeventeen.' and requested theSecretary-General ·
to appoint a United Nations Technical Assistance Representative for
South West Africa, as weil as "to take ali necessary steps to establish
an effective United Nations presence in South West Africa." 6
The General Assembly urged Respondent to refrain from "action
involving the forcible removal of indigenous inhahitants from their
homes or their confinement in any particular location," and from
"using the Terri tory of South West Africa as a base for the accumu
lation, for internai or external purposes, of arms or armcd forces. " 7
The General Assembly during the r7th Session adopted two other
resolutions relating to South West Africa: Resolution r8o6 (XVII),'
dissolving the United Nations Special Committee for South West
Africa and Resolution r8o4 (XVII),' drawing attention of petitioners
10
to the report of the Special Committee for South West Africa, as
weil as to Resolutions adopted by the Assembly at its r7th Session.
1 Id., p. IJ.
2 G.A. Res. tSos (XVII), 14 Decembcr 1962, G.A.O.R. 17th Sess., Supp. No. 17 at
38 (A/52I7).
3 Supra, p. 223, footnote 6.
4 Footnote 2 of this page,supm.
s "Special Committee on the Situation with Regard ta the Implementation of
the Declaration on the Gran ting of Independence to Colonial Countries and Peoples,"
established 27 November 1961 by the Assembly in Resolution 1654 (XVI), G.A.
O.R. 16th Sess., Supp. No. 17 at 65 (A/sroo).The Committee, of which Ethiopia is
a member, was subsequent! y cnlarged to twenty-four, and is hereinafter accor
di6gly referred toas the "Commit.tee of Twenty-Four."
Res. 18os (XVII), paras. s-6 (footnote 2 of this page, supra).
7 Id., para. 7-
8 G.A. Res. 1806 (XVII), 14 December 1962, G.A.O.R. 17th Sess., Supp. No. 17
at 39 (A/5217).
9 G.A. Res. r8o4 (XVII), 14 DtJcember rg62, G.A.O.R. r7th Sess., Supp. No. 17
at 38 (A{S2I7)·
10A{S212 (supra, p. 226, footnote 1).228 SOUTH WEST AFRICA
(3) 1963
Pursuant to the General Assernbly's request, 1 the Secrctary
Gencral sought Respondent's views concerning the appointrnent of a
United Nations Resident Representative for Technical Assistance
in South \Vest Africa. Respondent expressed its unwillingness to
agree to the appointrnent of such a Representative'
Respondent also declined an invitation of the Cornrnittee of
Twcnty-Four to attend Cornmittee sessions at which t3e question
of South West Africa was to be considered. Following nurnerous
meetings in April-May 1963, at which evidence was received and
testimony taken. the Committee adoptee! a Resolution on 10 May
1963.' in which the Committee, inter alia, regrettee! that the Res
pondent had "taken no steps to implement the resolutions of the
General Assernbly on South West Africa," and that in particular, it
"refusee! to allow a United Nations Technical Assistance Resident
Representative to be stationed in the Terri tory"; deploree! Respon
dent's refusai to co-opera te with the Cornmittee; notee! "with deep
concem the continuee! deterioration of the situation in South West
Africa as a result of the intensification of the policy of apartheid,
which has been the subject of general disapproval"; and consideree!
'\vith regret" thal Respondent "has consciously and cleliberately
failecl to discharge its international obligations in the administration
of South West Africa." 5
In its Resolution, the Commit tee recommcnclccl !hat "the General
Assembly consicler any attempt to annex the Territory of South
\Vest Africa by South Africa as an act of aggression," and that the
Assembly "lake al! necessary steps to establish an effective United
Nations presence in South West Africa with a view to achicving the
6
objectives of Resolution 1702 (XVI) .... "
The Cornrnittee clecicleclalso "to clraw the attention of the Seeurity
Council to the critical situation in South \Vest Africa, the continu
ation of which constitutes a serions threat to international peace
and sccurity."
The Report of the Commit tee, inclucling the text of the foregoing
Resolution, was subrnittcc\ to the General Assembly at its rSth
Session, and was also transmitted to the Security Council.'
1 G.A. Res. 1805 (XVII) (footnote2 of page 227, supra).
2 Surnmary of the pertinent correspondence is contained in a Report of the Com-
mittee of Twenty-Four (A/5446/Add. 2) (26 July 1963).
4 Id., p.14.
Id., p. 71.
' The Resolution was adopted without dissent. The Committec is composcd
of the following States: Australia, Bulgaria, Cambodia, Chile, Denmark, Ethiopia,
India, Iran, Iraq,Italy, Ivory Coast, Madagascar, Mali, Poland, Sierra Leone,
Syria, Tanganyika, Tunisia,U.S.S.H., United Kingdom, United States of America,
Ur6guay, Venezuela and Yugoslavia.
7 Footnote 4 of this page,supra.
Let ter of Transmitta(U.N. Doc. S/5375) (1963). REPLY OF ETHIOPIA AND LIBERIA 229
Thereafter, the General Assembly, at its 18th Session, approved
the Report of the Committee of Twenty-Four, "particularly its con
clusions and recommendations," 1 affirmee! the decision of the
Committee to draw to the attention of the Security Council the
"present critical situation in South \'lest Africa," and requested the
Committee to continue its efforts with a view to discharging the
tasks previously assignee! to it.
The General Assembly similarly requested the Secretary-General
to continue his efforts w:ith a view to achieving the objectives
stated in operative provisions of Assembly Resolution !Sos (XVII),'
and to report to the General Assembly immediate! y after receiving 0
a reply to his invitation to Respondent to inform of its decision
regarding these provisions of Resolution ISos.'
Pursuant to the Assembly's request, the Secretary-General
advised the General Assembly that Responclent's attitude remainecl
unchangecl. 4
The General Assembly thereupon aclopted a Resolution,' con
clemning Responclent "for its refusai to co-opera te with the United
Nations ... and for its non-compliance with the General Assembly
resolutions with regard to South West Africa." In the same Resolu
tion, the General Assembly requestecl the Security Council "to
consicler the critical situation prevailing in South West Africa."
The foregoing Resolution was transmittecl by the Secretary
General to the President of the Security Council on IO January
1964.'
During its I8th Session, the General Assembly adoptee! two
aclclitional Resolutions concerning South West Africa. One of these
concernee! petitions ; the other providecl for continuation of the
United Nations Special Training Program for South West Africans. 8
The l~esolu tliooinvited States to consicler providing for sccon
dary education and vocational training in their offers of scholarships
and to give sympathetic consideration to requests by the Secretary
General for places in secondary, vocational and technical training
schools. The Resolution further requested ali Member States,
1 G.A. Hes. 1899 (XVIII), 13 November 1963, G.A.O.R. t8th Sess., Supp. No.
15 at 46 (A/5515).
J.Supra.p. 227, footnotez. Theseprovisions(Resolu1805 (XVII), paras.s and6)
relatcd to the appointmenof a United Nations Resident Representativfor Tech
nical Assistance in South \Vest Africa, and to procedures to establish an effective
United Nations presence in South West Africa.
J G.A. Res. 1899 (XVIII),para. s(a), (b) and (c) (footnote 1 ofthissupra).
4 G.A. 18th Sess., Report of S.G. (A/5634).
5 G.A. Res. 1979 (XVIII), 17 December 1963, C.A.O.R. 18th Sess., Supp. No.
15 at 51 (A/5515).
6 Letter from S. G. (S/5515) (1964).
1 G.A. Res. 1900 (XVIU), 13 November 1963, C.A.O.R. 18th Sess., Supp. No.
15 at 47 (A/5515).
8 G.A. Res. 1901 (XVIII), 13:.~ovemb 1963, G.A.û.R. t8th Sess., Supp. No.
15 at 48 (A/5515). (The Program bad been provided for originally in Resolution
1705 (XVI) (supra,p. 224, footnote 5).) 230 SOUTH WEST AFRICA
particularly Respo1dent, to facilitatc the travel of South West
African studcnts.
CONCLUSION
Applicants reaffirm the Summary of the History and Background
of the Dispute, set out in their Memorials, pp. 95-97. They respect
lully submit that the record of events recounted above leaves no
room for doubt that persevering effort on the part of the United
Nations, by its responsible organs and agencies, in and through
• which Applicants have sought to settle their dispute with Respon
dent relating to the interpretation and the application of the
provisions of the Mandate, have been unavailing. Submission of
the dispute to this Honourable Court in terms of Article 7 of the
Mandate, accordingly, remains Applicants' sole and indispensable
recourse and source of relief.
1 Reasons underlying the Assembly's repeated expressions of concem regaràing
Respondent's educationalolicies and programs in the Territory are considered in
detail below, p. 30.2 CHAPTER III
THE NATURE OF THE MANDATE
A. GENERAL CONSIDERATIONS
Applicants' dispute with Respondent relating to the interpre
tation and application of the second paragraph of Article 2 of the
Mandate has at its core sharply divergent concepts concerning the
nature and essential principles of the Mandate System itself. Such
divergence, indeed, has lain at the heart of the controversy between
Respondent and the United Nations itself, in which and through
the agency of which, Applicants have vainly sought to settle the
dispute by negotiation.
As this Honourable Court stated in its Judgment of 2I December
r962 in respect of the Preiiminary Objections:
"... it should be pointed out that behind the present dispute
there is another and similar disagreemcnt on points of law and fact
a similar conftict of legal views and interests-betweenthe Rcspon
dent on the one hand, and the othcr Membersof the United Nations,
holding identical views with the Applicants, on the othcr hand.
But though the dispute in the United Nations and the one now
before the Court may beregarded as twodifferent disputes, the ques
tions at issue are identical."
As will be seen upon more detailed examination ot the views
expressed by the Permanent Mandates Commission and its Mem
bers, such a divergence of view between Respondent and agencies
of the organized international community, to which Respondent
has been and is accountable, has characterized its administration
of the Mandate since its inception.
The divergence between the approach, or understanding, of
Applicants and Respondent concerning the nature and essential
principles of the Mandate is illuminatcd by the respective positions
taken by them on certain key issues. One of the most important of
these concerns their contrasting attitudes toward the nature and
consequence of the "compromise embodied in Article 22 of the
Covenant [ofthe League of Nations]," to use Respondent's phrase. 2
In their Memorials, Applicants allege,' and here reaffirm, that
"upon the dissolution of the League of Nations the Union did not
conceal its desire to annex the Territory." Respondent's policies and
1judgment, p. 345.
:II, p. 13.
3I.p.Ss.232 SOUTH WEST AFRICA
actions designed to effectuate annexation or incorporation of the
Territory are ana.lyzed more lully below. 1
Respondent characterizes as an "ovcr-sirnplification, tending
towards a wrong impression,''' Applicants' contention that
"... The Mandate System, as ultimately given expression in Article
22 of the Covenant of the League of Nations and in the several
Mandate Agreements, represented a victory for the opponents of
the principle of annexation." 3
To the contrary, Respondent contends
"... the Mandate for South West Africa gave effect to a compromise
arrangement which involved, inter alia, that C Mandates were, in
their practical effect, not far removcd from annexation." 4
In support of its interpretation of the nature of the Mandate,
Respondent approvingly cites severa! commentators who, Respon
dent avers, "spoke of the relationship between the Union and South
\Vest Africa as being, in effect, close to annexation." 5
Consistently with its view of the Mandate "as being in effect,
close to anncxation," Respondent repeats in terms large!y identical
with those in the Preliminary Objections 6 its contention that
Article 22 of the Covenant
"set forth the agreed idealistic objectives of the System, agrced
rnethods whereby it would be put into operation and agreed features
which would be incorporated therein." 7
Furthermore:
". . . [T]he opening paragraphs of Article 22 concerning a 'sacred
trust' and 'tutelage', must be regarded as being descriptive of the
idealistic or k!tmanitarian objectivesinvolved in the Mandate System,
and ... the reference to 'Mandatories on behalf of the League' is
to be undcr:::tood as affording a broad indication of the method
whereby tho:;e objectives would be sought to be attaincd. lt is,
therefore, to the more detailed provision in Article 22 for 'securities
for the performance of this trust' that regard must be had in arder
to determine the juridical content of the Mandate System as
8
envisaged by the signatories to the Covenant."
1 Infra, p.572.
2 II,p. 15.
3 I, p. 33·
4 II,p. 95·
5 Id., p. 15. The significance of the statement of one such "commcntator,"
1lr. Ormsby-Gore, white a Member of the Permanent Mandates Commission,
quoted in the Comzter-Memorial, Il, p. q, must be appraised against the
Commission's unbrokcn record of opposition to efforts on Respondent's part,
dîrectly or indirectly, to annex, incorporate, or assert sovereignty over, the Ter·
rit6ry. See infra, pp. 575-576.
1, pp.300-301.
' Il,p. ros.
8 Id.,p. 104. REPLY OF ETHIOPIA A~D LIBERIA 233
Applicants submit, on the other hand, that the "sacred trust"
and "tntelage" principle, in itself, mnst be regarded as a statement
of legal obligation, cmbodying juridical content. The enforcement
of the "sacred trust," rnoreover, becarne a responsibility "laid
upon the League as an organized international community." 1
The Conrt's view is amply supported by the origins and history
of the Mandates System.
Prior to the establishment of the Mandates System, the fate of
indigenous peoples in certain areas of Africa and Asia was considered
to be the sole and unaccountable responsibility of the Powers
controlling them. As a matter of international law, their well-being
and future were, for the most part, in the hands of such Powers.
Virtually the only restraints upon the control by such Powers
were moral considerations. With the creation of the Mandates
System, the well-being and future of indigenous peoples were,
however, declared to be, in the words of the Covenant, "a sacred
trust of civilization."
These words were not lightly formulated. They were incorporated
into the Covenant only after sharp disagreement between the
parties over the settlement of the colonial issue. It was clearly
understood by ali concerned that what was involved was the
adoption, with respect to the treatment of indigenous peoples in
certain areas of Africa and Asia, of a principle entirely different
from that in effect until then. The new principle was that, as a
matter of international law, the well-being and social progress of
such peoples would be the responsibility of the "organized inter
national community," insured by legal, rather than by solely
moral, considerations.
Although the tcrm "sacrcd trust of civilization" obviously im
ports a high moral principle, it was intended to have legal signifi
cance as weil. Had it been otherwise, indeed, the Powers resisting
establishment of the Manda.tes System would not have had difficulty
with the term. What they objccted to was, 0f course, precisely
its acceptance as a legal principle, inasmuch as most of the Powers
concerned already were committed, of their own accord, to the
observance of moral prin.:iples in dealing with peoples not yet
able to govern themselves.
It is not necessary here to trace in detail efforts made toward the
end of the nineteenth century by the more enlightened European
Powers to bring the restraint of moral principle to colonial ad
ministration. The history of the period \\~t rhspect thereto has
been weil summarized in a study of the Mandates System pu2lished
by the Secretariat of the League of Nations in 1945. The study
makes plain that only moral commitments, and nothing more,
1]ttdgmentp. 329.
2 The~Mandat eytem: Origir.--Principles-Applicat10(League of Nations
Pub. 1945· VI.A.1.).234 SOUTH WEST AFRICA
wereacceptable to the European Powers involved until the creation
of the Mandates System.
The most signilicant actions taken during that period by European
Powers with a view to improving the condition of indigenous
peoples were the General Act of the Conference of Berlin of
26 February r885 and the General Act of the Conference of
Brussels of 2 July r8go. The Secretariat study referred to above
examines the undertakings in these Acts concerning the well-being
of the peoples involved, and concludes that they were not legal
obligations but rather "in the nature of aspirations, of generons
statements of intention, of a declaration or acknowledgment of
moral obligations." 1
Alter considering other matters of relevance, the study makes
an assessment of the position of indigenous peoples from the
standpoint of international law on the eve of the First World
\Var. Using to this end a quotation from an "authoritative writer,"
the study make; clear that, at the time, the international com
munity of nations consideree! itself "bound on!y by moral principles
resulting from Christian and humanitarian sentiments." The study
goes on to state that such "moral principles" were, in the case
of territories brought within the System, "transformed into princi
ples of in2ernatz'onal law" by the institution of the Mandates
System.
Certain Powers concerned in the seUlement of colonial issues
came to the Peace Conference prepared to do no more than make .
formai acknowledgement of the humanitarian ideal prevalent in
the post-World \Var 1 period. As one authority has stated, it
appeared
"... that ail those who based their demands on justice alone werc
to be given mere Hp-service in the form of sorne kind of humanitarian
resolution, as was the custom of the international conferences of the
pre-war period." 3
Thus, the French Plan of Procedure for the Peace Conference
contemplated that the Great Powers shoulcl settle among themselves
ali the issues involved, inclucling the colonial issues. When that
was clone, it wouId be time enough for the Conference, as the French
Plan put it, to "place itself as has sometimes been clone in the
past under the :invocation of sorne of the great principles leading
to justice, morais and liberty .... "'
Consistently with this approach, the French Minister for Colonies,
M. Simon, during a session of the Council of Ten, opposee! the Man
dates System in favour of outright annexation of former German
colonies, asserting as a justification that higher principles alreacly
1 The Mandates System, op. cit.
2 Id., pp. 12-1(Italicadded.)
3 Margalith, The fnternational Mandates 13 (1930).
4 Baker, Woodrow Wilson and World SettlemenVol. III, p. 63 (1923). REPLY OF ETHIOPIA AND LIBERIA 235
guided his nation, and thal ail the Great Powers worthy of the
name "considered their colonies as wards entrusted to them by
the world." 1
The United States, on the other hand, strenuously supported
the principle of international legal accountability. Thus, at a session
of the Council of Ten immediately prior to the one addressed by the
French Minister of Colonies, President Wilson, referring to the
Mandates System, proclaimed that:
"The fundamental idea would be thal the world was acting as
trustee through a mandatory ... ."2
The principle of vesting a legal responsibility in the organized inter
national community, nevertheless, was not solely of American ori
gin.It owcd much of its development to British thought. As early as
rgr6, P. H. Kerr (later Lord Lothian), then editor ofthe Round Table,
and later secretary to Prime Minister Lloyd George, analyzed the
problems which might be expected to arise after the Warin defining
the relations between "advanced" and "backwards" peoples,
and concluded that "the ruling people ought to govern the dc
pendency as trustees for all mankind." 3
During the same year, another British authority, examining
proposais for the solution of the colonial issue, concluded that
"... what it seems most desirable to aim at is the reposing of un
distributed local authority in whatever government may be the
trustee of sovereign power, with responsibility for observance of
principles laid down en.forceablethrough appeal to the court of the
League.'' 4
In rgr8, another British authority expressed the view thal if
a mandatory Power failed to comply with its obligations under
a mandate, it should stand to be charged before a permanent
commission at the instance of any other State, on the ground of
"violating her trust." He suggested further that if an ad hoc
"court of enquiry" were thereafter to find against the mandatory
Power, and that Power refused to obey the verdict of the court,
"ber trust would be invalidated." '
The principle of legal responsibility was concurrently being
developed in the United States. Thus the celebrated "Cobb
Lippman-House Memorandum" of 29 October rgr8, which played
1 [1919] Foreign Relations of the United States, Vol. I (Paris Peace Conference),
p. 761 (1942).
The Council of Ten included two representatives from each of the five principal
allied and associated powers.
z Id., p. 741. (Italics added.)
3 Kerr, "PoliticalRelationsBetween Advanced and Backwards Peoples", in
Grant, IniYoducJion to the Study of Intematio11al Relations, p. 179 (1916). (Italics
ad4ed.)
Olivier, The League of Nations and PYimitiP~ople 13 (League of Nations
Pu5. Series (1918)). (Italics added.)
Curtis, "Windows of Freedom," in Round Table 27-28 (December 1918). SOUTH WEST AFRICA
a significant role in the development of Article 22 of the Covenant,
stated:
"It would seem as if the principle involved ... is that a colonial
power acts not as owner of its colonies, but as trustee for the natives
and for the intcrcsts of the society of nations ... thal the peace
conference may, therefore, write a code of colonial conduct binding
upon [ail) colcmialpowers." 1
Expressions of many such views, both in Britain and the United
States, were seriously weighed by the Governments of both Powers.
Thus, on 28 November rgr8, the Imperial War Cabinet met to
discuss the possibility of a mandates scheme. It was generally
agreed that "rnandatory occupation did not involve anything
of the nature of condominium or international administration
but administration by a single power on certain general !ines
laid dawn by the League of Nations." There would also be the
"right of appeal from the mandatory power to the League of
Nations on the part of anyone who consideree! himself ill treated
or claimed that the conditions2set down by the League of Nations
were not being fulfilled."
In a conversation with Colonel House on 29 October rgr8,
a short time before a meeting of the Imperial War Cabinet, Lloyd
George had indicated his hope that the United States could serve
3
as "trustee" for the German East African colonies.
On ro December rgr8 President Wilson spoke to members of
the "Inquiry," a.group set up under the direction of Colonel House
to provide views and suggestions regarding the settlement of the
colonial issue. The President expressed the view that the German
colonies should be declared the common property of the League
of Nations and be administered by small Powers "as trustees." 4
In an earlier conversation with the British Ambassador to Washing-
ton, the President was reportee! to have said that:
"... while he had little faith in international administration for
the Germancolonies and was absolutely opposed to their restoration
to Germany, he favored administration by single states 'in trust'.
'In trust for whom,' Wiseman asked. 'Weil for the League of
5
Nations, for instance' Wilson replied."
Confirmation of the !act that the word "trust" was not used,
as Respondent contends, as merely "descriptive of the idealistic
1
[1918] Foreign Relations of the United States, Vol. 1, Supp. 1, p. 407 (1933).
(I2alics added.)
Lloyd George, The Truth about the Peace Treaties, 1,lp.118 (1938).
3 [1919] Foreig1; Relations of the United States, VoL 1 (Paris Peace Conference),
p. 407 (1942); Tillman, Anglo-American Relations at the Paris Peace Conference of
I949 87 (1961).
Tillman, op. cit. supra, footnote 3 of this p.61; MillerTh~ Drafting of the
Co5enant, Vol. 1, pp. 41-44 (1928).
I918, in Papers of 5'ir WilliaWis~man} o(talics added.} 87 (conversation of 16 October REPLY OF ETHIOPIA AND LIBERIA 237
or humanitarian objectives involved in the Mandate System" 1
may be found, inter alia, in the comment by a noted American
scholar on colonial questions, cited by Respondent as an authority
in another context, 2 to the effect that, if
"... such backward regions are cntrusted by international mandate
to one State, there should be embodied in the deed of trust most
rigid safeguards both to protect the native population from ex
ploitation and also to ensure that the interests of other f3reign
States arc not injured eithcr positively or negatively."
By the time of the Peace Conference, accordingly, there was
wide support for the principle that the organized international
community should be a legal party in interest to the disposition
of the colonial issue. A surnmary of factors relevant to a settlcment
of the issue is set forth in the study of the Mandates System by the
Secretariat of the League of Nations in 1945, referred to abovc.
The study concludes that the proposai for a Mandates System
was satisfactory, inasmuch as it was "calculated to safeguard
the interests both of the natives and of those countries which
had asserted special clairns, and iu additi4n, the interests of the
international community in geueral." And, as. the same study
makes explicitly clear, the Mandates System "transforrned into
principles of international law" what had hitherto been accepted
in the international community sole!y as "moral principles" in
respect of the administration of colonial possessions. 5
As has been pointed out, acccptance of the principle of legal
responsibility and legal interest on the part of the organized inter
national community did not come easily to the Powers concerned
with the colonial issue, including Rcspondent. That certain of
them, again including Respondent, would have preferred outright
annexation stands unrefuted in the record herein. Indeed, Res
pondent describes its relationship with the Territory "as being,
in effect, close to annexation." 6
Respondent seeks to support such a contention on the basis,
inter alia, of its assertion that only by such a "concession" was it
"induced" to accept the Mandate at ali. The apparent implications
are either (a) that the Mandate was thrust upon it and accepted
rcluctantly; or (b) that, but for the so-called "compromise,"
Respondent would have annexed the Territory outright. Neither
implication derives any support from the record herein, and both
are untenable.
The record shows, on the other hand, that the "sacrcd trust"
1 Il, p. 104·
2 Id., p. 10.
3 Beer, Ajricat1 Questions at the Paris Peace Confere424-25 (1923). (Italics
added.)
• The Mandates System: Origin-Principles-Application 17-18 (League of
Na5ions Pub. 1945· VI.A.I .). (Italics added.)
Id., p. .rJ.
~ II, p. 15. SOUTH WEST AFRICA
and "tutelage principle," provided for in Article 22 of the Covenant
and detailed in the Mandate, comprised obligations of a legal
nature, in accorclance with the expressed objective of the organized
international cornmunity to afford legal protection to the well-being
and social progress of the inhabitants of mandatee\ territories, as
a "sacree\ trust of civilization."
Respondent's contention that the Mandate was "not far removed
from annexation" and was "in effcct close to annexation" is, indeed,
refutee\ by Respondent itself, in another context in the Counter
Memorial. There, Respondent contends that international accoun
tability was so essential a feature of the Mandates System that if, as
Respondent alleges, provisions governing such accountability have
lapsed, the whole Mandate must be deemed to have lapsed. In arder
to demonstrate the essentiality of international supervision,
Res pondent argues:
"As regards history, it seems clear that the various proposais
which precedee\ the Mandate System as actually agreee\ upon, al!
procecded from the basic principle of 'no annexations', to which
effect was to be given by sorneform or another of internationalization
of the govcrnment or administration of the colonies and territories
in question. ...
"The notion of 'Mandatories on behalf of the League' was there
fore integrally combinee\ with the notion of 'tutelage', as part and
parce! of the 'bcst method' of giving practical effect to the basic
principle of the sacred trust." 1
The "no annexations" principle underlying the Mandates System,
concedee! by Respondent, is a negative form of expressing the
affirmative objective of developing the Mandates, as rapidly as
possible, towanl sovereignty of their own.
The history of the Mandates System confirms the fundamental
importance attachee\ to the concept of self-determination and self
government.
Thus, at the meeting of the Imperial War Cabinet of 20 Novem
ber rgrg, it was generally agreee\ that Mandates should continue
only "until such time as the inhabitants of the country them
selves were fit for self-government." 2 In The League of Nations-A
Practical Suggestion, General Smuts endorsec\ the principle of "No
annexations, and the self-determination of nations." 3
The second Paris draft of President Wilson explicitly providee!:
"The abject of ail such tutelary oversight and administration on
the part of the League of Nations shall be to build up in as short a
time as possible out of the people or territory under its guardianship a
political unit which can take charge of its own affairs, determine its
own connections, and choose its own policies." 4
1 Il,pp. 169-170. (Italiin original.)
2 Lloyd George, The Truth about the Peace Treaties, Vol. 1, p.(1938).
4 Millerop. cie..>uprap. 236, footnote 4, Vol. II, p. 27.
Id., p104. REPLY OF ETHIOPIA AND LIBERIA 239
The provtsiOn contemplated by Wilson also provided chat the
League could at any time release the peoples or territories from tute
lage and consent to their being set up as independent units. 1
In the Council of Ten on 27 January rgrg, President Wilson
affirmed that:
"... whcre people and territories wereundevclopeù, [the mandatory
power should] assure their dcvelopment so that, when the timc
came, their own interests, as they saw them might qualify them to
express a wish as to their ultimate relations .... " 2
ln the same session of the Council of Ten, Wilson continued:
"The fundamental idea would be that the world was acting as
trustee through a manda.tory, and would be in charge of the whole
administration until the day whcn the truc wishes of the inhabitants
3
could be ascertained."
Paragraph (r) of Article 22 refers explicitly to "peoples not yet
able to stand by themse!ves."'
The word "yet" was included in the Hankey-Latham draft
of 28 January rgrg. When the draft was presented to the Commis
sion for the drafting of the Covenant on 8 February rgrg, "yet" had
been deleted. The drafting committee of the Commission, appointed
on 3 February rgrg, did not re-incorporate the word, although its
report recommended other changes in the draft of Article 22 (then
Article 17). In its report of 13 Fcbruary rgrg, however, the draf
ting committee recommended the re-insertion of the word "yet."
The Commission accepted this recommendation without debate, 5
and it remained in the final text.
On 17 May rgrg Wilson summarized for the Council of Four
his concept of the Mandates System. He stated, inter alia:
"The whole theor.y of mandates is not the thcory of permanent
subordination. It is the theory of development, of putting upon
the mandatory the duty of assisting in the developmcnt of the
countryunder mandate, inorderthat it may be brought to a capacity
for self government and self-depcndence which for the time being it
has not reachcd, and that thcrefore the countries under mandate
arecandidates, soto say, for full membership in the family of nations.
I think that this is a very important fundamental idea of the whole
mandatory conception." 6
Such insistence upon the objectives of self-determination and
self-government is crucially relevant to the necessity for inter-
t Miller,op.cil., p. 104.
:a[1919] Foreign Relations of.the United States, Vol. III (Paris Peace Conference),
p. 74I (1943).
3 Ibid.
4 (Italicsadded.)
' For the evolution of the draft with respect to the incorporation of the ward
"yet", see: Millerop. cil. supp. 236, footnote 4: Vol. I, p. 109; Vol. II, pp. 274.
283, 306, 328.
6 [1919] Foreign Relations ot lh1:United States, Vol. V (Paris Peace Conference),
p. 700 (1946). SOUTH WEST AFRICA
national accountability, as long as Respondent asserts rights and
powers over the Territory. Respondent had demanded outright
annexa tian; the framers of the Mandates System rejected its
daim. Far from making a "concession," the rcsult of which was
to vest in Respondcnt rights "not far removed from annexation,"
as Respondent contends, 1 or "the day-ta-day exercise of the at
tributes of sovereignty," 2 the authors of the Mandates System
wished to assure the speediest practicable progress of the inha
bitants of the Territory toward their own self-government and
sovercignty.
The function excrcised by "the League as an organized inter
national community" 3 in assuring accomplishmcnt of this objec
tive was not a quid pro quo for the undertaking by Respondent
to exercise duties under the Mand<i!C,as is implicit in Rcspondcnt's
argument that it consented merdy "to rcp8rt and account to a
specifie supervisory body, constituted under the provisions of a
particular international cJnnntion." 4 Such a construction of the
Mandate distorts the significance of its charactcr as a treaty or
convention, whi.le a.t the same time ignoring its signifi.cancc as
a 1IlCW intçrnational institution, the primary, overriding pur
pose of which b to promote the 'wdl-being and de5elopment' of
the people of the territory under Mandate."
The inhabitants wcrc the bencficiaries of the Mandate, not Res
pondent or the League of Nations. Respondent was to serve as
trustee, or tutor, under a mandate. The League was to servt! as
the then existent political organ of the international community,
guarding the public interest of that community.
The consensual character of the Mandate does not diminish
its essence as an institution. Respondent agrecd to undertake the
obligations inherent in the institution, and was under no constraint
or compulsion to accept the Mandate if it rejected its essential
attributes.
Applicants perceive in Respondent's central contentions fatal
inconsistencies:
First, Respondent argues that its rights under the Mandate have
survived even if its obligation of accountability has lapsed.
Secundly, Respondent argues that its obligation of accounta
bility is so much of the essence of the Mandate that, if such
obligation has lapsed, the whole Mandate has collapsed with it.
Thirdly, Respondent argues that the rights of the inhabitants,
including that of self-determination, are subject to its unreview
able discretion, while, at the same time, it claims to be vested with
1 II, p. 95·
2 IV, p. 6g.
3 judgment,p. 329.
4 II, p. IIg. (Italics in original.)
6 judgmcnt,p. 329.
See discussion at pp. 529-53infra. REPLY OF ETHIOPIA AND LIBERIA 241
powers equivalent to annexation of or sovereignty over the Ter
ritory.
Such a series of mutually incompatible principles strikes at the
heart of the Mandate's objective of self-determination and self
govcrnment.
This objective appears cleaily from official and scholarly dis-
cussion of the subject from the year rgrg onward. Examples follow:
r. " ... The whole theory of mandate is not the theory of permanent
subordination. It is the theory of development, of putting upon
the mandatory the duty of assisting in the development of the coun
try under mandate, in order that it may be brought to a capacity
for self-government and self dependence which for the time being it
has not reached, and that therefore the countries under mandate
are candidates, soto say, for full membcrship in the familyofnations.
I think that is a very important fundamental idea of the whole
manda tory conception." 1
2. " ... The vital principles are: the principle of nationality in
volving the ideas of political freedom and equality; the principle
of autonomy, which is the principle of nationality extendcd to
peoples not yet capable of complete independent statehood; the
principle of political decentralisation, which will prevent the power
fui nationality from swallowing the wcak autonomy as has so often
happened in the now defunct European empires .... The only com
promise 1 make, and make parti y to conciliate the great Powcrs and
partly in view of the administrative inexperience of the league at
the beginning, is the concession that, subject to the authority and
control of the league, which I mean. to be real an.d effective, suitable
Powers may be appointed to act as mandatories of the league in the
more backward peoples and areas. That compromise2will, I hope,
provc to be only a temporary expedient."
3. "Dans l'esprit des rédacteurs du Pacte [de Versailles] il s'agit
pour la puissance mandataire plus d'une mission civilisatrice accélé
rant l'évolution sociale des peuples que d'une simple gestion ad
ministrative." 3
4· "Si l'on envisage cette tâche dans l'esprit où elle est définie
dans l'art. 22, la voie du mandataire est tout aplanie et le sort du
territoire qui est actuellement une colonie est assuré: ce territoire
deviendra peut-être en son temps un Etat indépendant et, dès lors,
il jouera le rôle, considérable ou non, qui lui est dévolu dans l'en
semble des Etats." •
s. "... [The Mandates System] has also introduced into colonial
administration a defined objective, namely, the graduai preparation
1
Speech by President \Viison, quoted in [1919] Foreign Relations of the United
St2tes,Vol. V (Paris Peace Confer•O!nce),p. 700 (1946).
3 Smuts, The League of Nations. A Pradical Suggestùm, 27-28 (1918).
4 Maurice Besson, in L'Afrique Française 14 (1921).
H. C. G. J.van der Mandere in 54 Bulletin de lSociétéBelge d'Etudes et d'Ex
pansion 369 (1926). SOUTH WEST AFRICA
of dependent peoples for the independent management of their own
affairs and for their ultimate growth into statehood. lt is unthink
able that a large part of the population of the world should remain
in permanent subjection to a section of the other part, merely
because their colour is different or their political experience is at
present inferior. The 1\'Iandate system points the road to their
ultimate emancipation, and so rapid is the development of sorne
races that have habitually been regarded as 'backward' !hat this 1
goal may in many cases be reached sooner than sorne of us think."
6. "[The Ma.ndated Territory of New Guinea] is to be controllcd
as if it were, contrary to the fact, an integral portion of the Com
monwealth [of Australia]; but its development is to be not towards,
but away from, absorption by the Commonwealth." 2
7· "... [The Mandates System] was essentially temporary in
character. The assumption was that it would come to an end when
the various terri tories were able to 'stand by themselves. "' 3
8. "... Underlying Article 22 was th4 assumption of independent
national sovereignty for mandates."
9· "The Mandates Commission consistently upheld the theory
of ultimate independent sovereignty. It made no attempt to mini
mize the effect of the vague words of the Covenant in reference to
the ultimate destiny of 'B' and 'C' mandates. It assumed that sover
cign independence, and not merely 'self-government' and 'autonomy,'
was intended by the Covenant .... ''s
ro. "Again, the phrase 'peoples not yet able to stand by them
selves' is us,~ It.follows from this and from the very conception
of tutelage that this mission is not, in principle, intended to be pro
longed indefinitely, but only until the peoples under tutelage are
capable of managing their own affairs." 6
B. NATURE OF THE MANDATE AS VIEWED BY THIS HONOURABLE
CouRT
Rcspondent's premise that the Mandate was "close to annex
ation" underlies Respondent's contention th at its rights and daims
to the Territory would remain intact even if, as Respondent
con tends, the Mandate bas "lapsed as a whole." 7Such a contention,
it is true, is not advanced with explicit candour, but it is an inescap
able consequence of Respondent's assertion of freedom from
accountability without relinquishment of right or title.
1 A. D. McNair in his Preface to Bentwich, The Afandates System vi (1930).
:z Evatt,J. in}olley v. Mainka (High Court of Australia,1933),Annual Digest
and Reports of Public Intetnational Law Cases(1933-34), Case 17, p. 48.
3 H. D. Hall, Mandates, Dependencies and Trusleeship 31 (1948).
4 Id.,p. So.
' Id.,p. 81.
6 The Mandates System: Origin-Principles-Application 23 (League of Nations
Pub. 1945· VI. A. 1.).
7 JI, Chap. V. REPLY OF ETHIOPIA AND LIBERIA 243
Respondent's position in this matter not only contrasts with
Applicants' understanding of the nature of Respondent's voluntary
assumption of the Mandate obligations.' It also is in conflict with
repeated holdings of tbis Honourable Court.
Clear expression has been given by the Court to the nature and
central principles of the Mandates System. In its ]ndgment of 2I
December I962 in respect of the Preliminary Objections, the Court
said:
"The essential principles of the Mandates System consist chiefly
in the recognition of certain rights of the peoples of the under
developed terri tories; the establishment of a regime of tutelage for
each of such peoples to be exerciscd by an advanced nation as a
'Mandatory' 'on behall of the League of Nations'; and the recogni
tion of a 'sacred trust of civilization' laid upon the League as an
organized international community and upon its Member States.
This system is dedicated to the avowed abject of promoting the
well-being and development of the peoples concerned and is fortified
by setting up safeguards for the protection of their rights.
"These features are inherent in the Mandates System as conceived
by its authors and as entrusted to the respective organs of the
League and the Member States for application. The rights of the
Mandatory in relation to the mandated territory and the inhabitants
have their foundation in the obligations of the Mandatory and they are,
soto speak, mere toolsgiven to enableil to fulfil its obligationsThe !act
is that each Mandate under the Mandates System constitutes a new
international institution, the primary, overriding purpose of which
is to promote 'the well-being and development' of the people of the
terri tory under ti.Iandate." 2
The italicized language reflects an carlicr holding of the Court,
in its Advisory Opinion of II ]nly I950, quoted with approval in
the ]udgment of 2I December I962:
" The authority which the Union Governmcnt cxcrcises over the
Territory is based on the Mandate. If the Mandate lapsed, as the
Union Government contends, the latter's authority would equally
have lapsed. To retain the rights derived from the Mandate 3nd to
deny the obligations thereunder could not be justified."
Respondent has not sought to explain, either in its Preliminary
Objections or in the Oral Proceedings thereon, any basis for its
disclaimer of international accountability while at the same time
1 Respondent seeks to support its constructioof the "compromise" in Article
22 of the Covenant as "being in effect close to annexation" by averring that by
this means "Respondent was induced to agree to the Mandate System" (Il, p. 15).
It is true that Respondent, Australia and New Zealand "strongly pressed their
cases for incorporation" of the former Gennan colonies in question, including
South \Vest Africa. ltdoes not at ali follow that the alternativto the Mandates
System would have been anne.xation or incorporation; such a conjectural re
construction of history cannatbedebated with profit.
2 Judgment, p. 329. (Italics added.)
3 l.C.J.Reports I950, p. 133; quoted injudgment, p. 333·244 SOUTH WEST AFRICA
maintaining rights of administration and possession over the Terri
tory. In its Counter-Memorial, Respondent adverts to the matter,
but refrains from an attempt to show eithcr how such a result
could be "justified," or on what grounds, or pursuant to what
construction of the Mandate, Respondent hopes to "exclude the
obligations connectcd with the Mandate," without at the same time
excluding "its very essence."
Rcspondent concedes that its contention concerning the lapse of
the Mandate, "has, on occasions in the past, resulted in the raising
of the further questions whether, in such event, Respondcnt would
have to rely on a basis other than the Mandate as such for a right
or title to administer the Ter1itory of South West Africa and if so,
what that basis would be."
The only "occasion in the past" referrcd toby Responclent is the
abovc-quoted ruling of the Court in its Advisory Opinion of II ]uly
I950. Another "occasion," unnoted by Respondent, is the explicit
holding of the Court in its]udgment of 2I Decemb,;rI962, also quoted
2
above.
Respondent's unilateral conception of its right and title to the
Terri tory, as weil as its clisregard of the Court's views concerning the
nature of the Mandate itself, is revealed by the manner of Respon
dent's disposition of such questions, which it concedes have arisen
"on occasions in the past." Respondent confines itself to the
comment that
"Such questions do not, however, fall to be considered for the
purposes of the present case.... "1
To this curt dismissal of questions to which the Court has attached
solemn and decisive weight, Respondent adds a similarly terse
comment:
''...Respondent does not claim, but on the contrary, cxpressly
disclaims, that its right of administration is based on continued
existence of the Mandate." 3
Applicants respectfully submit that, to the contrary, there is no
basis whatever, other than the Mandate itself, for the continued
exercise by Respondent of rights of administration, or of any other
right, title or interest in or to the Territory.
Respondent's conception of the nature of the Mandate similarly
gives rise to, and shapes, Respondent's interpretation of the second
paragraph of Article 2 in a sense sharply in conf!ict with that of
Applicants.
l~espond connsrues the aforesaid provision as not embodying
obligations of a legal nature, but as indicating merely "the objective
l Il, p. IJJ.
2 Supra, p220.
3 Il, p. 174· REPLY OF ETHIOPIA AND LIBERIA 245
to be pursued by the Manda tory, or the spirit with which he should be
imbued, in exercising his power of administration and legislation."'
From this point of departure, Respondent concludes:
"It follows consequentially !hat the particular methods whereby
this purpose was sought to be attained, wereleft to the discretion of
the Mandatory."'
Applicants demonstrate more fully below the legally normative
nature of Respondent's obligations toward the inhahitants of
the Tcrritory in terms of the second paragraph of Article 2. The
present reference to Respondent's characterization of that provision
is relevant as showing the wide divergence between Respondent's
conception of principles basic to the Mandates System, and that of
the Applicants.
As the History of the Dispute in the United Nations' makes clear,
Applicants' understanding and evaluation of the nature of the Mandate
and of its essential princip/es corresponds to that of the United Nations,
in and through the agency of which Applicants have sought to make
known their views concerning the issues in dispute and to settle
their dispute with Respondent by means of negotiation in and
through the diplomatie agency oi the United Nations.
As the M ernorials make clear, 5 and as is more fully set forth
below, passim, the League of Nations, primarily through the
Permanent Mandates Commission, actively developed and expound
ed its understanding and evaluation of the nature of the Mandate
and of its essential principles.
In view of the importance attaching in the Mandates System to
international supervision and accountability (which Respondent
both concedes and contends), 6as weil as the undoubted competence
and integrity of the members of the Permanent Mandates Com
mission, their views concerning the nature and purposcs of the
Mandates System traditionally have been accorded great wcight
and are, indeed, frequently cited by Respondent in its Counter
fl,emorial. The views of the Commission assume even greater signi
ficance in the light of their consistent development throughout the
nineteen years of the Commission's existence, a development
which, though interrupted by the war years, was revived with
noteworthy continuity and carried on with equal consistency by the
United Nations, its organs and agencies, dealing with the Mandates
and with cognate issues.
It is, accordingly, pertinent to consider the nature of the Mandates
System as viewed by the Permanent Mandates Commission.
1 Il, p. 387. (Italics added.)
' Id., p. 387.
3 Infra, pp. 476-519.
4 1, pp. 43-85. Replsupra,pp. 222·230.
5 I, pp. 37-40.
6 Supra,p. 238; Il, pp. 1U. SOUTH WEST AFRICA
C. NATURE OF THE MANDATE AS VIEWED BY THE PERMANENT
MANDATES COMMISSION
The views of the Permanent Mandates Commission and its
members concerning the nature and essential principles of the
Mandates System are entitled to great weight, for reasons already
set forth.'
Although the development of the concept of legal responsibility
of governing powers to promote the well-being of subject peoples
hadled to acceptance of treaties or other international instruments
in parti cular cases' prior to the Covenant of the League of Nations,
the Mandates System initiatcd a new phase in the development of
the concept: the establishment ofinternational supervisory authority
both administrative and judicial, to assure the observance of the
legal obligations of Sta3es administering peoples "not yet able to
stand by themselves."
The essence of the international supervisory jurisdiction thus
established was submission by the Mandatory to the supervision of
the League of Nations and the ultimate control of the Permanent
Court of International Justice to assure observance of the Mandator
ies' procedural obligations vis-à-vis the League and the substantive
responsibilities which they bad undertaken toward the peoples of
the mandated territories.
The Permanent Mandates Commission was diligent in defining
and upholding the basic nature and principles of the Mandate for
South West Africa.
The Commission, which was operative during the years rgzo-rg3g,
was established pursuant to the provisions of paragraph 9 of Article
22 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."
r. Composition and Character of the Commission
a. The Compc•sition of the Commission
The Commission's organization and procedures were governed by
a Constitution and Rules approved by the Council of the League of
Nations. The Commission, composed of nine (later ten, then eleven)
members, norm:ùly held two sessions a year, when the annual reports
of the llfandatories to the Council of the League were discussed and
examined. The Commission was assisted in its work by the presence
of an accredited representative of the Mandatory, who was available
to answer questions put by members of the Commission and to
1
Supra.p. 245·
3 Examples are the Berlin Act of t885 and the Brussels Act of tSgo.
set forth in I,200..e VO!agueof Nations, Art22.para. 1,the text of which is REPLY OF ETHIOPIA AND LIBERIA 247
amplify or correct statements in the reports. The Commission
formulated detailed questionnaires covering all phases of adminis
tration, ta be used as guides by the Mandatory Powers in the pre
paration of their annual reports. In addition to such reports, the
Commission had at its disposa! a variety of documentation, official
and otherwise, collected by the Mandates Section of the League
Secretariat. Finally, petitions setting forth grievances of the
inhabitants of the Mandated Territories wcre received and evaluated
by the Commission.
The members of the Commission were chosen primarily for their
expertise in matters of colonial affairs. Many of them had already
distinguished themselves as colonial administrators. They were,
above al!, endowed with practicality and experience. Sorne, as for
example Sir Frederick Lugard and M. Van Rees, enjoyed high
repute as writers and scholars on colonial administration and the
Mandates System.
With the exception of the Japanese member, al! of the Commis
sioners were Europeans. As originally established, the Commission
consistee! of nationals of Belgium, the British Empire, France,
Ital y, Japan, Netherlands, Portugal, Spain, and Sweden. Except that
a national of Norway replacee! the Swedish member in 1928,
members were in every case replacee! by nationals of the same
country. In addition, a Swiss national and a German national
were appointee! as Commissioners in 1924 and 1927, respectively.
Thus, at one time or another; nationals of Belgium, the British
Empire, France, Italy, Japan, Netherlands. Portugal, Spain,
Sweden, Norway, Switzerland, and Germany served as members of
the Commission.
b. The Character of the Commission
The Commission may be described as in essence a quasi-judicial,
quasi-administrative organ, analogons to similar bodies familiar
to many municipal systems, the function of which is the inter
pretation and application of provisions of a legislative nature, within
a constitutional framework.
That the Permanent Mandates Commission was regarded, by
itself, as well as by the Council of the League, in this light appears
clear from the Records of its Proceedings.
In the Commission's First Session, M. Rappard, then Director
of the Secretariat, stated that the League Council "had "~shed,
moreover, that each member of the Commission should be freed
from any obligation ta its own government, so that he could sit,
not as a representative of any particular Government, but as an
entirely impartial judge."1
1 P.M.C. Min.1stSess., ü. !Italics added.) SOUTH WEST AFRICA
During the Fifth Session of the Commission, the Chairman de-
clared:
"... The raison d'êtreof the Commission was to recall ta govern
ments the necessity for observing the principles of the mandate,
principles which it must safeguard so as to prevent any suspicion
arising as to the manner in which the mandatory Power executed
1
its tas k."
In its official report to the Council of the League during the
Eighth Session, the Commission observed that
"the task of tke Commission is one of supervision and of co-operation.
It is its duty, whm carefully examining the reports of the mandatory
Powers, to determine how far the principles of the Covenant and of the
Mandates have been truly applied in the administration of the different
territories.''
During the final session of the Commission, the Chairman sum
marized the character of the Commission, in discussing the duty
of the Commission to consider a British White Paper on Palestine:
"Jt might be asked-at the present meeting, no doubt, to do [so]
was merely to knock at an open door, but the question had been raised
elsewhere~whe theh eommission was obliged today to give its
opinion on the question whether the \Vhite Paper was in keeping
with the mandate. The Chairman personally thought that was a
duty the Commission could not escape. lt was indisputably what
was expected of ü. Jt might have to give its opinion on other points
as wcll, but certainly on that one. To use an expression frequent/y
heard at its meetings, the Commission, as the 'guardian of the mandate,'
UJasfuljilling one of ils essential functions by doing so. He would go
further and say it was its duty to do so. If it failed to carry out
that duty, it would be abdicating and ruining any authonty it
might posses5.
"fVould it besaid thal it was not qualified to interpret the mandates?
But il had done nothing else since the very beginning of its existence.
It had done that for the Palestine mandate itsclf, for the Tangan
yika, Ruanda-Urundi and South- \Vest African mandates; and were
not the observations which it had submitted to the Council as the
result of its examination of the various annual reports based on its
conception of the provisions of the mandates? Neither the Council
nor the mandatory Powers had ever suggested that in doing so it
had exceeded its duties or its competence." 3
The Commission olten applied the principles of the mandates to
situations and proposais, rendering a judgment accordingly. Such
a quasi-judicial function was exercised, for example, in respect of
the question whether the British White Paper was in conformity
with the Mandate for Palestine; whether the South African Colom
Bar Act was in conformity with the Mandate for South West
1 P.M.C. 1\lin., 5th Sess.18..
% P.M.e. Min., St:h Sess.,zoo. (Italicadded.)
3 P.M.e. ~lin 36,h Sess.,p.207. (ltalicadded.) REPLY OF ETHIOPIA AND LIBERIA
249
Africa; whether a plan for "doser association" between Tanganyika
and the neighbouring East African colonies was pennissible under
the Mandate for Tanganyika. Many other specifie instances direct! y
relating to South West Africa are referred to in appropriate contexts
in this Reply.
The Commission was mindful that its duty was not the rendering
of politicaldecisions. It exercised its authority as a body of indepen
dent experts, and it is common cause herein that the independence
and competence of its members gave great wcight and authority
toits judgments.
When a question arase as to revision of the Commission's ques
tionnaire, Respondent, along with other Mandatories, demurred.
Lord Lugard responded for the Commission.
"Severa! of the Mandatories ... have very definitely declared
that in their opinion such detailed questions ought not to be asked.
They are describecl as inquisitorial and as dealing with matters
quite outside our proper functions. They are, however, merely a
reproduction of thosc which have been asked orally. The objection
of the Mandatories is not therefore to the 'list' as such but to the
whole method and procedure of the Permanent Mandates Commis
sion, and this was made more clear in their speeches. ...
"It wo{ild seem to be the view of the mandatory powers that the
Permanent Mandates Commission shoulcl confine itself to seeing
that no gross and general maladministration is taking place, and
that questions should be asked on! y regarding matters on which the
Permanent Mandates Commission has cause for doubts. But it is bv
asking general questions that causes for doubt emerge. If the Pei'
manent Mandates Commission is to discharge only functions of the
perfunctory nature indicated, it would hardly seem worth while
for men who have many other demands on their time to devote
themselves to the work. The South African delegatecomplained thal
the action of the Permanent Mandales Commission 'constituted an
investigation of the polù:y of the1lt4andatory in üs own country'.
Is not thal precise/y ils function?"
In the samc statement, Lord Lugard made clear the Commission's
policy of avoiding political judgments, in painting to the !act that
the Commission criticized laws and practices of 1\Iandatories, even
if similar laws and practices were applied by the Mandatories within
their own domestic jurisdic:tion.
The quasi-judicial, non-political character of the Commission is,
accordingly, beyond dispute.
2. Legal Basis of Respondent' s Obligations
The Commission, as has been pointed out, considered itself a
quasi-judicial, non-political body, the function of which was to
apply standards of a legal nature to specifie policies and acts. The
1 P.I\LC. Min., utSess., pp. 166-67. (ltalics addcd.) SOUTH WEST AFRICA
Mandate institution embodied a system of a legal nature, with legal
obligations, and susceptible of legal interpretation and application.
A clear and concise illustration of its view in this respect may
be found in the Commission's discussion of Togoland, under
French Mandate: "The Chairman recalled that the mandate was the
constitutionallaw of the territories under mandate, operatingunder the
peculiar circumstance thal it had arisen Oztt of an international
Convention.'' 1
In the course of the Commission's review of Palestine, "the Chair
man declined to find any opposition between the 'spirit' of the
Covenant and the terms of the mandate. He saw no contradiction
between those two texts, which for seventeen years had constituted
the law that the Commission had applied to the case of Palestine. "2
Similarly, during consideration by the Commission of the question
whether "doser association" between Tanganyika and neighbouring
British colonies could be justified undcr Article ro of the Mandate
for Tanganyika:
"M. Rappard pointed out that, though the mandates might be
compared to international agreements, they were, at the same time,
the enforcement of the principles laid down in Article 22 of the
Covcnant. 1/ there was a very definüe contradiction between these
principles, which were constitutionat. and their application which was
legislative in nature, it might well be asked what was the validity
of such agreements. M. Rapoard did not think that the Commission
bad reached this point. A solution should be sought in the following
direction: the text of the mandates should be interpreted in the
light of the principles which they should carry out. If,according to
one interpretation, there appeared to be a contradiction with
Article 22, it was the interpretation which was at fault. The only
interpretation which was permissible was one not contrary to the
principles of that article."3
Mr. Kastl reaffirmed M. Rappard's statement.'
As noted above, the Commission considered its task to be one of
"supervision and of co-operation." In discharging its latterfunction,
the Commission was at pains not to express its judgment harshly, in
deference to the recognized difficulty confronted by Mandatories
in the effective discharge of their obligations. The Commission often
expressed the hope that it could discharge its own functions in a
spirit of collaboration, rather than dictation. In the face of this
approach to its task, ali the more significance emerges from the
frequent occasions upon which the Commission felt constrained to
express criticism of Respondent, sometimes in blunt and reproach
ful terms. Instances are set out in appropriate context in other
sections of this Reply.
2 P.M.e. Min., 34th Sess., p. 130. (Italics added.)
3 P.M.C. Min., 36th Sess., p. 206. (ltalics added.)
P.M.e. Min., 15th Sess., p. 170.
• P.M.e. !\'lin., 15th Sess., p. 204. REPLY OF ETHIOPIA AND LIBERIA
As "guardian of the Mandate," the Commission examined
reports of the Mandatories, annually for nineteen years. In the
course of such examination the Commission addressed questions
to accredited representatives of the Mandatories. From time to
time, the Commission was also called npon by the League Council
for expert advice.
As a consequence of the Commission's functions of supervision,
there evolved perennially what may be described as a "concrete con
tent" of Mandates, the substance and form of which are embo
died in the Commission's minutes. This uconcrete content" is
reflected in pronouncements of general principles, such as the com
pilation of "General Conditions which must be fulfilled before the
Mandate Regime can be brought to an End in Respect of a Country
placed und er that Regime." 1
More frequently, the substantive contcxt of a broadly stated
obligation of a Mandatory was developed through continuons
application of general criteria to concrete factual situations.
As clearly appears from the record of its Proceedings, the Com
mission performed a quasi-judicial function of elaboration, distilla
tion and specification of the broadly phrased "constitutional"
principles of the Covenant and the Mandate. Explanation of the
fact that the Commission found little difficulty in accomplishing
this task, no doubt is to be found in the admitted competence of the
Commission itself and in the widely accepted understanding of the
nature of the obligations vested in the Mandatory by the legal
instruments of the System. The major sources from which the Com
mission derived its explicit formulations are described more !ully
below.
3· Purposes and Objectives of the Mandate
In arriving at its judgments concerning the Mandatory's duties,
the Commission proceeded from identifiable purposes and objectives
of the Mandates System as a whole.
Thus, both the Commission and the League Council endorsed
the view that Mandates, including that for South West Africa, wcre
for an indefinite duration, their goal in each case being self-govern
ment, even though the "B" and "C" Mandate Instruments con
tained no explicit provision to this effect. Excerpts from the Com
mission's minutes are illustrative.
a. "The victorious Powers having agreed at the close of the war
on the two \Vilsonian principles on which the Peace Treaties were
to be based-the principle of the non-annexation of conquered
territories and the principle of self-determination-the question
arose whether those principles could satisfactorily be applied in
their entirety to ali the territories which were no longer under the
sovereignty of the States that had formerly governed them. lt was
feltthat the second principle clearly could not operate in certain
t P.M.e. Min:, 2oth Sess., p. 228.252 SOUTH WEST AFRICA
territories, because they were inhabited by peoples who at that
time were incapable of self-determination, or, in other words, of
self-government. This was the origin of the mandate system, which,
having regard to the temporary incapacity of these peoples to assume
the responsibility of independence, required that the application of the
principle should be suspended but should by no means be canee/led." 1
(M. Van Rees.)
b. "The territories placed under mandate not being independent,
for before the Treaties of Peace they belonged either to Turkey or
to Germany, the aim of the mandate was to bring those territories to
the condition necessary for complete independence. This they did not
possess and were not yet capable of possessing, i.e. they were inca
pable of self-government . ...
"... Unfortunately, neither Article 22 of the Covenant nor the
texts of the mandates have defined either the other general or
special conditions of the termination of the mandate or the procedure
required for this purpose. We shaH therefore have to deduce them
by interpreting the different provisions governing the mandate sys
tem.
"lt has sometimes been urged !hat the B and C mandates were
definitive, th us confusing a particular situation with a legal principle.
"Ail the mandates are equally of limited duration, for ali are based
on Article 22 of the Covenant, whose spirit was determincd by the
fifth and twelfth of President Wilson's points. The system was
created to n:medy the incapacity of the territories to govern them
selves. Ablata causa cessit e[jectus."2 (Count de Penha Garcia.)
Addressing [himself to a resolution of the Legislative Assembly
of South West Africa (composed solely of "Whites") advocating the
incorporation of South West Africa as a fi!th province of South
Africa "subject to the provisions of the saicl Mandate," a Member
of the Commission concludecl:
c. "... According to what the Commission learned ... with regard
to the Legislative Assembly's resolution, the terri tory would be ad
ministered as a fifth province of the Union 'subject to the provisions
of the said mandate'. Thal was precisely where confusion might
arise. A place could doubtless be found in the administration of any
territory, even a sovereign territory, for the provisions of the
mandate-n amel y, th ose on the protection of labour, freedom of
conscience, the welfare of the natives, protection against slavery,
akoho1ism and dangerous drugs, etc. lt wouJd be possible to main
tain them in the fifth province, but, notwithstanding, the mandate
would be violated solely by the establishment of the province. The man
date was not made up solely of a whole group of protective
provisions, but, by making these provisions the basis of a sui generis
status for the territory and its inhabitants, it constituted a new
institution set up under Article 22 of the Covenant as an historie com
promise between extremely complicated interests." 3 (M. Palacios.)
1 P..M.C.1\Iin., 2oSess., pp.196-97. (JtaJjcs added.)
1 P.M.e. Min., 2oth Sess., p. 200. (ltalics added, and in original.)
3 P.M.e. Min., 26th Sess., p. 164. (ftalics added.) REPLY OF ETHIOPIA AND LIBERIA 253
The Commission never expressed a doubt that the obligations
embodied in the Mandate must be interpretee\ so as to give effect to
the purposes and objectives underlying not only the tenns of the
instrument itself, but of Article 22 of the Covenant, as weil. Despite
the absence from the Mandate instrument of explicit prohibition of
incorporation, such incorporation was neverthelcss held to be
ttltra vires,in the light of Article 22 of the Covenant.
Considering the expenditure of the territory's funds for native
education, taking into account the total funds available, the
Commission examinee\ the Mandatory's duties in the light of the
underlying objectives of the Mandates System:
d. "An ana.lysisof the I:!Xpcnclituren education would show that
about ten times more moncy wasspcnt on white than onnative educa
tion; as, moreover, there were about ten times less whites than na
tives in the territory, the average amount spent on the education
of a white child was 100 times more than that spent on a native
child. M. Rappard felt bound, however, to point out that the man
date had been established for the benefit of 'peoples not yet able
to stand by themselves under the strenuous conditions of the modern
world' (Article 22 of the Covcnant, para. r). That being so, the
policy of the Administration seemed to M. Rappard to be a little
ditficult to reconcile with the terms of the Covenant and of the mandate.
History seemed to show thai, on every occasion in the past when whites
and blacks had come into contact in territories cqually inhabitable by
both races, the blacks had gone to the wall. The mandate system repre
sented a kind of protest against the continuation of this state of atfairs.
In view of the !act that the territory of South West Africa was the
only one of the B and C mandatcd territorics in which there was an
appreciable population of white farmers, it seemcd especially neces
sary to safeguard the interest1 of the natives, particularly from the
point of view of education." (M. Rappard.)
4· Conclusions
It is beyond dispute that, throughout ils !ife, the Commission
developed and interpretee\ legal principles, basee\ upon the Mandate
instrument and the Covenant, and applied such legal principles to
specifie situations.
The Commission's unanimity on this matter is noteworthy. The
Commission, as a quasi-judicial body, gave expression to objective! y
determinee\ conclusions of a legal nature, th us cleveloping a body of
practice and doctrine which furnish the basis, inter alia,for juclicial
determination concerning the scope and nature of Respondent's
legal obligations under the terms of the :Mandate for South West
Africa.
The illustrative examples cited above reveal the Commission's
insistence upon maintaining intact the central purpose of the
1 P.M.e. 1\lin., r8th Sess., p. 136. (ltalics added.)254 SOUTH WEST AFRICA
Mandate, which was the establishment of Respondent's fiduciary
responsibility. Any suggestion that such a purpose could be sub
verted by annexation or incorporation of the Mandated Territory
is clearly inconsistent with the views expressed by the Commission.
Equally unacceptable is a suggestion that Rcspondent's obligations
toward the inhabitants of the Territory are not subject to legal
norms or standards, but are governed only by Respondent's
discretion, free of international supervision and accountability.
It is indeed difficult to perceive a distinction between such a state
of affairs and outright annexation or incorporation. CHAPTER IV
RESPONDENT'S VIOLATIONS OF ITS OBLIGATIONS
TOWARD THE INHABITANTS OF THE TERRITORY
A. THE ]{ELEVANT SUBMISSIONS
Applicants' Submissions 3 and 4, to which this Chapter IV of the
Reply is addressed, are reproduced for the convenience of the
1
Court. Respondent has misconstrued these Submissions in severa!
important respects, one consequence of which, discussed more
lully infra, pp. 260-262, is Respondent's presentation to the
Court of voluminous details of doubtful relevance to the central
issues herein.
I. Respondent erroneousl y asserts, and construes the Sub
missions accordingly, that Applicants' contentions with respect to
Respondent's violations,
"... amount, on analysis, to a charge that Respondent has exercised
its 'full power of administration and legislation' under Article 2
of the Mandate in bad faith.... " 2
Respondent's misinterpretation of the import of the Submissions
reflects its fallacious assumotions regarding the nature of the
Mandate and of the charac:ter of Respondent's duties thereunder. 3
That this is a valid explanation of Respondent's misconstruction
of Submissions 3 and 4 will be readily apparent from the syllogism,
false in its parts and in toto, on the basis of which Respondent
1Text in 1,p. 197: "3. The Union, in the respects set forth in Chapter V of
this Memorial and summarized in Paragraphs 189 and Igo thereof, bas practiccd
apartheid, i.e., bas distinguishedas to race, color, national or tribal origin in
establishing the rights and duties of the inhabitants of the Terri tory; that such
practice is in violation of its obligations as stated in Art2cof the Mandate and
Article 22 of the Covenant of the League of Nations; and that the Union bas the
duty forthwith to cease the practice of apartheid in the Territory;
"4. The Union, by virtue of the economie, political, social and educational pol·
icies applied within the Territory, which are described in detail in Chapter V of
this Memorial and summarized at Pamgraph I90 thcreof, bas failed to promote
to the utmost the material and moral well·being and social progress of the inhabi·
tants of the Terri tory; that its failure to do sois in violation of its obligations as
stated in the second paragraph oi Article2 of the Mandate and Article 22 of the
Covenant; and that the Union bas the duty forthwith to cease its violations as
aforesaid and to take ail practicable action to fulfil its duties under such Articles."
1Il, p. 2. To the same effect, Respondent states elsewhere that Applicants'
"case alleged against Respondent , , . is one of bad faith in the exercise of its
powers ...."(Il, p. 395·)
3
at pp.s476·519,sinfra.entions regarding the nature of the lVIandate are appraised SOUTH WEST AFHICA
presents its case and adduces its evidence with respect to Applicants'
Submissions:
(r) "... The particular methods whereby this purpose (i.e.,effectua
lion of Article 2 of the Mandate) was sought to be attained, were
left to the discretion of the Mandatory." 1
(2) "...[T]o establish a breach of this Article, it would be nccessary
to prove that a particular exercise of Respondent's legislative or
administrative powers was not directed in good faith towards
such purposc." 2
Thereforc: (3) "Whatcvcr the Court may think of the merits of a
particular legislative or administrative act, practice or policy, if it
was devised and performcd or practised in the exercise of the Man
datory's discretion with the bona (ide intention of benefiting the
inhabitants of the Territory, it would not constitute a violation of
3
Article 2 of the Mandate."
As has been pointed out earlier,' there is at best a tenuous distinc
tion between a contention that the administration of the Mandate is
"left to the discretion of the Mandatory," frec of international
5
supervision and accountability and a contention that the Mandate
created a relationship between Responclent and the Terri tory "close
to annexation." 6
Applicants' Submissions 3 and 4 arc, on the contrary, basecl upon
the conclusion, amply supportecl in the M emorials,' that:
0 , •• By law and by practice, the Union has followcd a systematic
course of positive action which inhibits the well-being, prevents the
social progress and thwarts the development of the overwhelming
majority of the people of South West Africa. 1n pursuit of this
systcmatic course of action, and as a pervasive feature of it, the
Union has installed and maintaincd the policy and practicc of
apartheid.
"Under apartheid, the status, rights, duties, opportunities and
burdens of the population are dctermined and allotted arbitrarily
on the basls of race, colour and tri be, jn a pattern which ignores the
needs and capacities of the groups and individuals affected, and
subordinates the interests and rights of the great majority of the
people to the preferences of a minority. Since this section of the
Memorial is concerned with the record off act, it deals with apartheid
as a fact and not as a word. It deals with apartheid in practice, as it
1
2 Il,p. 387.
3 Id.,p. 390.
4 Id.,p. 392.
5 Supra, pp. 231-233, 237~241.
As Respondent explicitly insists in its Counter-i'VIemorial, Il, p. 164:
"Respondent's obligations ta report and account to, and submit to the super·
vision of, the Couneilof the League of Nations,lapsed upon dissolution of the League
and have not been .,.eplacedby obligations to submit to ihe supervision of any organ of
the United Nations or any other organization or body." (Italics added.) This conten
tion is discussed and disprovcd at pp. 520-552, infra,
6 Il,p. 389.
7Chapter V, passim, REPLY OF ETHIOPIA AND LJBERIA
257
actually is and as it actually has been in the !ife of the people of the
Territory, and not as a theoretical abstraction. ... "
Applicants' characterizations of Respondent's policies and
objectives by terms such as "deliberately," "knowingly," and the
like, clearly are intended as inferences and conclusions reasonably
flowing from Respondent's course of conduct, which is set forth
cxplicitly and fully in the lfl emorials. Such charactcrizations reflect
a nniversally acceptcd axiom thal, in the absence of evidence to the
contrary, the predictable consequences of conduct are presumed to
be intended. Respondent demonstrates its awarcness of the true
significance of Applicants' characterizations of its conduct, by
itself equating "systematic" with "deliberate,"' bath of which
terms are used by Applicants interchangeably.
Respondent's contention that its dispute with Applicants regarding
the performance of its obligations under Article 2 of the Mandate
hinges on the issue of Respondent's "good or bad faith," rather
than upon an objective evaluation of its conduct, is advanced by
Respondent in the teeth of the Applications and the Memorials, as
weil as of Applicants' formulations of their arguments, evidence and
Submissions. Such a contention, likewise, is incompatible with the
Findings and Resolutions of the United Nations and its organs and
agencies, in and through which Applicants have continuously macle
clear the nature of their dispute with the Responclent.
Applicants' Submissions .3and 4 accordingly are hereby reaffirmed
in the sense statecl and intcnded therein, viz.,that Respondent's
policies and practices, as set forth in Chapter V of the Memorials
and in this Chapter IV of the Reply, characterized and describecl
by the terms "apartheid" or "separa te clevelopment," have violatccl,
and do violate, Respondent's obligations toward the inhabitants of
the Territory in terms of Article 2, paragraph 2, of the Mandate.
2. Responclent furthermore miscontrues Submissions 3 and 4 as
excluding certain groups or inclivicluals in the Terri tory designated,
4
in the parlance of apartheid, as "Coloureds" or "Basters." Such un
warranted misinterpretation of the Submissions is purported to be
basecl upon Applicants' references to "Natives" (always in quotation
marks) in the Legal Conclusions, and elsewhere, in Chapter V of the
Memorials. 5
In their formulation of the policy of apartheid, Applicants ex
plicitly state that the Memorials
1 1, p. roS. (Italics added.)
2 Id., Chapter V. It will be noted that such inferences typically appear in the Me mo
rials in Summaries and Conclusions, following in each case a specification of Res
pondent's policies and practices of which cornplaint is made. See, e.g.: 1, pp. 108,
103, II7, 130, 143, 152, 160, 161 and 166.
4 Il, p. 393·
~ In particular, paras. 18g-go, 1, pp. I6I-r66. SOUTH WEST AFRICA
''... deal with apartheid in practice, as it actually is and as it actually
has been in the life of the peopleof the Territory, and not as a theo
retical abstraction." 1
The phrase "people of the Territory" was deliberately and literally
intended to mean what is says.
Submissions 3 and 4 themselves similarly describe and compre
hend "the inhabitants of the Territory," without qualification or
restriction. 2
The strained construction sought to be attachee! by Respondent
to the Submission, relying upon Applicants' numerous explicit
references to "Natives," also ignores a fundamental basis of Appli
cants' complaint of Respondent's violation of Article z of the
Mandate, viz., that the policy and practice of apartheid, as defined
in the Memorials! is in its very nature and objective repugnant to the
Mandate.
Any interpretation of the Submissions which excludecl any
inhabitant of the Territory from the scope of the Submissions
would, in itself, reflect an unacceptable assumption concerning the
inevitable consequences of the policy with regard to allthe inhabi
tants. As is demonstrated in the Memorials, and reaffirmee! in this
Reply, the policy of apartheid is injurious to the genuine interests
and welfare of the mtire population, including those whose benefit
and privilege are purportec! to be servec! thereby.
That Respondent was not in !act misled by Applicants' cmphasis
on "Natives" (a group of inc!ividuals which, as categorized by
Respondent, comprises the overwhelming majority of the Terri
tory') appears clearly from the Co1mter-Memorial itself.
Thus Respondent describes one of the "duties referred to by
Applicants," as to which "regard is to be had in administering the
Mandate,''' as oceking to promote the "political advancement of
[the inhabitants of the Territory] through rights of suffrage."'
Similarly, Respondent describes "Applicants' c!uty No. 5,'' as
involving "equal rights and opportunities for [members of the popu
lation of the Terril ory] in respect of home and residence, and their
just and non-discriminatory treatment." 7
Applicants hereby reaffirm that Submissions 3 and 4 do not
2 1, p. to8. (Italics added.)
1 Id., p. 197.
Supra, pp. 256-257.
• Respondent's population estimates,1960 census, Il, p. 401:
"Whites" .... 73.467
"Coloureds" .. 23,963
"Asiatics" ......... 2
"Natives" ... 428,575
.s Id., p. 397·
6 Id., p. 398. (Italics added.(The italicizedphrase is Respondent's own for
mulation of Applicants' contention.)
7 Ibid. (Italics added.) (The itaJicizcd phrase is Respondentown formulation
of Applicants' contention.) REPLY OF ETHIOPIA AND LIBERIA 259
exclude, and may not reasonably be interpretee[ as excluding from
their ambit any inhabitants whatevcr of the Territory-'
3· A third misconstruction by Respondent of Submissions 3 and
4 consists in its unwarranted assumption that these Submissions
merely request the Court to adjudge and declare concerning alle
gations of fact.
Thus, Respondent avers that "it does not understand the
quotations from reports of organs of the United Nations in Chapter
II of the Memorials to constitute in effect further complaints made
by Applicants." From this, Respondent concludes, erroneously,
that the purpose sought to be served by Applicants in referring to
United Nations reports was "to seek to establish the existence of a
dispute between the parties, and no more." Respondent contends,
moreover, that findings and recommendations embodied in United
Nations reports and resolutions "are of no relevance whatsoever to
this Court's judicial function .... " 2
Respondent's contention overlooks the fact that the Submissions
request the Court to adjudge and declare that the policies and
practices of which Applicants complain, are, as a matter of law, in
violation of Respondent's obligations as stated in Article z of the
Mandate.
Respondent's argument that the findings, conclusions and
recommendations embodied in reports and resolutions of the
United Nations has no relevance to the Court's judicial function
carries to the extreme Respondent's rejection of international
supervision and accountability. It likewise ignores the point of the
Court's comment, in itsf«dgment of zr Decemberr962, that "though
the dispute in the United Nations and the one now before the Court
may be regardee[ as two different disputes, the questions at issue are
identical.''3
Applicants respectfully submit that the reports and resolutions
of the United Nations and its agencies and organs, in and through
which Applicants have sought to settle their dispute with Respon
dent, are highly relevant to the Court's judicial function in ad
judging the legality of Respondent's administration of the Territory,
and are entitled to great weight and respect as authority thereon.
1 ln the light of Applicants' explicit interpretation and reaffirmation of the mean
ing of their own Submissions, it is respectfully submitted that amendment thereof
is unnecessary and unwa.rranted.
2 II, p. 3· Despite this contention, Respondent does not forbear from a sweeping
indictment of the accuracy and reliability of United Nations reports. Such impeach
ment might have appeared less ungenerous bad Respondent over the years relented
from its obdurate deniai of access of United Nations committees and agencies to
the TerrHory. Thesoleexception, that of the ill-sta1962 visito the Territory
of the Chairman and Vice-Chairman of the Special Committee for South \Vest
Africa {discussed at pp. 225-226, supra), as is shawn by the circumstances a.ttending
th3 visit and its aftermath, stands as the exception which proves the rule.
]udgment, p. 345·z6o SOUTH WEST AFRICA
B. RESPONDENT'S PoLICY WITH RESPECT TO THE lNHABITANTS OF
THE TERRITORY
1. Introductory Comment
Notwithstanding the voluminous detail with which the Counter
Memorial is encumbered,' the decisively relevant facts concerning
Applicants' Submissions 3 and 4' are undisputed.
It is possible, nevertheless, that the central issue, viz.,the charac
tcr and consequences of the policy of apartheid, or "separate devel
opment" (in Respondent's presently preferred usage) may be ]ost to
sight in a haze of irrelevant particulars. Accordingly, attention is
respectfully drawn to the doubtful relevance of much material
which is includecl, as weil as the undoubted relevance of much that
is omitted, from the Counter-Memorial.
Respondent's policy, described as apartheid, with respect to the
inhabitants of the Terri tory, is explicitly defined in the Memorials. 3
Applicants contend, in terms of their Submissions, that such a policy
which Responclent implements through practices fully described
in the Memorial:;, Chapter V,' and in this Reply, violates Respon
dent's obligations under Article 2, paragraph 2, of the Mandate.
The measures by which the policy of apartheid is applied in prac
tice are consistent with the objectives of the policy and they confirm
its character. If the policy, as Applicants strenuously urge, is
objectionable, unsound and illegal in terms of the Mandate, measures
admittedly adopted for its implementation likewise must, ex
hypothesi, be objectionable, unsound and illegal.
The inescapable logic and simplicity of this proposition confronts
Applicants with a dilemma in respect of the most judicious and
responsible manner of dealing in this Reply with the excessively
voluminous mass of data and details in the Counter-M emorial. The
dilemma referred to above arises in the following respects:
a. As is pointed out herein, so much of the evidence as is adduced
by I~espond fornthe purpose of demonstrating its "good faith,"
or that it is "actuated by an intention ... ether than one to
promote the interests of the inhabitants," 6 would be immaterial
even if it elid-as it does not-tend to show such "good faith," or
the absence of ,;uch "intention."
If the policy of apartheid is unacceptable, a "good" intention to
1 Respondent, aptly characterizitheCounter-Memorialas ''ancxtremely lengthy
document", II, p2,attributesits"bulk," in part, to "pressure of time" (id., p. 3).
It is respectfulsubmitted that the time-limitfixed by the Court for submission
of Respondent's pl~adin herein have been generously adequate.
2 1, p. 197·
3 Id., p. 108 and see pp. 256-2supra.
i 1, pp.104o.
.sSupra, pp.zss~z57.
6 Il, p. 390. REPLY OF ETHIOPIA AND LIBERIA z6r
apply a "bad" policy would be a contradiction in terms and, in any
event, irrelevant.
b. Similarly, much of the evidence adduced by Respondent
appears to be directed at the aim of persuading the Court that the
considerations by which Respondent conceives and shapes the policy
of apartheid, are so multifarious, complex, "political," and "techni
cal" in nature, that the Court cannat-or in the exercise of a
sound discretion, should not-undertake a judicial determination
on the merits of the dispute regarding the application and inter
pretation ofArticle 2,paragraph 2, of the Mandate. Thus, Respondent
asserts:
"No legal criteria can be used in such adjudication. The decision
can only be based on social, ethnological, economie and political
considerations." 1
Applicants, in consideration of the importance of the issues
involved in these Proceedings, earnestly have sought in their
Reply to meet fully and adequately Respondent's contentions and
evidence in support thereof, without, at the same time, encumbering
the already voluminous pleadings with a point-by-point refutation
of evidence adduced by Respondent on the basis of falseassumptions
concerning the nature of its obligations or their legally justiciable
character. 2
Applicants analyse below the normative and objective legal
standards governing the interpretation and application of Article 2,
paragraph 2,of the Mandate, as to which the Court has held Appli
cants have an interest of a legal nature.'
Although argument on the merits of the issues in dispute is
deferred for subsequent consideration,' itis relevant here to cite
severa! illustrations showing that, on any reasonable assumption
concerning the nature of Respondent's obligations under the Man
date, much of the evidence adduced in the Cozmter-Memorial is
irrelevant to the issues in dispute and, conversely, that evidence
of importance is omitted. Three illuminating examples follow:
5
r. The lengthy history and ethnology of the Territory m6y be
taken as substantially accurate for the present purpose. It is
indisputable that in the Territory there do exist groups differing in
language, custom and economy. This is true of many other of the
world's societies as weil, which are typically composed of groups of
individuals differing in one or more of these respects.
Respondent, however, stops short of an attempt to justify its
official policy of fostering such differences, through practices fully
1 Il, p. 391. (Italics added.)
2 Infra, pp. 47ff.
3 judgment p. 343·
4 Infra, pp. 362-475·
5 Il, pp. 3II-380.
6 Sorne errors in detaH arc brie-fly analysed pp. 458-464, infra. SOUTH WEST AFRICA
1
described in the Memorials and in this Reply. Yet it is precisely
this aspect, inter alia, of Respondent's conduct toward the inhabi
tants of the Territory upon which Applicants ground Submissions 3
and 4·
2. Another illustration is the irrelevance of much of Respondent's
"background" evidence showing that in an early period the majority
of the Territory's inhabitants lived on subsistence economies, were
pastoral nomads, or were preliterate. 2 In Applicants' submission,
however, a highly relevant question is Respondent's maintenance,
up to the present, of a subsistence economy in the Reserves. No
evidence is adduced by Respondent to justifyits policyin this respect.
3· The third illustration concerns that aspect of the policy of
separate development which involves creation of so-called "Bantus
3
tans," "Homelands," or "Reserves." This policy presupposes,
inter alia, a system of migra tory labour, in which men whose homes
are in such areas spend long periods of labour in distant urban
centres or on farms in so-called 11White areas."
It is self-evident from the history of human society that no
group or community has survived which was not based upon the
family and that no stable, civilized community can be built upon a
system which deliberately separa tes men from their families during
substantial periods of their working lives. That such a result is an
inevitable consequence of the territorial separation of groups and
the exclusion of "non-Whites" from any secure tenure in the "White
areas" is not denied by Respondent. Respondent, nevertheless,
regards this implicit result of its admitted policies as so irrelevant
to the central issue asto warrant no discussion whatever, among the
voluminous details with which the Counter-Memorial is conccrned.•
2. Respondent's Policy: Decisive and Undisputed Facts
The decisively relevant facts concerning Respondent's policies
and objectives, relied upon by Applicants in support of their Sub
missions5 with regard to Article 2, paragraph 2, of the Mandate, are
undisputed. The doctrine of apartheid or, in the phrase of Respon
dent's currently preferred usage, "separate development,''' emerges
1 Memorials, Chapter V, passim, and infra, pp. 362-475.
2See, e.g., II, pp. 316, 319, 324-325, 329-330, 335-336, 338-339 and 346.
31\lore fully analysed at pp. 312-326, infra.
4 Respondent's si.lence is ail the more surprising in the light of the widespread
criticismof precisely this aspect of its separate developmenpolicy, as more fully
shawn at pp. 284-285, 288-289 and 467-468 infra.
s Submissions 3 and 4, 1, p. 197; see p. 255, supra.
6 As is pointed out in 1, p108, Applicants deal with apartheid "as a fact and
not as a ward ... as it actually is and as it actually bas been in the life of the
people of the Territ·Jry, and not as a theoretical abstraction," The Court's attention
is respectfully drawn again to the phrase "the people of the Ten'itory," which excludes
none whose status, rights, duties, opportunities or burdens are fixed and allocated
on the basis of race, colourtribe.(See 1, p. 161, para. 189, and this Reply, supra,
pp. 257-259-) REPLY OF ETHIOPIA AND LIBERIA
from Respondent's own formulations of that policy, as set out in
excerpts drawn below from the Counter-Memorial, passim, as weil
as from public statements of Respondent's highest officiais. Res
pondent's measures for implementation of its policy are analysed in
detail in the Memorials, Chapter V and in this Reply, infra. The
existence and nature of such measures, like Respondent's policy
itself, are undisputed as facts, although Applicants take sharp issue
with the inferences which Respondent seeks to draw from its ad
mitted policy and measures of implementation thereof, as weil as
with the legal consequences Respondent seeks to impute to them.
Before turning to Respondent's formulations of its policy, it is
relevant to note that phrases such as "apartheid," "separate devel
opment," or the like, are not used by Respondent as words of art.
To the contrary, such phrases, in Respondent's usage, have highly
flexible connotations.
Thus, Respondent explains its current preference against use of
the term "apartheid", as follows:
"By its protagonists in South African politics, the word was
used as a name for what may be termed an earlier stage of evolution
of the policy of separate development. ... " 1
In contras! to the above-quoted explanation, Respondent
cites a declaration of "General Guiding Principles" issued by one of
the outstanding such "protagonists," Dr. D. F. Malan, former
Prime Minister, in which Dr. Malan urges, inter alia, that:
"The policy of our country should e>wisagetotal apartheid as 2he
ultimate goalof a national process of separate development."
It is submitted that if "apartheid" is definable as an earlier stage
in the evolution of the policy of "separate developmcnt," while, at
the samc time, it is regarded as the ultimate goal of that policy, the
terms fairly may be said to be interchangeable.'
It is relevant also to note that in the Counter-M emorial Respon
dent draws attention to the connection between its policy in South
Africa and its policy in South West Africa in general, and with
particular emphasis upon •events in the Transkei.
Chapter VII of Volume IV of the Counter-Memorial consistslargely
of an exposition and deferree of Respondent's policy in South Africa.
Thus, Respondent asserts that, in formulating its "policies and
practices" for South West Africa
''... Respondent was ftequently influenced by experience gained
in South Africa itself in regard to compara:ble problems and poli-
etes. , .. 4
1 Il, p. 461. (Italics added.)
2 1d., pp.463~46 (I.alics in original.)
3 Reference already bas been rnade, p. 256,supra, to Applicants' usage of the
term "apartheid"in theMemorials "as a fact and not as a ward".(1,p. roS; also
id., p. 161.)
4Il, p. 457; andpassim,pp. 461 ff. SOUTH WESl' AFRICA
Further, Respondent states that :
"Having regard to the specifie problem of the future of South
West Africa and its peoples, as outlined earlier in this Chapter,
Respondent can by way of solution see no alternative to an approach
involving similar objectives and principles to those of the South
African policy of separate development, in the respects set out in
the preceding paragraphs." 1 ·
Again, Respondent comments:
"In the preceding brief summary, Respondent has given sorne
indication of measures which have been taken in the Republic of
South Africa..The success achieved with them has suggested that
future developments in South West Africa should take a similar
course, although the unique nature of local conditions would
naturally require differences in the methods and tempo of applica
tion. ... "2
In selecting the following examples of Respondent's self-formu
lated policy of apartheid, Applicants have endeavoured to avoid
quotation out of context or other distortion o!Respondent's intended
signification.
a. Prime Minister Verwoerd. 1963:
"Reduced to its simples! form the problem is nothing else than
this: We want to keep South Africa White ... 'Keeping it White'
can only mean one thing, namely White domination, not 'leadership,'
not 'guidance,' but 'control,' 'supremacy.' If we are agreed that it is
the desire of the people that the White man should be able to
continue to protect himself by retaining \\'bite domination 3.. we
say that it can be achieved by separa te development."
b. Prime llfinister Verwoerd {1950), then Respondent's Minister
of Native Affairs:
" 'The supporters of the present Govemment say very clearly ...
that they will not be prepared to sacrifice white supremacy in
South Africa. But when we do say that, we also say something else
which is always left out when people talk about this policy. This is
what we say:
" 'Just as we want supremacy in our areas, so we are prepared to
grant the same supremacy to the Bantu in his area. We don't want
for ourselves what we are not prepared to cede to others. .. .'' ' "~
1 Id., p. 472. And see footnote2 and J, p. 314, infra.
2 Ibid.
3 R. of S.A., House of Assembly, Parl. Deb., 2nd Parl., 2nd Sess. (weekly ed.,
1963), Col. 242.
• Grobler, Africa's Destiny 89 (1958). (Quoted in Il, p. 464.) The foregoing, as
weil as similar statemcnts by Respondent's officiais concerning its objectivin
South Africa, are rdevant in all significant respects ta South \Vest Africa as weil.
Sec Respondent's reference to "a certain measure of inter·action between policies
in South Africa and in SouthVest Africa" as makingnecessary"sorne brief reference
to certain specifie z..spects of policies in South Africa." (Il, p. 461.) REPLY OF ETHIOPIA AND LIBERIA
c. Prime l\iinister Verwoerd, rg6r:
" 'We prefer each of our population groups to be controlled and
governed by themselVes, as nations are. Then they can co-operate
as in a Commonwealth or in an economie association of nations
where necessary ....
" 'South Africa will proceed in ali honesty and fairness to seek
albeit by necessity through a process of gradualness-peace,
prosperity and justice for ait by following the mode! of nations
which in this modern world means political independence coupled
with economie interdependence.' " 1
d. Prime l\iinister Verwoerd, 1951:
" 'Now a Senator wants to know whether the series of self
governing areas would be sovereign. The answer is obvious. It stands
to reason that White South Africa must remain their guardian.
We are·spending ali the money on these developments. How could
small scattered states arise? The areas will be economically depend
ent on the Union. It stands to reason that when we talk about the
Natives' right of self-government in those areas we cannat mean
thal we intend by thal to eut large slices out of South Africa and
turn them into independent States.' " 2
e. Extracts from an address by Respondent's Prime l\iinister in
rg6z are quoted in the Counter-Memorial, Il, pp. 467-468. These
have been the subject of comments by the highly respected Director
of the Institute of Race Relations, !\ir.Philip Mason. These excerpts,
together with !\ir.l\iason's published comments thereon, are set out
in Annex r to this Reply, pp. 328, 334-335, infra, and are incorpora
led herein by reference.
f. Prime l\iinister Verwoerd, when Respondent's Minister of
Native Affairs:
"[I]t is of no avail for [the African] ... to receive a training which
bas as its aim absorption in the European community while he
cannat and will not be absorbed there. Until now he has been
subjected to a school system which drew him away from his own
community, and practically misled him by showing him the green 3
pastures of the European but stitl did not allow him to graze there."
"It is the policy ofmy Department that education should have its
roots entirely in the native areas and in the native environment and
native community. There Bantu education must be able to give
itself complete expression and there it will have to perform its real
service. The Bantu must be guided to serve his own community in
all respects. There is no place for him in the European community
above the leveZof certain forms of labour. Within his own community
however all doors are open." 4
1
Address to South Africa Club, London, in Fact Paper 9r, April 1961, p. 14·
(Q2oted in II, p. 466.) (Italics in original.)
U. of S. A., Pari. Deb., Senate,Ioth Pari., 4th Sittin(weeklyed., 1951). Cols.
2833-2894·
U. of S.A., Part. Deb., Senate, uth Pari., 2nd Sitting, (weekly ed., 1954).
Co4. 2619. (Italics added.)
Id .. Cols. 2618-2619. (Italics added.)266 SOUTH WEST AFRICA
g. Co!lnter-Memorial, II, p. 475:
Respondent, in its briel reference to the problem of the "Police
Zone," or"White area" (comprising over 70 percent of the Terri tory
and disposing of its major developed economie resources) concedes
that the "Nati\•e reserves" therein are "not nearly adequate" to
serve as homelands in which each group can develop to proper
self-realization. Respondent's explanation is as follows:
"The reserves were, indeed, not planned for such a purpose,
in view of the contemplation thal employment would beo!Jeredto a large
number of the members of these groups in the economy of the European
population. This factor, together with historical reasons pertaining
to treaties and agreements with specifie communities, largely
account for the fact that the reserves are not consolidated home
lands for each group, but scattered units for localized sections of the
groups concerned. Early attention to the making of revised and
adequate provision in this regard is therefore an important step
in the implementation of the policy of separate development." 1
h. Co!lnler-M<'morial, Ill, pp. 528-530:
"(b) It is Respondent's beliet thal the interests of the European
and Native groups can best be served, and that peaceful co-existence
between them can best be secured, by a policy which provides for
their separate development, the goal aimed at being a situation
whcre the Bantu groups will have self-government and, eventually,
full independence in their own homelands, and -where economie
relations between these homelands and the White areas will be such
as ta amount to a position of economie interdependence.
"In the process of advancement towards this goal, measures have
been and are constantly bcing taken to develop the Bantu areas,
and il is Respondent's belief that the Bantu themselves should play
an active part in this developmcnt. In this process of development
Respondent, through îts Departments of Bantu Administration
and Bantu Education, employs and trains Bantu who can contribute
to the development of their areas and to the advancement of their
own people.
"(c) A !act of which Respondent must, and does, take cognizance,
is that there has, throughout South Africa's 2 history, been social
separation between the \Vhite and Bantu groups; that the members
of each group prefer to associate with members of their own group;
and that certain kinds of close contact between members of the
two groups, particularly in the more intimate spheres, tend to
create friction.
"(d) The aforementioned factors, accentuated in aU probability
in the case of the European group by the !act thal they have for a
long time occupied a position of guardianship and leadership over
the Bantu groups, also in the economie field, have limited relation
ships between Europeans and Bantu largely to those of tutors and
1(Italics added.)
2 The omission of reference here to South \Vest Africa underscores the extent
to which Respondent's policies in the Mandated Territoryare essentially projec
tions ofitspolicies in the Republic. REPLY OF ETHIOPIA AND LIBERIA
employers, on the one hand, and pupils and employees, on the other,
and have, furthermore, as at the present stages of development
of the respective groups, resulted in the factual situation that many
Europeans, in ait probability the vast maiority, are not prepared to
serve in positions where Bantu are placed in a position of authority
over them. 1
"(e) A further important lacet of the afore-mentioned factors is
that a Ban tu who qualifies himself for a profession in which he will,
because of the stage of advancement of his own group, have tc
depend for his livelihood on the services of European employees.
or on European patronage, runs a grave risk of total frustration.
"(f) The matters referred to in sub-paragraphs (c), (d) and (e)
above are social phenomena which existas facts, independently of an:'
governmental policy, legislation or administrative practices-as indeed
they manifest themselves, to a greater or lesser extent, in mixed
or plural communities throughout the world. Depending upon the
exact circumstances of a particular situation, the phenomena may
partake of the nature of group preferences, group self-protection,
group assertiveness, group conceptions of differences in social and
cultural level, or sometimes simply group prejudices. \Vhatever
their exact nature or causes, and whatever the moral rights or wrongs
pertaining to them ·inparticular situations, there can be no deniai that
such group reac#ons exist as jacts of which due cognizance must needs
be taken by any realistic government.
''(g) In more recent times policies have been devised in various
parts of the world with the specifie ideal, to which Rcspondent
wholeheartedly subscribes, of eradicating, avoiding or reducing to
a minimum ali undesirable aspects and manifestations of such group
reactions, such as unfair discrimination, domination of one group
by another, and the like. The problem does not lie with the ideal,
but with practical means of achieving it in the diverse conditions
existing in various plural communities; and frequent! y an important
aspect of the problem is to find a just and proper balance
between lcgitimate but competing or conflicting aspirations of
various groups. Whereas policies aiming at a solution of the problem
are in sorne countries proceeding in the direction of attempts at
forced integration, with or without qualifications, Respondent
is, for reasons explained earlier, fully convinced that such policies
cannot possibly achieve a just and fair solution either in South
Africa or in South West Africa, and that a solution is to be sought
on the basis of separate development as set out inter alia in sub
paragraph (b) above.
"(h) An important motivating factor in regard to this policy has
always been the advantage which it involves for educated and more
advanced members of the Bantu groups, in that they can step into
higher grades of employrnent specially intended for them in planned
and positive programmes foradvancementoftheirownpeoples-vis-à-vis
the large measure of friction, negation and frustration that must
1
It will be recalled that the popuof the Territorcomprises 73,400 "\Vhites"
and 428,ooo "Natives."z68 SOUTH WEST AFRICA
inevitably arise for them, independently of any Government policy
or legislation, from attempts at free competition with members of the
White population,roup in the higher strata of the economie, social and
professionallife o that group.
"As a counter-part to the factor just mentioned, the policy of
separate development takes due cognizance of the !act thal its
application is at present passing through a stage of transition, and
aims at doing so with a minimum of group friction and the negative
consequences that could result therefrom. The transition is from the
carlier genre, mentioned in sub-paragraph (d) above, of White
guardianship and leadership in every sphere of a partially integrated
economy to equality of opportunity for members of the non-White
groups in the form of leadership in largelyseparated,though mutually
interdepe nconom ies.f their own groups. With a view especially
to securing the maximum support from all the groups for this
transition, Respondent bas found it best, as a matter of practical
policy, to respect the unwillingness of members of the While grouP to
serve in postëions of s11bservience to members of the Bantu groups,
but at the ::;ametime to create compensatory opportunities for
higher employment of members of thelast-mentionedgroups through
acceleration, as far as practicable, of the development of their own
homelands and economies.
"(i) A realistic approach to the problems of the transitional stage
is, in Respondcnt's view, to train Bantu for occupations and pro
fessions which, at the present stage of developments, offer them
avenues of employment and future advancement, and to avoid
creating a sJ:tuation where Bantu qualify for professions in which
they will fin,! themselves dependent on White patronage, which might
not be forthcoming, or in which either Respondent or otlter potential
emp!oyers will notbe able to make "se of their services in a field where
they will, of necessity, have to be placed in positions of a"thority over
Europea-n employees or assistants.''
3· A nalysis of Respondent' s Policy
a. General Considerations
Analysis of Respondent's policy with respect to the inhabitants
of the Terri tory appropriately may take as its point of departure
Respondent's assertion that
"The policy of separate development is not based on a concept of
S<~Peri cr iifriority, but mere/y on the fact of people being differ
ent."2
The above-quoted statement paraphrases a comment of Res
pondent's Prime Minister, Dr. Verwoerd, in rg6r:
" '...The Government's policy is not based upon people heing
3
inferior but being different.. .. '"
1 Italics added.
2 IIp. 47r. (Ita1ics in original.)
' Id.p. 471. REPLY OF ETHIOPIA AND LIBERIA
To the same effect, the Counter-111emorialquotes Respondent's
Minister of Bantu Administration and Development, Mr. de Wet
Ne!, as follows:
" 'Thetraditional approach has alwaysbeen a policyofrecognizing
the equal status ... of the Bantu, a policy of differentialion ... but
diflerentiation withottt inferiority . . .' "
The "!act of people being different" is a commonplace statcrnent,
admitting of an infinite variety of interpretations. As an cxplanation
of Respondent's policy toward the inhabitants of the Territory
under Mandate-the statement is, in itself, ambiguous and meaning
less.
If it is intended to suggest a political, sociological, economie or
legal justification for Respondent's policy of apartheid, or separate
development, the statement begs the central question in dispute
with respect to Respondent's obligations under Article 2 of the
Mandate and Article 22 of the Covenant of the League of Nations.
2
Applicants' Submissions 3 and 4 are grounded upon the prcmise
that allotment to the inhabitants of the Terri tory of status, rights,
duties, opportunities and burdens on the basis of race, colonr or
tribe, does not promo te the ir wdl-being and social progress. This is3
but another way of saying that Respondent is obliged, in terms of
the Mandate, to accord to the inhabitants of the Territory legal
"equality of status," as indivitlual persans.
As is clear from the record herein and, indeed, as is axiomatic to
Respondent's cause, the contrary premise underlies Respondent's
policy: the stattts, rights, dulies, opportunities and burdens of the
inhabitants of the Terri/ory are allotted solely on the basis of their
quality and character as members of "groups," rather /han as individu
als.4
Thus, Respondent characterizes as "basic aspects of the policy
of separa te development":
"... acknowledgment of the just daims and moral rights of each
group to advancement . .. ''; and
''. . . an 6nd result obviating ali domination of groups by one
another."
In a Memorandum entitled "Decisions by the Government on the
Recommendations of the Commission of Enquiry into South West
Africa Affairs," 7 Respondent expressed acceptance of "the main
1Ibid. (Italics added.)
2 II, p. 197.
3 Id., p.108.
4See, in particular, the addres;; of Respondent'sl'rime Minister, excerpted in
Il,pp. 467-468.
5 Id.,p. 466. (Italics added.)
6 Id.,p. 467. (ltalics added.)
1 Presented by Respondent's Prime Minister ta the South African Parliament
on 29 April 1964; approved by a resolution of the House of Assembly on 8 May
I964, and submitted as "Annex A" of the Supplement to the Counter~Memorial
under letter of Respondent's Agent to the Registrar of the Court dated 28 May I964,
hereinafter referred to a"Memorandum").270 SOUTH WEST AFRICA
1
features" of the Odendaal Commission Report, "as [being] an
indication of the general course to be adopted in the next phase
of the development of South West Africa and of the promotion of the
well-being and progress of its inhabitants." 2
More specifically, Respondent announced its desire
"... to state clearly ... that its general attitude . . . involves
agreement with the Commission's finding that the objective of self
determination for the varions population groups will, in the circum
stances prevailing in the Territory. not be promoted by the estab
lishment of a single multiracial central authority in which the
whole population could potentially be represented, but in which
sorne groups \v·ould in fact dominate others .... The Government
also endorses the view that it should be the aim, as far as practicable,
to develop, for each population group its own Homeland, in 3hich
it can attain self-determination and self-realization."
One of the "main features" of the Odendaal Commission Report
conccnlS the rationale of a policy pursuant to which the status,
rights, duties, opportunities and burdens of inhabitants of the
Territory are olncially allotted upon the basis of the "population
group" to which each inhabitant belongs, or in which he is classified.
The arguments and findings of the Odendaal Commission in this
regard, accordingly, are instructive as showing the premises which
underlie Respondcnt's policy of apartheid, or separa te development,
and which acconnt for the stringent and pervasive application of
that policy in ali aspects of the lives of the inhabitants.
The Commission formulated its approach as follows, inter alia:
''The moral and economie principles of a modern economie
system are different from those of traditional groups where the
group and not the individual is the focal point. The modern economie
system and the traditional system are therefore not comparable or
readily recc•ncilable. Their problems are d4fferent, their human
values and motivations are different."
The Commission stated further:
". . . 'Where, owing to fundamental differences in socio-cultural
orientation, stages of general development and ethnie classification,
the differenŒs between the groups concerned are of so profound a
nature that Utey cannat be wiped out, a policy of integration is un
realistic, unsound and undesirable, and cannet but result in continuai
social discrimination, discontent and frustration, friction and
1
Report of the Commission of Enquiry into South n'est A/rica AOairsR.P. No.
122 .Memorandum, Sec.reB.,para. 5a(IV,p. 202.)Commission Report").
3 Memorandum, Sec. E.,para. 21 (id., p. 213). As pointed out below, p. 314, Res
pondent announced. its intention to defer certain recommendationof the Commis
sion for the creation of "homelands,"on the ground, inter alia, that such recom
mendations are "affected by considerations pertaining to the pending case."
(Memorandum, Sec. E., para. 21 (id.p.213).)
4 Odendaal Commission Report, para. 1431, p. 427. REPLY OF ETHIOPIA AND LIBERIA
2JI
violence-a climate jn which no soda-economie progress can be
expected to take place. Under such conditions the social cost in
non-economie terms must outweigh any possible economie ad
vantages. In the circumstances it is therejore desirable ta accept the
position as it is and not to put idealism before realism." 1
The Commission added, further:
"In a territory like South \Vest Africa, where there are groups
thal ditfer fundamentalty from one another, a policy of socio-culturai
separateness and economie intcrdependence is therefore the only one
which can ensure the ma.."Ximumfreedom of action and self-realiza
tion to the greatcst nurnber of inhabitants at the same time ....
In the light of the above, therefore, it is essential to regard the
various population groups in South 'Vest Africa as independent in
2
certain respects and asdependent developing units in other respects.''
As is more fully shown below, 3 governmental policies based upon
assumptions such as these, viz.,that "differences between the groups
concerned are of so profound a nature that they cannot be wiped
out," and that it is "desirable to accept the position as it is," as
a basis for the allotment to individuals of status, rights and du
tics, are incompatible with the ovcrwhclming weight of authority
in the political and social sciences. Such a premise of govern
mental action, and the policy of apartheid by which it is effectuated,
are furthermore repugnant to the genera Ily accepted polit ica! and
moral standards of the international community, ' as weil as viola
tive of norms, as accepted by international custom and as re
flected in the general principles of law universally recognizcd hy
civilized nations. 5
Such assumptions and their implementation, moreover, arc
neither factually valid nor logically tenable. Such "differences"
as may be inherent in "ethnie classification" are in no way rele
vant to, nor can they properly be advanced to justify, deniai of
equality of opportunity based upon individual merit or capacity,
or deniai of equality before the law, or of fundamental rights and
freedoms.
As pointed about above, < Respondent neither explains nor justi
fies its policy of fostering such "differences" by legislative fiat and
administrative practice, by which it aggravates the "social dis
crimination, discontent and frustration, friction and violence,"
which the Odendaal Commission asserts results from what it
terms a "policy of integration." 7 A policy of fostering such "dif-
1 Id.,para.1434. p. 427. (Italics added.)
2 Id.,para.1436, pp. 427-29. (ltalicadded.)
3 Infra,pp. J02-JI2.
4 See infra,pp. 29J-J02.
' See infra, pp.476-519.
6 Supra, pp. 261-262.
7Respondent's agreement with the Commission's analysis is manifest most
clcarly from Respondent's own formulations to the same effect,in strikingly
similar terms.Sec, e.g.Ill, p. 529; quotcdsupra, pp. z6G-zG8. SOUTH WEST AFRICA
ferences" is, indeed, calculated to assure not only that they "cau
not be wiped om," but that they may explode into uncontrollable
1
violence or disaster.
The Odendaal Commission's view that it is "desirable to accept
the position as it is and not to put idealism before realism," 2
strikes a note sharply dissonant with that implicit in the "sacred
trust of civilization" pursuant to which Respondent undertook
to promote "to the utmost" the well-being and social progress
of the inhabitants of the Territory.
The thoroughgoing manner in which Respondent has given
effect to such "realism" will be examined in more detail in con
nection with the application of apartheid to the varions aspects
of !ife in the Territory: the rigid policy of educational apartheid, 3
of economie apartheid, 4 of political apartheid, 5and of the discrimi
natory policies and measures by which Respondent regulates and
restricts security of the person, rights of residence and freedom of
movement. 6
As will be shown, Respondent's policy and practice with respect
to each of these aspects of life, is directed toward the primary end
of assuring an adequate "Native" labour supply in the Terri tory,
particularly in its "White" Police Zone (comprising more than
seventy percent of the Territory), subject always to the condition
that, in the words of Respondent's Prime Minister,
"There is no place for him [i.e., "the Bantu"] in the European
7
community above the level of certain forms of labour."
The policy of educational apartheid deprives the "non-White"
inhabitant of the Territory of incentives or opportunities for
progress, consigning him cither to stringcntly limited possibilities
of advancemcnt in the "European community," or in unviable
reserves with a mere subsistence economy.
Economie apartheid denies "non-\Vhite" inhabitants basic rights
of organization and freedom of association. It condemns them to
limited opportunities of employment or advancement, on the
ground that :
1 The increasingly repressivelegal and other measures by which Respondent
endeavors "to accept the position as it is" are noted in Annex I, infra, p. 328, at
333"334·
2 The Commission, characterized by Respondent as "experts of exceptional
standing" (Il, p. 4i6) here manifests an approach identical with that of Respondent's
contention that "whatever the moral rights or wrongs" may be, "group reactions
exist as facts of which due cognizance must needs be taken by any realistic
government." (III, p. 529.)
3 Infra, p. 362.
• Infra, p. 404.
5 Infra, p. 439.
6 Infra, p. 458.
7 U. of S.A., Parl. Deb., Senate,Ilth Parl.,2nd Sitting (weekly ed.,1954),
Col. 2619 (when l\linister of Native Affa.irs). REPLY OF ETHIOPIA AND LIBERIA 273
"... many Europeans, in ail probability the vast majority, are not
prepared to serve in po::itions where Bantu are placed in a position
of authority over them.'' 1
Political apartheid fosters and aggravates just such "differences"
as Respondent asserts justify its policy of separate development.
Deniai of suffrage and restriction of "non-Whites" to the most
limited forms of participation in government, at any leve!, inhibit
their social progress and thwart their development toward genuine
self-determination.
The "sacred trust" and Respondent's undertaking to promote
to the utmost the well-being and social progress of the vast majority
of the inhabitants of the Territory are thus made subject to the
prejudices and attitudes of a small minority among them. This,
in Applicants' submission, is impermissible in terms of Article 2,
paragraph 2 of the Mandate.
Such a predicate of policy, moreover, is wholly incompatible
with Respondent's professed objective of promoting
"... the advancement of peoples to a stage where they could indeed
'stand by themselves'-economically, educationally and socially as
well as politically-as a pre-rcquisite to a mature political act
2
of self-determination.''
To that end, Respondent projects the development of viable
''homelands, Il
"... to be controlled and governed by themselves, as nations are,"
and which
... can co-operate as in a Commonwealth or in an economie
association of nations wherc neccssary ... " 3
Accomplishment of such an objective clearly demands a course
of action based upon a premise precise!y contrary to that adopted
by Respondent. Educational and other opportunities would be
afforded to individuals at ali levcls and skills, rather than within
limits responsive to, or dictated by, the prejudices and attitudes
of a small minority of the total population of the Territory. •
In no ether way could such "homelands," even apart from their
inherent inconsistency "~th the requirements of modern society,
1
2 III, p. 528.
Id., p. 459·
3 Prime Minister Verwoerd, in an address in London in 196I, quoted id., p. 466.
4 Instead, Respondent proceeds on the premise that it is more "realistic .to
avoid creating a situationwhere Ba.ntu qualify for professions in which they will
find themselves dependent on \Vhite patronage, which might not be forthcoming,
or in which eithe.r Respondent or other potentiaemployers will not be able to
make use of their services in a field where they will, of necessity, have to be placed
in positions of authorityover European employees or assistants."(III, p. 530.)
(Italics added.) lnhcrencapacity to "qualify" is thus conceded;the limitationis
based solely upon membership in a "group."274 SOUTH WEST AFRICA
be endowed with the prerequisites of true social progress, "to the
utmost," and on a constant! y ascending scale.
Respondent has misconceived its mission; it has construed its
duty to "promote to the utmost" as bcing limitcd by, and subject
to, the attitudes of a favoured and dominant minority.
Furthermore, the repressive and discriminatory policies by
which "non-White" inhabitants of the Territory are denied legal
equality with the "White" minority, in respect of rights of security,
residence and movement are applied by Respondent so as to ef
fectuate its policy of assuring that, when needed for labour in the
"European" community, the presence of "non-Whitcs" is permitted
and encouraged; when no longer required, "influx control" and
"pass" laws could facilita te their eviction as "redundant." 1 Such
restrictions and conditions, which may be applied impersonally
to any "Native," whether university gradua te or unskilled labourer,
deny to the affected individual such human freedoms and funda
mental rights as those of maintaining a normal family !ife, 2 thus
striking at the rudimentary pre-condition of any stable, civilized
community.
In sum, under apartheid, the accident of birth imposes .a man
datory !ife sentence to discrimination, repression and humiliation.
It is, accordin€;ly, in violation of Respondent's obligation, as
stated in Article 2, paragraph 2, of the Mandate, to promote to the
utmost the well·being and social progrcss of the inhabitants. The
policy of aparth,id, moreover, is repugnant to the objectives and
requirements of Article 22 of the Covenant of the League of Nations.
Respondent's premise that the status, rights, duties, opportunities
and burdens of each inhabitant of the Territory arc to be deter
mined and allotted on the basis of his membership in a "group,"
rather than as an individual human being, procecds from and
perpetuates a major distortion of the intention of Article 22 of the
Covenant of the League of Nations and Article 2 of the Mandate.
Article 22, paragraph r, of the Covenant embodies the principle
of a "sacred trust" for the well-being and development of certain
areas "inhabited by peoples not yet able to stand by themselves... ."
Article 22, paragraph 6, pertaining to "C" Mandates-including
the Territory of South West Africa-refers to "the safeguards
above mentioned in the intcrests of the indigenous popt<lation." 3
Respondent's policy of apartheid, allotting to individuals rights
and burdens upon the basis of their membership in a "group,"
implicitly interprets and applies Article 22, paragraph I, to mean
that each and every individual member of a designated "group" is,
by thal fact alone, "not yet able to stand by himself."
Ascription of such a signiticance to the quoted phrase is a mani-
2 Infra, p. 465
3 Infra, pp284-~! z88-,89, 467-470.
Quoted in 1p. zoo. (Italics added.) REPLY OF ETHIOPIA AND LIBERIA 275
fest absurdity, yet the inherent nature and effect of Respon
dent's policies are consistent with no other possible interpretation.
As the history of the Mandates System1established in the Cave
nant of the League clearly reveals, the "sacred trust" has as its
nbjective the promotion of the well-being and social progress of
the "peoples," that is to say, of the individual inhabitants com
prising the population.
This objective also is manifest from the very nature of the rights
protected; th us "freedom of conscience" and "the free exercise of ali
2
forms of worship" necessarily appertain to the individual as
such, although of course such rights are commonly exercised
through collective activity.
Respondent's policy, and its underlying premises, thus distort
and corrupt the meaning of the term "peoples," as used in Article
22 of the Covenant of the League, and "inhabitants," as used in
Article 2 of the Mandate, by interpreting these words to mean
"groups" of peoples, or inhabitants, as classified by Respondent.
The supreme fallacy implicit in such a misinterpretation is that,
although rights, duties, opportunities and burdens can nominally
be allotted on the basis of individual membership in a "group,"
the actual, direct, dai!y and !ife-long consequences of such a policy
are, of course, visited upon and endured by the human beings
comprising a "group,'' as individuals.
lt is precisely this inescapable consequence of its policy that
marks the fallacious and self-contradictory nature of Respondent's
profession that the policy of apartheid, or separate development,
is "not basecl on people being infcrior but being different .... " 3
The necessary and direct consequence of allotting rights and burdens
by treating "groups" dif!erently is the trcatment of at !east sorne
individuals in sorne "groups" as inferior.
The fallacy is reftected in Respondent's own inconsistent formu
lations of its policy. Thus, in what is described in the Counter
Memorial as an "historie address" by Respondent's Prime Minister,
the following explanations are juxtaposed:
"We prefer each of our population groups to be controlled and
governed by themselves, as nations are. ... "
On the other hand:
"Wherc is the evil in ... the fact that in the transition stage the
guardian must needs keep the ward in hand and teach him and guide 4
Mm and check kim where necessary? This is separatc development."
Respondent's interpretation of its obligations undcr the Mandate,
1 1, pp. 34-37; supra, pp. 231-232 and infra, pp. 536-546.
2 Mandate, Article 5·
3 Prime Minister Verwoerd, quoted in Il, p. 471.
4 Quoted id., p. 466. (ltalics added.) SOUTH WEST AFRICA
both in policy and practice, therefore, is in conflict with the fun
damental objective of the "sacred trust": promotion to the utmost
of the well-being and social progress of the individual inhabitants of
1
the Territory. Applicants, in this Reply, cite the overwhelming
weight of evidence and the universally accepted legal criteria
which bar a poliey of which it has been said:
"... [T]o say thal by law people of one group must mix with no
others can re<:ùlyonly proceed from a conviction not only that the
other groups are inferior but that every member of each of the other
groups is permanent/y and irremed1:ablyinferior." 2
The practical consequences of such a policy appear from all of
its aspects,' but perhaps the most striking is that conceded by
Respondent in its explanation of the Education policy in the Terri
tory, discu~ s erd fully elsewhere in this Reply.' From this it is
evident that, irrespective of the potential or existing quality,
capability, or character of any individual inhabitant of the Terri
tory, his membership in a "non-White group" does, in !act as weil
as in theory, result in the allotment to him of "permanently and
irremediably inferior" status, rights and opportunities, although
reserving for hirn at !east an equal share of cluties and burdens.
Insofar as Respondent consiclers relevant any reference whatever
to individuals as such, it is clearly on the basis that the inclividual
is to be regardee! as a member of a "group," in juxtaposition to
members of other "groups."
Consonant with this premise, and in effectuation of its policy
based thereon, Respondent allots the status, rights, cluties, oppor
tunities and burdens of the inhabitants of the Territory pursuant
to a division of the population into four enumerated "groups,"
viz.,"\Vhites," ''Natives," "Asiatics" and "Coloureds" 6.
7
The harsh rigour with which the "policy of differentiation" is
applied, is illuminatecl by Respondent's inclusion in the "Coloured
group" of those, inter alia,
"... who although in appearance are obviously white, are general!y
accepted as Coloured persons.'' 6
Similarly, "Coloureds" are definecl as "al! persans not included
in any of the three groups mentioned above," viz., "Whites,"
1 Infra,pp. 302-312, 476-519.
2 PhilipMason, in Annex r, p.339, infra. (Italics added.)
4 M emorials, Cha:pter V, passim.
5 Infra, p. 362.
E.g., Respondent's explanatioof its policies relating to Education in the Ter
ri6ory; III, pszS-530, quoted pp.z66-268 supra.
7 See 1, p. rog.
Supra, pp. 268- z6g. REPLY OF ETHIOPIA AND LIBERIA 277
"Natives," or "Asiatics,'' 1 thus assuring that each inhabitant of
the Territory, whatever his individual character, quality or poten
tial, is assigned to a "group," membership in which determines his
status, rights, duties, opportunities and burdens.
b. Relevant Evidence
That Respondent's policy and practice of apartheid fait to
promote the well-being and social progress of the inhabitants of the
Territ ory is shawn, in particular, by:
I. Judgments of qualified persans with first-hand knowledge
of South Africa and South West Africa (infra, pp. 277-293);
2. Official views of Governments in ali parts of the world,
expressed, inter alia, throngh the United Nations (infra, pp. 74-83);
as weil as through findings and resolutions of the United Nations
itself (supra, pp. 222-230; infra, pp. 502-503):
3· Overwhelming weight of contemporary authority in the polit
ica! and social sciences (infra, pp. 302-312); and
4- History and chatacter of the system of "Homelands," or
"territorial apartheid" (infra, pp. 3r2-326).
r. JUDGMENTS OFQUALIFIEDPERSONS WITH FIRST
HAND KNOWLEDGE OF SOUTH AFRICA AND
SOUTH WEST AFRICA
In support of its contention that mnch "abuse directed at its
policy of separate development ... bas arisen from wrong or
inadequate factual information or assumptions," 2Respondent cites,
inter alia, the views of a former member of the South African
Parliament, who is quotecl as saying:
"Most peopleoverseaswere still under the impression thal the policy
of separate development was aimed at keeping the Bantu down.
They did not realize!hat the policy was aimed at uplifting them." 3
Respondent's use of the foregoing quotation is an example of
its often-asserted contention that only persans with "first-hand
knowledge" • of the situation in South or South West Africa are
capable of understanding it fully and appraising it fairly.
Applicants, accordingly, present a fairly selected cross-section of
evaluations of apartheid by persans (A) whoseauthorityis consiclerecl
by Respondent of sufficient weight to merit quotation in the
Counter-M emorial, assertedly in support of Respondent's views
(infra, pp. 278-z8o), and (B) who, by reason of South African origin or
1 1, p109.(Italics added.)
2 Il, p. 48J.
3 Ibid. (Italics added.)
4 This ground, inter alia, was advanced by Hespondent in rejecting the request
of the llnitedNations Secretary-Generathat a Group of Experts,established
pursuant ta a Security Council r•;!solution, visit South Africa. (S.C.O.R., Report of
S.G. at3 (S/5658) (1964).)278 SOUTH WEST AFRICA
long residence there, indubitably possess "first-hand knowledge of
the situation" there, as well as in South West Africa (infra,
pp. 280-293).
(A) VIEWS OF AUTHORITIES CITED BY RESPONDENT
(r) Lord Hailey, 1 former member, Permanent Mandates Com-
mission:
"... Dr. Malan, who became Prime lliinister in 1948 as leader of
the reconstituted Nationalist Party, emphasized thal apartheid was
not a new policy; il was only the policy of separatism expressed in
terms which experience had shown to be better adapted to the
actual facts of the situation as it now stood. 'Total territorial separa
tion', he said in1950 's impracticable under present circumstances
... where our whole economie structure is to a large extent based
on Native labour.' (House of Assembly Debates, Vol. 71, Col. 4142.)
There was, he repeated in 1953, no difference in meaning between
'segregation' and apartheid. They differed only in the !act thal the
objective of separation would now be pursued by a Nationalist
Party which was, unlike the United Party in previous Parliaments,
wholly united and determined to implement the policy as rapidly
as possible, at any rate in the poJiticaland social sphere.
"The policy of apartheid was thus to be comprehensive, and it
involved racial separation in the electoral as well as in every other
sphere ... .
"The doctrine of separatism bas still to face the crucial question
whether the economy of a modern industrialized State will permit
the maintenance of a crude form of differentiation against a major
part of the manpower on which it is dependent. ...
"'The greater industrial areas are in fact engaged in an active
process of economie integration between the races. This process is
dicta led by the inescapable needs of industry for a constant supply
of labour. It is becoming yearly more imperative that such labour
be more dependable, more experienced, more adjusted to the
habits of a modern industrial society. In consequence there is a
fundamental quarrel between the natural integration of urban life
and the unhistorical effort to impose "disintegration" upon the
vital centres of South African economie prosperity.'
"In no ccmntry south of the Sahara is there any such stark
insistence on the principle of differentiation as in the Union of
South Africa. Almost everywhere, as will subsequently be seen,
there are signs ofthe closing of the gap which once seemed to separa te
African institutions and usages from those prevailing in the \Vestern
world; almost everywhere there are in consequence signs of changes
in the conceptions held about the principles which should determine
the future relations of the European and non-European communities.
"Nowhere has the concept of separatism as held in the Union
been illustrated more clearly !han in the lengtby debate on the
1
Cited as an authority by Respondent in Il, at, inter alia, pp. 388, 435, 440
(quoted by Respondent with approval}; id., p. 487 (quoted with disapproval). REPLY OF ETHIOPIA AND LIBERIA
279
Report of the important Commission on the Socio-Economic
Development of the Bantu (the Tomlinson Commission) in 1956.
[From time to tirne Europeans who have settled in other terri tories
have shown an inclination to look to South Africa for countenance
in their effort to maintain policies based on separatist ideas, while
to those who look forward to a greater measure of integration, the
régime of the Union bas become a natural target for attack. But
there is here something more than a contrast of philosophies. Both
sides realize that the essence of the matter lies in the fact that the
doctrine of apartheid implies that the European community must
continue to hold a position of control over the non-European com
munities. It is actually on this basic issue, and not because of any
argument about the maintenance of a European pattern of civiliza
tion, that the two schools of thought tend to range themselves so
decisive!y in opposite camps.] 1
"But the matter must be viewed with a due sense of proportion.
The circumstances in which a régime of \Vhite civilization was
established in South Afi·icaand the great disparity in the social and
economie development of the European and Bantu made it inevi
table that sorne measure· of differentiation should become a recog
nized feature of public policy. The ditflculty does not lie there.
ft lies in the assumption that discrimination is not merely an act of
expediency &ut a law of nature. Its most refractory aspect is the
inability of the European to admit that there can ever exist within
the social and political structure of the Union any place for the
African who has passed outside the traditionallife of his own group.
"The effects of insistence on the segregationist doctdne are not
entirely one-sided. It has been accompanied by a more realistic
appreciation by Europeans of the needs of Africans in the sphere
which policy assigns to them. That is to be seen in the greatly
increased provision made for African education, for the development
of medical facilities, and for the improvcment of agriculture in the
Native Reserves. Very large sums of moncy are now being provided
for the improvement of African housing in the urban areas. But the
recent decision to improve the status of Chiefs or to base the insti
tutions of Local Government on Tribal Councils rather than on
electoral bodies belongs to a different category. ft is an attempt to
divert the attention of the African from institutions of a pattem which
is favoured byEuropeans, m..d in which he mt'ghtdesireto have a share.
The change of policy embodied in this decision has been made at a
time when in most of the British and French dependencies the
African is being given increasing access to institutions of a European
pattern. The forces of traditionalism arc still strong in Africa, and
it is possible that the change may have attractions for sorne part
of the African population in the Union; it is not likely to appeal to
the growing body of more progressive Africans orto the great mass
of those who now live in urban conditions. For them it can have
1
An African SuYVey 163-r14, 169 (3d ed., 1957). (Brackadded: the bracketed
portion is quotedin II, p. 487, "by way of contrast"with earlier cited views of
"impartialobservers," id., p. 485.280 SOUTH WEST AFRICA
little or no meaning, an1 it is to this class that African society now
looks for its leaders.''
2
(2) Prof. Gwendolen Carter, Professor of Political Science,
Smith College (U.S.A.):
"... Where is South Africa going? Of all the four answers being
offered to îts racial situation, it is the Nationalist one whichis being
implemented most vigorously. Under the spur of Mr. Strijdom and
Dr. Verwoerd, efforts are being made to force as rigorous a separa
tion as possible between Europeans and non-Europeans in every
segment of li fe. So drastic and harsh are the provisions under which
separation may. be forced-e.g., in the universities and in the
churches (see p. III and p. 117)-that even certain Nationalists have
become worried at the doctrinaire rigidity of the conceptions under
which regulations are drafted. To the lully dedicated Nationalist,
however, the program must be complete in every aspect. ...
"In this perspective, Nationalist apartheid becomes largely re·
strictive. ln other words, the emphasis is mainly on its negative
aspect, i.e., on maintaining the European areas of the Union tender
the exclusive controlof white South Africans, rather than the positive
one of promoting a distinctive !ife for the Bantu. This is the more
so because the Nationalists owe their foremost allegiancc to their
own Afrikaner folk, who fee! most acutely amongst the Europeans
the competition of the Africans. It is not surprising, therefore, that
apart from the limited amount which they are doing to develop
the Reserv th~ ; ,tionalists are concernedprimarily with protecting
the privileged Position of white farmers and white laborers. Thus the
inevitable tendency in the future, as in the past, will be to underline
and intensify traditional discrimination against non-Europeans,
despite the fact that an increasing number of them are living in
the so-called European areas.
"If European South Africans were living in the kind of community
in which they picture themselves, i.e., a self-contained white com
munity wrestling with the problems of a huge non-European popu
lation, rather than in a multi-racial soc1,·etlyn a multt"-raâal world,
they might still be able to establish a stable balance which reflected
within the boundaries of the Union the historie relationship between
a dominant white minority and subject peoples of color.... " 3
(B) VIEWS OF SOUTH AFRICANS WITH "F!RST-HAND KNOWLEDGE"
OF RESPONDENT's PoLICIES
(r) "White" South Africans•
(a) Scholarly Authorities
(i) Dr. C. W. de Kiewiet, educated in South Africa, Professor of
1 Hailey,op. cit., suprp. 279, footnote1, at p. 434· (Italics added.)
2 Cîted by Respondent as an authority,Il, pp. 451, 455·
3 The Politics of Inequali416-17 (1958). (Italics added.)
4 Solely for îllmtratîvpurposes,persans quoted below are arranged according
ta Respondent's classificatiof so-called "populatiogroups" (see 1, p. 109). REPLY OF ETHIOPIA AND LIBERIA
History in the State University of Iowa and in Cornell University
(U.S.A.); President, Rochester University (U.S.A.):
"In its various forms apartheid is a transfer of the responsibilities
of the living world to a dream world of solved problems. It is the
substitution of a wishful simplicity for a real complexity. The basic
premise of apartheid is that the natives can seek no remedies and
gain no citizenship within white society, but only within their own
segregated society .... There is no awareness in the architects of
apartheid that out of !act and lancy they have ingeniously contrived
a mental toy, operating outside history and economies. They do
indeed invoke economie. and political principles, but they are the
principles of a non-existent world, so that their scholarship becomes
spurious and their logic a deception....
"... In the concrete language of economies and politics apartheid
is actually a system in which the power of the state is used to main
tain the economie and political supremacy of the white community
over a population of approximately ten million Africans, Indians
and coloured men. The segregation laws are an embargo upon the
development of the non-European population .... " 1
(ii) Professor Edgar H. Brookes, formerly Senator, representing
"Africans" of Natal and Zululand, and Principal, Adams College,
Natal; Professor of Political Science, University of Natal; currently
Professor of History, University of California (U.S.A.):
"... This is the evil in pipe-dreams of apartheid which cannat stand
the tests of a map, a balance-sheet, or an honest election with ail the
facts laid before the people. We enable ourselves to remain hopeful
because we think that the Africans will accept 'heartlands' which
have no adequate boundaries in any map, will be satisfied with a
'self-government' in those 'heartlands' which is ill-defmed and in
complete, \V:ilbe content to remain under the control of a Union
in whose ultimate and sovereign decisions they will have no share.
We remain hopeful, difficult though it may be, when we have no
real plan at ali to deal with the Coloured people, the Indians, or
those many Africans who can never be accommodated in the
'heart1ands'.... " z
(iii) Professor D. V. Cowen, formerly Professor of Comparative
Law in the University of Cape Town; since rg6r Professor, Univer
sity of Chicago (U.S.A.):
"The story is a long and shaming one, but it can be short!y told:
it is the story of obsession with the fetish of race, and with the heresy
that in South Africa differences in skin-colour mean differences in
culture which cannat be reconciled in one common societv. It is the
stor-yof denia! by whites to non-whites of the liberty which whites
deem essential to the fulness of their own lives: it is the repudiation
of an equal claim for ali human beings to !ife, liberty and the pursuit
1 The Anatomy of South African Misery 47M49 (1956).
2 "South Africa and the \Vider Africa,rgiO-Ig6o." 27 Race Relations journal,
Xo. t, p. 8 (January-March tgûo). 282 SOUTH WEST AFRICA
of happiness; and ultimately, the utter betrayal of the Christian
concept of the brotherhood of man." 1
(iv) Dr. Monica Wilson, Professor of Social Anthropology,
University of Cape Town (South Africa):
"The God-given opportunity in South Africa, and our real achieve
ment, lies in the close co-operation of Black and \Vhite, not in
isolation and partition. That co-operation has in fact been doser
here than anywhere else in Africa; we have a long tradition of
common schools and open universities; of participation in municipal
and provincial councils, and of voting on a common roll. This sort
of equal co-operation and not the timid withdrawal into a laager,
is the growing point in the South African tradition.
"The idea thal colour should be the basis for compulsory separa
tion or legal differentiation between people must be totally rejected,
and therefore also the princip le of Reserves." 2
(v) G. V. Doxey, formerly senior lecturer in Commerce and
Applied Economies, University of Witwatersrand:
"Even if we could disregard the presence, in the so-called white
areas, of the Coloured people, the Indians and the urban Africans,
and thus visualize the ultimate ideal of a racially partitioned South
Africa-as do sorne imaginative upholders of apartheid-in reality
it is now apparent thal apartheid has achieved little else than the
creation of a vicions circle of restriction, frustration and fear, with
an ever-widening cleavage between white and non-white South
Africans, and has made more, not less remote the attainment of a
peaceful solution of the South African dilemma.
"It would seem that this state of affairs will continue so long as
the vast majority of white South Africans of both language groups
are unablc to visualize life in a multi-racial society, inspired by the
community approach, without at the same time thinking in terms
of the disintegration of that society and the inevitable destruction
of western civilization." 3
(vi) Prof essor S. Herbert Frankel, a South African; now Prof essor
of Colonial Economie Affairs, Oxford:
"... A revision [is needed] of the present trend of economie legisla
tion whz'chmakes political ùsttes of what are, in reality, functional
economie relationships; becat o~fu nwarranted, and, indeed, highly
dangerous, ft:arsof their normal functioning. These fears have caused
the European population of South Africa to lake upon itself a vast
range of impossible and useless tasks. The rapidly expanding popu
lation of South Africa is to-da y dependent for its livelihood on the
increasingly complex tasks of a highly industrialized economy.
But no industrial society can long afford to permit the minutiae
1 Liberty, Equality, Fratemity-.Today:The Alfred and Winifred Hoernlé Me
morial Lecture rg6r, p. 4 (rg6r).
1 "The Princîpleof Maintaining the Resen·cs for the African,"Race Relati012s
journal, No. 1,pp. 8-g (January-March 1962).
3 The Industrial Colour Bar in South Afric200 (tg6r). REPLY OF ETHIOPIA AND LIBERIA
of its economie arrangements to be strangled by irrelevant political
regulation or debate.
"It should be the fundamental aim of such a revision of obstruc
tive laws to ensure to everyone, irrespective of race, colour or creed,
the freedom to pursue the affairs he desires to conduct in so far as
they are not the affairs of others. This freedom implies the right of
everyone to make decisions in regard to the acquisition and use of
property, the acquisition and exercise of skill, the place of residence
and nature of occupation. the allocation of resources, the right to
invest, and the right to develop his ass1ts and personality without
let or hindrance as to tirne or place."
(vii) Dr. L. M. Thompson, formerly Professor of History, Uni
versity of Cape Town; since rg6r, Professor of History, University
of California (U.S.A.) (commenting on "heresies" which pervade
South African politicallife):
"... The first is the wilful failure to cherish the bridges that used
to exist and to construct new bridges between the people of South
Africa. This failure has caused a decline of confidence among the
non-\Vhites in the motives of the White people in general and the
Afrikaner Nationalists in particular. The policy of an insulated
nation dominating a hierarchy of other nations within a single
State would be dangerous at any time, and is simply not viable in
the world as it is today. If one believes that the cohesion and power
of one's own tribe is the greatest goocl, it does not follow that the
members of the other tribes can be pcrsuaded, or even coerced into
the same belief. lndeed most South Ajricans have now Passed beyond
the stage of mere tribal loyalty; and ironically enough this seems to be
partiwlarly true u/ most non-White South Africans.
"The second of onr heresies is that of mistaking words for reali
ties... This illness has reached an advanced stage in South Africa,
wherc politics are determined by a whole series of verbal images.
Stereotypes about our fellow-countrymen prompt us ta forget that an
Afrikaner or an Afn'can, an Indian or a Coloured man, is first and
foremost a human being lt'ke ourselves. And apartheid has become
perhaps the most potent image in the modern world-the obsession
of an entire party and government.
"Linked with the sernantic heresy ... is the Utopian heresy.
To evade moral respomibility for the unpleasant realities of the
position in which one ·finds oneself, one constructs an ideal arder
of things in one's mind and assures oneself that it will sorne how,
sorne day, he conjured into existence. Then having obtained control
of the machinery of the State, one tries to implant this ideal in the
minds of ali the other inhabitants, and cries 'Treason !'if they wil1
not agree.... " 2
(b) Religious Leaders
(i) Archbishop de Blank (Anglican):
1 "The Tyranny of Economie Paternalism in Africa: A Study of Frontier Menp
"ta2ity," supplementto Optima, p. 49 (December 196o). (Italics added.)
"Fifty Years of Union," 27 Race RelationsJournal No. 2, 66-67 (April-June
tg6o). (ltalics added.) SOUTH WEST AFRICA
"... [H]ow far and how fast are you supposed to go when you are
running away from sin and seeking to do God's will? \Ve cannat
ourselves prevent sorne of the racial legislation which bedevils
South Africa today, but we can see toit that we do not camouflage
it by such high-sounding names as separate development or terri
torial homelands." 1
(ii) Dr. B. B. Keet, former professor of Theology, Seminary of
the Nederduitse Gereformeerde Kerk, University of Stellenbosch:
"... Aparthâd with its slogan ('separate but equal') faits precisely
at this point because it does not deal with the Non-Europeans on a
just and equitable basis. Territorially there can be no just partition
and politically there are no equal rights....
"Apartheid daims that its policy is the on!y one calculated to
preserve white civilization in South Africa. The contrary is true:
there can be no hope for White South Africa if black nationalism
is to be combated by forceful measures. And it cannat be denied
that,in the case of those Non-Europeans who are capable of forming
a responsible judgment, the implementation of apartheid can only
be effected by the employment of force." 2
(iii) Dr. Hugo du Plessis, Gereformeerde Kerk, Theologian at
Potchefstroom University for Christian Higher Education:
"Apartheid leads to the mortification of humanity and to oppres
sion. This is the accusation of the outside world and for this reason
it will not tolerateapartheid.
"The out,;ide wor!d willnot approve of the fact that more than
half of the non-white population in South Africa has virtually no
political and civil rights, that their economie progress is held back by
the colour bar and that their freedom of movement is restricted." 3
(iv) In rg6o the World Council of Churches arranged consulta
tions with leaders of the eight South African churches which were
th en members of the Council: Anglican, Methodist, Presbyterian,
Bantu Presbyterian, Congregational, the N.G.K. of the Cape
Province, the N.G.K. of the Transvaal and the Hervormde Kerk of
South Africa. The resulting Report (of which each paragraph had
been approved by at !east So per cent of the delegates) stated,
inter alia:
'!rr. \Ve caU attention once again to the disintegrating effects
of migrant labour on African Iife. No stable society is possible unless
the cardinal importance of family !ife is recognized, and, from the
Christian standpoint, it is imperative that the integrity of the family
be safeguarded....
"13. The present svstem of job reservation must give way to a
more equitable system of labour which safegnards the interest of
all concerned. ...
1 XIII Africa Digest, No. 3, p. Sr {December 1963).
2 The Ethics of Apartheid q, IS-19 (1957).
3 "The New Eta and Christian Calling Regarding the Bantn in South Africa,"
Dela·yed Ach'on! An Ecumenical ff'itness from the Afrikaansspeaking Clrurch,
published by the authors, n.d. [196o). REPL Y OF ETHIOPIA AND LIBERIA
"15. It is our conviction that the right to own land wherever he
is domiciled, and to participate in the government of his country,
is part of the dignity of the adult man, and for this reason a policy
which permanent! y denies to non-White people the right of collabo
ration in the government of1the country of which they are citizens
cannat be justified .... "
(c) furists
(i) Dr. H. A. Fagan, Retired Chief Justice, Supreme Court of
Sou th Afri ca :
"... The latest rnove has been to pass a law elimina ting Bantu
representation in Parliament and, as a compensatory gesture, to
grant the Ban tu extended powers of self-rule in the Reserves, with
promises of further extension in the future. Opinions differ as to
whether this really means an improvement in the administration
of the Reserves. For the point with which 1 am now dealing, how
ever, that is of little relevance. In regions where Ban tu live in tribal
isolation it is a matter of natural development that powers of self
administration should be increased as rapidly and as far as the
people concerned show the ability to exercise them without detri
ment to themselves or to the safety and well-being of the State
to which they belong. But that does not touch the real problem:
the adjustment of inter-racial contacts and of interests common to
different racial groups. This problem does not lie in the Reserves
where the population is homogeneous, but outside them wherc it is
2
not .... "
(ii) O.D. Schreincr, formerly Judge, Appellate Division, Appeal
Court:
"... The members of the non-\Vhitc groups arc most unlikcly
ever ta be satisfied with having separate group loyalties built up
on their behalf by \Vhite politicians and officiais, whil as indivi
duals they are left at a disadvantage in respect of opportunities
to learn, to gain a livelihood, to own propcrty and generally to
play a full part in the !ife of thcir country ....
"... The apartheid policy must be judged to be unrealistic,
and it ought accordingly to be abandoned." 3
And also (commenting on the Transkei election):
"'From the point of view of real, legal power, which rests solely
on the control and exercise of the parliamentary franchise, the
ballot papers in a Bantustan election might as cffectively be dropped
into a well as into a ballot box.
1('No system whereby ail real power is to be retained, as a matter
of law, in the bands of the Whites, can succeed or endure. Nor can
1 Hewson (ed.), Cottesloe ConsultatioThe Report of the Consultation among
South African Member Churches of the World Council of Churches 7-14, December
1960, at Cottesloe, Johannesburg,n.d. [1961], p. 75·
2 Our Responsibility:A Discussion of South Africa's Racial Problems 47 (tg6a.)
3 Realism in Race RelationI],20 (1962).286 SOUTH WEST AFRICA
any system that aims at disguising such retention. Everyone con
1
cemed is tao wide-awake toda y to be put off with a sham.' "
(iii) Albert van de Sandt Centlivres, Retired Chief Justice,
Supreme Court of South Africa:
"The policy recently endorsed by Parliament [apartheidin univer
sity education] is out of tune with modern times and it is an anachro
nism which cannat last. The sooner we wake up to the fact that we
are living in the latter hal! of the 2oth century and not in a bygone
age the better it will be for al! of us in this country and for the repu
tation of this country abroad." 2
(d) Political Leaders
(i) Donald ~lolten Q .C., representative of Africans in the
House of Assembly from 1937 to 1948 (commenting on the "Pro
motion of Ban tu Self-Government Act"):
"The present government is seeking to justify its policy on the
basis that itis aiming at eventual African autonomy in the African
areas.
"The cvid•:!nceis overwhelming that not only are there no scparate
African areas capable of accommodating the whole, or even a sub
stantial majority, of the African population, but that at no conceiv
able future time can therc ever be such areas ..Despitc this hard
fact, the government is pursuing a policy which denies to the major
ity of our pE·opleany representation in the Parliament which makes
the laws whereby they arc govemed ....
"No people worth y of the name will voluntarily submit to perpetuai
domination by others. Least of all will our African people do so at
this time whcn African nationalism is advancing from strength
to strength throughout the African continent. In the light of this
consideration the government's policy is not only unjust, oppressive
and fOolish, but it is also extremely dangerous to the future peace
3
and welfare of all the peoples of South Africa."
(ii) Dr. Bernard Friedman, former member of Parliament; in
1955, resigncd from the United Party to join the Progressive Party:
"... The !act remains that South Africa is the only country that
enshrines racial discrimination in its statute book and gives it the
force of law. In seeking to enforce a policy of racial discrimination
by the coercive power of the state, we are marching against the
whole trend of human progress and condemning ourselves to a
dangerous isolation. In a state of isolation we can scarcely survive,
and we certainly cannot prosper. Sooner or later, we shall have
to put ourselves on the side of progress by accepting a fundamental
change in our racial policies. Only by renouncing racial discrimi-
1 As quoted inThe Star,Johan:-~e seeulygedition18 January 1964, p.7·
:zThomas Benja.min Davie: The FirstT. B. Davie Memorial Lecture Delivered
in the Universitof Cape Town, on7 May 1959, p.7 (1961).
3 The Betrayal of Natit•n' Representat15 (1959). REPLY QJt'ETHIOPIA AND LIBERIA
nation can we restore South Africa to the society of civilized na
tions.''1
(iii)J. D. du P. Basson, former Nationalist Party lliember for
Namib, South West Africa (commenting on the '"Promotion of Ban tu
Self-Government Bill,'" in Parliament, 1959):
"... As far as we can see, therefore, this Parliament will continue
to exercise full and final and absolute control over everything and
everyone in the Bantu areas. I do not think it is fair, as long as the
Union Parliament remains the effective political legislative body
controlling the Bantu areas, and as long as the separation of poli
tical power which is cnvisaged by the Government is as yet far
from a rcality, thal the Natives should be deprived of the small
share which they have in this Parliament .... " 2
(c) Authors
(i) Alan Palan, author of Cry the Heloved Country and other
works (commenting on the '"Group Areas Act"):
"The Act has purported to aim at racial harmony, but in fact
it has done immeasurable harm to race relations. One might for
give fear, but it is hard to forgive those evil companions that ex
ploit it, avarice, cruelty, and hypocrisy.
'"Lastly, the Act is based on the evil doctrine thal the end jus
tifies the means. It supposes that a common good can be bought at
the cast of individuai harm. It supposes that one can preserve civi
lization even when ftouting its values. It supposes that one can
carry out the Divine Will even when disobeying the Divine Com
mandments.
"1 could wish that my pen were able enough to convince the
white people of South Africa thal it is they who are being destroyed
by the Group Areas Act, thal I could write such words as would
make the very paper catch lire, to bum them awake to the cruelty
that is being done in their name." 3
(ii) Stanley Uys, journalist and essayist, Afrikaner by birth
(commenting on '"Bantustan" or '"Homeland'" objective, of
Respondent's policy of '"separate development,'" for South \Vest
Africa and in South Africa):
'"... The flaw in the Bantustan programme is thal il puts a brake
on the process of detribalisation, urbanisation and westernisation
of the indigenous Africans-a process which has been the condition
of man's adVance in civilisation. By congregating Africans in the
reserves, instead of absorbing them into the modern economy,
with ils advantages of education, welfare services and skilled jobs,
it seeks to ossify the whole system of tribalism.
1
"South Africa and the Commonwealth," Looking Outwards: Three South A frican
Vi2wpoints 7 (z961).
U. of S.A., Parl. Deb., House of Assembly12th Pari., 2nd Sittin(weeklyed.,
1939), Col. 6174·
The People Wept 44 (1958). (Italics in original.)288 SOUTH WEST AFRICA
"A cardinal feature of the Bantustans is that Dr. Verwoerd
rigidly prohibits the entry into them of private white capital. They
are necessarily dependent, therefore, on Govemment aid and self-help.
Their development is thus retarded, not accelerated, and it is dif
ficult to see the whole Bantustan scheme as anything more than a
. systematisation of the migratory labour system. ln the Bantustans
the Africans will have their homelands and their political title
deeds. But they will have to look outside these underdeveloped
1
reserves for their livelihood."
(iii) Patrick van Rensburgh, former member, South African
Foreign Service:
"Finally, let us look to the future of Afrikaner policy. The
'Bantustan' policy of 'giving the Natives areas in which they can
develop along their own lines' has been hailed with much fanfare
by the Afrikaners. What is the !ruth?
"It is my own view that these reserve areas have been planned
as nothing more than reservoirs of cheap Black labour for fanns in
White areas. The siting of industries on the borders of the reserves
is dcsigned to attract Africans away from the cities. An upper ceiling
has been placcd on the political and economie development of the
African in the 'Bantustans,' and both are rigidly controlled by the
Government. Africans will in this way be set apart, but their labour
will be retained for the benefit of the White economy, and not in
competition with it in dual (or2multiple) economies with different
wage and priee structures."
(iv) Colin Legum, South African journalist and au thor:
"One out of threc of the Republic's II million Africans no longer
has the legal right to live anywhere in the country. Where these
people may live is a decision for bureaucrats.
"\Vell over IOo,ooo people have already been forcibly removed
from one area to anothcr, or from the towns to the stagnant, work
lcss native reserves. Another soo,ooo are under notice of removal.
And by the time the process of creating Bantustans is complete,
weil over five million people will3 havc been uprootcd under the
plans already announccd .... "
And also:
"Here [Cape Town], as in ali urban areas, no African is allowed
to live with his wife and family unless they previously 'normally
resided' together. Newly-marrieds, for example, cannet live together
unless both qualify for residence. Marr1ed men, deprived of their
wives and families, are housed in bachelors' quarters,-great red
slabs of barracks ....
• ""- ives are allowed to visit their husbands without a permit for
only 72 hours at a time. Alter that they need a special permit to
stay. Most of them travel hundreds of miles from the reserves to
1"The G-olden Limb," The Spectator,London, 3 January 1964.
2Guilly Land 1]8-39 {1962). (Italics in original.)
3 "Tearing a Country Apart," The Observer, London, 28 April 1963. REPLY O.E"ETHIOPIA AND LIBERIA
enjoy this privilege. Of course the men can always go to them-if
they have the money and the lime to !ravel. One of the reasons
accepted for granting a permit for a wife to visit her husband for
more than 72 hours is if she wi?hes to conceivc. The request for
'a conception period' must be argued before a white bureaucrat.
1 have seen it happen." 1
(z) South African "Natives"
(a) Albert John Luthuli: teacher, Adams College, Natal; Chief,
African Community, Umvoti, Natal; President-General. African
National Congress; awarded Nobel Peace Prize, 1960
(Acceptance Address, Oslo, Norway):
"There is a paradox in the !act that Africa qualifies for such an
Award in its age of turmoil and revolution. How great is the paradox
and how much greater the honour that an Award in support of peace
and the brotherhood of man should come to one who is a citizen
of a country where the brotherhood of man is an illegal doctrine.
"Outlawed, banned, censured, proscribed and prohibited; where
ta work, talk or campaign for the realization in fact and deed of the
brotherhood of man is hazardous, punished with banishment or
confinement without trial or imprisonment; whcre effective demo
cratie channels ta peacdul settlement of the race problem have
never existed these 300 years, and where white minority power
rests on the most heavily armed and equipped military machine in
Africa.
"This is South A!rica." 2
Also:
"If there is a law in any country in the whole world which makes
it a crime in many instances for husband and wife to live together,
which separates eighteen-year-olds from their parents, I have yet
to learn of it. But the pass does so in the Union of South Africa.
"Each year hal! a million of my people are arrested under the
pass laws. Government Annual Reports tell of this tragic story.
But statistics can tell only hall the tale. The physical act of arrest
and detention with the consequence of a broken home, a los! job,
a Joss of earnings, is only part of this grim picture. The deep humi
liation felt by a black man, whether he be a labourer, an advocale,
a nurse, a teacher or a professor or even a minister of religion
when, over and over again, he hears the shout, 'Kaffir, where is your
pass-Kafir waar's jo pass'? fills in the rest of this grim picture ....
"... The authorities are busy trying to send city workers back
to the Reserves to swell the ranks of the unemployed. At the same
time the provisions of the Land Husbandry Act are squeezing people
off the land in the Reserves and impelling them towards the cilies.
The vast circular tour of people with empty bellies is already under
way. I am not predicting. 1 am commenting on a situation which is
t "The Roots of Violence," The Observer, London, 5 May 1963.
2 Callan,Albert john Luthuli and the South African Race Confl57-58 (1962).zgo SOUTH WEST AFRICA
worsening daily, now, to-day. This is the Bantustan solution to
poverty in the Reserves. One can see how useful, in time, will be the
Minister's right to prevent any visitors from coming in to see how
we are thriving.
"The whole scheme is one vast exploitation stunt. It creates a
new class of workless workers, and in the same breath we are told
that the Government will henceforth absolve itself from financing
African servkes from the central treasury. 'Do ityourself!' we are
told. Do what? And for whom?" 1
(b) Professor Z. K. Matthews, LL.B.: Principal, Adams College,
Natal, 1925-1933; Professor, Native Law and Administration, Uni
versity College of Fort Hare, 1947-1960; M.A., Yale University
(U.S.A.); Visiting Professor, Union Theological Seminary (U.S.A.),
I952-1953:
"... To the extent that apartheid means a rigid separation between
the various 1:roups in South Africa in ali walks of !ife and in al!
institutions--political,economie and social~ isinot only imprac
ticable, having regard to the facts of South African !ife, but it is
morally indefensible, as it is imposed particularly upon the non
White sections of the population without any consultation with
them about the solution of their problems....
"... lncreasing mutual estrangement is the terrible priee we are
called upon to pay for the luxury of the policy of apartheid . ... " 2
Also:
" ... It is a peculiarly South African form of academie selfishness
that the same man who is prepared to go and study in one of the
great open universities of the world and to rub shoulders and minds
there with teachers and students drawn from ali racial groups
should, when he returns to his country, forswear the broadening
experiences he has had and work for the shutting up of university
kraals-kraals for the English-speaking, kraals for the Afrikaans
speaking, kraals for the Bantu-speaking, kraals for coloureds and
kraals for Asians. Nothing is more contrary to university tradition
and practice than this kraal mentality which has been forced upon
us ali by our ali-wise legislators."'
(c) Ezekiel Mphahlele, author and Director, African Programme
of the Congress for Cultural Freedom (in exile):
"Three things emerge from the segregationist policies of the white
Government which prevent the non-white from becoming either a
stable peasant or a stable urban worker, and creates in him a haunt
ing sense of insecurity. First, the South African white has come to
accept a double stream of cultural !ife, which the African hates
because he knows that he can never be independent even in the
1Luthuli, Let Afy People Go: An Autobiography 245, 202,respectively(1962).
2 Social Relatiom- in a Common South African Societ17, 21 {tg6t).
3 Ajrican Awakeaing and the Universities: The Third T. B. Davie Memorial Lec
ture Delivered in the Universityof Cape Town, on 15 August 1961, p. 2 (1961). REPLY OF ETHIOPIA AND LIBERIA zgr
dream-state the white man says he can make for the black man.
Second, cultural development is seriously hampered in an unsettled
black community and can only reach pygmy stature among the
privileged and sheltered white community. Third, traditional cul
ture, much of which the missionary destroyed, has come to be as
sociated by the Negro with an inferior political status and ethnie
grouping which will desl:roy aU the work that has been done by the
educated Negro to unify all the tribes. Just as the primary and
secondary school curricula are designed for Africans, Coloureds and
Indians and whites separately, so is the syllabus for African crafts
meant for Africans only and therefore highly suspect ....
"In spite of these setbacks, a proletarian culture is in the making.
Ta this the average white man is complete!y blind...." 1
(d) Nelson Mandela: son of a Transkei chief; attorney; im
prisoned, rg6z, for five years upon conviction of incitement to
strike and leaving the Republic without permission:
(Statement to Court during trial):
"Your Worship, I would say that the whole !ife of any thinking
African in this country drives him continuously to a conflict pecu
liar to this country. The law as it is applied, the law as it has been
developed over a long period of history,nd espccially the law as it
is written and designed by the Nationalist Govemment, is a law
which, in our view, is immoral. unjust and intolerable. Our con
sciences dictate that we must protest against it, that we must
oppose it and that we must attempt to alter it....
"Government violence can do only one thing and that is to breed coun
ter violence. Wehavewarnt:drej>eatedlythat the Government, by resorting
continually to violence, will breed, in this country, counter-violence
amongst the people, till ultimately, if there is no dawning of sanity
on the part ~f the Govemment, t.Ztimately the dispute between the
Government and my people witt finish up by being settled in violence
and by force. Already there are in.dicationsin this country thal people,
my people, Africans, are turning to deliberate acts of violence and of
force agai1 t~sGtovernm1mt,in order to persuade the Government, in
the only language which this Government shows, b~" tsn behaviour,
thal it understands. ...
"1 hate the practice of race discrimination, and in doing so, in
my hatred, I am sustained by the [act that the overwhelming
majority of mankind hates it equally. 1 hate the systematic in
culcation of children with colour prejudice and 1 am sustained in
that hatred by the fact that the overwhelming majority of man
kind, hereand abroad, are with me in that. I hate the racial arro
gance which decrees that the good things of life shall be retained as
the exclusive right of a minority of the population, and which
reduces the majority of the population to a subservience and inferi
ority, and maintains them as voteless chattels to work where they
are told and behave as they are told by the ruling minority.
"Nothing that this Court can do to me will change in any way
that hatred in me, which can only be removed by the removal of
t The African Image 33-34 (1962). SOUTH WEST AFRICA
292
the injustice and the inhumanity which I have sought to remove
from the political, social and economie life of this country .... " 1
(3) South African "Coloureds"
(a) George J. Golding: Principal of a "Colourcd" School, Cape
Town; President, Coloured Peoples' National Union:
"... In short, the Coloured group has reached the stage where it
expects, and demands, to be given every opportunity to enjoy to
the full the richest blessings of a democratie Christian Western
civilization. And what does it receive? Instead of receiving the
bread for which it asks, thcrc arc flung in its face the stones of
oppressive legislation, unfair discrimination and political segre
gation. Now that the Coloured people are in sight of the century
mark in the exercise of their political rights, they are being treated
like the vanquished in a long-drawn-out battle ... ."'
(b) R. E. van der Ross: Principal, Bottswood Training College
for Coloured Teachers; Ph.D., University of Cape Town (commen
ting on the proclamation of "Group Areas" in the Cape peninsula):
"The first thing which strikes one about the proclamation is
its extreme arrogance. Here, at a stroke of the pen, a buge portion
of the land, the entire mountain area, the fertile valleys ... ali this
and more is declared '\Vhite'.... We raise our bands in harrar at
the incipient blasphemy in an act where men take unto them
selves power to apportion the gifts of God so as to suit their own
political ends.... 1 should place a conservative esti3ate at about
30,000 Coloured people who have to rnove.... "
(c) M.D. Arendse, mcmber, Council for Colourccl Affairs (Govern-
ment-appointed):
"... Job Reservation may be politically expedient, but it is
morally wrong and is unjustified and unchristian in a society that
daims ta follow the tenets of Christian civilization.
"Job Reservation is intended to preserve the White man's mono
poly of poli tcal and economie power. ... " .ot.
(4) South African "Asiatics"
(a) P. S. Joshi, writer, who has left South Africa:
"South Africa loudly daims to have a long, rich experience of
African administration, but, summed up, it is expressed in two
words: Colour Bar. Its political talent is enshrined in the introduc
tion of racial discrimination in the whole social fabric of the coun
try ...." 5
1
2The Observer, London, 18 November 1962.(Italics in original.)
The Coloured llfan Speaks 3 (1952).
4 "Coloured Viewpoint," Cape Times, Cape Town, 23 February 1961, p. 10.
Contact, 19 April 1963, p.1.
s Unrest in Soutl, A/ricvii (1958). REPLY OF ETHIOPIA AND LIBERIA 293
(b) Yusuf Cachalia, formerly Secretary, South African Indian
Congress:
"Under the Nationalists the policy of segregation has been taken
toits logicalconclusion. Nolonger is it to be appliedin half-measures,
for such application would !ail to achieve the aims of apartheid .
. . . The Indian people ... must be isolated in ghettoes, their wealth
destroyed, properties confiscated and means of 1ive1ihood taken
away ... The Group Areas Act is capable of bringing about1these
changes and as su ch is the pivot of apartheid .... "
(c) Dr. S. Cooppan, economist:
"'Going for a holiday, putting a son into school or university,
rcnting or buying a home, getting a licence for a shop or a job, in
heriting property or travelling by bus or train-ali these ordinary
things which are taken in their stride by Whites are never so simple
for the lndian or non-White. Sorneof these things are, to-day, even
impossible of execution." 2
The Court's attention is respectfully drawn to additional author
ities, cited in Annex II, page 593, infra.
2. VIEWS OF GOVERNMENTS
Applicants have refern:d 3 to Respondent's submission that
Reports and Resolutions of the United Nations and its organs
"contain political findings and recommendations" and accordingly,
"are of no relevance whatsoever to this Court's judicial func
tion .... " 4
In the same context, Respondent asserts that
"In so far as such reports and resolutions contain purported
statements or conclusions of fact, they might conceivably have
been of some assistance to the Court and the parties if it had been
possible to place relianee on them for reasonable accuracy." 4
Respondent thus denies the relevance of findings and recom
5
mendations of the "organized body," in and through which
Applicants have sought to settle their dispute with Respondent
through processes of "diplomacy by conference or parliamentary
diplomacy." 6 Such a contention would appear to be unworthy of
elaborate refutation.
In the light of the consistent findings and recommenclations,
reflecting views of the preponderant majority governments,
1
"The Ghetto Act," A/rica South,Vol. II, No. 1 (October-December 1957),
p. 39·
3zContact,6 February rg6o, p. 5·
Supra, p. 259.
51I,p.3.
6 lbid.ent, p. 346.294 SOUTH WEST AFRICA
recorded over a period of seventeen years, Respondent's dismissal
of the relevance thereof may be regarded as a redttctio ad absurdttm
of its total rejection of international supervision and accountability.
Respondent's contentions with respect to United Nations findings
and recommenda.tions, however, do not stop with a mere denia! of
their relevance. Respondent seeks also to impugn their validity
and authority in. the context, inter alia, of its discussion entitled:
"Respondent's Policies: Comparison with Other African Terri
2
tories."
In this context, Respondent endeavours to explain why
"... the development of participation by African Natives in the
central government of African territories continued to be a graduai
process up to approximately the middle of the rgso's alter which
it moved at an ever-accelerating pace." 3
Such an acceleration of pace, Respondent asserts, reflected
". . . not on!y the results of a strengthened demand for indepen
dence, 4 on the part of the indigenous populations of the territories
concerned, but also the e!Jectsof increasing pressure in international
a(jairs,particularly bythenewlyindependentStates ofAsia andAfrica." 5
As an illustration of the asserted impact of the "demand for
6
accelerated political progress" upon the views and policies of
Governments, Respondent contends that
"The effects of the intensification of the pressure on the Powers
administering colonial and trusteeship territories to speed up the
grant of self-government or independence to the terri tories concerned, 7
may also be seen in changed attitudes adopted by thcsc Powers."
Respondent quotes from statements of Representatives to the
8
United Nations which, Respondent correct!y says, "found increasing
support in world politics."'
1 See "History of the Mandate Subsequent to the Establishment of the United
Nations," 1, p. 43. footnotes;and "History of the Dispute Since 1960," supra, p.J.
2 Il,p. 430, footnote; and in particular, pp. 440-449, inclusive.
3 Il, p. 441. (Italics added.) The phrase "African Natives", in Respondent's
census terminology, would include all persans "who in fact arc, or who are generally
acccpted as, members of any aboriginal race or tribe of Africa," 1, p. 109.
4 \Vhich Respondent appears in this context erroneously to equate with "par-
ticipation ... in the central government."
5 II,p. 441. (Ital:icadded.)
6 Id.,p. 443·
7 Id., p. 442.
8 Iraq, Liberia, Ceylan and Guinea, Il, p. 444· Respondent quotes, apparently
with disapproval, a statement' 1 the Representative of Liberia: "No amount of
development could cc·mpensate fol .:ck of freedom. ''(Ibid.) (Italics addedApplicant~
consider this to be an impec:caOJy valid principle, which they hereby reaffirm.
!lId., P· 445· REPLY OF ETHIOPIA AND LIBERIA
295
On the basis of the foregoing considerations, inter alia, Respon-
dent continues:
"... The present proceedings against Respondent are to be seen
as part of this political campaign 1 designed to bring South West
Africa (and eventually the Republic of South Africa itself) into line
with the new governmental systems established in other parts of
Africa, and to achieve for the Territory majority rule by the Native
population-as an overriding objective to w2ich all other aspects
and implications are to be subordinated."
Respondent concludes, with a sweepingly declara tory judgment:
"It will be apparent from the facts set out in the previous para
graphs, that the Applicants in the present case are in substance only
nominal parties to the proceedings, the real parties being the in
dependent African States, and !hat the main purpose of this action
is to secure political independence for the Territory." 3
Applicants do not consider compatible with the dignity of this
Honourable Court, or with the gravit y of the issues in dispute in these
Proceedings, to reply to irresponsible and unwarranted comments
of such a nature. The Court itself has declared, what the record
herein makes inescapably clear, that
"... behind the present dispute there is another and similar dis
agreement on points of law and fact-a similar confiict of legal
views and interests-between the Respondent on the one hand,
and the other Members o,lthe United Nations holding identical views
with the Appticants, on the other hand." •
The attribution by Respondent to such other Members of the
United Nations-comprising the vast majority of the whole-of
views and convictions so weak, indecisive or vacillating as to be
deemed the product of "pressures" or "political action" 5 on the
part of other Governments is unworthy of serious reply.
In view of Respondent' s misinterpretations and misconceptions
of the actual views and attitudes of other Governments, however,
the following examples-selected from innumerable similar state
ments by Member States throughout the years- are relevant:
a. United States
The late President John F. Kennedy (Address to United Nations
General Assembly, rg63):
1 I.e., the "demand for accelerated political progress," supra, p. 234, footnote 6.
2 II, p. 446. Respondentthereupon quotes resolutions adopted by the Second
Conference of Independent African States, Addis Ababa, June 196o, and by the
"Summit Conference," Addis Ababa, May 1963, as weil as statements by the
President and the Secretary of Statc of Liberia, stressing, inter alia, the attainment
of independence or trusteeship for South West Africa, id., pp. 447-449·
3 Id., p. 448.
4 Judgment, p. 345· (Italics added.)
~ Whatever these undefined and tendentious tenns may be taken to signify.296 SOUTH WEST AFRICA
"... We are -opposed to apartheid and ail forms of human oppres
sion. Wc do not advocate the rights of black Africans in order to
drive out white Africans. Our concern is the right of all men to
cqual protection under the law-and since hurnan rights are indi
visible, this body cannot stand aside when those rights are abused
or neglected by any Mcmber State." 1
b. United States
Ambassador Adlai Stevenson, United States Representative to
the United Na tions:
"Wc ali suffer from the disease of discrimination in various forms,
but at least most of us recognize the disease for what itis: a dis~
figuring blight. The whole part is that, in many countries, govern
ment policies are dedicated to rooting out this dread syndrome of
prejudice and discrimination, while in South Africa we see the
anachronistic spectacle of the Government of a great people which
persists in seeing the disease as the rem2dy, prescribing for the malady
of racism the bitter taxie ofapartheid."
c. United States
Ambassador Sidney R. Yates, United States Representative to
the Fourth Committee of the General Assembly:
"By extending the apartheid laws to South West Africa the man
datory power is, in the view of my Government, clearly delinquent
in its obligations to the international community and to the population
of South West Africa. These obligations are set forth explicitly in
Article 2 of the mandate which states that South Africa 'shaH
promote to the utmost the material and moral well-being and the
social progress of the inhabitants of the territory.'
"Mr. Chairman, my Delegation believes not only that there is neither
legal nor political basis for the apartheid laws in South A/rica; there
is also no moral basis for such laws anywhere in the world, let alone
in a territorv such as South \Vest Africa which has a clear inter
national chiracter, which was given to the govemment of South
Africa as 'a sacred trust of civilization.'
"My Delegation believes, further, in the right of the people of
South West Africa to self-determination as prompt! y as the expres
sion may be freely and responsibly exercised. We would be strongly
opposed to any division of the territory of South West Africa without
the freely expressed consent of its people. We would be strongly
opposed to the annexation by any state of ail or any part of the
territorv without such consent. ·
"Mr. ·chairman, my Delegation is encouraged that there are voices
of white people still in South Africa calling for a restoration of reasons
[s-ic].In this connection, it was refreshing and reassuring to my
Delegation to read a recent article which appeared in the publication,
"Forum," a South African periodical, which urged the application of
1
2 G.A.O.R. 18th Sess., 12ogth meeting31 (A/PV.I2og).
S.C.O.R. 18th year, 1052nd meeting 31 (SJPV.I052).(Italicadded.) REPLY OE"ETHIOPIA AND LIBERIA
297
reasonand realism by the people ofSouthAfrica ta the racial situation.
"The author of this article reminded the white South Africans
that they, in !act, are the only actors in this looming tragedy
who may have sorne ability ta avert the onset of violence. ln
this South African article, the author suggests the following steps
by white South Africans:
'Primarily they can hold fast ta the principles of western civili
zation. They can denou•ce at every opportunity the philosophy, the
policy and the administrative practices of apartheid. They can oppose
it and frustrate il by ali legal means. They can begin their crusade
on behalf of human rights in our country. Theirs is the most worth
1
white crusade of all-a crusade against unneC('SSarydying.' "
d. United Kingdom
Prime Minis ter Macmillan:
"... Ali kinds of discrimination, not only racial but political,
religions and cultural, in one form or another have been and are
stiJl practised, olten as a surviva\ of long tradition; but the funda
mental difference between ours and the South African philosophy
is that we are trying to escape from these inherited practices. We
are trying, with varying degrees of success but always with a
single purpose, to move away from this concept in any form. \Vhat
shocked the Conference was that the policy of the present South
African Governmcnt appeared to set up what wc would regard as
an unhappy practice, inherited from the past, perhaps, as a philo
sophy of action for the future.
"This philosophy seemed altogether remote from and, indeed
abhorrent to the ideals towards which mankind is struggling in
this century, in the free world at any rate, and perhaps, who knows,
sooncr or later behind the Iron Curtain. It was not therefore because
ali of us are without sin that we felt so strongly. It was because this
apartheid theory transposes what we regard as a wrong into a right.
1 âo not question the sincerity with which these views are hcld by
many people in South Africa, or their very deep conviction that
theirs is the right course in the interests of all races; but we in
Britaitt have never been in doubt that tht'sis a wrong course." 2
e. United Kingdom
Mr. Patrick Wall, Member of the United Kingdom Parliament;
Summary Minutes of Address to the Fourth Committee:
"... [F]or over forty years, whatever the material progress that
might have been made, the South African Govemment had de
prived the indigenous inhabitants of the Territory of their basic
human rights. His Government's position was quite clear: it couid
1 Sta.tcment in the Fonrth Committec, 30 October 1963 (A/C·4/S.R. q6t).
(Italics addcd.)
2 Address to the House of Commons, 22 l\'larch 1961. (BritiInformation
Services Release No. T.II of 23 March 196r.) (Italics added.) SOUTH WEST AFRICA
not accept a system which set men on different levels because or
colour, or which enabled the men of one race to have complete
power over the men of another by denying them the rights that
should be theirs. Apartheid was morally abominable, intellectually
grotesque and spiritually indefensible. Thus, the Govemment of
South Africa was sufficiently to be blamed for the existence in
South West Africa of a situation in which the rights of the indivi1
ual were set at nought unless his skin was of the right colour."
f. United Kingdom
Hon. Peter Srnithers, M.P.; Address to the Fourth Commlttee:
"The people and Government of the United Kingdom were
opposed to apartheid or to racial discrimination wherever they
werc practised; they considered them to be reprehensible morally
and calamitous politically. The equality of men before the law was a
fundamental principle upon which the democracy of Britain rested.
The United Kingdom did not believe that societies could thrive,
or nations command the universal loyalty which gives them life,
unless they gave full recognition to that principle. There should
be no doubt in the minds of the Committee on that point. The
Government of the United Kingdom was opposed to the policy of
apartheid wherever it might be found. The actions of the United King
dom delegation in the matter of [sic] the Fourth Committee were ali
taken with that conviction firmly in mind, and with the intention
of taking those steps which were most likely to benefit the inhabitants
of the Territory [of South West Africa].
"The Unit.,d Kingdom was frequently called upon to use its
influence with the South African Government to persuade it to
abandon its racial policies, and was sometimes reproached for not
having done so. He submitted that by its policies in Africa and
elsewhere the United Kingdom had done far more than any other
Power to throw the practice of apartheid into isolation. He. could
not see by what right any delegation reproaçhed a country whose
Prime Minister had delivered in the South African Parliamenl itself
a categorical rejection ofhe doctrine of apartheid."2
g. France
Ambassador Bérard:
"Racial discrimination and segregation have always been utterly
foreign to the French way of thinking and to the policy which my
country bas followed in the past and continues to follow today.
For centurie3 the idea of equality between men, to whatever group
or nationality they belong, in whatever elime they were born,
whatever their religion or race, has inspired French philosophy,
which is based on reason and universality. Our thinkers and writers
have developed and disseminated this doctrine. It was France
1
2 G.A.O.R. 17th Sess., 4th Comm. 332 (A{C.4/SR.t38o).
G.A.O.R. 15th Sess., 4th Comm. 83 (AjC.4{SR. I113). (Italics added·) REPLY OF ETHIOPIA AND LIBERIA
299
which fust solemnly proclaimed the principle of equality, made it
the basis of its institutions and established it as a rule of govern
ment....
"Ali France's action in the African continent is inspired by these
principles. They have guided the evolution of the States of the
Community. We are convinced thal they should guide ali African
!ife... It takes its stand equally firmly against any kind of racialism
on the African continent, whether white or black, against the
exclusion of anyone from the !ife of a political community for
racial reasons, against any limitation or hindrance to any person's
activities. It proclaims thal the hope of peace and of a better future
depends on the ever doser co-operation andintegration of the varions
human races in a world which is shrinking every year." 1
h. Norway
"It is the Norwegian view that this legislative trend is deplor·
able and indeed indefensible. This repressive le~isla it inontself
a clear and unmistakable proof that the pohcy of apartheid is
inhuman by its very nature since it requires such inhuman measures
to ensure its implementation. We Norwegians still have fresh in
our memory similar efforts to repress human rights and elementary
freedoms which were to be the dawn of a dark millenium of Nazi
rule and supremacy, which happily did not come about thanks
to the persistence of the United Nations in the Second World
War ....
"... The Government deems it revolting thal the South African
authorities continuously sharpen the apartheid laws and their exe
cution in spite of the urgent appeals from the United Nations
that they abandon this policy. The new addition of the so-caUed
anti-sabotage laws gives reason to fear that the authorities in South
Africa are so detennined to continue their policy of racial discrim
ination and segregation that they will not hesitate to employ
pure police-state methods." 2
i. freland
"... [The Irish] delegation viewed 'apartheid' and aU racial dis
crimination as a violation of natural law and therefore an intrin
sically evil thing. Ali human beings possessed certain fundamen
tal rights from their first creation and the authors of 'apartheid'
in attempting to interfere with, or suppress, those rights were
guilly of a perversion of natural law. As practised in South A/rica,
thal evil was total.The non-white population of South Africa suf
fered not from a partial repression of freedom but an absolute
one, attempting to control every movement of their daily lives and
ensuring their political captivity and economie servitude. 1\fore
over, the system was not temporary but was designed to be per-
1 S.C.O.R., xsth ycar, 854th meeting at 2-3 (SJPV.854).
2 S.C.O.R., x8th year, 1055th meeting 6~7 (SJPV.1055)300 SOUTH WEST AFRICA
manent and enduring Thus, the United Nations, dedicated to the
establishment of perfect racial equality between al! peoples, was
confronted by a powerful sovereign nation obstinately dedicated
to complete racial inequality.
"The unan:~m oeuusnance of the civilized world to 'apartheid', •
as reflected in the Committee from year to year, was in itself a condem
nation of the inherent unwholesomeness of 'apartheid'. The situation
it created wa; a cause for sorrow and apprehension, sorrow at the
deprivations suffered by the non-whites in South Africa and ap
prehension for the rulers of South Africa themselves, who must
inevitably be contaminated and corrupted by the operation of
that cruel sy,.tem. It was a tragic irony of the times that the morn
ing of independence for the peoples of Africa should be overcast
by the shadow of 'apartheid.' " 1
j. Po/and
"Racialism was a venomous and contagious disease. Its gains in
one country affected ali humanity. Conversely, any achievement
in the struggle against prejudice and discrimination set an example
for ail mankind. Therein lay the international significance of the
South African situation. Poland wfΠparticularly sensitive ta the
dangers of racial prejudice, for it bad learned the lesson of the ulti
mate consequences of the doctrine of racial superiority in a hard
schaol. Thcre could be no doubt as ta the ultimate fate of apartheid,
like any other reactionary tendency which w2nt against the major
trends of history, it was bound ta lose."
k. Japan
".. .[A]parthâd persisted as a cancer on the body politic of the
African continent and indeed of the world." 3
1. Malaya
"The policy of apartheid was not only an affront to human dig•
nity and a gross violation of the Charter but also, based as it was
on an ill-conceived notion of the superiority of one race over another,
a direct negation of the self-evident truth that all men were equal
before God. Under the high sounding slogan of 'separate develap
ment' lay the iniquitous policy of the imposition of white supre
rnacy ovcr the vast majority of the South African population-a
policy which was intended solely ta preserve, consolidate and per
petuate the dominant position of the white minority vis-à-vis
the African people." 4
m. Greece
"In discussing matters of such fundamental human importance,
there was no need to invoke the provisions of the Charter, for the
1 G.A.O.R., 16th Sess., Special Pol. Comm. at83 (A/SPC{SR.275). (Italics added.)
2 G.A.O.R. 14th Sess., Special Pol. Comm. at 49 (A{SPCJSR.336).
3 G.A.O.R. t8th Sess., Special Pol. Comm. at 13 {A,ISPC{SR.3go).
4 G.A.O.R. 17th :5ess., Special Pol. Comm. at 49 (A{SPC{SR.336). REPL Y OF ETHIOPIA AND LIBERIA JOI
Charter was transccndcd by the unwritten law recognizing the
fundamental rights and freedoms of ail men, the origin of which
was lost in the mists of time. For threc thousand years Greecc had
fought in defence of freedom, and it was continuing that fight ta
day side by side with a people of the same national origin and the
same civilization, which was struggling to free itself from foreign
domination. Faithful to the traditions, princip/es and ideals it had
a/ways upheid, Greece wished to make an appeal to the Government
of the Union of Sottth Africa and to warn it of the dire consequences
to which ils racial poticy might lead." 1
n. China
"The case against apartheid is precisely that it dacs not promote
harmony and peace. On the contrary, it constitutes a constant source
of conflict and violence. The Sharpeville incident in rg6o should
have made this perfectly clear. So long as South Africa persists in
enforcing the apartheid programme, greater tragedies may yet
take place." 2
o. Afexico
" [South Africa is] hampering the materia! and mora! weU
being of the inhabitants of the Terri tory and impeding their normal
development towards independence by the practice of racial segre
gation in all aspects of social !ife and by denying them their fun
damenta! rights and freedoms.
"ln particular, South Africa has bccn guilty of the following
practices, which arc in direct conflict with the obligations imposed
by the Mandate: it allows only persans of European origin the right
to vote and to be e!ected to the main legislative bodies of the Ter
ritory; it main tains an odious system of racial segregation in edu
cation; it establishes segregated residential areas based on race,
colour and national or tribal origin; it denies the right to join trade
unions to any persan who is a 'member of any Native race or tri be
of Africa'; it denies non..Europeans the entry to a large number of
professions ... its legislation qualifies sorne of the workers in the
Territory as 'servants' and their employcrs as 'masters.' The 'serv
ants' are subjected to corporal punishment for any breach of
their labour contract; the Native inhabitants are forced to live in
specifie urban areas; the Native inhabitants are subjected to a
complicated system of passes governing their movements in the
Territory, which is contrary to human dignity .... "'
1
2 G.A.O.R. 13th Sess., Special Pol. Comm. at2o(A/SF'CjSR.Sg). (ltatics added.)
S.C.O.R. 13th year, 1053rd meeting at 41 (SJPV.I053)·
l G.A.O.R. 16th Sess., 4th Comm. at 98 (A{C.4{507).302 SOUTH WEST AFRICA
p. The Netherlands
[The Netherlands Representative stated] that his Delegation
had consistently condemned both the policy and practice of racial
discrimination. Without denying the complexity of the problems
facing the white minority in South Africa, the Netherlands consid
ered that apartheid not only failed to af!ord any solution to those
problems, but must inevitably lead to disastrous consequences.
"As the situation in South A!rica had deteriorated, the Nether
lands had become ever louder in its condemnation of the racial
policies carried out by the South African Government. Now it
could hardly find w1rds strong enough to express its abhorrence
of apartheid .... "
q. Pakistan
"Pakistan'::;condemnation of apartheid had a wider and a stron
ger basis than the South African Government's maltreatment of
people of Indo-Pakistan origin. Pakistan was an Islamic State and
the Islamic ideology stood for equality, freedom and social justice.
It completely rejected the concept of racial superiority. Racial
discrimination was, therefore, alien and repugnant to Islam and
its followers."2
Also:
"The Union of South Africa has embarked upon a course of na
tional policy which has resulted in bloodshed in the past and which
unfolds for the future a prospect of unending strife and violence.
Its structure 3f 'apartheid' is based on a colonial concept of racial
supremacy."
3· THE WEIGHTOFCONTEMPORARY SCIENTIFIC A UTHORITY
Respondent's formulations of its policy of apartheid, or separate
development, are based, inter alia, upon explicit and implicit
assumptions concerning patterns of human behaviour, and asserted
limits upon the ability of public authorities to influence or affect
such behaviour. These assumptions, stated for the most part in the
form of generalizations, appear clearly, for example, in Respondent's
rationale of its policy on Education in the Territory.'
Respondent's underlying premises are, in effect, that historical
circumstances have created a situation in which members of
different "groups" prefer to "associate with members of their
own group"; that "many Europeans, in all probability the vast
majority, are not prepared to serve in positions where Bantu are
placed in a position of authority over them"; that these are "social
phenomena which exist as facts, independently of any governmental
1 G.A.O.R. 17th Sess., Special Pol. Comm. at 38 (A{SPC/SR334).
2 G.A.O.R. 17th Sess., Special Pol. Comm.22t(A/SPC/SR.331).
l S.C,Q.R. rsthyear,852nd meeting at 30 (SJPV.Ssz).
4 III, pp. 528-530; quoted pp. 266-2sup,a. REPLY OF ETHIOPIA AND LIBERIA 303
policy, legislation or administrative practices"; and that "whatever
the moral rights or wrongs pertaining to them in particular situ
ations, there can be no deniai that such group reactions exist as
facts of which dtte cognizance mttst needs be laken by any realistic
government.'' 1
On the basis of such assumptions and generalizations, Respondent
accordingly concludes thal efforts on its part to seek guarantees of
equalityof access of ali individuals to employment, equaleducational
opportunities, equal residence rights and the like, would bring
about refusai of white persans to continue to opera te the economy,
with the result that Respondent would be compelled to reinstate
differentiai opportunities at a later stage and this, in turn, would have
the consequence of crcating a sense of "frustration" and unhappiness
among "non-white groups" greater than they fee! under the present
system, under which they are "sheltered" from the unattainable. 2
Such contentions are repeated throughout the Cottnter-Memorial.
Discussing the limitation of certain posts to "Europeans" in the
mining industry, Respondent argues:
"The reasons underlying the above provisions flow from the tra
ditional relationship betwcen the Europeans and Native population
groups of the Territory. In the history of the Territory there has
at ail times been social separation betwee'n these groups, and ex
perience has shown that members of each group prefer to associate
with members of their own group, and that certain kinds of con
tact between members of these groups tend tu create friction. These
factors are accentuated by the fact that the members of the Euro
pean group have traditionally occupied a position of guardianship
in respect of the indigenous groups, and that in the economie field
the relationship between Europeans and Natives has generally been
limitcd to that of employers and employees.
"In this factual situation, most Europeans would refuse to serve
in positions where Natives might be placed in authority over them.
Although very few, if any, Natives in the Tcrritory would at pres
ent be able to hold any of the posts mentioned in the aforegoing
paragraph, Respondent was nevertheless obliged ta lake cognizance
of the factuat situation, and for the considerations aforestated, ta
adopt measures which would prevent Natives emptoyed in European
owned mining enterprises from being appointed ta technical and re
sponsible posts in which they woutd exercise authority over Europea11
3
co-employees.''
Respondent argues further, in discussing restrictions on employ-
ment opportunities in railways and harbours:
"... On the one hand there was the danger of estrangement of
members of the White group from fields of employment which
required their services. On the other band there was the prospect
1 Ibid.passim. (Italics adrled.)
3 Id., p. 528, para. (e); p. 530, p(iJp. 531, para. (n).
III, p. 55· {Italics added.) SOUTH WEST AFRICA
that in many avenues non-Europeans would find progress almost
completely barred-through superior qualifications, ability or ex
perience on the part of White competitors, or through prejudicial
reaction on th~ part of employers, or through a combination of these
-whereby thgy wmûd increasingly experience disillusionment and
frustratt'on. Goodwûl and good relations across group and racial bor
ders would suffer immeasurably." 1
Respondent, accordingly, concludes:
"... Displaccment of European employees in graded posts by Na
tive employees, on Native trains, would, as the l\Iinister saw it,
and as matters then.stood, have caused grave dissatisfaction amongst
European employees and the public." 2
Respondent persists in the theme that it is hclpless to act other
than as it presently does, if it wishes to act responsibly. Thus, in
discussing rights of residence, Respondent asserts:
"... V•/henRespondent assumed the Mandate, it was conscquently
only logical to reserve, as far as practicable, to the various groups
areas in which their members could live, to the exclusion of members
of other groups." 3
In justifying its maintenance of a system of segregated educa
tional facilities, Respondent declares:
"Respondent was virtually compelled to adopt the course afore
stated by the facts of the situation as it found them on taking over
control of South \Vest Africa; and such course in turn regulated
the application of funds in providing educational facilities for the
different population groups. Any other approach based, for example,
on the supposition that aU groups should at ail points of time be
treatecl equally in the allocation of funds-also in the eclucational
field-would have bcen complete/y artificialin the circumstances of
the Territory." 4
Respondent further justifies the absence of a system of compul-
sory education for non-whites in South West Africa by arguing:
"... In the light of ils experience, the Administration has no doubt
that any system of compulsory education, unless it can be intro
duced with the consent of the Native group concerned and with
full appreciation on ils part of what it will entai!, will inevitably
lead to dissatisfaction and probably also dcstroy much of the good
work that lus been done in the past."'
Summarizing its assertion that members of different racial
groups prefer ,;eparate employment, that "Europeans" are not
prepared to serve in positions subordinate to "Bantu," and hence
t III, p. 65. (Italics added.)
3z Id.p. 6;. (ltaliadded.)
ld.,p.232. (ltalics added.)
• Id., p. 383. (Italics added.)
j Id.,p.393· (Italics added.) REPLY OF ETHJOPIA AND LIBERIA
305
that education of the "Bantu" for positions he cannat attain
\VOuld"frustrate" him, Respondent states:
"The matters referred to in sub-paragraphs (c), (d), and (e)
above are social phenomena which exist as facts, independently of
any governmental Policy, legislation or administrative practices-as
indeed they manifest themselves, to a greater or lesser extent, in
mixed or plural communities throughout the world. ... Whatever
their exact nature or causes, and whatever the moral rights or
wrongs pertaining to them in particular situations, there can be no
denial that such group reactions exist as facts of which due cognizance
must needs be taken by any realistic government." 1
The same premises underly the Report of the Odendaal Commis
sion whose findings Respondent fully supports. 3
The Odenclaal Commission, in explaining its recommendations,
argues:
"... [A] policy of integration is unrealistic, unsound, and unde
sirable, and cannat but result in continuai social discrimination, dis
content and frustration, friction and violence-a climate in which
no socio-economic progress can be cxpected ta take place. Under
such conditions the social cast in non-economie terms must out
weigh any possible economie advantages. In the circumstances it
is therefore desirable to accept the position as it is and not to put
idealism before realism." 4
l~espond seenstalso to justify its policy on the basis of compar
isons with human behaviour at ali times and in ali places. It suggests
thal its assumptions hold for at !east a certain category of situations,
e.g., ali African countries. 5
Elsewhere, however, Respondent contends that the most ana
logons situation for comparative purposes is that of ali mixed,
plural, or multi-racial communities in the world. 6
In reply, Applicants show that, to the contrary, the foregoing
assumptions and generalizations, asserted by Respondent to
underly and shape its policy of apartheid, or separate development,
are contrary to, and are rejected by, the overwhelming weight of
authority in the political and social sciences.
(A) RESPONDENT'S CONTENTION REGARDING "DIFFERENCE"
\VITHOUT ''lNFERIORITY''
7
Although as has been stated above, Respondent avers that its
"policy is not based on people being inferior but being different"
a policy of differentia tian pursuant to which status, rights, cluties
1 III, pp. s:zS-5(Italics added.)
2 Supra, p.270.
3 1l1emorandum, para. 21 (IV,~13).
• Odendaal Commission Reportp. 427,para.1434· (Italics added.)
' Il, p. 383; Book IV passim; Ill, p. 57; id., p. 381.
6III, p. 528.
7 Supra, p. 268.306 SOUTH WEST AFRICA
opportunities and burdens are allotted on the ba>ISof group, race
or colour, necessarily implies not only that sorne "groups" are
inferior, but that individual members thereof are "permanently
and irremediablv inferior." 1
Whatever mày be the intended significance of Respondent's
above-quoted statement, the overwhelming weight of authority
in the sciences of biology, psychology, sociology and anthropology
argue that no scientific evidence supports an assumption that
groups or races differ innately.
Professor Philip V.Tobias, President of the InstitutefortheStudy
of Man and Head of the Department of Anatomy, University of the
Witwatersrand, declares:
"Racially discriminatory practices make certain assumptions
about race, sometimes overtly, sometimes tacitly and sometimes
couched under new namcs, such as cultural differences. These
include:
"(i) the assumption that races are pure and distinct entities;
"(ii) the assumption that ail members of a race look alike and
think and act alike; basic ta this one is the idea that how one be
haves depends on one's genes;
"(iii) the assumption that sorne races arc better than others, sorne
indeed falling right outside the magic circle of love and brother
hood, not being worthy of one's finest feelings because they are
inferior being-s."
Dr. Tobias concludes:
"Scùnce provides no evidence thatany singleone of th2assmnptions
underlying South Ajrica's racial legislation is fustified."
The Court's attention is respectfully drawn to additional authori
ties, cited in Annex I2, page 590, infra.
(B) RESPOKDENT's CONTENTION OF INEVITABLE "FRUSTATION"
lF ALL lN HABITANTS OF THE TERRlTORY ARE ACCORDED EQUAL
OPPORTUNITY 3
The basic fallacy of Respondent's contention, captioned above,
consists, in the scientifically demonstrable fact that tbe greatest
"frustration" is caused by deniai of equal opportunity inherent in
the policy of apartheid itself.
"The pattern of community practices is the fountainhead of
prejudice: of prejudiced behavior and of prejudiced attitudes.
"The growing child learns his social behavior primarily by fol
lowing the modes and models of behavior around him. Indeed, he
has little choice...
1 Philip Masan, in Annex r, p. 339, infra.
2 The Meaning of Race22 (1961). (Italics added.)
' Supra, pp. 267·268, 270-273. REPLY OF ETHIOPIA AND LIBERIA 307
"These are the social3ituations, i.e., the overt sets of relationships
with which the child is surrounded. He does not have to be told
that Negroes are 'inferior.' or what his relationships to them are
supposed to be. These are apparent.'" 1
The classic study of I.D. MacCrone, Professor of Psychology at
Witwatersrand University, applies the foregoing principle to
South Africa:
"... [W]e find that [the] present economie, political and social
structure [of South Africa] invariably tends to lay upon the black
the stigma of inferiority. From early childhood the white man is
accustomed to look down upon the black as a member of the ser
vant class, as one who definitely occupies an inferior status in the
social system .... The result of such a system is, of course, unavoid
able. The white child g·rowingup in such a community inevitably
tends to regard the black as a menial by nature, as an inferior to
be looked down upon with feelings of superiority and contempt."'
Dr. Robert Mael ver, Columbia University (U.S.A.), has observed
that:
"Under ail conditions the discrimination of group against group
is detrimental to the well-being of the community. Those who are
discriminated against are balked in their social impulses, are preven
ted from developing their capacities, become warped or frustrated,
secretly or openly nurse a spirit of animosity against the dominant
group." 3
Similarly, Dr. Kenneth Clark argues:
". . . [T]he evidence from social-science research, from general
observations, from clinical material, and from theoretical analyses
consistently indicates that the personality pattern of minority 4
group individuals is influenced by the fact of their minority status."
The United States Supreme Court has unanimously expressecl
the same view:
"To separate [children in grade and high schools] from others
of similar age and qualifications solely because of their race gene
rates a feeling of inferiority as to their status in the community
that may affec5 their hearts and minds in a way unlikely ever to
be undone."
(C) RESPONDENT'S CONTENTION THAT AS A "REALISTIC GOVERN
6
MENT" IT MUST SUPPORT EXISTING "GROUP REACTIONS"
Respondent's contention, captioned above, is refuted by the
overwhelming weight of scientific authority. Its basic fallacy
1 Raab and Lipset, "The Prejudiced Society,"in Raab (ed.)American Race
Relations Today 48-49 (1962).
z Race Attitudes in South Afric261 (1937).
3 The Web of Government 428 (1947}.
4 Prejudice and Your Child 47 (znd ed. .rg6J).
5
6 Supra, pp.269-273.Education, 347 U.S. 483, 494 (1954). SOUTH WEST AFRICA
consists in its disregard of the fact that, inasmuch as attitudes of
prejudice, discrimination and fear are generated by individuals
through their social structure and processes, such attitudes like
wise can be modified through the social structure and processes
and, in particular, through governmental action.
Respondent's obligation under the Mandate to "promote to the
utmost the material and moral well-being and the social progress of
the inhabitants of the terri tory" is, and has been, within its capacify
of accomplishment, because its failure to discharge its obligation
in this regard has been systematic and deliberate.
The following scientific reasons and authorities establish the
fallacy of Respondent's contention, as summarized above.
In the first place, many prejudiced persans will not discriminate
in a non-discrimina tory situation. As J.Dean and A. Roscn observe:
"\Vithin wide limits, prejudiced persans will accept and partici
pate in a thoroughly mixed and integrated setting ifintegrated
patterns are established and accep1ed as appropriate by other
participants in that situation.''
G. Saenger, discussing the likelihood of a prejudiced or a demo-
cratie reaction to proposais for desegregation, concludes that much
"... depends not only upon the relative strength of the conflict
ing desires, but also upon the social pressures exerted upon the
prejudiced and the situation in which the conflict occurs. The
desire to conform with prevailing public opinion is foremost in his
mind." 2
Racial or group attitudes are not decisive indicators as to how
people will act in a racial or group situation. The social demands
of such a situation, particularly when enforced by authority, are
effective determinants of individual action-'
A clear definition of law and policy by govermnental authorities
can facilitate a change in behaviour' Most individuals in a society
prefcr to ohey the law, even if they disapprove of behaviour required
of them.
"... Most people will ohey legislation that is properly enforced
and will tend to bring their ideas into consistent relationship to
their obedient action." s
1
A Manual of Intergroup Relations 59-60 (1963). They offer evidence drawn
from the study of two cities in the Southwestern United States for this proposition.
The custom in bath cities was normally ta have segregated facilîtîes în theatres.
\Vhen, for various reasonsof convenience,the seating was integrated, there was
no2demonstrable reluctance of anyone to attend these theatres.
3 The SocialPsy~hol ooPgejudice 240 (1953).
Blumer, "Res,~a rncRace Relations: United States of America." 40 Inter
na4ional Social Science Bulletin No. 3, p. 432 (1958).
5 Williams and :Ryan, Schools in Transition 247 (1954).
Suchman, et 1Û.,Desegregation:Sonze Propositionsand Research Suggestions
37 (1958). REPLY OF ETHIOPIA AND LIBERIA 309
Authorities agree that enforcement of legislation can be a deci
sive means of overcoming discriminatory behaviour and reducing
conflicts between groups.
Dr. G. Saenger states:
"While enforced legislation does not suffice to erase discrimina
tion completely, it appears to be one of the most successful tech
niques for the acceleration of progress, even though there is reason
to believe that none of the existing laws are used to the fullest ex
tent possible." 1
Similarly, M. Tumin 2and R. M. Williams, J r. comment on the
positive role legislation and law enforcement can play in changing
behaviour and reducing racial conflict.
A Memorandum submitted by the Secretary-General of the Uni
ted Nations in 1949 summarizes the reasons why legal action serves
to reduce the incidence of discrimination or other manifestations
of prejudice or fear:
"(a) It fosters the conviction that discrimination is wrong by
fixing standards which are respected by the great majority of
people.
"(b) People who have little respect for the law are nevertheless
afraid of the consequences of unlawful conduct; they therefore
obey the law in order to avoid its penalties.
"(c) In both cases and whatever the motive, the resulting daily
behaviour tends to create social customs which are in harmony with
the law; these customs constitute a powerful collective force.
"(d) The law can also help repair the harm produced by unlaw
ful conduct, in so far as it can provide indemnities and reparation
for the person wronged." 4
Respondent's assertion that it is in the grip of social "facts,'' 5
implies that legislation can only follow a change in public opinion,
and that attcmpts to anticipate or modify public opinion are
"unrealistic," or even dangerous. Such an assumption is similarly
rejected by modern social science.
Dr. Gordon Allport, Professor of Psychology at Harvard Univer-
sity, speaking of race relations in the United States, notes:
"... While it is true that unless a fairly large percentage of the
people are in favor of a law it will not work, yet it is false ta say
that folkways must always take precedence over stateways. It
was the Jim Crow laws in the south that in large part createdfolk-
1 The Social Psychology of Prejudic271 (1953).
2 Tumin, Desegregation: Resist1mce and Readinest68·69 (1958).
3 \Villiams,Reduction of Intergroup Tensions73·75 {1947).
4 United Nations, Main Types and Causes of Discriminatio43 (EjCN.4jSub.2/40/
Rev.I) (1949).
s Supra, pp. 267·271.310 SOUTH WEST AFRICA
ways. Similarly, we have seen thal FEPC legislation quickly cre
ales new folkways in a factory or department store. Within a few
weeks, Negroes, Mexicans, or Jews are accepted as a matter of course
in occupations where for decades they had been excluded." 1
M. Tumin similarly argues:
"It is !rue that many persons in the South donotseem tolee! very
different about Negroes and Negro rights !han did their ancestors
two or three generations ago. It is equally !rue thal many of them
behave very differently in these matters than did their ancestors. In
short, social action has been modified and cultural patterns have
bcen revised without any commensurate and corresponding modifi
cation and revision of the basic feelings involved." 2
K. Clark also argues !hat one need not change men's hearts
(attitudes) before one can change their social behaviour. 3
M. Deutsch concludes, to the same effect:
"There isstrong evidence ... that the social catalyst of change is
a felt need to adhere to the law of the land. Particularly is this
true in the middle classes and in the community power centers." 4
In a study devoted to the effectiveness of a New York State law
prohibiting discrimination, l\1. Berger demonstrated that the law
has reduced discrimination in employment and coneludes:
"Thus we have seen the efficacy of law in controlling the behavior
of persans who acquire prejudice as they acquire ether social values
from the group to which they belong, and the behavior of those 5
whose prejudice is more deeply rooted in personality disorders."
H. Potter, reviewing similar legislation in Ontario, Canada,
dating from r944. concludes that the atmosphere created by the
legislation has had a positive influence:
"The wind of change has blown through business offices, banks
and stores, as well as through parliamentary chambers. In Mon
treal, for inEtance, alilive of the English department stores employ
coloured men and women in a variety of occupations." 6
R. A. Kelly, discussing government action as an instrument of
fostering integration of the Maoris in New Zealand, states:
"The great advances made by the Maori in the post-war period
have sprung from the legislation of the few years from 1935, and
from the Maori Social and Economie Advancement Act of 1945.
Government, from being a passive instrument that bad removed
1
2 The Nature of Prejttdic470-71 (r954).
3 Desegregation: Resistance and Readiness22 (1958).
"Desegregation: An Appraisal of the Evidence," 9 Journal of Social Issues
(1953)·
71-72"Some Perspedives on Desegregation Research," The Role of the Social Scien
ces5iEquality by Stc.:tute t86 (1952).1958).
6 "Negroes in Canada," 3 Race 54 (November 1961). REPLY OF ETHIOPIA AND LIBERIA
311
disabilities, changes in the next decade to an active promoter of
racial integration in New Zealand and of the economie and social
progress of the Maori people." 1
Even where explicit legislationis not special!y enacted, the willing
ness of authorities to deal swiftly and strongly with instances of
disorder provoked by sentiments of racial prejudice can be effective,
as the reactions of the Government of the United Kingdom to the
Nottingham disturbances in 1958 clearly show. The Earl of Lucan
commented in the House of Lords on why the disturbances were
so quickly forgotten:
"I believe the reason why they were forgotten so soon was that
alter the first two outbreaks nothing further happened; and the
!act that they did not recur is due to a number of factors, one of
which was the !act that the law was very quickly and firmiy asserted.
"Another factor was that declarations were made immediately
by a number of public figures, sorne Ministers and members of the
Opposition; 2and the Press almost unanimously condemned the
out breaks."
But the Earl of Lucan called nonetheless for legislation on the
following grounds:
"Not the !east of the advantages of legislation is that it gives
support to those of good will who ot3erwise might find it difficult
to stand up against local opinion."
It must be concluded that Respondent, by refusing to act against
racial discrimination, has encouraged and abetted it. By official
action Respondent could not merely have reduced discriminatory
behaviour; it could have reduced the attitudes of prejudice that
lay behind the behaviour. Ali competent authorities agree with
\V. Maslow that "legislation is educative."' Or, as A. Rose has
stated:
"A significant amount of evidence has become available to in
dicate that the attitude of prejudice, or at !east the practice of
discrimination, can be substantially reduced by authoritative or
der." 5
Or, asC. R. Nixon states, concerning the United States:
"... Where law is not enforced, the law is ineffective; but where
law enforcement procedures are firm. then the law can have an
important effect on existing attitudes." 6
1 "The Politics of Racial Equality," 24 New Zealand Journal of Public Adminis-
tration No. 2, p. 32 (1962).
2 212 H.L. Deb. (5th ser.) 684 (1958).
3 Id.,p. 683.
4 "Prejudice, Discrimination, and the Law," 275 A nnals of the A merican Academy
of Pvlitical and Social Science r6-17 (1951).
5 "The Influence of Legislation on Prejudice," in Rose (ed.), Race, Prejudice
and Discrimination 546 {1951).
6 "Law, Race Relations, and Social Change in the United States," 22 Race
Relations journal, Ko. I, p. 11 (1955). SOUTH WEST AFRlCA
JI2
Inaction, or, indeed, negative action in this regard on the part
of Respondent has in consequence hindered the well-being and
thwarted the social progress of the inhabitants of the Territory.
"\Vhen1 discrimination is eliminated, prejudice . . . tends to
!essen."
lt follows that acts of discrimination are, as the United States
Supreme Court noted as early as r879, in respect of exclusion of
Negroes from jury-duty, "a stimulant to that race prejudice." 2
4· HISTORY AND CHARACTER OF THE SYSTEM OF
"HOMELANDS" OR "TERRITORIAL APARTHEID"
Respondent's formulation of the premises underlying the policy
of "separate development" have been set out in this Reply, 3 and,
for the Court's convenience, may be summed up here, again in
Respondent's own words:
"The only remaining alternative is therefore that of 'live and let
live',4 a policy which seeks to remove the competition and con
flicts of interest which lead to a struggle for supremacy in an attemp
ted process of integration, and which seeks to bring about free, self
governing cmnmunities which can co-operate with one another as
the nations cf the world do in matters of mutual economie and other
interest.''5
Respondent a.vers further:
"... Respondent proposes in this regard to apply experience gained
ùt the same direction in South A/rica, and to guide the groups to
wards an application of measures whereby an evolution will be pos
sible from traditional systems to others more suited ta the conditions
of the modem world".'
The "experience gained in the same direction in South Africa,"
to which Respondent refers in this context, is a system comprising
"three types of Bantu authorities, viz., Tribal, Regional and
Territorial Authorities." 7 Respondent asserts that
"The acceptance of Bantu Authorities by the indigenous popula
tion groups and the development potential of this system has been
strikingly illustrated by events in the Transkei." 8
1 Allport, The N~tur of Prejudice472 (1954).
1 Vide: Strauder v. West Virginia, roo U.S.303, at308 (1879); citedin Maslow,
"Prejudice, Discrimination, and the Law," 275 Annals ofthe American Academy
of Political and Soda! Science12 (1951}.
l Supra, pp. 264··268.
4 II, p.460, defines this phrase as synonymous with "separa te development.''
' Id.,p.473· (ltalics added.)
6 Id.,p. 474· (Italics added.)
7 Id., p. 478.
8 Id., p. 479· REPLY OF ETHIOPIA AND LIBERIA 313
Respondent sets forth in the Counter-Memorial its version of the
origins and characteristics of the "self-governing" Transkei, the first
of Respondent's projected series of "Bantustans" or "Homelands." 1
By way of underscoring the relevance to these proceedings of
its poliey in South Africa, Respondent states:
"Although these systems have not been introduced in South
\~le s trica, a similar development, adapted to the peculiar cir
2
cumstances of the Territory, is to be expected."
\Vith this expectation in view, Respondent appointed a Commis
sion of Enquiry into South West Africa Affairs (the Odendaal
Commission), the objectives, composition and terms of reference
3
of which are set out in the Counter-Memoria/. The Report of the
Commission, released 27 January 1964, has been publiclycirculated
and has been added by R.espondent to the documentation of the
4
instant Proceedings.
In its Report, the Commission recommended, inter alia, the
partition of the Terri tory into ten separate "homelands," a "Colour
5
ed" rural irrigation area, and a "White area."
Respondent's Prime Minister presented to the Parliament, on
29 April 1964, the Memorandttm 6 announcing. inter alia, "The
Government's Attitude Concerning the Future Course of Develop
ment" of the Territory. 7
By this M emorand th~mGovernment endorsed "the view that it
should be the aim, as far as practicable, to develop for each popu
lation group its own Homeland ... " 8 In addition, the Government
1Il, pp. 478-481. Itis notcworthy that Respondent has announccd that it is
not planning, at this stage, to grant powers of self-governmenin any additional
South African area. (R. of S. A., Pari. Deb., House of Assembly, 2nd Pari., znd
Sess. (weeklyed., 1963), Col. 851S).
2Il, p. 481. Respondent there quotes a comment by itsPrime Minister that
if "UN asks us to do the same for the various communities in South West that we
are doing for the communities in the Republic, 1 shall be only too glad." (R. of
S. A.,Parl. Deb., House of Assembly, 2nd Parl., tst Sess. (weekly ed., 1962), Col. 92.)
l Il,pp. 476-477·
+ Communications from Respondent's Agent to the Registrar of the Court, dated
12 February 1964, 25 March 1964 and 28 :\lay 1964 (the last such communication
transmitting for filing the Supf-lement to the Counter-i\..Jemorial, which fonnally
introduced the Odendaal Commission Report and the Memorandum thereon to the
re5ord of thcse Proceedings as relevantdocuments; see p. 269, footnote 7, supra).
Odendaal Commission Report, pp. 81-109. A summary of the Commission's
recommcndations in this regard is containein a Working Paper prepared by the
United Nations Secretariat,8 April 1964 {A/AC.rogfL.roS). Rele\·ant extracts
th6reof are reproduced for the convenience of the Court in Annex 2, p. 341, infra.
7 See p. 26g, footnote 7• supra.
Memorandum, sec. B (IV, p. 202).
8 Memorandum, para. 21 {id., p. 213). SOUTH WEST AFRICA
announced its decisions with respect to measures of implementation
which "should be executed immediate! y and on a large scale." 1 The
basic assumptions underlying certain of such decisions, together
with Respondent's express agreement with the Odendaal Commis
sion's findings on "Homelands," 2 reaffirm Respondent's policy of
applying in the Terri tory "experience gained in the same direction
3
in South Africa." This is consistent with its averrnent in the Coun
ter-Memorial that
"Respondent has for sorne time now been convinced that cir
cumstances in South West Africa have also developed to a stage
. where accelerated and co-ordinated application of the constructive
aspects of a suitably adapted policy of separate development has
become possible and highly desirable." •
Respondent, while correctly asserting that the "policies and
practices in South Africa are not in themselves matters for adju
dication," nonetheless submits that it may
"... by way of illustration, be instructive to have brief regard to
certain aspeets of what has been done and accomplished in South
Africa, in pursuance of a policy of separate de5elopment, indepen
dently of any international engagement."
Respondent thereupon sets forth 6 its version of "what has been
done and accomplished" in the Republic. 7
Applicants concur, although for contrary reasons, in Respondent's
avowal of the "instructive" character of its "homeland" policy in
South Africa with respect to the issues here in dispute involving
administration of the Mandate in the Territory. Applicants deny the
validity of Respondent's suhmission that
"... the development potential of th8s system has been strikingly
illustrated by events in the Transkei."
Applicants respectfully submit that, to the contrary, the "events
in the Transkei," cited by Respondent as the mode! for the future
1 Memorandum, :;ec. C. (id., IV, pp. 203-211; language quoted, at p. 203). For a
discussion of such measures of implementation,see Annex 10, p. 589, infra; such
discussionisincorporated herein by reference.
2 Memorandum, para. 21 (IV, p. 213).
3
• Id., p. 476.
' Id., p. 477-
6 Id., pp. 477-480.
7 The recommendations of the Odendaal Commission, accepted by Respondent
"as an indication of the general course to be adopted" in the Territory (supra, p. 270,
footnote 2), make clear that the "development to be expected" in the Territory
(supra, p. 313, footnote 2) is, indeed, "similar" to that in South Africa itself.
8 Il, p. 479- (Italics added.) REPLY OF ETHIOPIA AND LIBERIA 315
development of South West Africa, as weil as of South Africa,
demonstrate conclusively thal the premisc of the "Homeland" poli
cy is illusory and thal its promise is deceptive. Measured against
Respondent's obligation to promote the well-being and social pro
gress of the inhabitants of the Territory', the policy falls cmelly and
deceptively short of achieving its proclaimed objective in human
terms, and violates the objectively determinable legal norms
governing Respondent's obligations under Article 2 of the Mandate,
as demonstrated below. 1
Applicants deal below with theorigins and character of the system
of "Homelands," or "territorial apartheid," on the basis of consider
ations applicable equally to the Territory and to South Africa.
As has been pointed out,' explanations of the objectives of the
"Homeland" policy have been formulated by Respondent in
inherently ambiguous and mutually inconsistent terms.
Thus, Respondent, speaking through its Prime Minister, bas •
proclaimed the aim of fostering "Homelands,"
" '. . . following the model of the nations, which in this modern
world means polüical independence coupled with economie interde
3
pendence.'"
On other occasions, however, Respondent has candidly avowed an
objective inconsistent with the foregoing. Thus, Respondent, again
speaking through its Prime Minister, has conceded:
"Now a Senator wants to know whether the series of self-govern
ing areas would be soYereign. The answer is obvions. It stands
to reason that White South Africa must remain their guardians.
We are spending all the moncy on these developments. How could
small scattered states arise?. .. It stands to reason that when we talk
about the Natives' rights of self-government in those areas we
cannot mean by that to eut large slice4 out of South Africa and
turn them into independent States."
Again, during an indeterminate, and probably permanent,
"transition stage," Respondent describes its objective, with respect
to the inhabitants of the Territory, as weil as of South Africa, as
thal of serving as "guardian," in arder to
1 Annexes 1-4, pp. 328-361üzira.
2 Supra,p. 275.
3 II, p. 466. (ltalics in original.)
4 Statement by Respondent's Prime Minister in the Senate of the Republic of
South Africa (quoted p. 265 supr.1.) SOUTH WEST AFRICA
316
keep the ward in hand and leach kim and guide kim and
check him where necessary." 1
That the "transition stage" is indeterminate is conceded by
Respondent. The possibility of its long duration, or even perma
nence, is made clear, inter alia, by statements such as that of
Respondent's Prime Minister in rgsS:
"Territorial apartheid is the ideal ... to aim at ... the ideal
must be total separation in every sphere, but everyone realizes
!hat to-da y it is impracticable.... Such a thing cannat be at
tained within a space of a few years, or even for a long time to
come." 2
In explicit reference to the Mandated Territory, Respondent
describes its "general policy" there as one
"in which it seeks to encourage the varions population groups to
develop culturally and otherwise in separate areas-in accord
ance with the preferences shawn by the groups themselves in this
regard." 3
The foregoing quotation from the Counter-Memorial embodies,
so far asApplicants have noted, the most explicitly candid admission
by Respondent of its objective to "encourage" separateness
among the "groups."
The fostering of such differences, "culturally and otherwise,"
under the "protective shelter" 4 of the Tribal Chief is thus, in
Respondent's conception of its obligations under the Mandate, the
suitable method of promoting to the utmost the well-being and
social progress of the inhabitants of the Territory who, in this way,
are to be segregated into "homelands," "to be controlled and
governed by themselves, as nations are." 5
Respondent's Prime Minister, in 1956 Minister of Native Affairs,
1
2 Respondent's Prime Minister (t961), II, p. 466. (ItaJics added.)
U. of S.A., Pari. Deb., House of Assembly, znd Pari1stSitting (weekly ed.,
1958), Col. 3805. (Italics addcd.) Addressing the House of Assembly the following
year, Respondent P'~me Minister further stated"And if it should happen that
of those future lime.>will have to consider in what further way their relationships
must be reorganized." (U. of S.A., Parl. Deb., House of Assembly, 12th Parl., 2nd
Sitting (weekly ed., 1959), Col. 62.) (Italics added.)
3 III, p. 174. (Italics added.) The significance of Respondereference to the
"preferences shawn by the groups themselves"is tobeappraised in the light of its
failure and refusai to consult with the inhabitaor permit them a voice or vote
in the making of decisions afiecting them (discussed infra, pp. 320-326).
4 Infra, p. 321.
5 Respondent's Prime I\linister (1959), quoted approvingin II, p. 466. REPLY OF ETHIOPIA AND LIBERIA 317
is quoted in the Counter-Memoriai as describing Respondent's
"basic policy and its qualifications" as follows:
"The quintessence of the matter is that while the European
enjoys ali his rights and privilegesin onepart of the country, namely
in what we cali White South Africa, the Native has similar rights
and privileges, but can in turn only exercise them within the Native
Areas, i.e.in the Reserves-whethcr Tribal territory or areas sub
sequent!y purchased.. .. ln these territories the EuroPean has no
claim to property and certain civil rights. There he is the temporary
inhabitant who helps w!Ïh the development of those areas, but they
belongto the Natives. The rights of the Natives are bound up with this
fact. ...Just the opposite is the case in the European areas. There is
the home of the European's rights and therethe Native is the temporary
resident a11dthe guest, for whatever purpose he may .be there." 1
So far as South Africa itself is concerncd, such a formulation
imports into Rcspondent's policy a !aise equivalence in ail its
relevant aspects: the "Native" urban population alone in "White
South Africa" has increased from 2,329,000 in 1951 to 3,444,000
in 1960; "the reserves comprise merely 37 percent of Respondent's
'native' population", the remainder living in "White South A!ri
ca" 2 ;the Whites are notsubject to racially discriminatory practices
in the Transkei; the one and one-hall million "Coloureds" and
hall million "Asialies" in "White South Africa" are deniee! the
franchise and other civil rights, without any pretension on Respon
dent's part that they have, or will be assigncd, "reserves" or
"homelands."
Identical considerations apply to the Territory although, of
course, on a differing statistical base.
Applicants respectfully submit that if Respondent's good faith
were, by itsell3 an issue in these proceedings, as Respondent errone
ously asserts, the inherently ambiguous and inconsistent fornm
lations of its policy of apartheid, together with the manifestly false
equivalence of its asserted balancing of rights and interests as
between "Natives" and "Whites" in South Africa as weil as in the
Territory, would in itsell raise a serious question of Respondent's
mala fides.
The false equivalence, going to the heart of Respondent's pre
tensions concerning its "homeland," or "Bantustan," policy, is
exposed by a distinguished South African jurist in the following
terms:
1 Il, p. 174· (Italics in original.)
2 Survey of Race Relatiou(1963). p. 75, and see Annex r, pp. 3tf.infra.
3 Il, p. 2. See discussisupra, pp. 255-259, correcting Respondent'miscon-
struction of the Subruissions. · SOUTH WEST AFRICA
"It is now hardly open to question thal the principal object aimed
at in introducing the Bantustan policy was to neutralise the call
for an extension of the franchise to non-whites and, in particular,
to Africans. What was primarily sought was not the physical devel
opment of the Reserves, which could have been accelerated more
rapidly without political change and with white capital. Nor was
it the reduction of the growing preponderance of non-whites in the
so-called white areas, for obviously no material reduction was
possible
"The worlà was to be invited to look at a picture of retriba!ised
African 'homelands', where multiracialism would not be tolerated,
however much the Ajricans might want it, and where the whites, and
also the Coloured people and the Asia~ <ho,ld be as alien and as
rightless as the Africans would be elsewherein the country.
"There would thus be a division between African areas and white
or non-African areas on an equal or so-so basis. This reminds one
of the old story of the sausage-maker who claimed thal his sausages
were 50 percent rabbit since he used a formula of one rabbit to one
horse. 1n this way it was thought possible to present the righi to vote
for some sort of subordinate local1body as a righi substantially eqtti
valent to the ;barliamentary vote."
Applicants respectfully submit that
2
(A) The system of "territorial apartheid" is mere!y an extreme
application of Respondent's basic apartheid policy, according to
which rights and burdens of the inhabitants are allotted on the
basis of "group" membership; and
(B) The system of "Homelands" isincompatiblewith thewell-being
and social progress of the inhabitants of the Territory, in that such
"homelands" would be neither
(r) politically viable as "independent" entities, or otherwise, nor
(2) economically viable as entities "interdependent" with
Respondent, or otherwise.
(A) Thal the "Homeland" system, or "territorial apartheid," is
the extreme application of Respondent's policy of allotting rights
and burdens on the basis of "group" is self-evident. Although pro
claimed by Respondent as the "ideal," at which its policy of sepa
rate development is aimed, it is the ultimate implementation and
logical extension of the policy itself.
1 Hon. O. D. S,;hreiner, former Judgc, AppellateDivision of South Africa;
PresidentialAddre:;s to the South AfricanIn;;titute of RaceRelations:South
A/rica-United or Divided7 (1964). (ltalics added.)
2 The quoted phrase is that of Respondent's Prime Ministsupra,p. 316.
] lllid. REPLY OF ETHIOPIA AND LIBERIA
The Group of Experts, established in pursuance of the Security
Council resolution of 4 Deeember rg63 1,in a Report to the Security
Council,2 recorded its view that
"... the arguments against apartheid apply with equal or even
greater force to partition. No line of partition could be established
by agreement, and an imposed partition would create a long frontier
of continuing conflict. Nor could partition be politically or economi
cally viable, for there is no substantial area of South Africain which
there is a majority ofWhites, and the economyofSouth Africa,both
in industry and agriculture, is entirely dependent on non-\Vhite
labour. Partition would not solve, but would intensify and aggravate
racial conftict."3
If, as Applicants contend, the policy of apartheid, or separa te de
velopment, is in violation of Respondent's obligation to promote to
the utmost the "well-being and social progress of the inhabitants
of the Territory," the system of "territorial apartheid," as an ex
treme application of that policy, incontrovertibly and by hypothesis
is, a fortiori, likewise in violation of Respondent's obligation under
Article 2 of the .Mandate.
(B) In support of their submission that the system of "territorial
apartheid," projected for the Terri tory on the mode! of the Transkei
development, would be incompatible with the well-being and
social progress of the inhabitants of the Territory, Applicants
respectfully draw to the attention of the Court the Report of r6
September 1963 of the United Nations Special Committee on the
Policies of A parlheid of the Government of South Africa. Consider
ations adduced by the Committee with respect to South Africa are,
in ali essential aspects, applicable to the Territory.
For the convenience of the Court, Applicants reproduce 5 from
the Report an extract entitled "The Transkei Constitution Act
6
and the Maves Towards the Creation of 'Bantustans.' " Applicants
hereby incorporate by reference the foregoing extract as part of
their argument in reply to the Counter-M emorial, adopting as
their own the statements of fact and conclusions set forth therein. 7
1
2 S. C. Res., 1078th meeting, 4 December 1963 (S{5471).
3 S.C.O.R., Report of S.G. (S{5658) (1964).
Id., pp. 14-15. Although direeted at South Africa itself, the relevance of the
quoted views to the issues in dispute concerning Respondent's interpretation and
application of the Mandate with respect to the Territory is evident from the facts
that the conditions described by the Group of Experts also exist in the Terri
tory and that Respondent concedes that a "similar development ... is to be expec
ted" in the Territory. (Supra, p. 313.)
• S.C.O.R., Spec. Comm. on Apa.rJheid at 41-55 (S{5426).
6 Annex 3; infra, p. 349·
land."e term "Bantustan," in Respondent's usage, is interchangeable with "Home
7 See, concerning economie viahility, paras. 150-52 of Annex 3, at pp. 357-358,
tnfra. 320 SOUTH WEST AFRICA
In supplemcntation and elaboration of the said facts and con
clusions, Applicants further respectfully show as follows:
The system of "homelands," as projected for the Territory, on
the mode! of the Transkei, are not politically viable as "indepen
dent" entities, or otherwise.
It is a principle acceptee! or professee! by al! civilized societies
that an essential prerequisite of a valid and viable political system
is consent of the governed 1
Contrary to this principle, however, Respondent's self-styled
policy of "territorial apartheid" 2 is predeterminee! and the method
of its application is pre-fabricated.
Thus, as pointee! out in the Report of the United Nations Special
3
Committee on the Policies of Apartheid, the Chairman of the Terri
torial Authority of the Transkei, Chief Kaiser Matanzima, now
installee! as"Chief Minister," 4 defended his support of Respondent's
proclaimed intention to establish the Transkei "Bantustan" on
the ground that
"\Vhitc South Africa is 100 per cent agreed on the maintenance
of white control of the white parliament. Only their defeat on the
battlefield will divest them of this resolution. Will those people
who oppose the peaceful raad takcn by the Transkei come out and
advocatc a·revolution?" s
Respondent's predetermination to implement its policy of apart
heid without consultation, other than of an illusory and per
functory nature, with thosc more direct!y concernee!, is manifest
from the record.
The Group of Experts established in pursuancc of the Security
Council resolution of 4 December 1963, in its Report of 20 April
lThat Respondent accepts the validity of the principlc in thcorifnot in prac
tice, is demonstratedby its frequent avowals that the "Homeland" application of
its apartheidpolicy is desired by the "Bantu" themselves; e.g., H.espondent's un
tenable contention that "the majority of Bantu have welcomed the creation of the
Bantu authorities and have afforded Respondent an increasing measure of co
operation in developing and extending them." {Il, p. 48o.)
2Supra, p. 316.
3 Annex 3, infra. p. 349·
• The circumstances of his election to thpost by the legislative a.ssembly of the
Transkei are summarizcd in S.C.O.R., Spec. Comm. on Apartheid (S/5621) (1964).
For the convenience of the Court, a relevant extract of the Report is reproduced as
Annex 4, infra, p. .359·
5 Statement of 26 November 1962; quotcd supra in U.N. Committee Report
(see Annex 3, p. 355, infra).
6 Supra, p. 319. REPLY OF ETHIOPIA AND LIBERIA
321
1964, stated, as one of the major considerations underlying its
conclusions
"... The Government [i.e.Respondent], in disregard ofali attempts
to achieve consultation, persisted in its policies; the non-White majo
rity was left thereby with no constitutional means of seeking freedom
and justice. The conclusion might have been that when consultation
and representation had been so flatly rejected there was no hope
for the future. But we believe thal the dangers are so great thal
there may yet be a desire, and consequent!y there may still be time,
to avoid a vast and bloody collision. We are convinced thal the
way to do so, indeed we believe the only way, is to turn to the means
of consultation for which the movement of emancipation has struggled
so patient/y and persisfl,ntly for so long." 2
The history of Respon<lent's rejection of consultation is a cru
cially relevant aspect "of what has been donc and accomplished in
South Africa, in pursuance of a policy of separate development"
which, Respondent submits, is "instructive" with respect to
Respondent's present and projected policy towards the inhabitants
3
of the Mandated Terri tory.
Respondent has assertcd that a main abject of the origins of the
"Homelands" system was "'to put the traditional Bantu form of
government into practice by degrees.'".' Respondent has further
asserted that the system
"' ...isthe traditional Bantu democracy,and the Tribal Chief,together
with his Tribal Council, provides the protective shelter under which
the highest and the lowest can fee!at home and find self-expression
and fu/filment.' " 5
1 Supra, p. 319.
' S.C.O.R., Report of S.G. at r8·I9 (S/5658) (1964).
3 II,p.477·
4 Report of the Department of Native Affairs (1954-7), p. 49; quoted in Cowen
The Foundations of Freedom 35 {rg6r).
~ Ibid. (Italics added.)Rcspondent's concept of "self-expression and fulfilment"
under Tribal shelter underlics its policy of territoriaapartheid, pursuant ta which
individual rights and burdens are determined and alloted on the basis of group, race or
tribe. In sharp contrast is the concept given expression in the South African Legis
lature in Cape Town in 196o by the former Prime Minister of the United Kingdom,
the Rt. Hon. Harold 1\Iacmillan: "It has been our aim to crea te a society which res
pects the rights of individuals-·amciety in which men are given an opportunity to
grow to their full stature,and that must in our view include the opportunity of an
increasing share .in poHtical power and responsibility;a society finally in which indi
vidual merit, and individual merit alone, isthe criterion for a man's advancement,
whether political or economie." (Souvenir of aVisit,Printed on the authority of 1Ir.
Speaker, Cape Town, pp. 8·1r; quoted id., pp.7-8.){Italics added.)322 SOUTH WEST AFRICA
The foregoing expressions of po!icy have been appraised by
Professor D. V. Cowen, in terms which are, in ail essential aspects,
applicable to the situation in the Territory·
"It may be conceded immediately thal the old Bantu tribal sys
tem was indeed imbued with the democratie spirit; but there are
at least two conclusive reasons wh y the Bantustan system will not
be at all like 'the traditional Bantu democracy', save in the most
superficial appearance. On the contrary, the Bantustan system
will be distinctly undemocratic.
"In the first place, even with the best will iu the world, it would
be very difficult-if not impossible-ta restore the conditions
which enabled the traditional tribal system to function democrati
cally. In the old days the main sanction against a tyrannical chief
was for his men to leave him, and offer their loyalty to another
chief in retum for the allocation of sorne of his land. In those days,
moreover, men and followers were more important to a chief than
land, which was plentiful. And the sanction that his followers
might leave a tyrannical chief, and join a rival, operated as a power
fu} incentive to moderate and responsible government. But today
land in the Bantu areas is far from plentiful, and freedom of move
ment is restricted. In short, the essential conditions which enabled
the earlier sanctions to operate no longer exist. [Footnote (47):
Ashton, The Basuto, p. 217.]
"But, secondly, even if it were possible for the Government to
put the dock back and restore the conditions of a century ago
(conditions which obtained before the conversion of Africans to
Christianity). the actual pattern of government which is being im
posed is both undemocratic and radically different from the tradi
tional system. Thus, for one thing, under the old tribal system if
the people were dissatisfied with a chief, and the way in which he
performed his functions, he could be impeached. [Footnote (48):
See generally I. Schapcra, Government and Politics in Tribal Societies,
1956, pp. 135 et sqq.] But under the Bantu Authorities Act, the chief
and his council are carefully insulated against the popular will;
and, what is more, they are expressly made subject to the control
of the responsible Minister and the Govemment.
"The insulation of the chief and his council from the popular
will is most clearly exemplified in the decision of the Government
to sweep away the idea of the popular vote. which had been in
force for many years in the Bantu areas prior to the passing of the
Bantu Authorities Act. And the reasons given for this decision are
so remarkable thal they are worth rccording. Explaining the Bantu
Authorities Act, the authors of the Tomlinson Report say:
1 Denis Victor Cowen, for eighteen years Ad\•ocate of the Supreme Court of
South Africa; former Head of Department of Comparative Law, University of Cape
Town, currently Professor of Comparative Law, University of Chicago School of
Law (U.S.A.). (See p. 281, supra.) REPLY OF ETHIOPIA AND LIBERIA 323
'Councillors will be appointed by the chief or headman
himself and not, as under the old Local Council System, by
popular vote. The idea is to foster strong progressive action by
tribal authorities whose councillors should be able to act inde
pendently of a less progressive a11d probably dissatis(ied elec
torale.'[Footnote (49): Full Report, chapter IJ,para. 223.]
''An even mOic ironie justification is given by the Department of
Bantu Administration itself. In the rgs6 handbook explaining
the Bantu Authorities Act, it is said: 'The Coumillors will perform
their task without fear or prejudice because they are not elected by the
majority votes.'(Footnote (so): At p. rS. My italics. Quoted, what
is more, with approval by Dr. Eiselen in Optima. March 1959,p. 6!]
One has to read a passage like this severa! times to realize that it
was actually written and seriously meant in the micl-twentieth
century." 1
The underscored reference, above, to the asserted desirability of
independence of the authorities from a "probably dissatisfied
electorale" is, in Applicants' submission, a reductio ad absurdum of
Respondent's policy of rejecting consultation with the "Native"
electorale, even in the form of the franchise.'
Consistently with ils expressed intention to apply in South West
Africa the fruits of the "considerable progress" Respondent asserted
ly has "made in South Africain respect of political development" 3
Respondent has, as noted above,' expressed approval of the "main
features" of the argument and findings of the Odendaal Commission.
One of such main features is deniai to "Natives" of participation in
election of "one mixed central authority for the whole Territory." 5
Respondent's failure and refusa! to consul!, in any meaningful
sense, with the inhabitants of the Mandated Territory clirectly or
with leaders freely selectecl by them, refiect its pre-determination
to pursue the policy of separate clevelopment. As Judge Schreiner
has pointed out, so long as Respondent adheres to such a policy,
"consultation" would, in any event, be futile:
"You cannot by consultation reach a seUlement between those
who refuse to accept a position in their own country of permanent
1 Op. cit. supra, p. 282, footn1, pp. 35-36. (ltalics added and author's foot
notes inserted in brackets.)
2 The scope and significance of electi old~with respect to the Transkei are
described in S.C.O.R., Spec. Comm. on Apartheid at 75-78 (S,/5621); see Annex 4, in
fra, p. 359·
3 II, p. 477· Respondent refers specificalto its efforts "to promote growth
from the mots of the indigenous Native institution(Ibid.)
4 Sup,..a, pp. 269·270, 313-314.
5 Odendaal Commission Report, p. 55, para. 184.324 SOUTH WEST AFRICA
disadvantage and discrimination based solely o1 race, and those
who regard such acceptance as essential."
It is this background against which must be evaluated such
assertions by Respondent as "the co-operation of the Bantu,"
or the "request'' in rg6r of the Transkei Territorial Authority to
Respondent "to grant self-government to the Transkei," or
the persona! meeting of Respondent's Prime Minister with the
Executive Council of the Transkei, and the Report of the Territorial
Authority, whic:h "contained a draft constitution.'''
Respondent's pre-determination to create "homelands," in
pursuance of its policy of "territorial apartheid" was made mani fest,
in explicit terms, long prior to the events recounted above. 3
Respondent's fixed determination to extend to the Territory of
South West Africa the system of "territorial apartheid" is conceded
by Respondent in its Pleadings herein,' and confirmee! by its en
dorsement of the arguments and findings of the Odendaal Commis
sion.5
Consistent! y with its practicc of no-consultation in South Africa,
Respondent attaches so little significance to consultation with
the "Natives" in the Terri tory, that the Memorandum nowhere refers
to such consultation as having laken place prior to the release of the
Commission's Report orof ils endorsement, in principle, byRespondent.
Similarly, no mention is made of consultation, either in the terms
of reference of rhe Commission,' or in the Report of the Commission
itself. The Commission prefaces its far-reaching Recommcndations
for the territorial partition of the Mandate with the comment:
"In the course of the enquiry, the Commission has gained the
impression, supportee! by evidence, that various population groups
harbour strong feelings against other groups and would prefer to
1 South Africa-United or Divided? 6 (1964).
2 II, p. 479·
3 E.g., the programme announced in 1950 by Dr. Eiselen (Il, p. 465), which
Respondent describes as "foreshadowing"the "homelands" system (id., footnotes
4 and 5); and the statement in 1950 of Respondent's Prime Minister (then Minister
of Native Affaîrs) quoted, id., p. 464.
4 II, p. 410.
~ 1VfemMandum, para. 21 (IV, p. 213): in announcinitsintention to defer final
decisions concerning the Commission's recommendations for constituting"Home
lands" in the Ten:itory, Respondent also stated that it "is favourablydisposed
towards the trend of policy embraced in the recommendations concerned." See
PP- 269-z;o,3I3-J"C4,supra.
6 Il, p. 476. REPLY OF ETHIOPIA AND LIBERIA 325
have their own homelands and communities in which they will have
and retain residential rights, political say and their own language,
to the exclusion of ali other groups." 1
Apart from attributing recommendations for establishment of
"territorial apartheid" in the Mandate to a mere "impression," based
upon undisclosed "evidence," the Commission does not refer to the
fact-which consultation with the inhabitants would have made
inescapably clear-that the inhabitants would "prefer" to "have
and retain residential rights" and "political say" in the White
area, which comprises more than 127,400 "non-\Vhites," as against
73,400 "Europeans."
Applicants have sought to show above that the "homelands"
system, or "territorial apartheid," projected for the Territory,' is
not, in any meaningful sense, based upon consultation with, or
consent of, the governed, whose well-being and social progress
form Respondent's sacred trust.
Such failure of consultation or consent achieves an even more
pointed significance in the light of Respondent's failure and refusai
to consul! with the United Nations, or in any other manner to
report to the international organ vested with supervisory authority
by the Mandate instrument. Even more, Respondent has rejected
the overwhclming consensus of the United Nations mcmbership that
its policy of apartheid in general, including "territorial apartheid,"
its most extreme form of application, is unsound, inhumane and
incompatible with the obligations of the Mandate. Furthermore, by
refusing to transmit petitions by the inhabitants, as required by the
Rules established pursuant to Article 22 of the Covenant and the
l\Iandate, or permitting petitioners to leave the Territory to present
petitions, Respondent has sought to assure that the inhabitants of
the Territory could not consul! with the United Nations, or vice
versa.
In addition to the fundamental defect of the system of "territorial
apartheid," arising from the fact that it is not founded upon consent
of, or consultation with, the governed, Applicants submit that the
system, as projected for the Territory, is neither politically nor
economically viable.
The Court's attention is respectfully drawn to the analysis of the
OdendaaJ Commission Report, contained in a Working Papcr
prepared by the United Nations Secretariat.' Applicants do not
1 Odendaal Commission Report,p. 55,para. 187. (Itahcs added.)
2 IV~p. 198, and AnnexA thereto, p. 213, par21.
3 SeeAdvisory OpinimJ oI june I956,I.C.J. Rep. 1956, p. 23.
.. Referred tsupra,p. 313, foot-note 5: reproduced (in part) in Annex 2, p. 341,
infra.See, with respect to economie viability, paras. 42-50, at pp. 34infra. SOUTH WEST AFRICA
deem it necessary to encumber the pleadings with repetition of the
evidence and conclusions set forth therein, which Applicants incor
porate by reference herein and adopt as their own evidence and
conclusions.
The Court's attention is also drawn to an equally balanced
analysis of the "homeland" system, as projected for the Territory,
by Philip Mason, Director, Race Relations Institute, London-'
In view of the essentially similar analysis and conclusions of
both these studies, emanating from two independent, expert and
objective source:;, particularly when read in the light of the evidence
and conclusions set forth in the Memorials and in this Reply,
Applicants believe that elaboration of further evidence or argument
would trespass upon the Court's time and patience.
It is respectfully submitted that, for ali the foregoing reasons,
the conclusion is inescapable that the "Homelands" system, project
ed for the Territory, is inconsistent with Respondent's obligations
under Article 2, paragraph 2, of the Mandate and that such system,
as the ultimate and extreme form of the policy of apartheid is a
fortiori invalid inasmuch as the policy of apartheid is, in itself, a
violation of Article 2 of the Mandate.
1Text of articleby Mr. ~laso ns reproduced, for the convenienceof the Court
as Anne x I,p. J'lS, infra.Annexes reproduced herein in support of Applicants' Arguments in
this Chapter IV, Part B, Section 3:
ANNEX I: "sEPARATE DEVELOPMENT AND souTH WEST
AFRICA: SOl\IE ASPECTS OF THE ODENDAAL
REPORT," BY PHILIP MASO:>r • . • • • . . . .. 328
ANNEX 2: EXTRACT FROM WORKING PAPER PREPARED BY
U~ITED NATIONS SECRETARIAT . . . . . . . . 341
ANNEX J: EXTRACT FROM REPORT OF THE UNITED NATIONS
SPECIAL COM~HTTE ON THE POLICIES OF "APART
HEID" OF THE GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA (rg63) . . . . . . . · · · · · 349
ANNEX 4: EXTRACT FROM REPORT OF THE UNITED NATIONS
SPECIAL COMMITTEE ON THE POLICIES OF" APART·
HEID" OF THE: GOVERNMENT OF THE REPUBLIC OF
SOUTH AFRICA (1964) . . . . . . . · · · · · 359 ANNEX r
"SEPARA TE DEVELOPMENT AND SOUTH WEST AFRJCA:
SOME ASPECTS OF THE ODENDAAL REPORT"
by
PHILIP MASON
DIRECTOR, THE lNSTITUTE OF RACE RELATIONS, LONDON;
reprinted from
RACE, Vol. V, No. 4 (April rg64), pp. 83·97
... This article does not attempt to discuss the Odendaal Report as a
piece of planning nor does it venture to express an opinion on any
point of international law. It is a consideration, mainly from the point
of view of relationships between races, of the assumptions underlying
the report and of where they are likely to lead. The method used is
political and hist.orical comparison; the assumption underlying this
method is that, white the situation in any nation or territory at any given
moment is unique, there are sometimes factors apparent which in the
past in other contexts have produced certain results and may in this
context produce similar, though never identical, results.
The Report proceeds on the basis that while the South African
Government does not concede that its administration of South \Vest
Africa is now legally governed by the terms of the Mandate by which
the Territory was acquired (which in its view bas lapsed) the adminis
tration bas been conducted in the spirit of the Mandate. The relevant
principles, which are contained in Articl2 of the Mandate, are:
That the Territory may be administered as though it were an integral
part of South Africa.
That the administration 'shall promote to the utmost the material
and moral well-being and the social progress of the inhabitants of
the Territory ... .'
The Territory has, it is true, been administered in sorne respects
slightly differently from South Africa, but the basic principles have
been the same; experiments have been made in South Africa and
applied later to South West Africa if judged successful. The Report
recommends that there should be in most respects a doser llinking of
the two countrie:; and that the policy of separate development should
now be applied more thoroughly and vigorously than before. REPLY OF ETHIOPIA AND LIBERIA
... In the Republic of South Africa, it is argued with sorne cogency
that the White inhabitants have lived there for sorne centuries and
have nowhere else to go; they and their culture are threatened
with extinction unless special measures are taken. They daim the
right of national survival. The National Party in South Africa
also speak on occasion of their trusteeship for the Bantu-speaking
peoples. The policy of separate development is intended to ensure the
national survival of the White group, more particularly the Afrikaans
speaking section of it; it is also argued !hat the policy will discharge
this duty of trusteeship. But the two aims are quite distinct, and the
argument that separate development is necessary for national surviva]
has much Jess force in South West Africa. ln the terms of the Mandate,
'inhabitants' must mean 'inhabitants in rgzr'. The Whites who were
there in rg2r numbered rg,7r4; by rg6o there were 73,464 Whites, a
more than threefold increase, wellin excess of the general rate of increase.
The proportion of Whites to the rest of the population in rg2r was r
to rr (rg,7r4 : 223,665); in rg6o it was r to 7! (73,464 : 526,004). This
higher rate of increase is due to \Vhite immigration into the Territ ory;
this has no doubt increased the Territory's wealth, but the recency of
much of the immigration does considerably weaken (if it does not
destroy) in relation to the Territory what in the Republic is one of the
strongest arguments for separate development. In the Territory, in
terms of the Mandate, the emphasis must be on Trusteeship.
The Odendaal Report
Perhaps in recognition of this point, the Commissioners in their
Report argue on different !ines from those commonly used in the Re
public. They say nothing of national survival and imply that Trustee
ship is the only aim. The half-million population of the Territory is
divided between twelve main ethnie groups, of which the largest, the
Ovambo, numbering 240,000, are more than 45 pcr cent of the whole.
A unitary state with adult suffrage would, say the Commission, mean
domination by the Ovambo, who are likely to rule with little consider
ation for the minorities; therc would be constant clashes which would
hamper the proper development of each ethnie group. The smaller non
White groups fear this. Further the non-White groups have 'very
limited experience of the alien and to them highly complicated economie
and political systems opera ting in the white area'. Domination by the
Ovambo would result in 'a lowering of the standards of administration
and government and would also hamper the 'A'hites, to whom the
Terri tory mainly owes its economie progress, to such an extent that the
development and progress of the Territory would be seriously retarded'.
The Commission is therefore of the opinion that ·one central authority,
with ali groups represented thereon, must be ruled out and that as far
as practicable a homeland must be created for each population group,
in which it alone would have rcsidentia1, politicai and language rights,
to the exclusion of other population groups, so that each group would
be able to develop towards self-determination without any group
dominating or being dominated by another'.
Before further consideration of their political recommendations, it
is worth turning to the section on economie and social development,
where the Commission explain their thinking at greater length. They330 SOUTH WEST AFRICA
state that the welfare of a community is determined by its productive
capacity and des.::ribe,in terms which would win wide acceptance, the
process of advance from a subsistence to a money economy. This involves
a complete socio--cu1tural transformation which is attended by serious
dangers. Where one population group still in the throes of this process
is in contact with a group which passed throught sorne time ago, the
former willneed not merely protection but special advancement. Both
cannot be given in an integrated community-even in the most favour
able circumstances, as in the United States. lt is'auniversai characteristic
of man to identify himself with the population group which has the same
social culturald ethnie background as he has ... a group consequently
gives preference to its own group rnembers ...where differences are
fundamental and so profound that they cannot be wiped out, a policy
of integration is unrealistic . ... 'If there is to be social as weil as economie
progress, a policy of differentiation must be followed. This makes possible
both advancement and protection.
This is good National Party doctrine and it has been said in the
l~epub (aidcno doubt it is felt that this applies also to the Territory)
that differentiation without inferiority is as consistent with human
dignity as integration and far more likely to work.
These are the general considerations which lead the Commission to
recommend an increase of about 50 per cent in the area of the homelands
for non-\Vhite groups, togethcr \Vithproposais for much closer integration
of the wholc tcrritory with the Republic and for a more rapid political
and economie development of the 'homelands' on lines similar to those
of the Transkei. What is contemplated for Ovamboland, which would
form a madel for other arcas, is a Legislative Council, in which three
chiefs and thirty-two headmen would have seats ex officia, together
with elected members not exceeding 40 per cent of the total. There
would also be an Executive Council. These bodies would gradually take
over from the Department of Bantu Administration and Development
all functionsxcept those of Defence, Foreign Affairs, Interna! Security
and Border Control, Posts, Water and Power. Dr. Verwoerd bas spoken
of the Bantu an~a within the Republic as 'independent bodies in the
first stage dev~lopme an don,a number of occasions he has stressed
his intention that the Bantu States should eventually have complete
political independence which, he once added, would be coupled with
economie interdependence, in a kind of Commonwealth. It is to be
presumed that this is envisaged for the homelands in South West Africa
too.
The development plans recommended by the Commission are outside
the scopc of this article, but to give a true picture it is necessary to add
that the linancial aid so far given by South Africa to South West Africa
is R.r65 m.(R.:Joo or frso per head of the population), that the lirst
five-year plan calls for a contribution of R.rs6 m. and the second seems
likely to demand R.gr m. This is generous if regarded as 'aid' given by
one State to another; it is of course a different matter if South West
Africa is regarded as a province of the Republic. Again, if South West
Africa is regarded as a number of separate States, or homelands, it
would be neccs~. barre assessing the generosity of the aid to give
attention to the distribution bétween them and particularly between
the White area and the rest.
It remains to consider whether the general policy chosen is in the REPLY OF ETHIOPIA AND LIBERIA JJI
best interests of the inhabitants and whether it is likely to produce
harmonious relations. It cannot be discussed as though South West
Africa existed in vacuo; what is proposed is that the policy of South
Africa should be extended to South West Africa. The circumstances
of the Republic and of the Territory are different and the arguments
for introducing the policy in one are not the same as those for intro
ducing it in the other, but the policy is the same and it must be con
sidered in both contexts.
Separate Development in the .Republic
It is sometimes argued that the policy of the South African Govem
ment is neither more nor less than partition and that partition, though
not perhaps an attractive solution to minority problems, may in the
last resort be the only escape from an intolerable situation and has
respectable precedents such as Eire and Ulster, India and Pakistan.
This argument is used by Sir Penderel Moon (whose experience and
attainments always entitle his views to respect) in his World Opinion
and So11thA/rica. 'It is difftcult', he writes, 'to see how anyone could
abject in principle to such a policy if it is honestly and fairly carried
out', and he mentions Ireland, India and Palestine.
But the policy of separate devclopment is really quite different from
partition as it took place in thesc countries. In the case of India and
Pakistan, after much argument, it was agreed by each of the two main
parties-though very reluctantly by the Congress on behalf of India
that whatever they would have liked, partition was inevitable. The
broad principles of the partition were agreed, the more reluctant party
this time being the Muslim League for Pakistan, who had claimed the
whole of any province in which they had a bare majority. The agreements
were reached in the presence of the former imperial power, at this
stage about to relinquish responsibility; boundaries were settled by a
British judge on the basis of agreed criteria. The actual boundary was
disliked by Pakistan-but there was at every stage agreement to accept
an unpalatable solution. Broadly, this principle applies also to Ireland
and Palestine; discussion and agreement to submit to arbitration are
the first essentials of partition. But in South Africa there has been no
discussion. The solution is being imposed by one party.
If partition is to have any chance of success, it must not only be
accepted by both parties as the solution but also be based on sorne
principle of division which both regard as fair. (They are almost bound
to regard the application of the principle as unfair, but it is possible to
agree on principles.) In South Africa, the division at present proposed
is not only imposed by one party but on any discernible ground appears
unfair. In the first place, it is quantitatively unfair. The Bantu home
lands at present provide 13 per cent of the land surface of the Republic
for three-quarters of the population.' Secondly, the division proposed is
1 This figure, though the best obtainablis not a true indication of the position;
the \\'bite 87 per cent contains a higher proportion of uncultivabledesert and
mountain, while the Bantu areas are heavilyeroded.The balance wou id be some4
what redressed if Bechuanaland, Basutoland and Swaziland were încluded with the
Ban tu homelands. But even ifthi ~ere done and aU permanently uncultivableland
were excluded from bath sides it cannathe claimed that the result would be any
thing like an equitabldivision of area hetween\Vhite and non-\Vhite.332 SOUTH WEST AFRICA
qualitatively unfair. The Bantu homelands are off the main tines of
communication and badly placed for industrial development. The main
wealth of the country is the mining area of the Rand, which is White;
the policy denies to the non-White the opportunity of advancement in
just thal area where opportunity is Jikely to occur.
There are two other possible criteria for division, the actual distri
bution of population at a given moment or, more dubiously, a division
based on sorne h:istorical principle. The first is certainly not followed;
there are more non-Whites !han there are Whites in the White areas
1
today. On the historical principle, if the Bushman and Hottentot are
ignored, it can be argued !hat the ancestors of the Afrikaners were
established in some western parts of the Cape Province before there
were any substantial numbers of Bantu-speakers. But this cannat be
said of the rest of the Cape, nor of Natal, the Orange Free State or the
Transvaal. Nor does the princip le seem a very sensible one; over the
greater part of the country, White and Black have been present for
several generations and surcly this is enough to confer rights on bath.
The division of the population is much more one of class than of territory;
it is a group of lando\vners and managers against a group of labourers.
The principlc of partition has really been that certain areas where
for historical reasons the Bantu had remained relatively undisturbed
were set a.side as a.reas in which they would be protected; the remainder
of the country is judged to be White because it has been developed under
\Vhite management, though mainly with African labour. The implication
that political control should belong exclusively to the group which has
supplied capital, skil! and management for development c!early does
not command general acceptance in the world toda y.
There is thus no agreement thal there shall be partition and the
partition proposed cannot be regarded as fair. But there is another
and more important reason than either of these for regarding separate
development as quite different from partition in the cases quoted.
India and Pakistan, Ulster and Eire, face each other as equals; a citizen
of one when in the other is in a position similar to that of an Englishman
in France. The Bantu homclands have not of course yet reached the
projected stage of independence, but it does not appear to be con
templated that a similar equality should ever arise. The large numbers
of Bantu-speaker::; in the White areas, even though born there, even
though they have no dwelling place in the homelands, are to be regarded
as citizens of the tribal homeland. It is not merely that they have no
vote in the White area but that they may not stay there unless they
have employment or a pass to seek work and thal they are subject to
continua! humiliation of a kind that would be regarded as quite intoler
able between the citizens of sovereign states.
The citizens of Eire do not find when they visit Ulster that the public
lavatories and park benches are forbidden them. They are not com
pelled by law to live in segregated areas and when in certain kinds of
employment forced to live a.way from their famiJies. They are not
forbidden to return to their place of employment if they absent them
selves for a few days. But in the V/bite parts of South Africa, this,
1 The latest census figures show the Black urban populationhas actually in
creased from 2,329,000 in 1951 ta 3,444,000 in 196o. Separatdevelopment and
modern industrial Sl)ciety are uneasy bedfellows. REPLY OF ETHIOPIA AND LIBERIA
333
and much more, is the case for persans who arc of African race even
though they have no other home. They can never be naturalised. They
have no right to combine and to refuse their labour. They are subject
to a host of vexations regulations and to imprisonment if any of these
are infringed.1Furthcr, the Bantu Affairs Amendment Bill, if passcd~
as seems likely, will intensify these conditions, with the object of in
ducing more Bantu-speakers to go to the homelands. This is not the
way that subjects of independent States are treated. It is the treatment
of a subject people.
1t should be added here (though space does not permit developing
thisaspect of the question in detail) that the treatment of Asians and
Coloured does not fit into the pattern proposed for the Bantu-spcakcrs,
because there arc no homelands suggestcd for them. It does not appear
that they are to have any prospect of self-devclopment as scparate
nations. They are to have sorne rights of self-governmcnt on the municipal
level, with an advisory council on the national lcvcl.
Account must also be taken of certain laws and penalties of a more
serious nature. The General Law Amendment Acts (?-lo. 76 of rg6z
and ?-~ o7.of rg63) amend a number of existing Acts and are designcd
to provide stringent penalties for subversive acts and also to ovcrcomc
the difficulties encountered by the executive in obtaining convictions
in the Courts. To deal with them at length would be out of place hcre
but anyone who wishes to tarrn a true opinion of the relationship betwcen
the Government and the majority of the people in South Africa should
pay attention to these Acts and also the Bantu Laws Amendment Bill.
The rg63 Act provides (to givc three examples) thal the Minister of
Justice may, if he is satisfied that the person conccrned is likcly to
advocate any of the objects of Communism, indcfinitcly prohibit a
person who has completed a prison sentence from lcaving prison. A
person who obtains from outside the Republic any information which
'could be of use in furthering the achievement of any of the objects of
Communism' and who fails to prove beyond a reasonable doubt that he
did not obtain such information for such a purposc, may be scntenced
to death. A commissioned police officer may without warrant arrest a
person who in his opinion is in possession of information rclating to
certain offences (such as furthering the aims of Communism) and detain
him in custody for interrogation for ninety days. No one may have
access to such a persan without permission of the Police or Minister;
no Court may order the release of such a person; on release, such a
person may immediately be re-arrested and detained for a further
ninety days.
It should be remembered that in South Africa 'Communism' has been
dcfined by law and the definition is drafted extremely widely. Tt speci
fically includesany doctrine or scheme '... (b) which aims at bringing
about any political, industrial, social or economie change within the
Union by unlawful acts or omissions or by means which include the
promotion of such acts or omissions .. .' or '... (d) which aims at the
encouragement of feelings of hostility between the European and non
European races of the Union the consequences of which are calculated
1
regulations.re 384,497 convictioinI<)Û2under the Pass Laws and influx control SOUTH WEST AFRICA
334
to lurther the achievement of any object referred to in (a) or (b).' On
this Mr. Gerald Gardiner has commented:
If the Government passes a law which discriminates against non
Europeans, and therefore causes a feeling ofhostiiity between Europeans
and non-Europeans, that is not 'communism', but if anybody protests
against that law i.na manncrwhich causesdisordcr, that is 'communism'.
It seems beyond doubt that it would be 'Communism' to advocate
a general strike in favour of adult suffrage; it is hard to say what might
be judged to be information which 'could be of use in furthering the
achievement of the objects of Communism' and thus attract the death
penalty if obtainej from outside the Republic.
Every Government has a duty to govern and to maintain arder and
it may be necessary to use force to this end, or even temporarily to
impose regulations and restrictions which are the negation of law as
it is ordinarily understood, and in certain respects abolish pcrsonal
freedom. But to faU back on such legislation indicates that something
is seriously wrong, and a Government in any way responsible, or even
responsive, to public opinion will try to put it right. lf such legislation is
steadily intensified over a number of years, 1t surely indicates that
something is radically wrong in the relationship between the Government
and a large section of the people and in the policy which the Government
wishes to follow.
To sum up what has been said, the policy of separate dcvelopment
as advocated in South Africa cannot reasonably be compared with
the partitions carried out in lndia and lreland. To hold out any hope of
success, partition must be accepted by both parties as the best solution
remaining to them and they must agree on certain broad principles
governing the division of territ ory and resourccs. Further, after partition,
the two States will expect equal and reciprocal rights in each othcr's
territories. The division of resources proposed nnilaterally by the South
African Govcrnment could hardly be regarded as fair by any third party,
the rights proposed arc not reciprocal, and the necessity for repressive
laws makes it cle3.r that the policy is not acceptable to the majority.
In the light cYen of this brief examination the arguments used by
Dr. Verwoerd in deferree of his policy seem singularly unrealistic. Of
various utteranc perhaps the most complete explanation of the
doctrine is contained in his speech to the House of Assembly (reportcd in
Reports of South African Parliamentary Debates, House of Assembly,
19 June to 26 June rg62, columns 6g to 72). He said that separate
development
could offer an opportunity of developing equalities amongst the
groups. It could satisfy the desire for the recognition of human dignity.
Because just as itis possible for us to live with the Black Stateson a
basis of equality as separate states, to negotiate with each other and
to help each other when necessary, soit would also be possible here if
separation could be put into effect.
Does it seem possible thal such happy relations could ever exist
1
\\'bat ''fair'' principles might be is really outside the scope of this article. They
must be worked out in South Africa. But to avoid the charge of being purely
negative,it may bt: suggestethat they might fairly include a Whithomeland
and that certainindustrîaareas would be non-racial. REPLY OF ETHIOPIA AND LIBERIA 335
when the immigrants from the homelands are forced to live in such
conditions as those at which we have glanced? Contrast this with a
remark made by Paramount Chief Sabata Dalindyebo in the Transkei
TerritorialAssembly: 'While we delay, our young men in the urban
areas are being shot for demanding freedom now.'
Dr. Verwoerd continues:
The creation of states has brought with it contentment, not only
in the present age but right throughout history. ln what way has
satisfaction been given in Africa, notably in our time? Africa has been
givcn satisfaction through the creation of states, and where there is
conflict that is as a result of the fact that these new states are not
states which embracc entities,
and he went on:
It is as unlikely thal it will be possible to hold together the Whites
and the Bantu in peace and free of strife in one multi-racial unit as it is
to do soin the case of Black nations in other parts of Africa or as it is to
throw together Xhosa, Basuto and Zulu without conflict into one
communal entity. They too are just as proud of their own national
identity as we as \Vhites are of our national identity ....
Not only, he argues, is il impossible for Black and White to live
together but Africans of different tribal origins cannot live together
either. There are of course difficulties about tribal groups which may not
disappear for generations. But can it really be thought thal it would
solve the problems of Africa if Kenya had been dividcd into twenty-thrcc
States, one for each of the major languages? Hardly one of them would
have been without ethnie minorities. Nigeria on this principle might be
divided into more !han a hundred linguistic groups and there would still
be minorities within them. Can it really be thought !hat pandcring to
tribal parochialism would make for peacc or happiness, let alonc the
development of any civilisation or artistic achievement? Surely one has
only to consider these statements in the light of a wider frame\vork of
facts to see that the argument for \Vhite separation, which is bascd on
the need for White national survival, is being applied to the other people
of Africa, partly to satisfy a logical principle and partly to perpetuate
White hegemony when White supremacy has togo.
The \Vhite inhabitants of South Africa are a vigorous, couragcous
and intelligent group who have established a culture and a way of
lite which so farhave depended on the labour of a Jess developed group.
This they perceive cannat continue indefinitely in its present form.
Since they have rejected the slow, painful road of integration-and it is
probably too late to reverse that rejection-thc only hope that remains
to them is partition, but partition has no chance of providing a solution
unless they are prepared to ncgotiate a far more equable division of
resources.
Separate Development in the Territory
The case of South West Africa is somewhat different. Here, when the
.Mandate began, less than zo,ooo Whites were present and, of these,
few over twenty-one can have been born in the territory. As yet, they
hardly amounted to a vested interest. It would show a lack of historical
understanding however ta biarne the Government of South Africa at
that time for failing to perceive how rapidly world opinion and African SOUTH WEST AFRlCA
aspirations would develop. This was the period when Southern Rhodesia
became a self-goYerning colony; no substantial body of opinion protes led
because the electorale was almost entirely White. lt was believed that
the prosperity of South West Africa, and indeed of ail African terri tories,
would depend on development by Europcans, and European farmers
were encouraged to come into the Territory. In rg62, there were sorne
5,500 \Vhite farms, in arca 3g,Soo,ooo hectares-a considerable vested
interest-and, as inKenya, they contribute substantially to the economy
of the Territory. The area of the homelands at present is zr,6o7,745
hectares, and it is proposed thal they should be increased to 32,609,364
hectares. This would involve the transfer to them of sorne \Vhite farms, in
arca 3,406,r8r hectares, making the total area of White fanns 36,394,000
hectares. The homelands would thus still be smaller !han the White
farms. The total area of the territory is 318,261 syuarc miles. The
proposcd homelands are approximately 126,ooo square miles, leaving
in the White (or police) area about rgz,ooo square miles, which includes
game reserves and towns as well as the \Vhite farms. The division of the
land proposed then is five-eighths for Jess than one-sevcnth of the
population. The result, after an acceptance of these recommendations,
would be division of the land in a proportion about as advantageous to
non-\Vhites as !hat under the Land Apportionment Act in Southern
Rhodesia, which is now under criticism from varions quarters.
But this is not the wholc story. The homelands, as in South Africa,
are excised from the whole; the balance is the \Vhite arca. The division
is to be not merely a matter of ownership, nor merely a matter of the
right to vote. The citizens of the homelands, if they find it necessary
to earn their living in the \Vhite arca, are governed lJy laws similar to
those in South Africa. The African who cornes to the \Vhitc arca must
carry a permit to work or a contract of service, or a special permit to be
in the arca, and failure to produce any of these is a criminal offence.
An African cannot leave his homelancl without a pass nor buy a railway
ticket in the White zone without a special permit; if he has been rccruited
in one of the homelands for work in the police zone, he is virtually tied
to his place of employment. Africans from the homelands temporarily
employed in the \Vhite zone are variously estimated at from 2],000 to
40,ooo, and altogether sorne r6o,ooo live there-about one-third of the
non-White population.
It would be quite wrong to suggest thal the problem of dealing
with a more developed and a Jess developed population within the
same nation-state is anywherc easy. India is fmding the Nagas a problem
and the United States have not found a whollv satisfactory answer
for their Amerindians, let alone the Negroes. ~Bat these countries
have the great advantage that the less advanced groups are minorities
and thus that if any assimilation takes place it is likely to be the more
advanced culture that prevails. South Africa's problems are far more
intractable.
The Odendaal Commission has rightly pointed out that in such
circumstances the less developed culture needs both protection and
development. It is not easy to strike a right balance behveen them.
Protection involves sealing off tribal arcas in order to prevent outsiders
from acquiring land or lending moncy there. Development means
bringing the backward people into the moncy economy and sooner or
later involves sorne degree of assimilation. If the protecting power or REPLY OF ETHIOPIA AND LIBERIA 337
more advanced culture tries to develop and assimilate too quickly, much
misery will certainly becaused-but protection without development can
look very like neglect. ln United States policy towards their Amerindians,
most observers would say that (once the period of frontier wars was
over) emphasis was at first much too heavily on assimilation and that
it later swung back to excessive and rather negative protection. lndia
at the moment is probably trying (or has been trying) to develop and
assimilate the Nagas rather too fast. But whatever mistakes of emphasis
are being made or have been made, in both countries the philosophy
is one of trusteeship. Both countries protect tribal land against purchase
by outsiders but permit and indeed encourage tribcsmcn to lcavc tribal
areas and compete in the money economy with ether citizens on equal
terms. Protected at home, the tribesman is at no disadvantage when he
leaves home.
South Africa's problem is not the same. As has already been suggested,
South Africa has two aims which are usually confused, that of trusteeship
and also that of national survival for the White, and more specif!cally
the Afrikaner, group. There is much less excuse for confusing these two
aims in South \Vest Africa, where national survival is not involved.
Here the argument for giving the Whites special treatment is that they
make a special contribution to the economy. As a transitional measure
this is a sound argument, but it can hardly justify giving the Whites a
privilcged position permanentJy. True trusteeship would involve training
the non-\Vhite peoples to make a bigger contribution to the money
economy and the removal \vith all deliberate speed' of racial distinctions
in the police or \Vhitc area. Politically it would surely mean a steady
preparation of the non-White groups for a share, perhaps, in a federal
system, certainly in one in which all the groups could play a part. It
is either disingenuous or naïve to daim that 'one man, one vote' \vould
mean domination of other groups by the Ovambo and instcad to re
commend a system whereby domination is in fact preserved !Jy the
much smaller White group. About three-eighths of the country is to be
exciscd to make homelands for the non-Whites, while the rest is left
for a \Vhite group, not one-seventh of the whole, who in this arca have
linguistic, political and social rights, just as a Bantu group will have
in one of the Bantu homelands, in spite of the fact that even in this area
they are outnumbered by more than two ta one. Ta this area members
of other population groups come as contract labourers whose movements
are strict! y limited, the whole Territory, police area and homelands alike,
being in faet ruled by the \'lhite Government of South Africa-until
the day when it is split into eleven self-goveming fragments. 1 This is
surely \Vhite domination and it is not easy to see how the Ovambo
could really improve on the General Laws Amendment Act as an instru
ment for perpetuating their rule.
South Africans often ask in genuine bewildennent why it is they
who arouse such hostility in the world. Other people, they say, are
struggling to preserve their national identity as we are; we are not
the only Nationalists, we are not the only people doubtful of the wisdom
of adult suffrage. But it is we who are the targets for obloquy. Wh y are
we so much worse?
1 There is no separatc homeland for the Coloured group. SOUTH WEST AFRICA
The answer to these questions is really to be found in the !act that
they are asked, that the questioner is unconscious of the offensivencss
to much of the world of the policy of separate development. As has been
pointed out, this is not simply a poliey of partition; it is not simply a
question of national survival. What is proposcd is that in the White
area, which is much the greater part of the country and the arca of
chief opportunity, the two principal races should continue to exist but
that in that arca the White race, although even there a minority, should
be by law permanent! y superior and the other permanent! y inferior-and
that every individual belonging to the latter should be reminded of the
inferiority by constant humiliation.
lt is worth considering a legal opinion given in circumstances very
different from South Africa's but in principle relevant. As everyone
who has given any thought to relations betwcen races is aware, on
17 May 1954 Chief Justice Warren on behalf of a unanimous United
States Supreme Court held that
To separatc [Negro children] from othcrs of similar age and qualifi
cations solely becausc of their race genera tes a feeling of inferiority as
to their status in the community that may affect their hearts and minds
in a way unlikel.y cver to be undone ... We conclude that in the field
of public education the doctrine of 'separate but cqual' has no place.
Separate educational facilities are inherently uncqual.
This decision was not based on precedent; indeed, it sought to establish
a change of what was customary. 1t is an interpretation of the spirit
of the American Constitution (in \vhich the concept of naturallaw plays
an important part) and in particular of the Fourteenth Amendment
which extends the equal protection of the law to al!. It explicitly takes
into account a devcloping social situation. '\Vc cannat turn the clock
back to 1868 when the [Fourteenth] Amcndment was adopted,' wrotc
the Court, 'or even to r8g6, when the Plessy v. Ferguson [the "separate
but cqual"] ruling was written. \Ve must consider public education in
the light of its full development and its present place in American !ife.'
Essential to the :reasoning are two propositions: :first, that education
is something not only eminently desirable but esscntial to the full
development of personality and therefore a right wJ.üch 'must be made
available to al! on equal terms' and, secondly, that its full benefit depends
on a feeling of self-confidence which will not be achicvcd if segregation
is enforced. lt is argued that the policy of segregation is usually inter
preted as denoting that the segregated group is inferior.
These considerations surely apply with considerable force to separate
development, if it is considered in a wider framework, outside the
national laws of South Africa. \Vhatever may have been the case sixty
years ago, toda y the peoples of Africa want desperately something not
easy to define, nor very clearly visualised, but essential to self-respect.
It is not simply economie progress, though of course they do want that
provided it is compatible with self-respect. It is not simply town-life
nor education, though one of these is part of it and the other a means
towards it. They want to catch up with the rest of the world, to belong
to a group which has sorne say in the affairs of the world, a group of
which they fee! they are rcally a part. Seventy years ago they wanted
nothing better than to be left alone to grow pumpkins and weave baskets. REPLY OF ETHIOPIA AND LIBERIA 339
Toda y that is not enough.
This is of course a form of nationalism, and it is part of the doctrine
of separate development that the Bantu-speaking peoples are as much
entitlcd to nationalism as the Afrikaners. But nationalism surely means
more than being allowed to speak one's own language. lt means belonging
to a group big enough to excrcise sovereignty and to be representcd
abroad. The Okavango are a group of less than JO,ooo; the Herero are
less than 40,000; the Damara less than 50,000; even the Ovambo are
only a quarter of a million. To split up hall a million people into twelve
groups and encourage them in separatism is in the long run the surest
way to bar them from the self-realisation that they seek.
This would be so even if they were to be genuine States on an equal
footing with the White section. It is even more clearly a deniai of what
they seek if they are kept at arm's length in remote parts of the country
and only admittcd to the area of progress under a cloud of humiliating
restrictions.
There is a final point to be made about these restrictions. \Vhite South
African arguments are based on the different stages of development
reached by varions groups of people. It is undisputed fact that groups
have developed at different paces in respect of the control of environment
(although understanding of other aspects of !ife has not always grown
at the same pace). But the aspect of South African thought which is
widely questioned elsewhere is the assumption that an individual is
permanently limited by the limitations of his group. His tics with it
may be strong; indeed, when considering politics and national survival,
the assomption that they will be strong is altogethcr reasonable. Again,
as a matter of choice, people may prefcr to mix socially with those of
their own group, but to say that by law people of one group must mix
\Vith no ethers can really only proceed from a conviction not only that
the other groups are inferior but that every membcr of each of the
ether groups is permanently· and irremediably inferior. lt is this that
ranides. 'Separate but equal' is possible so long as it is a matter of
choice by bath parties; legally imposed by one, it must be regarded
by the other as a humilation, and far more so if it applies not only to
the group as a whole but to jndividuals. In fact, of course, what separate
development bas meant bas been anything but equal.
These are sorne reasons why it will be hard to find natives of Africa
who believe that to extend the policy of separa te development to South
West Africa even more completely than at present is in the interest of
any but the White inhabitants.
References
The literature of separate dcvelopment is considerable.The most up-to-date and
authoritative expositions of the doctrineare to be fou nd in:
Dr. Verwoerd's speech to the House of Assembly on 23 January 1962
Dr. Verwoerd's address ta the South Africa Club, London, April 1962
l\lr. de \Vet Nel's speech to <:heHouse of Assembly12 June 1961
Earlier statements of the doctrinein slightlydifferent forms are:
S.A.B.R.A. (South African Bureau of Racial Affairs):Integration or Separate
Development? Stellenbosch 1952
Gorbler, J.H.: South Africa's Destiny, 1958
l\lanifestof National Party, 1947·
Othcr references are to: Brown v.Board of Education of Topeka: 347 US 483, 98
Led 873, 74 S Ct 68ü340 SOUTH WEST AFRICA
S.A. General Law Amendment Act, No. 37 of rg63
S.A. General Law Amendment Act, No. 76 of rg6z
S.A. Bantu Laws A mendment Bill
South A/rica and the Rule of Law: International Commission of Jurists, Geneva,
rg6o
D. V. Cowen: The Foundations of Freedom, London, O.U.P., 1961
Edgar Brookes: Civil Liberty in South Africa, London, O.U.P., rg6r
S.A.I.R.R. (South African Institute of Race Relations): Annual Surveys, Johan
nesburg, 1962, 1963.
Report of the Commission of Enquiry into South West African Affairs I962-3,
(the Odendaal Report), Pretoria, Government Printer, R.P. No. 12 of 1964. ANNEX2
EXTRACT FROM WORKING PAPER PREPARED BY THE
UNITED NATIONS SECRETARIAT
(U.N. Document A/AC. ro9/L. roS; 8 April r964.)'
Recommendations for the partitioning of South West A/rica
r8. The Odendaal Commission has recommended the partitioning of
South West Africa into ten separate "homelands" for Non-Europeans
covering an aggregate area of 32,629,394 of the Territory's 82,388,ooo
hectares, a Coloured rural irrigation seUlement of 92,421 hectares, and
a "White area". The proposed "White area" is not clearly defined to
comprise the balance of the Territory. The Commission proposed that it
consist of surveyed farms, the urban areas and those portions of two
game reserves not included in the "homelands". Such a definition of
the "White area" would include Walvis Bay 2 and exdude the two
large diamond areas on the southwestern coast of the Territory, other
than the urban areas therein, and also exclude areas of unsurveyed
government lands. It also proposed that administrative and legislative
authority over aUmines and lands, delegated to the territorial Legislative
Assembly in r949, revert exclusively to South Africa.
19. The ten proposed Non-European "homelands" and one "White
area" are as follows:
(a) Ovamboland, for the Ovambo peoples, numbering 239,363. 3
A total of 230,559 (96.32 per cent), including 27,77I Ovambo tem
porarily employed in the "White area", live in the existing Ovambo
land Native Reserve; the remaining 8,804 Ovambos are settled in
urban areas within the "White area".
(b) Okavangoland, for the 27,871 Okavango peoples. A total of 27,702
(99-40 per cent), including about 850 employed temporarily in the
Police Zone, live in the existing Okavango Native Reserve.
(c) The Kaokoveld, for the 9,234 Kaokovelders, who live in the existing
Kaokoveld Native Reserve.
(d) Eastern Caprivi, for the 15,840 East Caprivians, who live in the
existing Eastern Caprivi Zipfel Nat ive Reserve.
(e) Damaraland, for the 44,353 Damaras, 2,400 of whom live in
Native reserves to be included in Damaraland, 1,224 live in other
Native reserves, and 38,3291ive in "White" urban and rural areas.
(f) Hereroland, for 35,354 Hereros, of whom 9,0r7 live in Native
reserves to be included in Hereroland, 6,436 live in other reserves,
and rg,gor live in "'White"urban and rural areas.
(g) Namaland, for 34,806 Namas, of whom 2,292live in Native reserves
1
2 [Footnotes renumbered .]
\ValvisBay, territorially a part of the Cape Province of South Africa, is
administered as an integral part South \Vest Africa. The Odendaal Commission
Report included a footnotestating that the Walvis Bay area which was initially
es3imatedat 374 square miles, was "re-estimatein 1962 at 434 square miles.
Population figures are for rgGo,342 SOUTH WEST AFRICA
to be included in Namaland, 2,009 live in other reserves and 30,505
live in "White" areas, 8,gg8 of them in "White" urban areas.
(h) Rehoboth Gebiet, for the rr,257 Basters, a Coloured group, of
whom 8,893 live in the Gebiet, 2,026 live in "White" urban areas and
the balance liv{: in Native reserves and "White" rural areas.
(i) Bushmanland, for the rr,762 Bushmen, of whom 9,484 live in the
"White" urban and rural areas or in Native reserves in the southern
section and 2,278, described as nomadic, live mainly in the north
eastern part of South \Vest Africa.
(j) Tswanaland, for the Tswana population of 2,632, of whom 437 live
in a Native reserve to be abolished and the balance live mainly in
"\Vhite" urban and rural areas; the arca to be set aside as a Tswana
"homeland" was promised by the Government to the Herero people
as a future addition to the Aminuis Native Reserve which is now
recommended for abolition.
(k) "\Vhite arca", whose proposed administration was referred to as
the "South West Africa Administration", for the 73.464 Europeans,
of whom 53,68() (73 per cent) live in urban areas and rg,426 (27 per
cent) live in rural areas of the Police Zone, and 358, mainly missionaries
and officiais are stationed in the northern Native reserves.
20. Of the total rg6o population of 526,004, a majority (z86,485)
lived in the northern Native reserves of the Kaokoveld, Ovambolancl,
Okavango and Eastern Caprivi Zipfcl Native Reserves on the northern
boundary of the Territory. Of the total northern population, 10 per cent
were recruitcd as migrant labourers under one to two and a half year
contracts for work on the mines, European farms, industries and for
domestic service in the southern section of the Territory. The population
of Ovamboland a•:counts for 45 percent of the total population of South
West Africa. Jt was proposed that the areas of three of the existing
northern reserves be altcred, the size of Ovamboland and Okavango
increased, and the area of the Kaokoveld reduced.
21. In the southern section of the Tcrritory, most of the population,
both European and Non·European, now live in the proposed "White
area". A total of 13,709 Damaras, Hereros and Namas and 8,893 Basters
are settled in Na.tive reserves and the H.ehoboth Gebiet which will be
included in their respective "homelands";this total represents less than
10 percent of th~ Non-European population permanently settled in the
southem section of the Territory. The Odendaal Commission recommend
ed that twelve of eighteen existingNative reserves in the southern areas
of the Territory, and the Rehoboth Gebiet, be included in "homelands"
which are to be extended and consolidated by the addition of European
farmland, Government land and game reserve land. Six of the existing
"permanent" Native reserves are recommended for dissolution: Aminuis,
Bondelswarts, Neuhof. Otjimbingwe, Ovitoto and Warmbad. The report
of the Odendaal Commission envisages the transfer of residents of ali
Native reserves to their respective "homelands"; the transfer of non
Baster groups from Rehoboth to their "homelands" ; and the transfer
of Namas and Basters in "\Vhite" urban areas to their "homelands".
A total of 32,906 Non-Europeans would accordingly be moved to their
respective "hom-elands", 2o,882 of them from existing Native reserves
or the Rehoboth Gebiet, and rr,024 from "White" urban areas. Sorne
I,ooo Europea n ~uld also be expccted to move from the Rehohoth REPLY OF ETHIOPIA AND LIBERIA 343
Gebiet, as bad already been decidee! before the appointment of the
Odendaal Commission. Approximately 1,ooo to 1,500 Europeans would
have to vacate European farm areas which would be included in the
proposed Non-European "homelands". From 4,000 to 6,ooo Non-Euro-
• pean employees on these farms would also have to be moved to their
"homelands".
22. The Commission did not propose that Non-Europeans, other than
rr,024 Namas and Basters, be resettled from the "White" areas to their
"homelands". Sorne relocation of Non-Europeans within the "\Vhite"
arca were, however, proposed, involving the transfer of 2,500 or more
Coloureds to three urban centres in the "White area", and the transfer
of sorne 6,ooo Natives in the \Vindhoek area from the old Native location
to a new Native location (Katutura).
23. On the basis of rg6o population statistics and the recommendations
of the Odendaal Commission, the proposee! "White area" would initially
have a de facto population of 73,ro6 Europeans and rr6,383 Non
Europeans, as well as an additional 28,621 Non-European migrant
labourers recruited from the "homelands" on the northern border of the
Territory. A majority of the Non-Europeans in the southern portion of
the Territory would thus live in the "White" area rather than in their
"homelands". Unless continued European immigration alters the position,
Non-Europeans would also continue to form the majority of the popu
lation in the "\Vhite" area. ln this respect, it may be noted, only Euro
peans arc permitted to enter the Territory from South Africa without
permit, and the Commission rccommended that further Coloured im
migration from South Africa be curtailed due to unemployment among
Colourcds in South West Africa.
24. The existence or future disposition of Hoachanas, referred to in
official sources bath as a "temporary" Native reserve and as "govern
ment land", is not mentioned in the report of the Odendaal Commission.
The planned removal of the Rooinasie Nama inhabitants of Hoachanas
to ltsawisis, one of the European farm areas to be included in the
proposcd Namaland, has not previously been carried out, due, inter alia,
to the lack of potable water at ltsawisis. It may be noted that the General
Assembly, by resolution I357 (XIV) of 17 November rgsg, urged the
Government of South Africa to desjst from the planned removal.
Government
25. The Commission recommended that only the proposed White
area be administered by an Administrator, Executive Committee and
Legislative Assembly, the latter to consist, as at present, of eighteen
Europeans elected by the European voters of the Territory. Under the
proposais, these government bodies would have greatly reduced powers.
26. At present the Administra tor, Executive Committee and Legisla
tive Assembly of South West Africa exercise authority over ali matters
except deferree, police, foreign affairs, Native affairs (excluding, inter
alia,health, education and agriculture for Natives), transport, interior,
information, immigration, customs and excise, audit and the custody of
enemy property, all of which are adminjstered as integrated services by
the Government of South Africa. The Commission proposed that South
Africa also take over the following additional branches of the South \Vest344 SOUTH WEST AFRICA
Africa Administration with respect to ail population groups: justice,
prisons, mines, commerce, industries and labour, land, the Land and
Agricultural Bank of South West Africa, agriculture, Meat Trade
Control Board, water affairs, deeds, Surveyor-General, posts and tele
graphs, social welfare, archives and the State Museum. The South.
African Government would also take over from the local Administration
and the territorial Legislative Assembly the following: Coloured Affairs,
ail education for ~~on-Europe henlsh,for Non-Europeans outside of
the "White area", and roads and works outside of the "White area" as
well as supplies and transport, excluding transport of the South West
Africa Administration. In addition, the South African Government
would takc over revenue othcr than that to be controlled by the South
\Vest Africa Administration.
27. The European Legislative Assembly would rctain powers within
the "White area" over education for Europeans, health services for
Europcans and non-Europeans in the "\Vhite area", roads, local author
ities and townships, public works, personal and incarne tax, the licensing
of businesses, motor vehicles and entertainment, and all other matters
not specifically laken over by the Republic of South Africa. Jts legislation
would be subject to the approval and signature of the Statc President
of South Africa.
1
28. It may be noted that under the South West Africa Constitution,
exclusive authority to impose taxes, other than customs and excise duties,
on Europeans and Coloureds is delegated to the territorial Legislative
Assembly. The relevant financial provisions in the Constitution may not
be altered except with the approval of the Legislative Assembly, not
withstanding a general reservation of powers to South Africa under the
Constitution.
29. \Vith respect to Natives, the Commission recommended, in effect,
that all aspects of their administration and development other than
health and environmental services for those in the "White arca", and
their education, be transferred to the South African Minü:ter of Bantu
Administration and Development. The education of Natives, it recom
mended, should be integrated with the organization of the South African
Department of Bantu Education.
30. \Vith respect to Coloureds (other than Basters) and Namas, the
Commission recommended that the development and promotion of their
administration be transferred to the Department of Coloured Affairs
of South Africa and that their education as well as the education of the
Rehoboth Basters be integrated with the organization of that Depart
ment. It also recommended that education and all matters in respect of
the Rehoboth Basters be left to the Government of South Africa to deal
with at its discretion, due regard being bad to the Commission's recom
mendation concerning the integration of their education.
3r. For each of the "homelands" other than Bushmanland and the
Rehoboth Gebiet. the Commission proposed a Legislative Council, to be
statutorily institnted, consisting of the chiefs and headmenex otficiand
of members elected by all citizens or members of the "homeland" group
over 18 years of age, living both within and outside the "homeland" arca,
provided they registered as voters in the "homeland". Elected members
1 Act No. 42of 1925,asamended. REPLY OF ETHIOPIA AND LIBERIA 345
were initiallyto constitute not more than 40 per cent of the legislature.
32. It was proposed that executive power should be vested in an
Executive Committee consisting of chiefs and other members elected
by the Legislative Council.
33· The "homeland" Legislative Councils were gradually to take over
from the Department of Bantu Administration and Development the
legislative authority and administrative functions entrusted to it. This
was eventually to include all funetions except: defence, foreign affairs,
internai security and border control posts, water affairs and power
generation, and transport. All "homeland" legislation would be subject
to the approval and signature of the State President of South Africa.
34· The Commission recommended that each Legislative Council in
stitute a "homeland" citizenship for ail members of its group born with
in South West Africa or born outside of the Terri tory but permanent! y
resident in the "homeland" and not declared "a prohibited immigrant
in South West Africa". lt also recommended that the Legislative Coun
cil institute inferior and superior courts, with appeals from the inferior
courts lying to the superior courts, the latter's decisions subject to ap
peal to the South West Africa Division of the Supreme Court of South
Africa and thereafter to the Appeal Court of South Africa.
35· The transfer of land within each "homeland" to the respective
Legislative Council in trust :for the population was recommended, sub
ject to the proviso that the Cmmcil be allowed, with the approval of
the State President of South Africa, to release certain parts of the land
for alienation to individual citizens, and subject to the further proviso
that neither the Executive Committee nor a citizen has the right to
alienate land to a non-citizen except with the approval of both the
Legislative Council and the State President.
36. \Vith respect to Bushmanland, the Commission stated: "The
position is, as is generally known, that the Bushmen are a nomadic
people who have nowhere permanently established themsclves as a
community or indeed even a.s a fairly large group. They are scattered
throughout South West Africa ... There is no feeling of solidarity among
them, and any form of government is wholly unknown to them. In
their case, therefore, there is no conceivablc form of self-government
in which they can participate at this stage." The Commission also ob
served that "the greater part of the Bushman population is no longer
nomadic" and that "9.484 (or 80.63 per cent) ... have to a large extent
been drawn into the economy of the southern section of the country".
37· For the Rehoboth Gebiet, the Commission recommended that
a form of self-government be granted and that the provisions of the
required constitution be determined by consultation between the Baster
Community and South Africa. The report outlined previous unsuccess
full efforts in recent ycars to reach a mutually acceptable constitution
and noted that the Community itself was engaged in drafting a new
constitution.
38. The Commission recornmended that four chief offi.cers, to be sta
tioned in "The White area" at Windhoek, be appointed by the South
African Department of Coloured Affairs for the Rehoboth Gebiet,
Namaland and the Coloureds, and by the Department of Bantu Admini
stration and Developrnent for the Native "homelands". SOUTH WEST AFRICA
39· The Commission further proposed that a diplomatie post of Com
missioner-Gcneral be established for Ovamboland, the Kaokovcld and
Okavango combined, to sen·e as a llnk between these "home}ands" and
the South African Government and suggested that this recommenda
tion be carried out even beforc any of its other recommendations .
.Mr. J.P. van S. Bruwer, who had served on the Commission, was ap
pointed the first Commissioner-General early in rg64. The Commission
also proposed tha.t a Chief Commissioner and a Commissioner be statio
ned in Ovamboland, and that a Commissioner be stationed in each of
the other "homelands" other than Namaland and the Rehoboth Gebiet,
to serve in an advisory capacity to the local "homeland" governing
bodies.
40. The Commission made a number of recommendations regarding
the local government of Non-Europeans who would remain settled in
the "White area". For the Coloureds, it suggested that the existing
Coloured Council, which is composed of members appointed by the
Administrator of the Territory, should in future include as many elec
ted members as may be agreed betwecn that Council and the South
African Government. Apart from a small number of Coloured farmers,
for whom a rural irrigation settlement was proposed on the Orange
River, the Commission recommended that all Coloureds, who, it ob
served, wcrc distributed over the whole "White arca", be persuaded to
move to the areas of their grcatest concentration-Windhoek, \.Yalvis
Bay and Luderit:?:-and that the management of their separa tc Coloured
townships be en1:rusted to Coloured Local Township authorities.
41. \Vith respect to Natives settled in separate non-\Vhite townships
in "White" urban areas, the Commission recommended the establish
ment of Non-\Vhite councils, at least 6o per cent of their members to
be clected by the local non-White residents and the balance appointed
by the "homeland" Legislative Councils. The White urban authority, or
local govcrnment, was to delcgate such functions, powers and authori
ties to the proposed Non-White councils as might be approved by the
South African 1\linister of Bantu Administration and Development.
Five-Year Plans for the Development of South West A/rica
42. The Odendaal Commission recommended a five-year development
plan at an estimated cost of Rrr4,5I2,485, 1to be followed by a second
five-year plan involving an estimated expenditure of R3o,ooo,ooo, and
a third plan for which no estimatcs were given. The main rccommenda
tions for development may best be assessed in relation to the existing
economie position of South West Africa, and of the various "home
land'' areas.
43· Mining, agriculture and fisheries are the most important contri
butors to the economy. In rg62, exports of minerais amounted to
RSJ,IJJ,OOO, the Consolidated Diamond Mines and Tsumeb Corporation
accounting for 95 per cent of the Territory's mineral production; fish
production was valued at almost R23 million; agricultural exports
and local sales exceeded R27 million, cattle and karakul pelts accounting
for over R24 million of the total. The highest published official figure
for the sale of produce from Native areas is that for 1957, when the value
1 One Rand equals ro shillings sterling or U1.40. REPLY OF ETHIOPIA AND LIBERIA
347
of the sale of livestock, cream, pelts and hides totalled R834,0oo,
followed by a drop to R638,ooo the following year. 1
44· The Commission noted that the most important economie activi
ties were concentrated at a few places, c.g., diamond mining at Oran
jemund, metal production at Tsumeb and Grootfontein, fisheries at
Walvis Bay and Luderitz, and commerce and industry mainly in Wind
hoek and \.Yalvis Bay. None of these areas are to be included in Non
European "homelands".
45· According to the Odendaal Commission, the "modern market
sector links up with the traditional sector by attracting unskilled non
White employees, virtually to the maximum of their availability, a>
wage earners on farms and mines, and in domestic service and indus
tries". ln rg62 migrant labourers were being recruited at a beginning
rate of R6o to R66 for the first year's work. According to a territorial
commission of inquiry, average wages amounted in 1956 to about H.rzo
per year for tarrn and domestic workers and to almost Rzoo for Native
workers in urban areas, mines, industries, administration and railway
employment. According to the Odendaal Commission, average wages
of Non-White workers in mining rose from Rr23.8 in r<)6r to R202.9
in rg6z and wages of White workers from R2,321 in rg61 to R2.452
in r962.
46. The sales of agricultural produce from Native areas rcferrcd to
above relate cxclusively to Native arcas within the Police Zone, in the
southern sector of the Terri tory. According to the Odendaal Commission
and numerous official sources, the northern Native areas, which contain
the majority of the Territory's population also have the highest agricul
tural potential in South West Africa. Official publications indicate,
however, that these areas have had no export market throughout the
history of the Mandate. Due to cattle diseases, the sale or movement of
animais or animal produce outsidc the individual reserves except undcr
special permit is prohibitcd by Jaw. As regards crop farming in the
nort hern "homeland" areas, the Odendaal Commission reported that
production is snfficient to meet the necds of the population in the Eastern
Caprivi. It is negligible in th•' Kaokoveld and reasonably constant only
during favourable years in Ovamboland and the Okavango. These three
areas require supplementary food during the prolonged droughts which
occur in the Territory.
47· According to the Odendaal Commission, the agricultural economy
of the four northern homeland areas is based largely on their livestock
population. It considered that the lack of exports from those areas for
a considerable period had be,~ ansevere blow to the economy of South
\Vest Africa. The Commission estimated that these areas bad from Io,ooo
to rs,ooo cattle available for marketing annually, and that the num
ber would in ali probability increase to 30,000 per year in the future.
These estimates of future potential may be compared to the Territory's
annual cattle exports of r67,8oo head of cattle and so,ooo frozen beef
1
The Odendaal Commission gave one figure of the incarne derivefrom the
sale of produce in Nativreserves, relatinto Damaraland only. It reportedthat
the income from Jive·stockskins, hides, bancs, and the salcream amounted to
R162,228 in 1956. According to another commission of inquiry, total sales of stock
and produce in ail Native reserves amonnteto R782,718 during 1956. SOUTH WEST AFRICA
carcasses in 1962, an additional 92,000 being slaughtered for local con
sumption in the southern section. The southern section also exported
in rg6z a total of 67,437 sheep, 2,345,563 karakul pelts and dairy pro
duce as weil as fish products and minerais.
48. The Commission considered it imperative thal a market be found
for livestock from the northern areas and suggested the possibility of
establishing quarantine camps from which animais couJd be taken to
canneries in sealed vehicles. It observed thal the possibility of establish
ing canneries within the northern areas had been explored and con
sidercd uneconomic and impractical. The Commission nevertheless
suggested thal in course of time such facilities should be provided for
canning bee! from the Kaokoveld, Ovamboland and the Okavango.
For a long time to come, it stated, the meat canning factory at Otavi,
in the "White arca", would be the market outlet for Ovambo cattle;
another canning factory, at Okahandja, in the "White area", might also
play a role in the future in canning meat from the Kaokoveld and western
Ovamboland, the Commission observed. Other possibilities suggested
for the northern area included the establishment of a furniture factory
in Ovamboland, which would be the first factory in the northernarea,and
the establishment of a jute industry in the Okavango.
49· The Commission was of the opinion that there wcrc further possi
bilities for the development of mining in the Territory and suggested that
the South African Department of Mines organize the exploration of the
whole Territory, giving attention first to areas where minerais had
already been exploited profitably. According to the recommendations
of the Commission, mineral and mining rights in the various «homelands"
would eventually be transferred to the "homeland" authorities. The
Commission also considered it important that the inhabitants of the
"homelands" be encouraged and assisted to become entrepreneurs in
their own areas, as well as managers and responsible officers in their
own mining.
50. While prospecting is being carried out in severa! of the Native
reserve areas, the only operating mine within a Native reserve is the
Uis tin mine in the Okombahe Native reserve in the Police Zone, a re
serve which is proposed to be included in Damaraland. The mine, which
has ore reserves estimated at 2 r million tons, is owned by the statutory
South African Iron and Steel Jndustrial Corporation Limited (Iscor).
Production is being expanded from 15,000 to 66,ooo tons of ore per month
at a cost of Rz million. With respect to this particular mine, the Oden
daal Commission recommended the establishment by the mining con
cern of a Native township within the Native reserve, and a Native labour
force drawn in future from within the reserve. This would represent the
first Native mine labour community settled on a family basis in South
West Africa. As of carly 1964, a small White community, which includes
41 houses and a school for European children, had already been estab
lished withîn the Native reserve forEuropean employees of the Uis mine.
Under existing laws, the incarne derived from taxation of the mine pro
fits is payable into the central revenue of the Territory rather than into
the Native reserve trust fund. ANNEX 3
EXTRACT FIWM REPORT OF THE UNITED NATIONS SPECIAL
COMMITTEE ON THE POLICIES OF APARTHEID OF THE
GOVERNMENT OF THE REPUBL!C OF SOUTH AFRICA
(U.N. Security Couneil Document Sj5426; I6 SeptemberI963) 1
THE TRANSKEI CONSTITUTION ACT AND THE MOVES TOWARDS THE
CREATION OF "BANTUSTANS"
97· The promulgation of the Transkei Constitution Act 2 is perhaps
the most significant dcvelop:ment during the year in the direction of
the implementation of apartheid. The Act, the provisions of which are
described later in this Chapter, provides a degree of self-governmcnt
for the African reserve of Transkei.
g8. The Transkei, situated on the coast in the northeastern part of
the Cape Province, has an arca of r6,350 square miles. lts population
consists of over two million Xhosa people, as weil as 17.369 Whites and
13,7I6 Coloureds.'
gg. The significance of the establishment of self-governing institu
tions for the Transkei lies, however, not so rouch in the legislation
itself but in the proclaimed intention of the Government that it is a
step toward the creation of a series of "Bantustans" in the African
reserves, that the African people can only aspire for political rights in
these states and that they would be regarded as transients and aliens
in the \Vhite areas which comprise six-sevenths of the territory of the
Republic of South Africa. 4 The Government has widely advertiscd
this move as proof of its sincerity with respect ta separa te dcvelopment,
and has made extravagant daims such as the following:
"The White man has undertaken a task such as history has not
known. He is helping the Black man to bridge the gap, in one span,
between the Stone Age and the atomic era." 5
roo. To appreciate the real significance of this development, it is
essential to review briel!y the evolution of the policy of the South African
Governments [sictowards African land ownership and theAfrican reserves.
1 (Footnotes rcnumbered.J
2 No. 48 of 1963. Text inGovern.ment Gazette Extraordinary30 l\:!ay 1963.
3 The Coloured population consists chiefly of Cape Coloured but also includcs
Cape 1\.Ialays, Bushmen, Hottentotsand aU persans of mixed race.
4 South African official statementolten tend to give an erroneous impression
of the ratio of the \Vhite and the African areas by including most of South \Vest
Africa, as weil as three BritishProtectorates of Bechuanaland, Swaziland and
Basutoland, in the calculationsThe figures gh·en here cover only the territoof
the Republic of South Africa.
5 Republic of South Africa, Department of Information, The Progress of lhe
Bantu Peoples towards Nationhood (consolidatedcd.). p.1. SOUTH WEST AFRICA
350
(a) Evolution oj1he African Reserves
101. South African Governmcnt spokesmen claim that the Europeans
arrived in the country before or at about the same time as the Bantu
and that there was a traditional gcographical separation between the
White and Black areas. 1 The theory that the Europeans were the ftrst
settlers, which applics only to a small part of the country around the
Cape Peninsula, bas been disputed by many historians and is of littJe
relevance at the present time as the right of the people of European
origin to live in South Africa has not been disputed. The claim of a tra
ditional separation of the territory between the Whites and the Afri
cans, however, deservcs sorne consideration.
102. The first European seUlement in South Africa was established
in r652 at Table Bay. lt expanded slowly at first and faced little re
sistance from the native Africans, particularly the Hottentots. ln 1702,
however, a party of Afrikaner (Dutch) traders crosscd the Fish River,
and for the first time encountered the power!ul Xhosa branch of the
Ban tu. From 17;'9, a series of "Kaffir \Vars" 2began, as the Bantu and
Europeans fought each other for land. This struggle was to bccomc one
of the chief factors in South Africa's history for a century.
103. Great Britain, which established its rule over the country in
r8r4, also pursu1;!da systematic policy of annexation and incrcased po.,.
litical authority over the Bantu. The restriction of land ownership by
the Bantu, the pass laws, and the employment oftribalchiefsforadminis
trative control becamc the central features of Native policy undcr British
rule. 3 The Africans were thus progressively confined to limitcd areas
of land.
104. The development of cliamonù and gold mining in the last quarter
of the nineteenth century, and more recently the rapid dcvclopment
of industry in the urban areas, led to an ever-increasing dcmand for
African labour outsidc the arcas to which they bad been confined.
ros. The European mineowners of the Rand cxerted pressure on the
Government to restrict African landownership as they were faced with
a chronic shortage of unskilled labourers and the Africans were reluctant
to leave their farms to work for law wages in the mines. Similar pressure
was exerted by the \Vhite fanners. Echoing their sentiments, General
Botha, who \Vasto become the first Prime Minister of the Union, declared
in 1903 that "he would, if necessary, break up the areas of land reserved
for the Natives (including the Protectorates) in arder to providc labour
for the mines and farms''. 4
ro6. One of the first acts of the Union of South Africa, formed in 1909
by agreement between the two major White elements in the country,
was the promulgation of the Native Land Act of 1913, which laid down
1 Mr. \V. J. le Roux, director of the Information Service of South Africa, in a
letter published in the Christian Science Monitor on 5 June 1963, claimed further
that the \Vhites ~.ettl Seuth Africa by right of first occupation and that the
Bantu were "migratory elements in the \Vhite man's land."
2 The Afrikaners called the Bantu people "Kaffirs" (unbelievers).
3 See, for instance, the report of the Inter-Colonial Commission, published
in 1905.
4 Quotcd by Julius 'Lewin: "South African Native Policy Never Changes",
The Political Quarter/y, London, January-March 1957, p. 67. REPLY OF ETHIOPIA AND LIBERIA 351
the principle of territorial segregation and separation of land rights
between "Natives" and non-Natives. Under this Act, ro rjz million
morgen (about 21 million acŒs) were set aside as Native I~eser areeas.
The African opposition to this Act led to the formation of the Native
National Congress, predecessor of the African National Congress, which
tried in vain to prcvent the application of this mea.surc by representa
tions in South Africa and in London.
IOJ. Though the Government attempted to justify the legislation as
a measure to protect African interests, African leaders protested it as an
unjust law directed against the vital interests of their people. i\lost of
the reserves were, in fact, Crown lands communally farmed and did not
provide a property market. Purchase of land by individual Africans
outside the Reserves was effectively restricted. In the few urban areas
where the Africans had the right to own land. rights of occupation and
tenancy wcre strict! y !imited by the Native (Urban Areas) Act of 1923.
roS. The Native reserves could not support the African farmers even
at the subsistence lcvel and the pressure on the land continually in
creased.
109. ln 1936, the Native Trust and Land Act provided for the acquisi
tion by the Governmcnt of additional land of 15 million acres for Afri
can occupation, and for the progessive liquidation of the "Black Spots"
in "\Vhite areas." This was declared ta be a "final settlement".
IIO. The acquisition of the additionalland has not yet been completed.
\Vhen completed, the native reserves would cover about 41.6 million
acres of land or about a seventh of the terri tory of the Republic of South
Africa. 1
III. The reserves contain less than two-fifths of the African popu
lation of the Republic and arc already over-populated. The most optimis
tic estimates place the agricultural potential of the reserves at nearly
20 per cent of that of the Republic. But little progress bas been made in
the agricultural dcvelopmcnt of these areas and serions sail erosion has
developed. According to the report of the Tomlinson Commission (1955),
appointed by the National Party Government, the Reserves can decent! y
support only half of their population.
II2. In other words, the traditional geographical separation is mainly
a restriction on land ownership imposed by the Government in which
the Africans had no voice and which the African leaders had protested
strongly. The reserves have for a long time ceased to support even a
majority of the African population, and the African population has for
a long timc formed a majority outside the reserves. 2
1About flve million acres of land have yet to be bought to carry out the provi
sions of the Native Trust and Land Act of 1936. (Republicof South Africa, Depart
ment of Information. The Progress of Bantu Peoples" Towards Nationhood [consoli
dated ed.J p. 84). The delay in the acquisitiof the land is due to the resistance
of European farmcrs and the inadequacy of funds appropriated for the purpose.
The "Black Spots"-African·owned land in European areas-are, however, being
rap2dly eliminated.
In the urban areas, the African slightly outnumberthe Whites. In the "White''
rural area, the number of Africans is about four times the number of White[Italics
added.) '352 SOUTH WEST AFRICA
(b) The poticy of Separate Development
IIJ. The Naticlllal Party came to power in 1948 after a campaign in
which it stressed the alleged dangers of increasing African population
in the White areas, and the trend towards economie integration. Its
leader, Dr. D. F. Malan, asked in a speech at Paarl on 20 April 1948:
"\.Yill the European race in the future be able to maintain its rule,
its purity and its civilization, or will it fioat along until it vanishes
for ever, without honour, in the Black Sea of South Africa's Non
European population?" t
114. The National Party Government pointed to the numerical superi
ority of the Africans and the alleged danger of Black domination in
embarking on a series of laws to outlaw all social intercourse between
the racial group:::.,and to restrict the rights of Africans outside the re
serves. The poliey of "separa te development" was linked with these mea
sures.
ns. This policy was pushed particularly by Dr. Verwoerd, Ministcr
of Native Affain:. from 1950 and Prime Minister since 1958. As early as
1950 Dr. Verwoerd outhned the Government's policy of "Autogenous
Development" for the Bantu:
"(The Govemment) wishes to create for the Bantu every possible
opportunity to rcalize their ambitions and to serve their own people.
This is, thereforc, not a policy of oppression, but of creating a position
which has never yet existed for the Bantu, namely that they will be
able to develop on their own lines in accordance with their own lan
guages, traditions, history and various ethnie groups." 2
u6. In pursuance of this policy, the Ban tu Authoritics Act of 195 I
abolished the Native Representative Council and authorized the Gaver
3
nor-General to establish 13antu "tribal authorities". The Bantu Edu
cation Act of 1953 provided Government control of Bantu schools and
their reorganization along tribal lines. A host of ether legislative and
administrative stcps were designed towards the separation of the Afri
cans from the other ethnie groups and the creation of institutions on the
basis of tribal units.
II]. Each of these measures increased tension in the country and
could only be imposed by force. The establishment of Bantu Authorities,
for instance, was "accompanied by Government threats, by murder,
violence, arson, tribal revoit and severe police action". 4 In 1957,
when the Department of Native Affairs attempted to implement the
Bantu Authorities system in Tembuland, the people objected strongly
to the splitting of Tembuland into three-Bomvanaland, Tembuland,
and Emigrant Tembuland-and sent a deputation to Pretoria to con
vey their opposition to the scheme. Subsequently, four of the delegates
1Quoted by Neame, L. E., The Hi.story of Apartheid, London, 1962, p. 73-
2 Union of South Africa, Departmcnt of Native Affairs, Report for I954-I957.
p.31.
In 1959 there were 371 "tribal authorities", though Government officiais
had aimed at a "possible soo". (Republic of South Africa, Department of In
formation, The Pmgress of tke Bantu Peop!es towards NaJionhood (consolidated ed.),
p. 4).
Tatz, C. M.: Shadow and Substance in South Africa, Pietermaritzburg,University
of Natal Press, 1962, p. 191. • REPL Y OF ETHIOPIA AND LIBERIA 353
were deported by the Government on the grounds that they were causing
dissension in the tribe and opposing Government measures. The "Tem
buland technique" has since been adopted by the Government to over
come opposition in other areas. The Government has resorted to threats
to eut off financial assistance and discontinue necessary social services,
has deported leaders, and imposed chiefs and headmen who are willing
to go along with the Government in return for promotions.
uS. Serions rioting as a result of the Government's attcmpts to
establish Bantu Authorities occurred in many areas. In ~lay 1958,
ovcr 300 Africans were arrested after riots in the Sekhukhuneland reserve.
Riots and unrest continued in East Pondoland during 1959 and 1960,
and the Government imposed serious repressive measures.
Promotion of Bantu Self-Govanmcnt Act, I959
119. A significant step in the direction of the Government's plans
was taken by the promulgation of the Promotion of Ban tu Self-Govern
ment Act on 19 June 1959. The declared aim of the Act is "to provide for
the graduai development of sclf-goveming Bantu national units and
for direct consultation between the Government of the Union and the
said national units in regard to matters affecting the interests of such
national units".
120. The Act abolished the limitcd representation of the Africans in
Parliament and provided for the graduai consolidation of the 264
scattered Native reserves into cight self-governing "national units" and
the establishment of territorial authorities in these units.
I2I. During the debates in Parliament, Dr. Verwoerd said that the
Government's scheme woulcl lead to a permanent White South Africa,
and that unless it was accepted, the only other choice was a common
multi-racial country where the \Vhitcs would be outnumbered by the
Blacks three or four to one.
122. African leaders opposed this measure as a further deniai of their
rights. Chief Albert Luthuli, President of the African National Congress,
stated in an article in the Rand Daily Mail in May 1959 that the Afri
can people had not been consulted on the Promotion of Bantu Self
Government Bill and that they "had certainly not decided in favour of
the system-they did not want partition or separation in South Africa".
"This 'solution', which is merely a disguise for the apartheid we
already know, is completely unacceptable to the African people."
123. The Government, however, proceeded with the consolidation
of the African "national units" and the establishment of territorial
authorities. In the Transkei, which is a relatively large and compact
reserve area, a territorial authority had been established as early as
1956. Five other territorial authorities were established by the end of
1962. 1 Two more-Zulu and South Sotho----are being planned.
The Transkei Constitution Act
124. Meanwhile, in Janua.ry 1962, Prime Minister Dr. Verwoerd
announced a plan to grant "self-govcrnment" to the Transkei. He said
1
Ciskei, Tswana, Lebowa, Matshanganaand Venda.354 SOUTH WEST AFRICA
that the area would be given a wholly Black Parliament and Cabinet.
The White inhabitants of Transkei would have no political rights in
the territory, but would continue to vote for the central Parliament.
Dr. Verwoerd also announced that a separate Transkei citizenship would
be instituted for Africans and that Transkei Africans living outside the
territory would be entitled to vote for the Transkei Parliament.
Powers in such fields as agriculture, education, hcalth, welfare ser
vices, land, roads and minor local authorities would be entrusted to the
new Transkei Parliament; externat affairs, deferree and certain aspects
of the administration of justice would, for the time being, remain the
responsibility of the Republic. The constitution would be decided hy
the Bunga (local council).
125. During the discussions which followed betwcen the Government
and the representative of the Bunga, it was reported that the Govern
ment had indicated that it could not entertain any requests for greater
powers than had heen offered or for a multiracial legislature; that all
legislation of the Transkei Parliament would be subject to the consent
of the State President of the Republic; and that the Transkei Parliament
should consist of chiefs as weil as clected representatives.
126. While supporters of the Government claimed that the move
was the beginning of a new era in race relations and a step towards in
dependence of Africans in their areas, members of the opposition and
several African leaders argued that it was merely a disingenuous scheme,
and that the terms "Parliament" and "Cabinet" were misleading as the
area would enjoy little independence. Serious differences among the
chiefs and people of the area were saon reported in the press. A number
of cases of violence in the territory during rg62-r963 were attributed to
opponents of the Government's scheme.
127. Defendinf: his support of the Government's proposa!, the Chair
man of the Territorial Authority, Chief Kaiser Matanzima, said in astate
ment of 26 Novcmber rg6z that
"White South Africa is roo per cent. agreed on the maintenance
of white control of the white parliament. Only their defeat on the
battlefield will divest them of this resolution. Will those people who
oppose the peaceful road taken by the Transkei come out and advocate
a revolution?"
128. The Transkei territorial authority approved the draft constitution
in December rg62 by a large majority.
rzg. The Transkei Constitution Bill was introduced in the Parliament
on 28 January 1963 and promulgated on 24 May rg63. The Act coniers
self-government on the Territory of Transkei and vcsts executive
functions in a Ca.binetconsisting of a Chief Ministcr and five ministers.
The Cabinet is made responsible for the administration of six depart
menis, namely: finance, justice, education, interior, agriculture and
forestry and public works. 1
IJO. The Legislative Assembly will consist of rgo memhers: the four
paramount chief,; of the Transkei appointed by the Central Government;
sixty appointed chiefs holding office in the nine regional authority areas
of the territ ory; and forty-five members elected by Transkei citizens
1 Section10. REPLY OF ETHIOPIA AND LIBERIA 355
resident in the territory or in the rest of the Republic or in South West
Africa. (Ali Ban tu born in the Transkei and ail Xhosa-speaking persans
in South Africa and ali Sotho-speaking persans linked with the Sotho
elements in Transkei would be regarded as Transkei citizens). 1 The
Assembly may conduct its business and adopt legislation·in the Xhosa
language.
131. The Act provides for a Transkeian flag, designed and approved
by the Legislative Assembly, which will be flown side by side with the
flag of the Republic at the building where the Assembly holds its sessions.
"Nkosi Sikelel'i Afrika" is to be the national anthem of the Transkei.
132. Ali Bills approved by the Legislative Assembly are subject to the
assent of the State President of the Republic. 2 The Assembly is not
empowered to repeal or amend the Constitutional [sic]Act. Among other
matters in regard to which it cannat legislate are: (a) the establishment
of military forces; (b) the manufacture of arms and ammunition; (c)
the appointment and recognition of diplomatie and consular represen
tatives and the conclusion of international treaties and agreements;
and (d) the control over the entry and presence of any Police force of
the Republic sent to the Transkei for the maintenance of law and order
and for the preservation of internai security. 3 The territory will,
however, have control of any police force stationed in the Transkei and
transferred to il by the Minister of Justice of the Republic.
133. The Government of the Republic will also retain control of the
post office, railway and harbours, national roads, civil aviation, the entry
of aliens into the territory, currency and public loans, and customs and
excise. 4
134. The Legislative Assembly, is competent to make laws in regard
to taxation, Bantu education, agricultural improvements, inferiorcourts,
wills, registration of deeds, public works, Bantu authorities, traffic,
certain labour matters, welfa.reservices, vital statistics, elections, liquor,
markets, game preservation and licensing of trading and business. 5 Its
powers in these matters cxtend to ail citizens of the Transkei throughout
the Republic.
135. The powers and functions of paramount chiefs, chiefs and head
men are not superseded by the establishment of the Legislative Assembly,
however. The latter is not entirely competent in the restricted area of
its jurisdictio6 because tribal authorities retain their original powers in
certain areas.
136. During the debate in the Parliament, the Minister of Bantu
Administration and Development, Mr. M. D. C. de Wat [sic]Ne!, said
!hat the bill provided for the membership of the chiefs of the terri tories in
the Legislative Assembly bccause experience elsewhere had shown that
where the chiefs were pushed aside their traditional authority was
eliminated. He also stated thal as the Transkei did not at present have
a sufficient number of trained Bantu to fill ali the posts in the various
1 Sections 23, 7 and 45·
2 Section 40.
3 Section 39·
4 Section 39·
5 Section 37, First Schedule, Part B.
6 Section 43· SOUTH WEST AFRICA
departments transferred to the jurisdiction of its Government, White
officiais would be placed at its disposa!. These White officiais would,
however, remain in the service of the Government of the Republic and
would be paid by the Republic. They would be gradually replaced by
Bantu "but always beginning at the lowest grade and progressively
advancing ta the top sa that White officiais would never work under
1
Bantu".
137. The bill was vigorously opposed by the United Party which
argued that the Bantustan policies would not change the outside world's
attitude towards South Africa but would lead ta the dismemberment of
the country and endanger the security of South Africa. lt contended
that economie progress and separate development were incompatible.
138. Sir de Villiers Graaff, leader of the United Party, stated:
"In Africa we had the position that metropolitan Powers who had
controlled their colonies over many years and had had long experience
in doing so, were abdicating those responsibilities. Here we are
creating colonies, virtually speaking, in arder to abandon them and
abandon with them millions of people who will also be permanently
present in the mixed areas but will be artificially regarded as citizens
of those states."2
He added that the experience in Africa showed that once the metro
politan Powcrs promised a people independence, they )ost control of the
timetable and of the direction and development of the independent
State. The promise of independence to the reserves by South Africa
would create even greater problems in South Africa because of the
influence of the mass of Bantus living outside the Bantu territories.
Implementation of the Transkei Constitution Act
139. The Transkei Territorial Authority met on 14 May ta discuss
arrangements for the establishment of the new institutions.
140. H.egulations for the elections were published in the Government
Gazette in June and registration of voters took place until 17 August in
the Transkei and in other areas where large numbers of Transkei "citi
zens" are concentrated. The Government announced that nearlv Soo,ooo
persans had registered. Elections for the forty-five elected scats in the
Iog-member Legi:;lature are due ta be held on zo November 1963.
141. The Government is reported to be planning to establish the new
Transkei Governrnent before Christmas 1963.
142. The Minister of Bantu Administration and Development an
nounced on 16 August that the civil administration would be trans
ferred ta the terri tory in October: 1 ,gao of the 2.476 Civil Service posts
would be filled by Africans. White officiais would head the departments
and hold other senior posts at this stage. 3
143. Umtata, the largest town in the Transkei, will be the seat of
government. The State will have no capital as Umtata is a White area.
1
2 House of Assemhly Debates, 6 March 1963, cols. 2238-46.
3 House of Assembly Debates, 22 January1963, cols. 27-29.
The Star, weekly, Johannesburg,17 August 1963. REPLY OF ETHIOPIA AND LIBERIA 357
Conclusions
144. ln conclusion, a number of comments may be made on the Trans
kei Constitution Act and the moves towards the creation of Bantustans.
145. These moves are engineered by a Government in which the
African people concerned have no voice and are aimed at the separation
of the races and the deniai of rights to the African population in six
sevenths of the territory of the Republic of South Africa in return for
promises of self-government for the Africans in scattered reserves which
account for one-seventh of the territory.
146. The reserves contain Jess than two-fifths of the African population
of the Republic, while many of the Africans in the rest of the country
are largely detribalized and have little attachment to the reserves.
I47· Second, the "Bantustans" were not demanded by African leaders,
but were imposed against their wishes. The leaders of the African people
are silenced, entry into reserves by Whites is controlled by permit, and,
under Proclamation 400, the Transkeins [sic] are denied freedom of
assembly and speech.
148. Third, the sell-government granted to Transkei at present is
limited in many ways. Pararnount Chief Sabata Dalindyebo of the Tem
bu, one of the biggest !ribes in the Transkei, told the Tembus recently,
"The freedom yon are getting in the Transkei is a fowl-run. A cattle
kraal would be better." 1
149· Fourth, the scheme aims at reinforcing tribalism and utilizing
the tribal system against African aspirations for equality. z
rso. Fifth, the "national units", made up of scattered reserves, are
not economically viable. They do not provide a minimum standard of
living even for the existing population of less than four million. Serions
famines have recently been reported in Vendaland and Sekhukhuneland
reserves in Transvaal. They have few known mineral resources, and they
are almost devoid of industries. Their economies depend largely on the
export of their labour to the "White" areas, at the rate of over hall a
million migrant labourcrs a year. 3The Transkei is dependent on Govern
ment grants even for its administrative costs: the Government has offered
20 million Rand a year for this purpose.
rsr. A report on the Bantu areas prepared for the Government in 1955
-the Tomlinson report-stated thal the farm population in the reserves
should be reduced by hall to promote economie agricultural units. It
recommended rapid industrialization by White capital to provide
employment to 30o,ooo farmers and add so,ooo new jobs a year. The
Government, however, decided to limit industries within the areas to
1 The Star, weekly, Johannesburg, ro August 1963.
z As in the rest of the continent, the African nationalist organizatiin South
Africa have opposed tribalism. One of the abjects of tAfrican National Congress
is: "To encourage mu tuai understandingand to bring together into common action
as one political people ali tribes and clans or racebyameans of combined effort
and united political organizatioto defend their freedom, rights and privileges."
3 According to the Tomlinson report, "with exception of cripples and disabled
persans, nearly ali males are employed outside Bantu areas at one or another
stage between the fifteenth and fiftieth birthdays."358 SOUTH WEST AFRICA
Bantu capital, with Government encouragement. It favoured encourage
ment of European-owned industries on the borders of-rather than in
the Bantu areas. 1
152. A Bantu Investment Corporation has becn set up with a small
capital to promote industrial and commercial enterprises, but it has had
little impact. 2 The Government has attached greater significance to
the "border industries" and given varions concessions for that purpose.
Over half of the expenditure for the first five-year development plan of
Bantustans (of which Transkei is one) is al!ocated for the establishment
of villages intended to house Bantu labour forces for "border industries"
in White areas. 3 But these have not created much employment either.
According to a report delivered at a conference of the South African
Bureau of Racial Affairs in June 1963, only 56,ooo of the seven million
Africans in and near the reserves were employed in industry. •
153. The creation of Bantustans may, thereforc, be regarded as
designed to reinforce White supremacy in the Republic by strengthening
the position of tribal chiefs, dividing the African people through the
offer of opportunities for a limited number of Africans, and deceiving
public opinion.
1 Memorandu1n: Government decisions ml the recommendations of the Commission
for the Socio-Economic Developmenl of theBanlu A reas wilhin the Union of South
Africa. This decision had the advantage of ensuring adequate cheap manpower
without disturbing the separation of races. But the rate of investment so far appears
to be considerably below that recommended by the Tomlinson report.
2 By July 1963, the Corporation granted loans totaling 862,8II Rand, and
Africans had deposited 453,000 Rand in its savings accounts. (The Star, weekly,
Johannesburg, 20 July 1963). The total number of Africans cmployed in industry
in the Transkei is only 1,159. (Statement by the Ministcr of Bantu Administration
and Dcvelopment, House of Assembly Debates, 28 May 1963, col. 8772.)
3 Republic of South Africa, Department of Information: Scope, 1\Iarch/April
1964.
The Star, daily, Johannesburg, 10 June 1963. ANNEX 4
EXTRACT FROM REPORT OF THE UNITED NATIONS SPECIAL
COMMITTEE ON THE POLICIES OF APARTHEID OF THE
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
(U.N. Security Councit Document Sf562I; 25 March I964) 1
... 6.Implementation of the Transkei Constitution Act
The Adoption of the Transkei Constitution Act, as a step towards
the creation of Bantustans, was reviewed in the Iast report of the Special
Committee. The Act provided for limited self-govemment in the over
crowded African reserve of Transkei, to be exercised through a legislative
assembly composed of sixt y-four appointee! chiefs and forty-five elected
members.
Elections for the legislative assembly were held on 20 November rg63.
The Government announced that 880,425 persons-414,238 men and
466,187 women had registered as voters. One hundred and eighty can
didates were nominated for the forty-five seats.
Political parties were not allowed, and the two main contenders for
the post of Chief Minister-Chief Kaizer Matanzima, head of Emigrand
Tembuland and Paramount Chief Victor Poto of Western Pondoland
issued election manifestocs. Chief Matanzima supported the Govern
ment's policy of "separate development", while Paramount Chief Poto
called for multi-racialism anet a more democratie legislature. 3
t (Footnotes renumbered.J
2 Ail Africans born in the Transkei, ali \Vhosa-speaking [sic] persans in South
Africa and ail Sotho-speaking persans linked with Sotho elements in the Transkei
were regardcd as Transkei citizens.Of the total registered voters, about 61o,ooo
had registered in the Transkei and about 270,000 outside the territory.
3 South African Digest (7 November 1963) summarized the main points of the
manifestees as follows:
"Chief Matanzima says in his lJ-point manifesta that he would advocate:
"Separa te development; industries for the Transkei, but not European priva te
enterprise; the graduai takeover for the Bantu ofali land in the Transkei including
municipal property in the 26 villages; the establishment of a Bantu battalion in
the Republic's defence force to train the young Transkeians for military service in
the event of war involving South Africa.
"He would also press for an ail-Black civil service in the Transkei with salaries
comparing favourably with those of their \Vhite counterparts in the Republic.
"The Transkei's Education Department should be solely responsible for the
nature and standard of education to be given to the Bantu children. The people
of the Transkei should decide on the medium of instruction and syllabi.
"The Transkei would require financial stability.For this reason good relations
would have to be maintained with the Republican Government (to facilitatethe
flo\v of moncy) from South Africa to the Transkei by way of grants and the employ
ment of Transkeians in the border industriesand elsewhere.
"He wanted agriculture to be placed on a high standard whereby every able
bodied man owning land should me modern methods of farming. The whole country
should be completely rehabilitated--irrigation schemes to be undertaken, sail
erosion checked, dams built and good-quality stock bought.
(Foot-note continued on following page) SOUTH WEST AFRICA
The issues in the elections were rather unreal as the Government had
made it clear that multi-racialism could not be accepted. Paramount
Chief Victor Poto stated that though he was in favour of a multi-racial
Transkei, he realized that he would not be able to do much to promote
it before the Transkei was totaUy independent. 1
i\foreover, the elections were conducted under a State of Emergency
and with the full use of repressive force against the militant opponents
of the policies of apartheid. As the Liberal Party noted shortly before
the elections:
"One candidate at !east, Mr. L. Mdingi of Bizana, was given go-days
when he emerged as organiser of the IQumru LamaMpondo Ase
Mpumalanga (Pondoland People's Party) putting up eight candidates.
Another, Mr. Hammington Majija, a weU-known Liberal, was banned
under the Suppression of Communism Act on Jst October, the eve of
Nomination Day. An outstanding local leader, Mr. N. I. Honono,
was house-arre::.ted in Umtata in rg62 and another, Mr. R. S. Canca,
banned and confined to Idutywa and WiUowvale this year. And aU
the old factors remained-the cream utterly sceptical, banned, or
elsewhere involved-Transkeians like Messrs. Nelson Mandela, Walter
Sisulu and Govan Mbeki aU in gao! and Mr. Oliver Tambo in exile.
So came the Election, with many leading figures knocked out in
advance, no political parties, no freedom to hold meetings at will,
freedom of speech muzzled by the Emergency Regulations which
make even 'interference with the authority of the State, one of its
officiais, a chief or headman' by making 'a verbal or written statement'
2
an offence punishable by up to three years' gao! and [300 fine."
The Paramount chiefs and the chiefs seemed·to have exercised rouch
influence on the elections.
(Foot-note 3 continued)
"He would strive ta induce the Republican Government ta cmploy Bantu men
and women in ali the departments that had not been transferred to the Transkei
Government sa as to train them for independence.
"The traditional authority of chieftainshipshould be preserved, and in arder to
do so, chiefs should participatein the body that made the laws--the Transkeian
Legislative Assembly. The chiefs should be in the Assembly by vîrtue of their
status.
"This is one of the main points on which Chief Matanzima and Paramount Chief
Poto disagree. The latter has said that members of the Assembly should ail be
elected members and that the chiefs should sit in an Upper House of Review.
"Other points which Paramount Chief Poto advocates in his election are:
"The formation of political parties which have the interests of the Transkeian
people at heart; an educational system that will fit the individualînto human
society and which is not bound by geographical boundaries; a policy of equal pay
for equal work; freedom ta compete for any position or employment in an un
restrictedlabour market and removal of disabilities of the work-seeker; a policy
that will remove fear and uncertainty and instil confidence in the future and a sense
of belonging and usefulness ta a growing and expanding community; the establish
ment of factories and industries resulting in increased opportunities for employ
ment; a legal system that will measure up to the internationalstandards of justice;
a policy of scientific, pastoral and agriculturdevelopment; increased and State
subsidized health SE!rvices; and freedom of speech and religion."
l South African Digest, Pretoria,21 November 1963.
2 Contact,Cape Town, 30 November 1963. REPLY OF ETHIOPIA AND LIBERIA
Paramount Chief Botha Sigcau of Eastern Pondoland (Quakeni),
against whom there had been revolts in the area, appealed to the elec
torale in his region to abide by the principle of separate development
on which the Transkei Constitution was based and added: "order, law
and justice, and not subversion and sabotage, have always adorned the 1
careers of wise statesmen. Voters of Pondoland, vote for such men."
His statement was considered significant particularly as his region has
the biggest block in the Assembly-eight elected members and fifteen
chiefs.
Paramount Chief Sabata Dalindyebo, on the other hand, supported
Paramount Chief Victor Poto.
Despite the clear evidence of the Government's support for Chief
Matanzima, nearly thirty-five of the forty-five elected seats were won
by supporters of Paramount Chief Poto. This was widely interpreted
as a repudiation of apartheid by the Xhosa people.
Chief Matanzima, however, was elected Chief Minister on 6 December
rg63 by 54 votes to 49. having obtained the support of a large majority
of the chiefs.
Paramount Chief Poto and his supporters formed the Democratie
Party as a parliamentary opposition.
1 SouJh African Digest, Pretori21,November 1963 c. Analysis of Respondent's M easures of 1mplementation
of Its Policy
r. EDUCATION
(A) GENERAL POLICY
(r) Introduction
Respondent's educational policy with respect to the "Native,"
"Coloured," and "European" children in the Territory is similar
insofar as each "group" is separated from each of the other "groups."
This is "educational apartheid." The education of "Coloured"
children "has been promoted in principle to equality with European
education." 1 A,. stated by the South West Africa Committee:
"... [T]he same courses are offered for both groups; syllabuses
are the same; the duration of the courses and examinatians (with
one exception} are the same; the inspection of Coloured schools is
undertaken by the same inspectors as for European schools to
ensure that t:he standard for ali schools, European and Coloured,
2
will be the same."
Under the Education Ordinance of rg62, 3 education for "White"
children is compulsory between the ages of seven and sixteen,
and a "White" child may be allowed to attend school from the
age of six years (secs. 6r(r) and 6o(r), respective! y); education may
be made compulsory within a given area by proclamation, for
"Coloured" children between the ages of seven and fourteen, but
no "Coloured" child under seven may attend school (secs. 97(2)
and 97(r), respectively).
As stated in rg6r by the Committee on South \Vest Africa,
"ali indications point to the conclusion that Coloured education is
devoted to the fundamental aims of keeping the Coloureds as
a group apart, superior to the Natives but inferior to the Euro
peans." 4
The education of the "Native" children of the Territory involves
extreme application of "educational apartheid." It is basee! on
Respondent's system of "Bantu education" in the Republic, which
applies to ali "Ban tu" children in the Republic of South Africa;
this system has now been applied in the Territory, assertedly
1 G.A.O.R. rGth Sess., S.\V.A. Comm., Supp. 12.at 5 {A/4957). (ltalics added.)
:zId., p. 26.
34Ordinance No. 27 of 1962, The Laws of South West Africa I96z, pp. 1ff.
G.A.O.R. t6th Sess., S.\V.A. Comm., Supp. No12at 25 (A/495ïl· REPLY OF ETHIOPIA AND LIBERIA
"with due regard to local conditions." 1 The application of prin
ciples of "Bantu education" to· the Territory is brought out in
2
Respondent's Counter-Memorial and has been crystallized, in
certain respects, by the enactment of recent legislation.' Apart from
institutional apartheid, the essential distinctions between "Native"
and "Coloured" education are the use of a special syllabus for
"Natives" and the use of what Respondent refers to as "mother
tongue instruction," or teaching in the tribal tangue through the
fourth year of school (with the ultimate expressed aim of using it
as the instructional medium in ali years). Institutional segregation
in higher education is common to bath "Native" and "Coloured"
children, and thus they share the same disabilities in available
opportunities. Respondent's policy of "Native" education as applied
to ali "Natives" in the Territory is therefore an extreme form
of "educational apartheid." Inasmuch as "Coloured" persans have
no tribal tangue for "mother-tongue instruction" and form a small
percentage of the population, no syllabus is required for their
instruction as manuallabourers, as in the case of the "Natives."
In view of the fact that Applicants' submissions have not dis
tinguished between the "European," "Coloured," and "Native"
1 "The system of education for Native children is based on that which obtains
for Bantu Children in the Union, with due regard to local conditions." (S.W.A.
Administration: Memorandum of Education Policy Adopted with Reference to
Reports of Commissions of Enquiry Regarding European and Non-European Education
Appointed in I956 and I958, p. 29 (tg6o)); see also G.A.O.R. 16th Sess., S.W.A.
Comm., Supp. No. r2 at 26 (A/4957).
2 See e.g., III, p. 358 (mother-tonginstruction), p. 455 (syllabuses), and p. 370
(community schools); see also, for a parallel identification of the ultimate objectives
of apartheid in South Africa with those of apartheid in the Territory, id., pp. 528-529,
paras. (b) and (g) (the creation of "homelands" entailing "self-govemment" and
"full independence" for the "Native" groups therein). See also, for information,
the Odendaal Commission Rep01'tat para. 992 (curricula and examinations).
3The Education Proclamation, ~o. 16 of 1926, The Laws of South West A/rica
I926, pp. 132-226 (see I, p. 152) was amended in 1960 by the Education Further
Amendment Ordinance, No. 19 of 1960, The Laws of South West Ajrica I96o
pp. 671-68], "to pave the way for the introduction of the Bantu system of
education in South West Africa." (G.A.O.R. t6th Sess., S.W.A. Comm., Supp.
No. 12 at 25 (A/4957)). The amending legislation dealt, inter alia, with the con
version of mission schools for "Satives" to government schools. Subsequently,
the Administrator adopted a new educational system for "Natives" based, "with
due regard tolocalconditions,''upon the system of ''Ba.ntu education'' which had
been in effect in the Republic since the passage of the Ba.ntu Education Act,
No. 47 of 1953, Statutes of the Union of South A/rica I953, p. 258 (as from time
to time amended). Finally, Administrator's Proclamation No. 84 of 1963, Official
Gazette Extraordinary of .South West A/rica No. 2518 (17 December 1963), brought
into force on 15 Dccember 1963 new South \Vest African legislation on education,
the Education Ordinance of 1962 (Ordinance No. 27 of 1962, The Laws of South
West Africa I962, pp. 122-241); in Respondent's Counter-Afemorial,III, p. 351,
the Ordinance is mentioned but not described as having entered into force.
The 1962 Education Ordinance covers almost every aspect of "White," "Col
oured," and "Native" education in the Territory,giving, inter alia, wide grants of
power to the Administrator (or to a Director of Education responsible to the Ad
ministrator)with respect to practically ali matters touching on education. SOUTH WEST AFRICA
groups in the Terri tory, 1 and since Applicants view Respondent's
policies of "Coloured" and "European" education as sharing the
essential evils of "educational apartheid," as dramatized in its
most severe and unwholesome form in Respondent's "Native"
education policy, it will not be necessary to deal with the "Coloured"
policies per se except insofar as they are interwoven with the
policy in respect of "Natives."
In Applicants' submission, Respondent's policy of educational
apartheid with respect to the children of "Native" persons within
the Terri tory in·~vit dibtlrs the social perspective and political
and moral outlook of the children of "Coloured" or "European"
inhabitants. As such, the "Native" education policy is, in itself, a
violation of Respondent's obligation to promote to the utmost the
material and moral well-being and the social progress of ali of the
inhabitants of the Territory.
Finally, Respondent's frequent references to practices in other
African States, including those of Applicants, are wholly irrelevant
to the present proceedings, inasmuch as thcre is no other African
State subject to Mandate, nor any other State, anyw2ere in the
world, which practises the policy of apartheid.
(z) General Policy
The assertecl objectives of Respondent's policy of apartheid are
that the various "non-European" groups be separatecl in every
possible way from the ''European" group and from each other,
that such "non·European" groups "develop" in their own manner
and at their own rate to form their own institutions and communi
ties, and that such groups eventually "have self-government. ... " 3
Education in South Africa and in South West Africa is gearecl to
the objectives of Respondent's general policy of apartheid. Res
pondent's "Native" education policy bas come to form an integral
part of state policy, since the instruction of the young determines,
to a large extent, their future attitudes. The South African rg6r
Education Panel found in its First Report:
"Ali education is necessarily geared to the future for, although
modern education isgreatly concemed with the happiness and welfare
of the children while they are being educated, ali its main objectives,
whether moral, social or economie, relate to a significant extent
to the adult lives of the children.... "
In this connection, the International Commission of Jurists bas
stated:
"It is not difficult to perceive that the Bantu Education Act
of r953,its amendments and subsequent Acts pertaining to education
1 See Sec. A of this Chapter IV, a255, supra.
2 See III. p. 342.
3 Id.p. 528.
• Education for South A/riThe 1961 Education Panel First ReportI (1963). REPLY OF ETHIOPIA AND LIBERIA
are necessary to complement the African reserve, group areas and
pass law legislation which aim at separate and restricted develop
ment of the non-white only to the labour leve! required by the
Europeans." 1
The basic assumption of apartheid, which therefore constitutes
a fortiori a basic premise of "Native" education policy, is that there
is an unbridgeable gulf between the population "groups." 2 Lord
Hailey has written that "the advocates of the principle of separatism
clearly hold that the gulf between the European and the Bantu is
so deep that it would be unprofitable, even it if were not politically
inadvisable, to attempt to bridge it." 3
There can be no clearer statement of the intention of Rcspondent's
"Native" education policy than the following, by Dr. Verwoerd
on 7 June 1954:
"It is the policy of my Department that education should have its
roots entirely in the native areas and in the native environment
and native community. There Bantu education must be able to
give itself complete expression and there it will have to perform
its real service. The Bantu must be guicled to serve his own com
munity in ali respects. There is no place for him in the Ettropean
commzmity above the levet of certaùt forms of labour. VVithin his own
community howevcr aH doors are open." 4
Any concept of "equality" of the "Native" and the "European"
is, therefore, antithetical to this basic premise. Dr. Verwoerd,
introducing the Ban tu Education Bill in 1953, refcrrecl to the pre
vions situation in education, and said that this was unsuitable for
the "Bantu" beeause it "made him fee! different, made him fee!
he was not a mcmber of a Bantu community, but a member of
a wider community." s
Any attempt to cross into the "wider community," Respondent
holds, must only result in the "frustration" of the "Native"
1
International Commission of Jurists,South Africu and the Rule of Law 77
(1900).
2 III, p. 528. paras. (b)-(d).
3 An African Survey 166 (3d. ed. 1957).
4 U. of S.A.,Parl. Deb., Senate, 11th Pari., 2nd Sitting (weckly ed., 1954). Cols.
26t8-261g. (ltalics added.)
' U. of S.A., Parl. Deb., House of Assembly, Il th Pari., 1st Sitti(weekly cd.,
1953), Col.3577· The unbridgeable chasm said to exist betwccn the communities
was admittedly not based on hereditaryor genetic characteristicThe Commission
on Native Education headed by Dr. W, l\1. M. Eiselen (the "Eiselen Commission"),
whose recommendations resulted in the Bantu Education Act, found in its Report
that:
"The Bantu child cornes to school with a basic physical and psychological
endowment which differs, so far as your Commissioners have been able to
determine from evidence set before them, so slightly, if at aU, from thatof
the European child that no special provisionbas to he made in educational
theory or basic aims." (Repott of the Commission on Native Education, 1949-
1951, para. 773 (U.G. 53/I95I).) (Hereinaftec referred to as the "Eiselen
Commission Report.'') SOUTH WEST AFRICA
making the attempt. 1 Respondent apparently hopes to avmd this
"frustration," in part, by creating a utilitarian scheme of edu
cation for the "Natives" in the Territory which will train them to
continue serving the "White" group without "frustration," on
the one hand, and to tend to their own problcms in their own
"areas" by themselves, on the other. As Dr. Verwoerd succinctly
stated in a Senate debate in 1954:
"[l]t is of no avail for [the African] ... to receive a training which
has as its aim absorption in the European community while he
cannat and will not be absorbed there. Up till now he has been sub
jected to a ~,cho sosem which drew him away from his own com
munity, and practically misled him by showing him the green
2
pastures of the European but still did not allow him to graze there."
Dr. Verwoerd also maintained thal the previous curriculum and
teaching methods, "by ignoring the segregation of [sic] apartheid
policy, could not offer preparation for service within the Bantu
community." By producing students in the "White" system,
"the idle hope was created that [the "Natives"] ... could occupy
positions in the European community in spite of the country's
policy .... "This was, he stated, "the unhealthy creation of 'white
col/ar ideals' and the creation of wide-spreacl frustration among the
3
so-called educated Natives."
Lord-Hailey commented thal the passage of the Bantu Education
Act
"... amounted to a decision that education on European lines
would be no good to an African in the sphere which he was now
destined to fi.ll, and it might even be dangerous, as encouraging
him to trespass into that occupied by the European." 4
Although thus denying equality of opportunity to the vast major
ity of the inha.bitants of the Territory, Rcsponclent regards it as
appropriate at the same time to "respect the unwillingness of meru
bers of the White group to serve in positions of subservience to
members of the Bantu groups." 5 To thal end, "Native" education
is planned so that, in Dr. Verwoercl's words:
"[it]willbe suitable for those who willbecome the industrial workers
in the country and also that education can be suitable for those
who have to stand on their own feet in the reserves and who will have
6
to conserve their soil and develop their agricultural activities ...."
1 See 1, p. 157, and 111, pp. 528-529, paras. (e)-(f).
2 U. of S.A.,Pm'l. Deb., Senate1rth Pari., 2nd Sittin(weekly ed., 1954), Col.
2619. (Italics added.)
3 Id. at Cols. 2598-2599· (Italiadded.)
4 An African Survey 166 C"'ed. 1957).
3 III, p. 529; Respondendoes not consider the unwillingncof "members of the
Ban tu groups" to serve in positionof subservienceto members of the "\Vhite"
group for an indeterminatefuture period.
6 U. of S.A.., ParD~b. House of Ass~mbl y1h Parl., 1st Sitting (weekly ed.,
1953).Col.3580. REPLY OF ETHIOPIA AND LIBERIA
The Eiselen Commission, in discussing the plan with regard to
language instruction, expressed the view that instruction should
·proceed so that "the Bantu child will be able to find his way in
European communities; to follow oral or written instructiom;
and to carry on a simple conversation with Europeans about his
work and other subjects of common interest." 1 Rcspondent asscrts
that it has found it best "to creatc compensatory opportunitics
for higher employment of members of the ... ['Bantu'] groups
through acceleration, as far as practicable, of the development
of their own homelands and economies." 2
In contrast with such benevolent form of expression, yet ex-'
plicitly addressed to the same proposition, is the more forthright
admission by the llfinister of Ban tu Education in 1959:
"... [E]very law conc:erning the natives which the Nationalist
Government has passed or is passing, is being passed with the
abject of protecting the white man in social and economie spheres;
also to ensure the paramountcy of the white man in South A/rica.
"Further and future relationships between the European and
non-European would depend on the schooling given to natives.
It was wrong to create the impression that the education he received
would be the key that would givc him the job which the white
man has." 3
In conclusion, the most concise illumination of Ii:espondent's
basic policy was given by Dr. Verwoerd in the 1953 debates,
when he said:
"I just want to remind hon. members that if the Native in South
Africa to-day in any kind of school in existence is being taught
to expectthat he will live his4adull lifc under a policy of equal rights,
he is making a big mistake."
(3) Categorization
Respondent argues that "Colour and racial origin per se do not
determine the distribution of educational facilities or differentiai
expenditures on education in South West Africa." 5 This is true,
but only so far as it goes.
Distribution of facilities and differentiai expenditures on edu
cation are, in fact, determined by the weight given by Respondent
to colour and racial origin. Throughout its Counter-M emorial,
1 Eisden Commission Report, para. 924. (ltalics added.)
2 III, p. 529.
3 Speech made by the Minister, Mr. W. A. Maree, on 22 August 1959, broadcast
on the South African Broadcasting Corporation, Sunday 7 a.m., 23 August 1959
(statement quoted by Dr. A. B. Xurna in a paper delivered to the South African
Instituteof Race Relations Annual Council Meeting, 17-20 January 1961, p. 6,
by courtes y of the News Department of the South Afrîcan Broadcasting Corporation,
Jo4annesburg).
U. of S.A., Pari. Deb., Housof A.ssembly,llth Parl., tst Sitting (weeklyed.,
1953), Col. 3586. (ltalics added.)
s III, p. 385. SOUTH WEST AFRICA
Respondent expresses its policy in terms of "groups," of irrevocable
and involuntary categorizations thrust upon each of the individual
inhabitants of the Terri tory as a result of his birth. A few examples
will suffice:
"... Though standing generally nearer to the level of civilization
and development of the White group than the Native groups,
[the 'Coloured'group was]... nevertheless rouch Jessadvanced than
the White group." 1
"In view of the considerable differences in the social background,
habits and customs of the various population groups, it has always
been Respondent's policy to provide separatë hospitalisation and
health services for the respective groups, and to make provision for
each of the groups to be served as far as possible by its own members.
At first, as may readily be imagined, the White group provided such
services for ali the groups. But as the other groups advance in this
sphere, their members are given preference in the service of their
owngroups. i\fany membersofthe non-White groups are still working
under the {;üidance of better-qualified members of the White
group, but Respondent's policy envisages thal when they have
gained sufficient experience and a mature sense of responsibility,
complete control of their own hcalth services will be handed over
to the respective groups themselves." 2
Nowhere is there a sign of an incl3vidual being consiclercd other
than as a member of a group. This rigicl tenclency to categorize
by group designation is the recurrent themc of the metaphysics of
apartheid; it may be secn in its most extreme form in a speech by
the Minister of Bantu Education, cfuoted by Responclent in its
Counter-M emorial, in which he characterizes South African tribes
as "national units" and "national groups":
"... (I]t is self-evident that a university which in the first instance
does not serve a particular national community and which draws
its students from heterogeneous national units, will not only find it
difficult to provide for the special needs of national units, but more
olten than not no re~ar isdhad at ali to the neecls of particular
national umts. That 1s true, particularly where you have national
groups at different levels of development as in South Africa ... In
the third place there is the consideration, of course, that if a uni
versity institution serves a particular national group, the students
are more easily and better equipped for living in and serving the
community to which they belong.... " 4
As a result oi the outlook reflectecl in the final paragraph quotecl
above, the social interchange and natural competition necessary
for the realization of wider horizons is macle impossible. Respond-
1 Ill,p.355·
2 Id., p.471.
3 See especially id., pp527-530. Cf. Odendaal Commission Report (at p. 427,
para. 1431): "The moral and economie principles of a modern economie system
are different from i.hose of traditional groups where the group and not the individual
is4the focal point."
III,p.484. REPLY OF ETHIOPIA AND LIBERIA
ent's policy serves to harden the !ines of demarcation and to render
static the elements of society. A striking indication of Respondent's
attitude is revealed by the fact thal, throughout its Counter
M emorial, Respondent attributes to individuals qualifies and char
acteristics which may only properly be assigned to groups. Emblcm
atic of this is the ascription, to "White" children of school age,
characteristics which may only be properly attributed, at all,to
an entire culture scen in the perspective of hundreds of years:
"For the White group of South West Africa. which had the
advantage of the educational tradition of Western civilization
extending ovcr centuries, there1was little difficulty in devising a
syllabus suitable to its needs."
When l~espond ceners to individual human beings, it is in
the large. Thus:
"... [M]embcrs of the White group were derived entirely from
peoples a2d communities regarded as bearers of \Vestern civili
zation."
On the other hand:
"In the case of the indigenous groups, however, the situation was
vastly different [from the situation with respect to the 'White'
group). There was, on their part, not only an absence of an edu
cational tradition, but, also, because of their background and
tradition-bound economies, also of those qualities and incentives
which characterize a modern economy and which make for the
creation of economie opportunitics and potentialities."3
It is an inevitable step, or descent, from this concept of the
role of the individual in human society to the approach which classi
fies all"Natives" or "Bantu" into one large homogeneous mass,
without regard to the fa.ct thal "Natives" may and do differ
extremely inter se, as do any other human beings. Although Rc
spondent admits that "there were, furthermore, as there still are,
vast differences in the levels and stages of development of the varions
groups, particularly as gauged by standards of what is generally
known as Western civilization," • Respondent's only acknowledg
ment in practice of such different "levels and stages of develop
ment" is to permit the children of different "Native" groups to be
instructed in different "mothcr tangues." Other than thal, the
Herero are lumped together with the Dama, the Ovambo with
the Bushmen, the Nama with the East Caprivians. Ali are "Natives";
none has rights or opportunities which the others do not have; all
suffer the same restrictions.
1
2 III, p. 363.
3 Id., p. 35(Italics added.)
4 Id., p. 383.
Id., P· 354·370 SOUTH WEST AFRICA
Respondent avers:
"It will appear from what has been said that Respondent is
followinga policy in the Territory which accords the highest recog
nition to the identity and cultural heritage of each of the Native
groups, and that its policy endeavours, as f1r as possible, to providc
for the particular needs of all the groups."
Respondent nevertheless does not attempt to provide for the
"particular needs" of individuals comprising the groups. On the
contrary,
"... every endeavour has been made to enable the children of
each of the groups to be educated separately in their own language
and by their own teachers .... Syllabuses have been designed to
fit the cultural and historical background of all the Native groups,
and parent communities in these groups have been given an active
share in the education of their children. These esscntial foundations
having now been weil-laid, the groups themselves are being afforded
every opportunity to co-operate in their own development to the
highest levet they can altain."
The limit of the horizon for a "Native" is, in fact, "the highestlevel
[his group] ... can attain," rather than the highest leve! he can
attain.
The policy of. differentiation by the exclusive arrangement of
individuals into groups is rigidified by its ready suitability for the
development of the policy outlined in Part (B) of this Chapter. It
also enables Respondent to adopt differentiated policies of ex
penditure, always to the overwhelming disadvantage of the "Na
tive" groups, 3 the members of which make up the vast majority
of the inhabitants.
(B) NATURE OF EDUCATION IN THE TERRITORY
The nature of application of Respondent's general education
policy clearly reflects the basic structure and fallacy of apartheid.
If the condition;. in rgzo were those of divided and underdeveloped
"groups" in a difficult situation, as Respondent is at pains to point
out, 4 surely the conferral of the Mandate was intended to remedy
this situation. To the contrary, Respondent's policies systemati
cally foster and accentuatc the differences between population
"groups" rather than the similarities which such "groups" might
have developed over forty-three years of social, economie, and
cultural co-existence. The education policy in the Territory seg
regates aU of the inhabitants by race, separates the "Native"
inhabitants by tribe, and prepares the "non-European" inhabitauts
1 III, p. 540.
2 Ibid. (Italics added.)
' See Part(C) (3) of this Sectip.,393,infra.
• See IIIpp. 344·356, REPLY OF ETHIOPIA AND LIBERIA 37I
for a subordinate role in the social, economie, and cultural !ife of
South West Africa. This last description is true both of the limi
tation on opportunity within the areas considered by Respondent
to be "European" and of the development of any reasonahle op
portunities within prospective "homelands" 1in the Territory.
Such segregation, separation, and limitation are ali in violation
ofthe dut y of Respondent to "promote ... the material and moral
well-being and the social progress of the inhabitants" 2 of South
West Africa, as is shown below.
(r) Segregation by Race
The natural result of Respondent's exclusive arrangement of
individuals into "groups" is that racial and tribal feelings are
fostered and, to a large degree, sanctioned. Respondent charac
terizes a system of open schools as bound to "lead to dissatisfac
tion and group friction ... [and to] result in the neglect of the
needs of ali the groups and in irreparable harm to the Territory
3
as a whole." Nevertheless, by maintaining its present system of
racial and tribal segregation, Respondent is inevitably sctting the
stage for more profound dissatisfaction and group friction than
any yet manifested. As Mr. Justice Albert van de Sandt Centlivres •
wrote when he was Chancellor of the University of Cape Town,
concerning "university apartheid" in South Africa:
"As far as the present writer is aware there was neither in 1948
nor in any subsequent year any unpleasant relationship between
Europeans and non-Europeans in those universities whichadmitted
both Europeans and non-Europeans. In these racially mixed insti
tutions the relationship bas always been satislactory .... On the
other band experience has shown that when the policyofsegregated
university insti5utions is applied, there is a very real possibility
of trouble .... "
Respondent's de jme segregation of school children by race and
by tribe could only be permissible if the segregation were ac
complished de facto by applying a test of individual ability, not one
of race or "group." Yet if ali able children were in the "White" group,
and ali "slow" children in "Native" or "Coloured" groups (which is
inconceivable), it would constitute a searingindictment of Respond
ent's past performance as Mandatory. 6 It would not, moreover,
justify continuing a policy which produced so grotesque a result.
1 III, pp. 528-529, paras. (b) and (g).
2 Mandate, Article 2, para. 2.
3 Ill, p. 382.
o~Quoted in another context, p. 286, supra.
5 Centlivres, "University Apartheid in the Union of South Africa," 9 Bulletin of
the Commission on Science and Freedom 25-26 (1956), as quoted internatî~nal
Co6mission of Jurists, South A/rica and the Rule of Law, p. 8o (tg6o).
The Eiselen Commission, as quoted above {see footns.ep. 365), stated in its
Report that "the Ban tu child cornes to school with a basic physical and psychological
that no special provision bas to be made in educational theory or basic aims."hild372 SOUTH WEST AFRICA
Segregation on racial grounds has been condemnecl in all civilized
nations, at ]east since \'/oriel \Var II. 1 It is excludecl, for example,
from the eclucational policies of Territories subject to Trustee
ship Agreement uncler Chapter XII of the United Nations Charter,
or subject to reporting as Non-Self-Governing Tcrritories uncler
2
Chapter XI. Intensive efforts macle in recent years in the United
States to bar racial segregation from public education through the
medium of judicial action are worthy of note in this connection.
In Brown v. Board of Education, ' the United States Supreme
Court, holding that separate educational facilitics are inherently
unequal, sa id:
"To separatc [children in grade and high schools] ... from others
of similar age and qualifications solely because of thcir race genera tes
a feeling of inferiority as to their status in the community that
may affect their hearts and minds in a way unlikely ever to beundone.'' 4
The Court quot,xl, with approval, a lincling by the lower court
which stated:
"Segregation of white and colored children in public schools has
a detrimenta.l effect upon the colored childrcn. The impact is
greater whcn it has the sanction of the law; for the policy of sepa
rating the races is usually interpreted as denott"ngthe injeriority of the
Negro group. A sense of inferiority affects the motivation of a child
to learn. Segregation \vith the sanction of law, thercfore, has a
tendency to [retard] the educational and mental development of
Negro children and to cleprivc them of sorne of the bcnefits they
would rcceive in a racial[ly] integrated school system." 5
The Supreme Court concluded:
"\Ve concluclethat in the field of public education the doctrine
of 'separate but equal' has no place. Separate educational facilities
are inherent/y unequal.'' 6
1
In 1960, C. \V. de Kiewiet made the following statement in the Second T. B.
Davie :Memorial Lecture at the University of Cape Town:
"The depriv2.tion by law of free access ta open universities by qualified
members of the non-White community seems tome ta be unjust, uneconomical,
and dangerous. 1 am using these words deliberately. The injustice is plain ta
see. The law nms counter to the growing conviction iu the modem world
that the benefits of civilisationmust be made equally available to ali men
regardless of race or creed. These benefits can be summed up as food, health,
dignity, opportunity, and education." (de Kiewiet, Academie Freedom rB
(1961).)
2 See Annex 5, p. 398, infra. Lest any misleading impression be created by
Respondent's reference, at Ill, p. 374 to "separateducational facilities for differ
ent population groups" under the League of Nations, the Court's attention is drawn
to the dates of tht ~.M.C. material quoted by Respondent, being 1923, 1928,
1939, 1928, and 1930, respectively.See also Chapter V, Sec. 5, of this Reply, p. 512,
infra.
3 347 U.S. 483 (1954); discussed in othercontextspp. 307,338, supra; p. 487infra.
4 Id., p.494. (ltalics added.}
~ Ibid. (Italics added.)
6 Id., p. 495· (Italics added.) REPLY OF ETHIOPIA AND LIBERIA 373
This holding by the United States Supreme Court was made on
the basis of a clause in the Fourteenth Amendment to the United
States Constitution which prohibited state action depriving persans
of "the equal protection of the laws." The present Mandate is a
constitutional-type document, 1 and the obligations contained in
Article 2 are more affirmative and explicit than the general injunc
tion of the "equal protection" clause of the Fourteenth Amend
ment. Moreover, Respondent's policy of racial segregation in the
educational system of the Territory is more affirmative, explicit
and far-reaching than was the racial bar struck down by the
Brown decision.
The reasoning of the United States Supreme Court is relevant
as a response to Respondent's query why "the existence of similar
[but separate] institutions for Colourcd and Native students should
be styled [by Applicants, in their Memorials,] 'a reminder of op
portunities denied' to non-European students .... " 2The "oppor
3
tunities denied" are not only the opportunities to attend many
South African universities; they include the opportunity not to
be segregated against one's wishes, the opportunity to be a citi
zen of equal standing with a "European," and the opportunity to
live one's !ife freely in an open society.
Respondent implics that the Permanent Mandates Commission
knew and tacitly approved of its policy of separate schools. 4
Yet as Respondent candidly admits, 5 "Native" education was,
during the lifetime of the Permanent Mandates Commission,
almost complete! y in the bands of the missions; as a result, it
can hardly be said that f{espondent had, at that time, a "policy
of having separate schools in South West Africa for European,
Colourcd and Native children" 6which was susceptible of tacit or
express approval by the Permanent Mandates Commission. Re
spondent's policy was, in !act, developed only alter the Second
Worlcl \Var. It has never been reviewed, with Respondent's
co-operation, by an administrative supervisory organ. 7
A reflection of the proposition that separa te facilities are inher-
1 Sec Chapter V of this Reply, p. 476, infra.
2 III, p. 527.
3 1, p. 157·
4 Ill, pp. 372-374·
s Id., pp. 372-373.
6 Id., p. 372. (ltalics added.)
7 It is of course truc that the varions Committees on South \Vest Africa have
reviewed Respondent's policy, but Respondent has never seen fit to submit such
policy thereto for review. The Report of the Special Committee for South \Vest
Afr.ica, wr.itten after representatofethe Special Commi:ttee had vi:sited the
Territory in 1962, stated, inter alia, that "the basic policy of the South African
Government in the educationalfield ...is to restrict Africans to a rudimentary
system of schooling and training designed to confine them to menial occupations
in order to keep them in astatof subservience to the White minority." (G.A.O.R.
17th Sess., Sp. S.\V.A. Comm., Supp. No. 12 at 14 (A/5212).)374 SOUTH WEST AFRICA
ently unequal was contained in the Report of the Eiselen Commis
sion, where it stated that:
"The Bantu have, for numerous reasons, come to feel that any
ditferentiation in education must to betheir detriment. l\luch evidence
to this effect was given before this Commission, particularly by
Bantu teachers. Reference to previous commissions shows that
1
this attitude has persisted from early times."
The practice of segregation by race is, moreover, uneconomic.
Not only does it inevitably produce duplication of administrative
machinery and personnel where therc is already a shortage of
2
available help and resources, but it also means that "Native"
children must be restricted entirely to facilities intended for
"Natives" and t.hereby go without schooling in situations where
there may be facilities for other "groups," but inadequate facilities
for "Natives."
One example of this would be the situation with respect to
the hoste! and teacher shortages suffered by the "Native" children
in the Police Zone. 3
(z) Separation by Tribe
The racial seg:regation of the children of the Territory is made
possible by classification according to skin colour and appcarance
for "\Vhites" and "Coloureds," and according to appearance and
tribal origin for "Natives." A further degree of segregation practised
by Respondent in the educationallife of the Terri tory is separation
of "Native" children by linguistic classification. This is the system of
1 Eiselen Commission Report, para. 233. (1talics added.)
2 The 1961 Education Panel wrote, for example, in itsFirst Report, Education
for South A/rica {1963), that the system of "separa te education administrations for
the separa te groups, each administration itself being centralize... underlines group
differences ta an extent that seems unfortunate in a country where the different
groups must co-operate and it involves the duplication of all administrative personnel,
and hinders the pooling of experience even at a high level." (Op. cit.p. 57.) (Italics
addod.)
3 Respondent, in itsCounter-Memorial, III, p. 493, acknowledges that nearly
40 per cent of the "European" children in the Territory are accommodated in
hostels. 40 percent of the "European" children is approximately 6,8oo in number,
using 17,000 as the figure for "European" children in the Territory attending
school (Odendaal Commission Report, p. 245, Table LXXXXII, gives 17.442 for
1962). ln its Counter-Memorial, III, p. 520, Respondent gives the total number
of hostels for "European" children as being 67; on the basis of this, a calculation
may be made to the effect that one hoste} supports an average of 100 pupils.
Respondent then !'tates (ibid.)that there are 31 schools with hostel facilities
for "Native" children in the Police Zone. Assuming zoo children per hoste!, this
accommodates J,IOO children, or 9.17 percent of the total "Native" school age
population of 34,000 in the Police Zone (Odendaal Commission Report, p. 249,
Table LXXXXIII). There are 19,16o "Native" chîldren in the Police Zone who
do not attend school (ibid.); surely sorne of them could be accommodated in the
bos tels now reserved for" European" children. As a resultinter alia,of Respondent's
segregation policies, 56.36 per cent of the "Native" children in the Police Zone
do not receive any education at aU, whereas gg.66 per cent of the "European"
children attend school. REPLY OF ETHIOPIA AND LIBERIA 375
"mother-tongue instruction" which Respondent has tried i1 South
Africa and has now applied in South West Africa. By its policy of
racial segregation, Respondent in fact excludes the "Native" and
"Coloured" majority from the spheres of opportunity reserved to
the "European" inhabitants; by its policy of"mothcr-tongue instruc
tion" Respondent perfects such exclusion with respect to the "Na
tive" inhabitants, encouraging tribalism and thus rendcring them
ever less "able to stand by themselves under the strenuous condi
2
tions of the modern world .... "
Respondent has admitted that "(i]t is the ultimate aim that the
vernacular be uscd as the medium of instruction in ali standards." 3
This is the central, and most objectionable feature, of the whole
plan of educational apartheid. At present, the tribal tangues are
not yet suited for such instruction, and Respondent states that
this "ideal" will only become possible "when the varions Native
languages have been sufficiently developed to be used as teaching
languages in ali the standards .... " ' Such development is now in
the hands of a "Bureau for Native Languages," the duties of
which include the composition of grammars, school readers, text
books, "the production of wholesome general reading matter for
persans at varions stages of development," and the "development
of subject terminology for school use." '
An ex-Inspector of Schools has queried whether it might not have
been better to have allowed the Bantu languages in South Africa
to develop in the natural course of events, rather than to engineer
an artificial development thereof necessary for such languages to
be used as instructional medium for arithmetic, social studies,
environmental studies, and other subjects. 6 Similarly, the Transkei
1 III, pp. 357-362.
2 Covenant of the League of Nations, Article 22, para. 1. Thus the Committee
on South West Africa noted with regret, in its 196o Report:
"... that while separate schools for 'European', 'Coloured' and 'Native'
children have continued ta be maintained under the existing system of edu
cation in the Territory, the new system recommended for 'Natives' is designed
to separate 'Natives' from ea1:hother on an ethnie basis."
(G.A.O.H:. 15th Sess., S.\V.A. Comm., Supp. No. 12 at 54 (A/4464). (Sorne italics
omitted.))
3 III, p. 361. (Italics added.Cf. the treatment afforded to "White" German-
speaking children, which is summarized id., p. 495:
"... As from rg6o, asa result of recommendations made by the 1958 Education
Commission, German is used as a medium up ta the end of Standard V, with
the proviso that in Standard IV one, and in Standard V two, subjects are
taught in either Afrikaans or English so as ta give German-speaking pupils
sorne preparation for their secondary school work which is, as far as Government
schools are concerned, limited to English and Afrikaans as media of instruction.''
~ Id., p361.
j Ibid.; "subject terminology" is apparently a synonym for "vocabulary."
None of these tasks would be necessary with respect to the German language, yet
German is not projected as "the medium of instruction in ali standards" for the
German-speaking "White" children. (See footnote 3 of this page, supra.)
6 Sneesby, "The Vernacular in Ban tu Education in the Union ofSouth Africa,"
33 Oversea Education No. 2, p. 75 (July 1961). SOUTH WEST AFRICA
Commission was of the opinion that, although education by the
mother tongue was "essential" in the early stages, it was improper
as the medium in secondary schools:
"If this is ever to come about, it must come about as a result of
a natural development. The inadequacy of the vocabulary, text
books, and reference books is a very real and important obstacle
in the way of its introduction as a medium of instruction in the
secondary school." 1
The forced nature of Respondent's scheme of complete instruction
in the mother tongue was recognized by the rg6r Education Panel:
"It must also be accepted, however, just as there is no place for
trying to change cultures from outside, so there is none for trying
to preserve them from outside. Ail cultures must and do change
and if they did not they would ultimately perish through losing
touch with contemporary needs. The decision as ta how fast and in
what direction a culture shaH change, what its attitude should be
ta other langnages for example, is a decision belonging to the bearers
of the culture alone. In our opinion, therefore, White-inspired
attemPts to insist upon the preservation of Bantu languages are as
misp[aced as While attempts to eliminate s<tchlang<tageswould be.
The decision as ta how Bantu languages as a medium of culture
and learning shall develop belongs to the Ban tu; or, to be more
accurate, the decision as ta each particular language belongs to
those whose language it is." 2
Respondent has not consulted the "Native" groups in the Terri tory
with respect to their wishes on vernacular instruction in ail standards.
Indeed, the present Chief Minister of the Transkei has stated that
the Transkei would abolish Xhosa as medium of instruction after
Standard II. 3
An authority on "Ban tu education" has concluded:
"The introduction of a third language may well prove to be the
most calamitous blow struck at Bantu education ....
"It will be seen, in brief, that the language provisions minister to
the twin gods of apartheid and tribalization. They aim at producing
an African tolerably fluent in his own language, if he stays long
enough at school, and able to communicate to a strictly limited
degree in the two official languages with officiais and other casual
contacts." 4
It was to this limited end, indeed, that the Eiselen Commission fa
voured a method of instruction so that " ... the Ban tu child will be
able tofind his way in E<tropean communities; to jollow oral or written
1
Report of the Commission of Enquiry into the Teaching of the Official Language
and the Use of Mother Tangue as Medium of Instruction in Transkeian Primary
Sch2ols,pp. 17-20, R P. 22 (1963).
Education for South Africa: The 1961 Education Panel First Report, p. 56
(1933). (Italics added.)
4 See footnote4. p. 377,infra.
MacQuarrie, "The New Order in Ban tu Education," 1A/rica South X o. r, pp.
40-41 (October-December 1956). REPLY OF ETHIOPIA AND LIBERIA
377
instructions; and to carry on a simple conversation 'vith Europeans
about his work and other subjects of cornmon interest." 1
A natural result of mother-tongue instruction at secondary levels
is the decline of English. Thus, the "Native" inhabitants of the
Territory are becaming ever mare isalated from the warld which
initially committed them to the care of Respandent. If Afrikaans,
and, a fortiori, English, are taught as foreign languages to South
West African childrcn, the effects will be far-reaching. As a pe
titianer before the Special Committee on Apartheid stated:
"This means that the standard of English and Afrikaans remains
very low making it even more difficult for the African to fit into
an economy run by Whites who do not speak tribal languages, and
even to communicate with Africans of other tribes." 2
This is hard! y promotion "to the utmost," or otherwise, of the
social progress of the inhabitants. Not only will children be "re
tribalized," not only will they be eut off from the autside world,
3
but they will be divided from one another. Chief 1\iatanzima of the
Transkei, according to a news report, is quoted as saying
"thal although Xhosa would be the officiallanguage of the Transkei,
it would be abolished as a medium of instruction after Standard
Two; the Government's insistencc on Xhosa as a medium of
instruction was 'a sore point with the people' (Johannesburg Star,
air mail edition, 27 January rg62). Africans do not want to be
linguistically isolatedfrom one another, let alone from the world." 4
C. W. de Kicwiet 5 has identified the central problem when he
stated that "the whole myth of a separate native culture collapses
when it is recognized that, for the African, progress and emanci
pation depend upon an escape from the tribe and a deeper entry into
the life of the West." 6
Respondent in effect concedes this evil of its plan by quoting a
recommendation of the Eiselen Commission providing for the
"study of the two official languages ... 'as a means of communi
cation with Europeans, as a help in economie matters, and as a
means of securing contact with the knowledge of the wider world.' " 7
In view of the central purpose of the Mandates System, to render
peoples not previously capable of doing so "able to stand by them
selves under the strenuous conditions of the modern world,"
1
Eiselen Commission Report,para. 924. (ltalics added.) This is clearly attuned to
Respondent's general policy as outlined in Part (A) of this Section, p.supra.
:!Quoted in S.C.O.R., Sp. Comm. on Apartheid, at 96 (S/5426) (also issued as
A/3497).
A policy of division such as t:his naturally saps the energies and the powers of
"Native" opposition to the policies of the Respondent.
,. M. Friedmann, "The Hungry Sheep Look Up," 208 The Spectator 234 (23
February 1962).
6 Cited in a different context, p. 2supra.
7 de Kiewiet, The Anatomy of South Ajrican Misery 54 (1956). (ltalics added.)
III, p. 365. (Italics added.) SOUTH WEST AFRICA
Respondent's avowed aim of making South West African tribal
tangues the medium of instruction at alllevels, while retaining the
teaching of English and Afrikaans as "foreign" languages, 1 is
in direct contradiction to the purpose of the Mandate.
The language quoted by Respondent from Mme. Wicksell' s
report submitted to the Permanent Mandates Commission is ad
dressed generally to the problem of language instruction, but
cannat be reduŒd to authority in support of tribal vernacular
instruction at ali levels: "the nurnber of different languages ...
[in Africa make] it necessary to teach a foreign language and, in
2
sorne terri tories, evento carry on instruction in a foreigP.language."
None of the quotations cited by Respondent from the minutes of
the Permanent Mandates Commission can reasonably be adduced
as authority for the plan of mother-tongue instruction as recently
introduced into the Terri tory. They stand, rather, for a different and
laudable objectiv3, that of "more systematic instruction in the
mother tangue." The difference between "systematic" instruction
and total education in such vernaculars as Ndonga, Kuanyama,
Kuangali, Nama, Lozi or Herero is obvious. Indeed, Lord Lugard,
whose approval of "more systematic instruction in the mother
tangue" is noted by Respondent ', wrote that:
"... No greater benefit can be conferred on the African, whether
as a means of enabling him to make known his desires, or for
purposes of trade, or as affording an access to a great literature,
than the teaching of English as a universal medium." 5
Not only does Respondent's policy thwart the social progress
of "Natives" by isolating them from each other, and from the
modern world, but it is also impractical and unworkable. Re
spondent admits that "the Native peoples in the Terri tory had no
literary culture," and that "although their vocabularies are rich
enough to meet the day to day needs of people living in a subsistence 6
environment, they are al! poor vehicles of abstract thought."
In addition, Re,pondent acknowledges that, "because of insufficient
development [of Ndonga, Kuanyama, Kuangali, Herero, Nama and
Tswana] ... mother-tongue instruction is generally not yet feasible
7
beyond the Standard II leve! in these languages." As a result,
the inhabitants are being held in suspension while their languages
1 See Odendaal Commission Report, para. 1090, where English or Afrikaans is
referred toas "a foreign language."
2 P.M.C. Min., 12th Sess., p. 186, as quoted in III, p. 359·
4 P.M.e. l\lin., z6th Sess.. p. 59, as quoted in III, p. 36o. (Ita1ics added.)
5 Ibid.
6 Lugard, The Dual Mandate in British Tropical A/rica 454 (1922). (ltalics added .)
7 III, pp415~416.
Id., p. 416. REPL Y OF ETHIOPIA A~D LIBERIA
379
are being "developed" into vehicles suitable for general communi
cation. Indeed, the Odendaal Commission stated:
"It is important that each of the varions language groups (inter
alia, Bushmen, Nama, Herero, Tswana, Kuanyama, Ndonga, Kuan
gar, Mbukushu, Lozi) should have its own medium of instruction,
but at the same time this hampers the proper development of
1
reading books, textbooks and generalliterature."
They are not even being held in suspension in the proper "groups";
indeed, the administrative problems (particularly in the Police
Zone) attendant upon Respondent's policy are insoluble:
"... The policy at present is to institute a separa te class for a
minority group at any school as soon as they [sic]number twenty
in ali classes from Sub-Standard A to Standard II. ...
"There are certain areas where the pupils of a minority language
group are so few in number that even the establishment of separate
classes is not Practicable. ...Only very rarely does it happen that
so many language groups are represented in the same class that no
Native language at aH can be used as the medium of instruction,
but when such a situation does arise, the Administration allows
one of the officiallanguag.:s to beused as medium . ...
"... Of the roz schools ùtthe PoliceZ oneat present, one offers instruc
tion in three languages, and twenty in two languages. Hercro is the
medium of instruction in eleven schools, and ten of these are attended
a/most exclusive/y by Herero pupils. Nama is the medium in sixty
eight schools: in six of t.hese lessons arc also explained in Herero.
and in the others Nama-speaking pupils form the overwhelming
majority. Tswana is the medium of instruction in two schools, at
both of which Tswana-speaking pupils form the vast majority." 2
Unfortunate Herero children are being subjected to "mother-tongue
instruction" in Nama, Nama pupils are being taught in Herero,
and varions other children, not Tswana, are being instructed in
Tswana. Finally, a minority group of nineteen "Native" children
are unable to obtain instruction in their "mother tongue"; they
must, in !act, be taught in the "mother tangue" of a different group
until they reach twenty in number. 3
With respect to the development of the "Native" languages so as
to afford "Native" childrcn adequate education through "mother
tongue instruction," Respondent states that:
1
2 Odendaal Commission Repo,.t, para1089.
3 III, p. 362. (Italics added.)
Id.,p. 362. Cf.the stated policy for the recognition of secondary schools (not
just separate classes) for "Europeachildren, which may be accorded ifinter alia,
"a minimum average enrolment of twenty pupils in the fourth and fi/th standards
For the reductio ad absurdum ai the situation yarising when a "Native"taSouthadded.)
\Vest African who bas been fully instructedin his "mother tangue" attends uni
versity in the Republic of South Africa, see pp. 382-383. infra. SOUTH WEST AFRICA
"In the final result, however, it will be for the groups themselves
to contribute to the development of their languages to meet ail
educational needs." 1
The "Native'' inhabitants of South West Africa are, then, being
forced into instruction, eventually in ali the standards, by the
medium of the same tribal tangues they possessed in rgzo. These
languages are admittedly not suited for communication with the
world at large or even, in the modern context, inter se. "Natives"
arc, in certain cases, instructed in languages of other tribes. They
are, finally, left to develop their own languages "to meet ali edu
cational needs." These developments have taken place, as a matter
of Respondent's policy, since the dissolution of the League of Nations
and in the absence of international administrative supervision or
accounting.
Applicants contend that such policies have as their purpose
and inevitable consequence, restriction of the "Native" inhabitants
of the Territory to their isolated, pre-industrial, tribal groups and
that such policies will exclude the "Natives" from meaningful par
ticipation or consultation in the !ife-social, political, and econo
mie-of the Territory as a whole.
Respondent'o policy of "mother-tongue instruction," as current
ly practised and as intended to be applied, has at !east four major
defects: (r) it perpetuates, ratherthanimproves, existing deficiencies;
(2) it "retribalizes" the "Natives"; (3) it tends to aggravate the
very problems which are asserted to justify its adoption; and (4)
it is inadequate to provide even the limited educational oppor
tunities it professes to offer.
In the first place, Respondent's policy serves to perpetua te exist
ing deficiencies, rather !han affirmatively to promote social pro
gress. Applicants insist that a policy whose "ultimate aim [is] that
the vernacular be used as the medium of instruction in ali stan
dards," 2 involves abandonment of Respondent's duty to promote
the social progress of the "Natives" not yet able to stand by them
selves under the strenuous conditions of the modern world.
In the second place, such a policy serves to foster tribal differen
ces in the Territory and, as such, to aggravate the very situation
which Respondent asserts as a justification for the policy of
"self-determination" of the individual !ribes as separate units. 3
In addition, the policy exacerbates factors which are alleged
by Respondent to create a need for tribally separated schools
to begin with. ' The circularity and faliacy of such reasoning is
obvious.
Thirdly, "mother-tongue instruction" automatically creates
1
2 III, p. 41(Italicadded.)
3 See II, pp. 458-459, 472-474.
4 IIIp. 367. REI'LY OF ETHIOPIA AND LIBERIA
a shortage of teachers and materials, 1 and also lays a heavy burden
2
on the administration of the separate educational facilities. This
functional slowing-down of the educational process must in turn
lower the leve! and extent of education, 3 and as a result the "Na
tive" communities, being relatively uneducated, do not appre
ciate the value of education. ' This, in turn, aggravates the con
ditions to which Respondent's reaction is to institute vernacular
5
instruction. The effccts of this vicions circle are compounded by
Respondent's failure to make education compulsory for "Natives" 6
and its policy of discrimination as to the ultimate opportunities
7
for "Natives" to put their ·education into practice. Taken separ
atcly and togcther, ali of these factors crcate and maintain the
circular pattern of deprivation of education of which Applicants
complain in their Memorials. Nothing advanccd by Respondent
in its Counter-M emorial excuses its conduct; on the contrary, Res
pondent's explanations reinforce Applicants' allegations.
In the fourth place, "mother-tongue instruction" cannot possibly
8
accommoda te ali the "Native" children. It cannat even accommo-
date ali the "Native" languages: ·
"It would have been an impossible task, however, to prepare
school books in each of the varions languages or dialects spoken in
the Territory, orto conv•3rt each of them into a teaching language,
and the policy consequent} y was to conccntrate on the development
of those languages which are spoken by most of the Natives. Thus
far Ndonga, Kuanyama, Kuangali, Herero, Nama and Tswana
have achieved the status of schoollanguages, but, because of insuffi
cient developmcnt as yet, mother-tongue instruction is gcncrally
not yet feasible beyond the.Standard Il leve! in these languages."'
As a result, children whose "mother tongue" is Diriku, Kuambi,
Bushman or Sikololo (Silosi) are instructed in Kuangali, Ndonga,
Kuanyama, Herero, Nama or Tswana. lO Thus even were there,
1
2 III, pp. 36o, 418, and 517 (teachers) and pp. 361, 415-416 (materials).
Id., pp. 360, 433·
3 Id., p. 450: "The extra year in the case of Native pupils is necessaryl4rgely
because of language difficulties . [talics added.) See also id., pp. 393, 413, 414-416,
and 417-421.
4Id., pp. 388-389, 394-395,407-.po, 461-462, and 538-539. See, generally, sec. (1)
of Part (C) of this Section, p. 387infra.
5 " •••[S]ince the majority of Native pupils leave school after the first few years
of schooling." (Id., p. 359.)
6 See sec. (2) of Part (C) of this Section, p. 39infra.
7 See Part (A) of this Section, p. 362supra, and sec. (3) of this Part (B), p. 383,
infra.
8 III, p. 362 (see p. 379supra), and pp. 414-·P5·
9 Id., p. 416.
10"The principal Native languages spoken were, and still are:
"KuangaliandDiriku (amongthe.Natives oftheOkavango); Ndonga, Kuanyama
and Kuambi (among the Natives of Ovamboland); Herero, Nama, Bushman,
Tswana (in the case of a small section) and Sikololo, also known as Silosi,
(among the Natives of the Eastern Caprivi)." (Id.,p. 356.) SOUTH WEST AFRICA
at a Kuangali-speaking or Ndonga-speaking school, more than
twenty Diriku- or Kuambi-speaking childrcn, such children could
not in any event be taught in their "mother tongue." 1
Similarly, this wasteful and frustrating pattern continues through
the limited university education which is prcsently offered to "Na
tives" in the Territory. Respondent cites four South African (not
South West African) residential universities as being "availablc"
for South West African "Natives," namely: the University Col
lege of Fort Hare, at Fort Rare, Cape Province; the University
College of the North, Turfloop, Pietersburg, Transvaal; the Univer
sity College of Zululand, Ngoye, Natal; and the Medical School
2
for "non-Europeans" of the University of Natal.
The evils of "mother-tongue instruction" in primary and secon
dary schools in South West Africa are compounded in South Africa
at the university leve! by the evils of "Bantu education" in different
"mother longues." Three of the "universities" cited by Respondent
are tribal colleges for South African "Bantu." 3 The University
College at Fort Hare constitutes "... a tribal university for the
Xhosa group," • and "new students admitted to Fort Hare are
5
selected mainly from the Xhosa group." The University College
of the North "... admits mainly Sotho students but members
of the Tsonga and Venda groups are admitted." 6 Finally, the
University College of Zululand, at Ngoye in the Mt7nzini District,
"caters for Zulu and Swazi students."
In 1962 the first student from the Terri tory was admitted to the
College of the l\'orth. Speaking Herero or Ovambo, he would pursue
1Cf. Respondent's statement that "The poliey at present is to institute a separa te
class for a minority group at any school as soon as they [sic]number twenty in ali
classes from Sub-Standard A to Standard II." (III, p. 362.) See also,id.,p. 363.
2Id., p. 326. Only three of these would qualify as "universities"in the accepted
sense of the term, since a medical school is a professional school only.
3
The Commissi•Jn of Enquiry on Separate Training Facilities for Non-Europeans
at Universities stated in its Report (1955):
" ...As an ultimate ideal, three Ban tu university institutionsare envisaged,
namely-
" (1) Fort Hare which should become a Xosa institution;
"(2) A Zulu institution in Natal to serve the Northern Nguni; and
" (3) A Sotho institution in the Transvaal to serve the whole of the Sotho
community.''
(Op. cit., p. 27.) These refer to the present institutionsof Fort Hare, Zululand,
and the University College of the North, respectively.
4 Tatz, Shadow and Substance in South A/rica 148 (1962).
5 Id., p. 149; Muriel Horrell, in A Decade of Bantu. Education (1964), states
that "Fort Hare is designed to cater, in the main, for the Xhosa-speaking group,
although certain Coloured and Asian students have been permitted to continue
courses of study wmmenced prior to the change of control."(Op. cit., p. 147.)
6
Tatz, op.ciJ.,p. 148. See also Horrell, op. cit., pp. 142, 147; S.C.O.R., 18th
Se7s., Spec. Comm. on Apartheid at 93 (S/5426).
Tatz, op. cit., pp. 148-49. Sec also Horrelop. cit., p. 147.
8 Horrell, op. cil., p. 147. REPLY OF ETHIOPIA AND LIBERIA
a course of "higher education" in the company of Sotho-, Tsonga-,
and Venda-speaking associates. This is the reductio ad absurd~t~n
of Respondent's educational apartheid policy. 1
(3) Limitation of Objectives in Syllabus
As long ago as 1936, the South African Departmental Commis-
sion on Native Education had reported that
"The Education of the White child prepares him for !ife in a domi
nant society, and the education of the Black child for a subordinate
society.... The limits [of a Native child's development] ... form
2
part of the whole social and economie structure of the country.. .. "
Such limitation on the education of "Natives," whether inten
ded to encourage them to undertake occupations in the service
of their own "communities," or to obtain the training necessary
for a continuing position as labourer in the "White" industrial world,
inevitably resulted in "Native" education becoming materialis
tic and utilitarian. Dr. Verwoerd, in a 1954 South African Senate
debate, had said that "... the school education must equip [the
African] ... to meet the demands which the economie !ife in South
3
Africa will make upon him," and the Eiselen Commission had
concluded that "it is essential to consider the language of the pu
pils,their home conditions, their social and mental environment,
their cultural traits and their future position and work in South A/ri-
ca." 4
Dr. Verwoerd, introducing the Bantu Education Bill in 1953,
said, "What is the use of teaching a Bantu child mathematics,
when it cannot use it in practice? That is quite absurd."' This
philosophy was implemented so thoroughly that the Transkei
Commission, ten years later, found, inter alia:
"... much evidence of dissatisfaction with the syllabuses in the
primary schools on the grounds that too much time was devoted to
the practical subjects and religious instruction. It was asserted that
an over-emphasis had been made on fitting the child at tao early
1
Respondent, in its Counter-.Memoria!, III,p. 522, states that "Native
students of South West Africa ... may enrol at agricultural schools for Bantu
Cox in the Ciskei, Tsolo in the Transkei, and Arabie in the Northern Transvaal)
"where specifie instruction is given in regard to the types and methods of farming
practised in each particular area." (Ibid.) Thus, South West African Hereros and
Ovambos may be directed to a Xhosa-speaking college, specializing in the problems
of Transkeian agriculture.
2 Union of South Africa, DeparJmentaJCommission on Native Education Report,
paras. 458-459 (1936). (U.G. No. 29{1936.)
3 U. of S.A., Pari. Deb., Senate, II th Pari., 2nd Sitting (weekly ed., 1954), Col.2606.
4 Eiselen Commission Report, para.. 765. (Italics added,)
' U, of S.A., Pari. Deb., House cf Assembly, IIth Pari., Ist Sitting (weekly ed.,
1953),Coi.3585. SOUTH WEST AFRICA
an age for his post-school life, to such an extent that insufficient
time was being allocated to the basic skills i11the languages and arith
metic.''1
There is a striking contrast between the syllabuses offered for
"Natives" and those offered for "European" children. The sylla
buses offered in the lower primary courses are roughly similar,
except that the "European" children receive one subject entitled
"Handwork" where the "Native" children receive instruction in
a total of six subjects entitled '.'Drawing, Cieaning Work, \Veaving
and Claywork, Needlework (Girls). Scrap Work (Boys), [and]
Gardening." 2 The existence of five additional subjects, in the
"Native" syllabus, dealing, inter alia, with "Cleaning Work"
and "Scrap \\'ork," implies only that proportionately less of
their instruction is dcvoted to the niue other subjects, eight of
which are paralleled in the "European" syllabus, 3 and that the
"European" children arc given proportionatcly more training in
English, Afrikaans, Arithmetic, Environment Study, Hcalth
Education, Writing, lllusic, and Religions Instruction than are the
"Native" children, who are kept busy with their manual subjccts.
In the higher primary courses the samc pattern is present, save
that the "Native" subjects have been extended to caver "Gardcning,
Tree Planting and Soi! Conservation (Boys), \Vood, Leathcr and
Scrap Work (Boys). Needlework (Girls), [and] Handicrafts." 4 Of
thesc, only "Handwork" is offered to "European" children in the
highcr primary courses.
The secondary syllabuscs for the "Natives" at Ongucdira in
Ovamboland and at the Augustineum includc Agriculture, with the
alternative of Needlework for girls (in Ovamboland) as "cxami
nation subjects" for the Junior Certificate examina tian. Rcspondent
states that "in the first year of the ... [Agriculture] course,
instruction in Leatherwork, Scrapw6rk, and Tinwork is given to
boys, while girls do Needlework."
"European" children may, on the other hand, follow 7 a
"strictly academie course," ''ageneral course," "a practical course,"
with "Woodwork and Metalwork for boys, and Needlework and
Domestic Science for girls," 7 and a "Commercial course," which
includes "Bookkeeping and Typewriting 7at high and secondary
schools, and Shorthand at high schools." The commercial courses
1 Report of the Commissiou oi Enquiry into the Teachiltg of the Official Language
and the Use of .Mother Tangue as Medium of Instructionin Transkeian Primary
Schools, p. 14, R.P. 22 (1963). (ltalics added.)
2 III, p. 449·
3 Id., pp. 449, 501.
4 Id., p. 449·
6) Id., pp. 450, .J66.
1 Id., p. 466.
Id., p. 501. HEPLY OF ETHIOPIA AND LIBERIA
1
are taught at ail "European" high and secondary schools. The
contras! betwecn the options open to "Europeans," and the "Na
tive" syllabus, at school--and consequently in later life-is self
2
evident.
Thus the Committcc on South West Africa, in its rg6o Report:
"... regret[ted] !hat the courses contemplated for 'Natives' [by
the Administration, after the report of the Commission of Enquiry
into Non-European Education had been considered in 1959] are
based on syllabuses different from those offered for othcr sections
of the population rather than on a system of education which would
prepare them to participatc more fully and on an equal basis in the
3
political, economie and social life of the Territory."
Turning to "industrial" courses, Respondent stcücs !hat the
Augustineum "offers a thrce-ycar training course in one of thrce
trades, Carpentry, Tailoring and Masonry," • and also rcfcrs to "the
5
poor support given the courses generally .... " Furthcr tcchnical
or vocational training, states Rcspondcnt, may be cnjoycd by
"Natives" by virtue of assistance in the form of loans and bursaries. 6
There arc only six bursarics availablc for further inclustrial or
vocational tmining; thesc arc open to all stuclents in the Territ ory;
in addition there has bcen rcccntly establishecl one bursary "to
a clcserving Native stuclcnt: who proposes to follow a post-Matricu
lation course in South Africa." 7 Thus. it would appear !hat the
chances for a ''Native'' student to proceed with ''industrial'' training
other !han wooclwork, tailoring and bricklaying are practically
limitee! to the one bursary rnentioned, orto loans. Rcsponclcnt avers
1
Ill, p. 501.
2 Respondent has expressed the "European" reaction to the Gammams and
Stampriet agricultural schools (id., p. 507) when it acknowledgcd that:
"By 1943 bath thcsc attempts at providing vocational training for future
farmers had been abandoned for Jack of support. rviost parents,it appeared,
prefcrred tolet their childrcn take the academie course offered at the secondary
and high schools." (Id., pp. 507-508.)
These agricultural schools otli!redcurricula which appear to be only slightly
less "humanistîc" than those presently offered at Onguedira and the Augustineum.
("Cultural subjects, such as Religions Instruction, Languages, History and Civies,
were also taught.") (Id., p.507.) The ".Native" parents, however, cannat express
such a preference even if they have it (with the exception of the school at Doebra).
3 G.A.O.R. 15th Sess., S.W.A. Comm., Supp. No. 12 at 54 (A/4464). (ltalics
omitted.)
4
III, p. 466.
~ Id.,p. 467. The Odemlaal Commission Report refers to these courses in "Car
pentry, Tailoring and ::\lasonry" as being courses in "woodwork, bricklaying and
tailoring." {Para. 996.)
6 III, p. 468.
7 Id., p. 477· SOUTH WEST AFRICA
that "thus far no Native student has in any way meritea ... [one
1
of the six bursaries open to ali studentsj."
What, on the other hand, are the industrial courses available for
"Europeans"? In addition to the two-year practical course in
agriculture offered at the Neudam Agricultural College, there are
the differentiated secondary courses offered in Woodwork, Metal
work, Domestic Science, Needlework, Bookkeeping, Typewriting,
and Shorthand, and the evening classes for apprcntices offering
courses in Motor Mechanics Theory, Mathematics and Machine
2
Construction and Drawing. The last seven of these courses are not
available to the "Natives" of the Territory, who are restricted in
the Terri tory to training to be woodworkers, tailors, and bricklayers
and whose chances of obtaining aid to pursue such other courses
as they may wish are limitcd, in practice, to borrowing moncy from
the Administration and to one merit bursary, availablc only since
January 1964.
This situation is not surprising, since it is a result of Respondent's
larger policy concerning the position of the "Native" in the "Euro
pean" economie world, or, in the alternative, the leve! of skill
required or desirable in the development of the "Natives'" own
"communities." 3
Thus did Dr. Verwoerd state in 1953:
"Racial relations cannat be improved if the wrong type of education
is given to Natives. They cannot improve if the result of Native
education is the creation of frustrated people who, as a result of the
education they receive, have expectations in life which circum
stances in South Africa do not allow to be fulfilled immediately,
when it creates people who are trained for professions not open to
them, when there are people who have received a form of cultural
training which strengthens their desire for the white-collar occu
pations to such an ex4ent that there are more such people than
openings available."
(C) EXTENT OF EDUCATION IN THE TERRITORY
Applicants have shown that the nature and objectives of edu
cation in the Territory are a violation by Respondent of its obli
gation to promote in any degree the material and moral well-being
and the social progress of the inhabitants. Applicants now show
thal the extent of education in the Terri tory is a violation by Re-
1
2 Ill, p. 477· (Italics added.)
3 Sec, gencrally, Part (A) of this Section,supra.1,
4 U. of S.A., Pari. Deb., House of Assembly, P~rl st Sitting (weekly ed.,
1953), Col. 3576. REPLY OF ETHIOPIA AND LIBERIA
spondent of its obligation to promote to the utmost the well-being
and progress of the inhabitants.
Respondent has failed in this dynamic obligation in at !east three
respects: (r) it has adopted a policy of "laissez-faire," relying on
the "Native" population to take the initiative with respect to
educational advancement; (z) it has failed to attempt to introduce
compulsory education; and (3) it has spent, and continues to spend,
disproportionately small amounts of money on "Native" education
as compared to "European" education. Applicants will deal with
these points in order.
(r) "Laissez-faire"
In the r8th session of the Permanent Mandates Commission,
M. Rappard criticized Respondcnt's Annual Report for 1929,
stating:
"In the native reserves, there were not only few or no schools,
but the Administration seemed to be reluctant to consider the
possibility of building them.It put fonvard as its rcason that there
was a good deal of opposition to education and schools on the part
of the natives. ft seemed difficult, however, to regard this as a good
reason for not providing schools. lt was also said in paragraph 329
that, 'if there is a desire for education in a reserve the parents have,
in the first instance, to apply to the local council. If the council
approves of the application, it may recommend it to the Adminis
tration and indicate at which centre the school is to be built and how
large it shoulcl be.If the Administration agrees, the building may
be built out of the funds of the reserve'. This seemed a somewhat
comp1icated procedure, and nppeared to throw the1initiative and the
sole cast of obtaining education on to the native."
This statement treats two aspects of Responclent's attitude
toward "Native" education. ln the first place, Respondcnt has
professed extraordinary solicitude concerning the attitudes of the
"Natives" toward education, and bas shaped its policy in deference
to such attitudes, notwithstanding the fact that it was upon
Respondent, rather than upon the "Natives," that the Mandate
was conferrcd. Such deference, and Respondent's Jack of initiative
with respect to methods of instruction, compulsory education,
wider syllabuses, mixed schools and intensified education, is ali the
more inexplicable in the light of Respondent's characterization of
the "vast differences in the levels and stages of developmcnt of the
various groups, particularly as gauged by standards of Western
civilization." 2
Applicants turn to a consideration of the implications and con
sequences of Respondent's policy of (a) ostensible compliance with
the "feelings" or "wishes" of the "groups" concerned, coupied with
(b) reliance upon the initiative of such "groups" in determining the
extent of education in the Territory.
1 P.M.C. Min., 18th Sess., pp. 135-36. (Italics added.)
2 Ill, p. 354· SOUTH WEST AFRICA
(a)
Respondent i:; at pains to demonstratc that the situation in
the Terri tory was bad in rgzo; 1 it reiteratcs that the "Natives" fee!
little "need" for schooling; it quotes liberally from the Permanent
Mandates Comrnission's minutes to show that the "Natives" little
understood or desiree! education for their children: "The Hcreros
2
as a race do not believe in education for their children." According
to Respondent, the situation remains unchanged toda y; there is
stiJl"insufficient desire for education" on the part of the "Natives."
ln view of Respondent's duty to promote to the utmost the social
progress of the inhabitants, the attitudes of the "Natives" should
have served to induce and stimulate Respondent to undertake
positive and dynamic efforts to instill a sense of values in the popu
lation. Although, in the absence of effective political representation
or consultation, it is not known on what basis Respondent's
assertions concerning "Native" opinion can be made, Applicants
neverthcless accept such assertions (but only as an indictment of
the passivity and negligence of Respondent's conduct of the Man
date). That such attitudes should stiJl exist to any signiflcant
degree, more than forty years after the Mandate's inception, is an
accusation in itself; that Respondent should rely upon such attitudes
to justify passivity and negligence compounds the offence.
Thus, discussing cducational cxpenditures, Respondent states:
"The various factors and conditions which inhibitcd the intro
duction and development of education in the case of the Native
groups, remlered it a/most inevitable that expenditure on education
in the Territory should have begun on a basis of substantial excess
on the side of European education over that of Native education." 3
Applicanls submit that the very reverse of the foregoing propo
sition was truc in rgzo and remains truc today. The inhibiting
factors referred to by Respondent should have made "inevitable"
proportionately higher expendit,.res on the "Native" group. The
extent to which Respondent has permitted ils attitude of laissez-faire
to limit the extent of education in the Territory-both with respect
to. isolating "group" from "group" and with respect to instituting
enthusiasm for education-is made clear in Respondent's own
words, in Book VII of its Counter-Memorial:
"... The introduction of a mixed school system would have run
directly counter ta the prevailing social arder, and would, for that
very reason, have failed." (III,p. 367.)
1 III, pp. 344-349. 354-356.
2 Quoted id., p. 4o8; see also id., pp. 408-410.
3 1d., p. 535 (footnote omitted). (Jtalics added.) This statement apparent! y rcfcrs
to total expenditurewhich in view of the population ratio renders Respondcnt's
negligencethe more egregious. REPLY OF ETHIOPIA AND LIBERIA
''The attitude of the respective groups is, as far as possible,
respected by providing separate facilities for them." (p. 368.)
"The policy ofseparate education as applied in the pas! is also in
accordance with the wishes of the vast majority of the population
of the Territory." (p. 3}'6.)
"... Not only would [schools open to ail groups] ... lcad to
dissatisfaction and group friction.... " (p. 382.)
"... There is, to this day, a large body of parents who do not send
their children to school, even whcn schools are available nearby,
for no other reason than that they do not want to do so and see no
good in schools .... " (p. 393-)
"... [Until] parent cornmunities [desiring compulsory education]
... fully appreciate what it entails, its introduction can only create
hardship and cause resentment." (p. 393.)
"... [T]here are still many parents who do not send their children
to school for no other reason !han thal they see no good in
schools.... " (p. 4ro.)
"... [~!]a narents [in the Eastern Caprivi Zipfel] believe thal by
attending school their daughters become lazy, and, accordingly,
less attractive to prospective husbands." (p. 46r.)
"... (T]he system of separate schooling [is] in accordancc with
the wishes of the vast majority of the population of the Terri
tory.... " (p. 5r3.)
(b)
The second clement of abdication of the dynamic dulies of
the Mandate consists in Respondent's professed reliance upon the
initiative of the "Natives" to promote their own material and
moral well-being and advance their own social progress. Respondent
has thus formulated its conception of its obligation as Mandatory:
"Respondent's task is in essence one of advising, encouraging
and assisting the various groups by providing facilities consistent
with their needs and guiding them towards self-help. Whether, and
to what extent, the groups make use of the opportunities otfered rests
large/y with themselves. They will, however, continue to receive
1
sympathetic assistance and guidance from Respondcnt."
In the words of M. Rappard, this "appear[s] to throw the initiative
... of obtaining education on to the native." 2 This applies not
only to the interest shown by the "Natives" in the education avail
able but al3o, more specifically, to the system of "community
schools," to the question of compulsory education, and to the
financing of education.
Thus, with respect to the "community school" system, Respon
dent states thal "it is hoped thal ali Native parent communities
will in lime utilize to the full the opportunity which has bcen given
1 III, p. 537· (Italics added.)
2 P.M.e. :1\Iin., r8th Sess., p. IJ6.
3 III, pp. 371-372.390 SOUTH WEST AFRICA
them of promoting edncation throngh their own efforts." 1 The "Na
tives" have thm. been delegated the duty of promotion of their
own social progress which, in the :Mandate, was entrusted to Res
pondent; these are the same "Natives" whom Respondent charac
terizes as having a "slow response ... to education, owing, no doubt,
to the absence of a keen feeling for the need for ... [teachers, nur
ses, policemen2and civil servants] at their present stage of social
evolution."
Respondent admits that the "Native" parents olten cannat al
ford to bear the boarding expenses of their children at hostels
and suggests thal this, together with the problem of teacher shortage,
is a reason why "in the case of Native education such facilities have
thus far been found practicable only to a very limited extent." 3
In the Eastern Caprivi Zipfel each of the two main tribes "has
shown itself prepared to grant bursaries from tribal funds to
students who wieh to be trained as teachers." • This is not altogether
surprising, since Respondent itself has only granted two bursaries
for ·such purpose. 5
Similarly, Respondent's complaints about "Jack of support"
or "lack of interest" in varions educational ventures undertaken
with respect to the "Native" groups resound of laissez-faire and
are wholly incompatible with the dynamic nature of the Mandate. 6
Thus: "so many Native pupils leave school at an early stage,"
"so few Native students enrol for the [senior secondary] course,"
"the number of pupils that enrol for the various [industrial] cour
ses is clisappointing," "the response to the opportunities offerecl
[for training as nurses] has been slower than was hoped for, but
probably no slower than could really have been expected," and
"students soon !ost interest [in the evening classes for adult 'Na
tives'], and seemed to be incapable of the sustained effort necessary
to achievc success." 7
(2) Compulsory Education
The Permanent Mandates Commission macle clear its view that
compulsory education for "Natives" was an important aspect of
the duty to promote the well-being and social progress of inha
bitants of Territories under Mandate. Thus:
1 Ill,p.37r. (ltalics added.)
3 Id.,p. 388.
Id., p. 413; see also id., p. 520: ''One of the reasons why the provision of hostels
for Natives cannat proceed on the same scale as for Europeans, is that in the case
of the latter the pa:rents to a great extent bear the cast of the facilities provided."
Thus many "Native" children in the Police Zone are not able to attend school,
even if they should wish to do so.
5 Id., p. 462.
6 Ibid.
B.g.: "Separate Indus/rialSchools" (id., p. 466);"IndustYiaJ CouYses at the
Augttstinêum" (id., pp. 466·467); "Teacher Training Schools" (id., pp. 467-468);
"N7rsing" (id., p. 468); and "Adult Education" (id., pp. 489-491).
Id., pp. 449, 451, 467, 470, and 489, respectively. REPLY OF ETHIOPIA AND LIBERIA
"Mme Bugge-Wicksell said !hat she had no question to ask, but
desired to express her admiration for the steps taken by Australia
as regards education in the mandated territory [Nauru]. She was
happy to note !hat there was compulsory education for children
from 6 to r6 years of a1:eand !hat the proportion of children who
attended schools was roo percent. She had examined the programme
of instruction given in the annex to the report and could only express
her complete approval." 1
Similarly:
"Mlle Dannevig drew attention to the provisions of Article 2 of
the decree reorganizing officialeducation in [French] Togoland ... :
'School attendance may be made eompulsory for ali children
between 7 and I2 years of age wherever the number of schools
allows. It is always compulsory for the children of chiefs, notables
and officiais'. ''
Since the dissolution of the League of Nations, the organized
international community has frequently emphasized the impor
tance and desirability of compulsory education. Respondent in
its Counter-Memoria/. describcs the difficulties attendant upon
any compulsory educational scheme for the "Natives" in the Ter
ritory. 3 Paramount among such difficulties are that the "Native"
groups do not desire compulsory education for their children,
or, if they desire it, do not understand the sanctions attendant
thereupon. Respondent's passivity with respect to these difficulties
has been noted above, and represents a partial abandonment of its
obligations under the Mandate. • The fact that such difficulties
should exist at this point in time with respect to ail of the "Na 5
tive" groups, and even with respect to the "Coloured" group,
is in itself proof that Respondent has failed in its responsibilities.
Applicants have not insistee! in their Memorials, 6 nor do they
now insist, that education be made compulsory for ali the "Native"
children in the Territory. Applicants reaffirm their objection to "a
system of education in which a far smaller fraction of the 'Native'
children within the Territory receive any schooling than in the case
of the 'European' children of the Territory." 7 Remedies for such im
balance would have been for Respondent to undertake positive
measures to encourage "Native" parents to send their children
to school, to render education compulsory for certain groups of
"Natives," to make it fmancially possible for more "Native"
children to stay in hostels, to encourage more "Natives" to become
teachers, and to employ more "European" or "Colour~ teac"hers
1 P.M.C. Min., 5th Sess., p. 145.
2 P.llf.C. Min., 26_thSess., p. res.
3 III, pp. 390·395·
4 See sec. (1) of this Part p.387, supra.
5 III, p. 392.
6 See I,pp.153, 154, t6o and 165·166.
7 Id., pp. 165·166. (Italics added.) SOUTH WEST AFRICA
392
in "Native" schools. Respondent has not done so; on the contrary,
Respondent has increased the minimum scholastic attainment,
for exemption of "European" children from compulsory school
1
attendancc, to the eiglzth year of schooling.
This Court is not asked to decide to what extent compulsory edu
cation ought to be introduced for the "Native" children of the
Territory, nor to what extent such a system ought to have been
introduced in the past. Applicants submit, however, that the
failure by Respondent, to introduce any compulsory education,
on any leve!, for any population other than the "European," is
a manifest failure to promote the well-being or social progress of
the inhabitants.
Responclent states that "an insurmountable obstacle to uni2er
sal compulsory education ... is the scarcity of teachers." Al
though universal compulsory education is not at issue, Applicants
are constrained to point out that the shortage of teachers in the
Territory is also the result of Respondent's failure to acquit itself
of its dulies, not only with respect to adequate expenditure of
funcls, 3 but also with respect to education in the first place. •
Respondent's educational policy refiects in every light the same
basic circularities; a solution to the teacher shortage would have
been the use of more "European" teachers, yet l~esponcl pelnt's
icy of "mother-tongue instruction" raises new barriers in this
regard. Similarly, Respondent decries the Jack of interest or of
motivation on the part of the "Natives" with respect to vocational,
higher, or acluit education; yet Respondent's apartheid policy
5
with respect to job opportunities in itself places a clamper upon
any nascent enthusiasm among young "Natives" to seek educational
opportunities which, as Respondent concedes, woulcl merely pro
duce ufrustration."
In conclusion, Applicants assert that l~esponde otal'sfailure
to narrow the educational cliscrepancy between the "European"
1
2 III, p. 391.
Id., p. 394·
3 See sec. (3) of t:hisP(C)p. 393, infra.
• See III, p. 421.
"... The numbers who enroi for teacher training remain disappointing, and
of thosc that do enrol a large percentaare lost on the wayby reason of
either moral instabilior inabilito maintain the sustained etfort required to
complete the prescribed two year course.[T]he main hope for improvement
in the qualifications of Native teachers seems to be a graduai raising of the
minimum requirementsfor admissio-n to the varions training schools." (Italics
added.)
And id., p. 418:
'•...The only solution to the problem [of the shortage of "Native" teachers]
was to tryto achieve a gradua! improvement in the quality of Native teachers
and in the gen1)ral standard of education." (Italics added.)
~ See p.pg, infra. REPLY OF ETHIOPIA AXD LIBERIA 393
and the "non-European" children of the Territory has violated
its obligations undcr Article 2, paragraph 2, of the Mandate.
(3) Disparity in Expenditure
(a) On Education in General
Respondent admits that the "amounts spent on Native education
have at all times been substantially !css than the amounts spent on
1
European education," but denies that there has been unfair
discrimination. Respondent concedes that "the expenditure on
non-Emopean education amounted to 25.6 per cent of the total
amount spent on education" 2in rg62-rg63. This means that 74-4
percent of the total education expenditure in rg62-r963 was made
3
for 13.79 percent of the population of the Territory. Respondent
argues that such a comparison "cannat per se be indicative of
unfair discrimination against the Native groups." 4 To the con
trary, Applicants submit that so astonishing a discrepancy, viewed
in the context of the affirmative obligations of the Mandate, is a
per se indication that Respondent has, from the inception of the
Mandate, neglected the "Native" population, to the advantage
of the "European" population. Respondent has spent, and contin
ues to spend, a great majority of its educational funds on a small
minority of the inhabitauts; this can only be interpretee! as a pro
motion of the well-being and social progress of a minority of the
inhabitants, to the disadvantage of the overwhelming majority
thereof.
The per capita expenditure by Respondcnt for rg62-rg63 strikingly
confirms the discrepancy between Respondent's expenditures for
education of the "European" and "Native" inhabitants of the
Territory, as the following table shows:
Per capita Per capita
expenditure, expenditure,
in Rand, in Rand,
on ali on all
children of children
school age 5 attending
school
"NATIVE" CHILDREN
r. Police Zone: rr.gz 2J.J2
2. Northern Territories: 8.rg
3·92
J. Eastern Caprivi Zipfel: 4.02 IO.IJ
4· Territory as a whole: 6.sg 14-28
1 III, p. 534·
2 Id., P· 537·
3 Odendaal Commission Report,p. 245, Table LXXXXII.
• III, P· 534·
' Applicants consider that Respondent'sper capitafigures (given at III, pages
458-459 and 507) are misleading in that they are calculated over the total number
of children attendi11g schrather than the total number ofchildren.Applicants394 SOUTH WEST AFRICA
"EUROPEAN" CHILDREN
1. Including net estimated
1
hoste! expenditure: rs6.so I5J.02
2. Including 20% of gross
cstimated hostel
expenditure: 121.43 121.83
3· Excluding hoste!
expenditure: roS.og
(b) On Teachers in Particular
Respondent identifies the shortage of teachers with many of
its difficulties in the field of "Native" education. 2 Such shortage
hinders the introduction of compulsory education; 3 it limits the
number of schools which may be operated; ' it hinders vernacu
lar instruction; 5 it affects the availability of hostels; 6 it limits
7
education in genoeral. Respondent, inter alia, attributes this short
age to "the absence of a keen feeling for the need for such ser
vices [on the part of the 'Native' groups] at thcir present stage
of social evolution," 8 asserting, for example, that "the Herero, in
particular, show very little intcrest in the teaching profession .... " 9
submit that a calculation made ovcr the number of pupils does not present a
truc picture of the actual disparity in educational expenditure as between "Euro
pean" and "Native" childrcn, since gg.66 per cent of "European" children at
tendcd school in 1962, as opposed to only 46.16 per cent of "Native" children
(Odendaal Commissicn Report, p. 245, Table LXX XXII). Th us Respondent bas becn
able ta render the •:omparison between "Native" and "European" expenditures
less shocking by pro-rating the "Native" expenditures over a much smaller
number of children than the total. A truc comparison should reflect the total
efforts made on behalf of the total number of "inhabitants of the territorysubject
ta the present Ma11date," broken dawn into the number of children of school
age in the "Native" and "European" groups {sec 1, p. 159). In arder ta avoid
statisticaldisputation before the Court, Applicants have given per capita figures
for 1962-1963 calculated on both bases. It is readily apparent that the discrepancy
between "European" and "Native" per capita figures is flagrant on eitherbasis,
although Applicants regretfully insist that the lower per capita figures are, for
the reasons given, a truer reflection of Respondent's efforts toward the "Native"
children as a whole. (The figures used have been calculated using the population
figures given for 1962 in the Odendaal Commission Report, pp. 245 and 249. Tables
LXXXXII and LX XXXIII.)
1 Sce South \Ves1: Africa Administration: Estima/es During the Year Ending
3r2t March, I964, pp. 6, 47, 49, 50, and 52.
This shortage i::;of "Native" teachers; the situation is of course aggravated
by Respondent's over-all policy of racial segregation (sec sec. (1) of Part (B) of this
Section, p. 371, supl'a).
3 Ill, pp. 393-394·
4 Id., p.4IJ.
~ Id., p. 415.
6
7 Id., p. 520.
Id., pp. 417-421, 516,518.
a Id.,p. 388.
9 Id.,p. 36o. REPL Y OF ETHIOPIA AND LIBERIA
395
Yet Respondent cites the Report of the 1958 Commission as hold
ing that "it was rcmarkable to what extent the idea of serving
on [school committees] ... and exercising authority over their
schools stirred the imagination of Native parents, tribal conn
cils and chiefs, without exception." 1
A reasonable conclusion is that Respondent has failed to render
the teaching profession (as distinguished from part-time service
on school committees) sufficiently attractive to the "Native" popu
lation. In the 36th session of the Permanent Mandates Commission,
Mlle Dannevig stated: ·
"During the previow:. year's discussion, she had expressed the
view that the offer of higher salaries would perhaps induce more
young natives to be trained as teachers. She thought that that
observation still held good." 2
At the same time, higher salaries are openly recognized as incen
tives by Respondent, with respect to "Europeans":
"Since the war there has been a considerable increase in the
number of teacher trainees, both for primary and secondary work.
This is probablyto be ascribed large/y to increasedsalary scales for
teachers,and to the financial aid offered since 1950 by the Adminis
tration in the form of bursaries and loans." 3
Yet "Native" tcachers are offered salaries and allowances far lower
than those available for "European" teachers in the Territory. •
The commencing salary of a married male "European" teacher
5
in the lowest category, including a special allowance, is Rr,406.
The commencing salary of marriecl male "Native" teacher with
comparable qualifications, 6 together with his cost-of-living allow
ance, is R6g6. 7
Respondent attempts to justify this cxtraordinary disparity by
stating that "Native" teachers are not as weil qualified as "Euro
peans," that there are more economie alternatives open to "Euro
peans," that to pay "Native" teachcrs higher salaries than they
presently receive might result in their becoming "separated or
estranged from [other members of their group] ... as a result of
an artificial financial barrier" so creatcd, and that such disparity
1
2 III, p. 369.
P.M.C. Min., 36th Sess., p. 39· Worth y of note was the response given to this
remark:
"Mr. ANDREWS said that he would not fail to transmit Mlle. Dannevig's
views on the salary question. There were, however, arguments against the
idea of teachers who were such from lucrative motives only. Doctor Vedder,
for example, had said that the ideal at present to be found with young teachers
was a religious one, and that teachers without ideals were not fit to educate
3 primitive peoples.'(Ibid.)
4 III,p. 508. (Italics added.)
5 See tables,id.,pp. 452-457, and cf. tables,id.,pp. 502-506.
6 Standard06X plus a teacher's training course (Grade 3id.,p. 455;cf.id.,p. 388).
7 Id.,pp. 455-456. SOUTH WEST AFRICA
exists "also in other African territories." 1 To the contrary, as has
just been shown, it is entirely possible to have equally qualified
"European" and "Native" teachers; 2 furthermorc, the argument
by economie alternative is the creation of yet another endless
circularity-it has been Respondent's duty for more than forty
years to create meaningful economie alternatives for "Natives,"
and its failure so to do cannat be adduced as a justification for a
failure of a different sort. With regard to "other African terri
tories," Applicants need only repeat that such comparisons are
meaningless and serve no useful purpose, since there arc no other
African territories subject to Mandate. 3
With respect, however, to Respondent's statement that to pay
higher salaries to "Native" teachers would "separatc" and "cs
trange" them from "other members of [their] ... group," Ap
plicants insist that this is yet another circularity, since if no mem
bers of the "Native group" are rewarded above others, the "group"
progress will at ali times be limited to the rate of advance of its
slowest member. Yet Respondent states:
"It could, however, do incalculableharm to anticipate [the process
of the narrowing discrepancy between 'European' and 'Native'
tcacher salaries] ... by singling out Native teachers for payment to
them of salaries which would produce a complete economie imbalance 4
between them and virtually ali othermembers of their communities."
Respondent has thus stated that it will harm a man topa y him
more. Where does this "incalculable harm" arise? Respondent's
answer to this question is to be found in a statement of Dr. Ver
woerd in the SÔuth African Senate:
"The Bantu teacher must be utilized as an active factor in this
process of development of the Ban tu community to serve his com
munity and build it up and leam not to jeel above his commttnity
so thal he wants to become integrated into the lije of the European
community and become frustrated and rebellious when this does not
happen, and he tries to make his community dissatisfiecl because
of such misdirected and alien ambitions." 5
1
2III, pp. 532·533·
Cf. Respondent's statement at id.,p. 388: "And, because the Native teacher
is not so weil qua/i{las the Coloured or Whlte teacher, he natllrallycommands
a lower salary thau thosc whose education bas cast more," wîth its statementat
are lmver thau those paid to European teachers, even where qualifications may beachers
comparable." (Italie; added.)
3In any event, most other African tcrritories, in recruiting European teachers,
do sa from Europe; salary differences become understandable in this light, since
the motivation and effect is wholly different than îs the case with respect ta the
"Europeans" of Soc.th West Africa.
5 U. of S.A., Pml. Deb., Senate, uth Pari., 2nd Sitting (weeked., 1954), Cols.
26o6-2607. (ltalics added.) REl'LY OF ETHIOPIA AND LIBERIA 397
(c) Conclusion
ln conclusion, Applicants submit that this last-mcntioned dis
crimination is but another example of implementation of Res
pondent's basic policy of educational apartheid. It is a product
and symptom of the policy which has prolonged and aggravated
the very conditions which Respondcnt relies upon as justification
for its policy. "Natives" remain uneclucatecl bccause thcrc arc
not enough "Native" tcachers; there are not enough "Native"
teachcrs because not enough "Natives" arc attractecl to teaching;
"Native" teachers' salaries remain low because "the socio-eco
nomic structures within the Native groups are still at much lower
levcls than those within the White group, [and] it is inevitable
that their teachers should at present command Iowcr remuneration
1
than the teachers of the White group." The "socio-economic struc
tures within the Native groups" remain at "lowcr Ievels of clevel
opment" because of lack of education, and the "Nàtives" rcmain
uneclucated because of a Jack of "Native" teachers. 2
Similar circularities cxist in every aspect of the education of
"Natives" in the Tcrritory. Such patterns rest upon the same as
sumptions, and move toward a common objective. \Vith respect
to classification by group, segregation by race, separation by
tribc, "mother-tonguc instruction," limitation of syllabuscs and
opportunities, Jack of active encouragement, abdication of the
affirmative rcsponsibilities of the ~fandat and, failurc to providc
even a barc semblànce of parity in expcncliturc: ali of thcsc as
pects relate to, and arc informed by, the essential design and
assumptions of apartheid:
"... \Vhatever segment or scctor of the life of the Territory may
be cxamined, the import of the facts is identical. Each part of the
record supports and confirms every other part. The record as a
whole supports and conflrms the record in detail. Indeecl, the record
takcn as a whole has an impact grcatcr than a mere arithmetical
sum of the severa! parts. The record as a whole reveals the delibera tc
design that pervades the severa! parts." 3
1 IIIp. 389.
2 In the 34th Session of the P.M.C., the following opinion was expresse<!:
"M. VAN AsBECK thoughtthe pn)sent system reprcsenta vicions circle in which
there was no primary education because there wcrc no teacherand no teachers
becausc thcre was no primaryeducation." (P.l\l.C. Min., 34th Sess., p. 91.)
3 1,p.161. ANNEX 5
RACIAL SEPARATION Il\ EDUCATION IN DEPENDENT
TERRITORIES, AS V!EWED BY THE UNITED NATIONS
The appropriate political organs of the United Nations have deter
mined that racial separation in education is incompatible with the
purposes and principles of administration of dependent territories.
Speaking through such organs, the United Nations has spccifically
determinee! thal separation is incompatible with (a) the broad goals
of eclumtion; (b) the basic meaning of education; (c) the principle of
equal opportunity; (d) the principle of racial equality; and (c) the goal
of unification of the territ ory.
(a) Separation on account of race is incompatible with the broad goals
of education. In its eighth session, the General Assembly resolved
that the objectives of education in the Non-Self-Governing Territories
requirc that "the proccss of education should be designcd to familiarizc
the inhabitants with and train them in the use of the tools of economie,
social and politkal progress, with a vicw to the attainmcnt of a full
1
measure of self-government." In its eleventh session, the General
Assembly recalled this resolution and further resolved that to attain
the objectives of education "it is nece&sary to establish systems of pri
mary, secondary and higher education which will meet the needs of ali,
regardless of sex, race, religion, social or cconomk status, and provide
adequate preparation for citizenship.2
{b) A parthcid is incompatible \vith the mcaning of education itself.
In a bricf but considered report on education, which was specifically
approved by a resolution of the General Assembly, the Committee on
Information statcd that "the principle of non-discrimination is essential
3
to and is an essential part of education."
(c) Separation in education is incompatible with the principle of
equality of opportunity. The Committee on Information stated !hat
"in the field of education no principle is more important than that of
equality of opportunity for all racial, religions and cultural groups of
4
the population."
In arder to asmre equal opportunity, there must be equal treatment,
not separa te tr~atmen of the population. In its fourth session the
1 G.A. Res. 743 (VIII),27 November 1953, G.A.O.R. 8th Sess., Supp. No. 17 at
24 (A/2630).
2 G.A. Res. 1049 {XI), :20 February 1957, G.A.O.R. uth Sess., Supp. No. 17 at
263(A/3572).
4 C.A.O.R. IIth Sess., Comm. on lnfo., Supp. No. 15 at 23 (A/3127).
C.A.O.R. 5th Sess., Rcp. of the Sub-Comm.on Education in N-5-G T's, Supp.
No. 17 at 21 (A/1303/Add. 1); repeatedin G.A.O.R. 14th Sess., Comm. on lnfo.,
Supp. No. 15 at 16 (A/4111); and in G.A.O.R. 15th Sess., Comm. on Info., Supp.
No. 15 at 52 (A/4371). Approved by C.A. Res. 445 (V), 12 Decembcr 1950,
C.A.O.R. 5th Sess., Supp. No. 2o at 54 (A/1775}; and by C.A. Res. 1462 (XIV},
12 December 1959, C.A.O.R. 14th Sess., Supp. No. 16 at 34 (A/4354)· REPLY OF ETHIOPIA AND LIBERIA
399
General Assembly resolved !hat the Administering Members "cstablish
equal treatment in matters related to education between inhabitants of
the Non-Self-Govcrning Tcrritori1s under their administration whether
they be indigenous or not."
(d) Separation in education inevitably leads to the development or
encouragement of racial prejudice. The Committee on Information held
that "the development of a system of common education plays a major
role in the establishment of improved race relations, while children of
different races attending separate schools are bound to devclop racial
attitudes." 2 In its Progress Report of Ig6o the Committee on Informa
tion looked back upon its extensive experience with educational matters,
and found that "the separation of systems of education in a manncr
which, even if not racially motivated, coincided with racial divisions
in the communities concerned was obviously open to increasing risk of
fostering interracial suspicion and, indecd, of contributing to discrimi
natory practices.'' 3
(e) Apartheid is incompatible with the goal of a unified terri tory capable
of striving toward self-government and social progress. The Trusteeship
Council has resolved !hat "the system of separate schools [is] an obstacle
to the evolution of a unifiecl and integrated society ... " 4 One of the
most important questions concerning the relation of education ta social
unification has been the prob1em of a suitabie language of instruction.
Language barriers have often been cited as an excuse for postponing
5
inter-racial schools. Yct separate schooling may be the cause, and
not the result, of social disunity stcmming from language barriers.
The Committec on Information has reported that "the problcm of the
choicc of language in instruction, important and difficult as it is, loscs
many of its elements of conflict where there is a general conviction
that the educational system does not favour any section of the popula
tion at the expense of others." 6 Accordingly, the Trusteeship Council,
concurrently with its recommendations to the Administering Authority
of Tanganyika that the trend toward inter-racial schools be continued,
stated that it was awarc of the importance of a common language as a
unifying factor in education and agreed with the Administering Author
ity "as to the desirability of English being taught in the primary
schools at the lowest possible levels.... " 7
In asserting the preceding standards required by the duty to promote
education in dependent territories, the various organs of the United
Nations have been entircly aware of the practical difficulties involved
in implementing them. The Committee on Information advised that
1
G.A. Res. 328 (IV), 2 December 1949, G.A.O.R. 4th Sess., Resolutions at 41
(A21251).
G.A.O.R. 14th Sess., Comm. on Info., Supp. No. 15 at 16 (A/411 1). Approved
by G.A. Res. q6z (XIV), 12 Dect!mber 1959, G.A.O.R. 14th Sess., Supp. No. r6
at 34 (A/4354)-
3 G.A.O.R. 15th Sess., Comm. on Info., Supp. No. 15 at SI (A/437I).
4 G.A.O.R. r 1th Sess.,T.C. Rep., Supp. No. 4at 61 (A/3170).
' See e.g., Ill, p. 356.
6 G.A.O.R. 5th Sess., Rep. of the Sub-Comm. on Education in N-S-G T's, Supp.
No. 17 at 20-21 (A/IJOJ/Add. 1). Approvcd by G.A. Res. 445 (V), 12 Dccember
1950, G.A.O.R. sth Sess., Supp. No. 20 at 54 (A/1775). .
1 G.A.O.R. 12th Sess.,T.C. Rep., Supp. No. 5 at so-sr (A/3995).400 SOUTH WEST AFRICA
"practical difficulties, particularly those of language, are held by sorne
;-lembers to justily sc1ool systems adapted to the special needs of groups
of the population. " Later the Committee wrote:
"As long as separate school systems must ex:ist, they can only be
defended as a transitional arrangement from \vhich their integration
should progressive! y evolve; and even in this transitional periad
when they may have to be predominantly racial they should not
be exclusively so, but should admit ail children who qualily lor
entry to them, regardless of their racial origin." 2
lt is clear that the operative part of the Committee's statemcnt is its
insistcnce upon the principle of equal opportunity. As the Committcc
states later in its Report, "the Committee has come to the conclusion
that every child of evcry racial, religions or cultural group should
have an equal opportunitv for education at ail stages, and it recommends
that efforts should be diiected to the devclopment of a common system
of education, open to ail children, bath at the primary and the secondary
3
stage." And the !act that primarily separate schools may quickly
becomc completely inter-racial without increasing the quantum of prac
tical difficulties ü:,evident from the conclusion of the Trusteeship Council
with respect to educational conditions in the Cameroons uncler French
Administration:
"... The Council llotes with satisfaction the policy of the Ad
ministering Authority which has led ta the establishment of schools
open to students of all races, without any discrimination, and
considers that the lack of any diffi.culty in the functions of these
schools is indicative of a praiseworthy attitude." 4
\Vith the problem of practical difücultics firmiy in minci, the appropri
atc organs of the United Nations have hcld that "on no ground whatso
cver can education on a racial basis be justified." 5 Insofar as Trust
Territories are C()ncerned, the General Assemblv has resoh·cd that "dis
crimination on ra.cial grounds as regards educaiional facilities available
to different cornmunitics in the Trust Tcrritories is not in accordance
with the principles of the Charter, the Trusteeship Agreements and
the Universal Declaration of Human Rights." 6 And \vith respect to
Non-Self-Governing Territories in general, the General Assembly "con
demns resolutel:y" racial discrimination and segregration 7and "solcmnly
8
reaffirms its resolute condemnation. " In its most recent resolution on
1
2 G.A.O.R. wth Sess., Comm. on Info., Supp. No. 16 at 30 (Afzgo8).
G.A.O.R. qth Sess., Comm. on lnfo., Supp. No. 15 at 16 (A/4111). Approved
by G.A. Res. 1462 (XlV), 12 December 1959, G.A.O.R. qth Scss., Supp . .No. 16
at 34 (A/4354).
3 Ibid.
4 G.A.O.R. 12th Sess., T.C. Rep., Supp. No. 4 at 144 (A/3595)·
5 G.A.O.R. 14th Sess., Comm. on lnfo., Supp. No. 15 at 16 (A/4111). Approved
by G.A. Res. 1462 (XIV), 12 December 1959. G.A.O.R. 14th Sess., Supp. No. 16
at 34 {A/4354), and by G.A. Res. 1464 (XIV), 12 December 1959, G.A.O.R. 14th
Sess., Supp. No. 16 at 34 {A{4354).
6
G.A. Res. 324 (IV), 15 November 1949, G.A.O.R. 4th Sess., Resolutions, at
407(A/1251).
G.A. Res. 169.) (XVI), 19 December 1961, G.A.O.R. t6th Sess., Supp. No. 17
at 37 (A/5100).
8 G.A. Res. rSso (XVII), 19 DeŒmbcr 1962, G.A.O.R. 17th Ses»., Supp. No.
17 at 43 (A/5217). REPL Y OF ETHIOPIA AND LIBERIA 40I
the elimination of all forms of racial discrimination, the General Assembly
condemned "apartheid:' and the "segregation and separation" of races
in education. 1 •
The determination by the United Nations that separate development
in education is incompatible with the purposes and principles of ad
ministration of dependent territories bas been fully or almost fully
coinplied with in every Non--Self-Governing Territory with the exception
of South \Vest Africa. This pattern of compliance reveals international
acquiescence and acceptanc:e of the requirements laid dawn by the
appropriate organs of the United Nations. Specifically, compliance has
been dcmonstrated with respect to (a) higher education; (b) secondary
education; (c) primary education; (d) vocational education; and
(e) teaching conditions.
(a) Apart from South West Africa, "ali university institutions in
the Non-Self-Governing Territories are organized on non-racial prin
ciples and arc open to students without any discrimination on
2
grounds of race or colour. This is a point of outstanding importance."
This fact was adduced after study of reports of visiting missions, of the
Economie and Social Council, of UNESCO, and of the Secretariat, in
a report of the Committee on Information delivered in 1956. 3 Nor is
this fact based merely upon passive compliance with the principle of
non-separation of races as laid dawn by the appropriate organs of the
United Nations. Rather, in the period 1954 to 1957 alone, ''scvcn centres
of higher education, open to ali races, have been established in the
Non-Self-Governing Territories, four of these in East and Central African
Territories.'' 4
(b) Dependent tcrritories have increasingly respondcd to United
Nations' requircments of integratcd secondary schools. ln the 1954
to 1957 period, four inter-racial secondary schools were opened in the
Belgian Congo and one in Kenya. Steps were also takcn to initiate
inter-racial secondary schools in Uganda. 5 In 1954 the Trusteeship
Council approved of a projected establishment o6 an inter-racial secondary
school at Usumbura, in Ruanda-Urundi. The school was established in
I955· 7 A Visiting Mission in 1957 was favourably impressed by the
degree to which the seconda.ry schools in Ruanda-Urundi were inter
racial. 8 This pattern has been repeated in many dependent territories. 9
For example, in 1957 the Trusteeship Council noted the prospective
1G.A. Res. 1904 (XVIII), 20 November 1963, G.A.O.R. t8th Sess., Supp. No.
I5 at 35 (A/55r5).
2G.A.O.R. 1!th Sess., Comm. on· Info., Supp. No. 15 at 21 (A/3127). Approved
by G.A. Res. 1048 (XI), zo Febmary 1957, G.A.O.R. uth Scss., Supp. No. 17
at 25 (A/3572). Sce also G.A.O.R. 1oth Scss., Comm. on Info., Supp. No. 16 at 30
(A/2go8).
3 Ibid.
• G.A.O.R. 14th Scss., Comm. on Info., Supp. No. 15 at 16 (A/4111).
j Ibid.
6 G.A.O.R. gth Sess., T.C. Rep., Supp. No. 4 at 93 (Afz68o).
7
8 G.A.O.R. IIth Sess., T.C. RCp., Supp. No. 4 at 84 (A/3170).
9 G.A.O.R. 13th Sess., T.C. Rep., Supp. No. 4 at 59 (AJJSzz, Vol. II).
Sec, e.g.,G.A.O.R. 6th Sess., T.C. Rep., Supp. No. 4 at 22o (A/1856); and
G.A.O.R. 14th Sess., T.C. Rep., Supp. No. 4 at 165 (Af.poo).402 SOUTH WEST AFRICA
establishment of two inter-racial secondary schools in Tangan1ika,
and urged the Administering Authority to continue this trend. Within
two years a sccondary school and a preparatorx school. were opera ting
on an inter-racial basis. 2 And coïncident with the independence of
Tanganyika, a comprehensive system of ordinances which had bcen in
the formulative stage for several years was coming into effect establishing
3
a complete integrated system of education. ·
(c) Apart from South Africa, no Administering Authority has contcstcd
the principle of inter-racial schools on the primary level. Ali arc taking
steps to intcgrate these schools. In Ruanda-Urundi, for example, any
child regardless of race is admitted to schools run on European Hnes
if he speaks French and his standard of education is up to that of his
age group. Aware of the limitations that even thcse rules imply, the
Administering Authority was notecl ta be sceking ta 4volve a system
of inter-racial education by a positive program. In the Camcroons
under French Administration, by 1957 aU schools werc open ta students
of ali races. 5
(d} Vocational schools are increasingly established upon an inter-racial
basis. This is.truc of the Technical Institute of Dar es Salaam in Tangan
vika 6and the vocational schools at Yaoundé, Douala and Ganta in the
7
Cameroons uncler French Administration. From 1958 on, thcre \vas
no distinction as to race in any aspect of vocational training in Tangan
yika. 8
(e) ln ali dependent territories other than South West Ah·ica, the
general practice has bcen to narrO\\' the gap bctween European and
indigcnous teach•ers in ali aspects of their employmcnt. As early as 1949,
European and indigenous teachers in Togoland under French A9minis
tration wcrc placed on a completely equal footing. Statistics for New
Guinea demonstrated to the Trusteeship Council in rg6o and rg6z
that many non--indigenous tcachers were employcd in schools having
a majority of indigenous students. 10
The promotion of the moral wcll-being and the social progress of
ali the inhabitants of a territory by implementing non-discrimination
in education is evidenced h,r. the development in Somaliland under
Italian Administration. Somaliland is chosen because Ital y was faced with
natural obstacles exceeding those of South \Vest Africa when Somaliland
\vas made a Trust Terri tory on 2 Dccembcr IQSO. The Somalis were
nomadic people to a degree far greater than that of the indigenous
inhabitants of South \Vest Africa. The population density was cxtremely
low (two persons per square kilometre). Finally, unlike South West
1 G.A.O.R. 12th Sess., T.C. Rep., Supp. No. 4 at 50 (A/3595).
2 G.A.O.R. 14th Sess., T.C. Hep., Supp. No. 4 at38 (A/41oo).
3 G.A.O.R. 16th Sess., T.C. Rep., Supp. No. 4 at z8 (A/4818).
• Ibid.
5
6 G.A.O.R. 12th Sess., T.C. Rep., Supp. No. 4 at 144 (A/3595)·
7 G.A.O.R. 15th Sess., T.C. Rep., Supp. No. 4 at 57 (A/4404).
8 G.A.O.R. 6th Sess., T.C. Rep., Supp.No. 4 at 151(A{1856).
9 G.A.O.R. 15th Sess., T.C. Rep., Supp. No. 4 at 57 {A/4404).
10 G.A.O.R. 6th Sess., T.C. Rep., Supp. Ko. 4 at 199 (A/1856).
G.A.O.R. 16th Sess., T.C. Rep., Supp. No. 4 at 145 (A/4818); G.A.O.R. 17th
Sess., T.C. Rep., Supp. Ko. 4 at 27 {A/5204)- REPLY OF ETHIOPIA AND LIBERIA
403
Africa, Somaliland \Vas very poorly endowed \Vith natural resources,
and as a result the Territory could ill afford high expenditures on edu
cation. 1
At the outset of the Trusteeship period, petitions filed bcfore the
Trusteeship Council claimed that Somali and Italian pupils in elementary
schools were completely segregated. 2 Four years later, however, the
Trusteeship Council found thal the "Italian" schools (which offered a
metropolitan curriculum, as opposed to the Somali schools, which were
"adapted" to the Territory) were open to Somali students. Out of a
total enrollment of 8r6 in the "Italian" elementary schools, 236 were
Somalis. 3In rgs6 the Representative of India noted in a meeting of the
Trusteeship Council that there was no segregation in the schools of the
Somaliland Territory. 4 And by rg57, of a total enrollment of 97I in the
''Italian'' elementary schools..405 were found to be indigenous inhabitants
of Somaliland. '
1
2 G.A.O.R. 6th Sess., T.C. Rep., Supp. No. 4 at 96 (A/1856).
3 Id., p. 137·
G.A.O.R. 10th Sess., T.C. Rep., Supp. No. 4 at qo (A/2933).
+ G.A.O.R. 11th Sess., T.C. Rep., Supp. No. 4 at 114 (A/3170).
~ G.A.O.R. 12th Sess., T.C. Rep., Supp. No. 4 at 97 (A/3595)· 2. THE ECONOMIC ASPECT
(A) INTRODUCTION
Respondent's purported explanations of the particular measures
by which it effectuates the policy of apartheid evade Applicants'
central point, which is that the policy of apartheid itself violates
Respondent's obligation to promote the well-being and progress
of the inhabitants of the Territory. Thus, Respondent asscrts that
"... Applicants have formulated certain specifie dulies which
they allege are included within the ambit of Article 2 of the Man
date." 1
So stated, Respondent's characterization is a misleading half
truth; indeed, it misses the central point at issue in this context.
Applicants' references to, and complaints concerning, such
"specifie duties" 2 set forth standards or objectives which are
indispensable prerequisites to promotion of well-being and social
progress. Specilic measures of implementation of the general
policy of apartheid, or separate development, merely illuminate
and confirm the nature and consequences of that policy, the in
herent evil of which lies in the allotment of status, rights, duties,
opportunities and burdens on the basis of membcrship in a
"group" or tribe.
It follows that, although examination of specifie measures of
implementation is highly relevant to an appraisal of the basic
policy of apartheid, inasmuch as these measures givc dimension
and effcct to that policy, they must be viewed not as isolated de
tails or events, but in light of Applicants' contention that:
"The record as a whole supports and confinns the record in detail.
Indeed, the record laken as a whole has an impact greater than that
of a mere arithmetical sttm of the severa[ parts . [T]he details are
not isolated events or phenomena. They are significant not only
in themselves, but in their mutuai and multiple relationships and
their cumulative effect."3
In Applicants' submission, a specifie measure designed to effec
tuate an unacceptable policy is not extenuated by argument, or
even by demonstration, that it may produce a tolerable side
effect in certain instances.
Although the bulk of the Counter-M emorial, including Book
V, thereof, is concerned with largely irrelevant mintttiae, the admit
tedly discriminatory predicate of specifie measures invalidates
1
:zSee e.g., 1, pp. IOJ-108.
3 Id., p. 161. (Italics added.) REPLY OF ETHIOPIA AND LIBERIA
them in terms of Respondent's obligations under Article 2, para
graph 2, of the Mandate.
Thus, in conceding that only "Europeans" may be employed
in levels above common labour in mining enterprises "owned by a
European" (as, indeed, ali such enterprises in the Police Zone are
owned). Respondent reiterates the premise underlying its education
and other apartheid policies:
"In the history of the Territory there has at ailtimes been social
separation between these groups, and experience has shown that
members of each group prefer to associate with members of their
own group, and that certain kinds of contact between members of
these groups tend to create friction.'' 1
If, as Applicants contend, such a premise and policy is wholly
repugnant to Respondent's obligation to promote the well-being
and social progress of the inhabitants of the Territory, little if any
purpose is served by Respondent's lengthy examination of the details
of restrictive laws and regulations designed to effectuate that policy. 2
Furthermore, as in the case of restrictions upon rights of resi
3
dence and movement, f.!espondent's major premise concerning
the role and place of the "Native" in the Police Zone infects spe
ciftc measures of economie apartheid with an unacceptable design.
Thus, Respondent explains its policy of dealing with "idle persans"
in the Police Zone on the basis that
"... it involves removal from an arca in which their presence
serves no purpose in the absence of willingness ta work, to a place
which is their realhome.These considerations do not apply to White
or Coloured persons whose only real home may be in urban and
proclaimed a reas." 4
Respondent thus by fiat and by policy denies to the vast majority
of the inhabitants of the Territory, including thos5 spending a
large part of their working lives in the Police Zone, any possibility
of a "real home" in 70 percent of theTerritory (whatever the quoted
phrase signifies).
(B) GENERAL CoNSIDERATIONs
Respondent's policy of apartheid, as applied to the economie
!ife of the inhabitants of the Territory, rests, as has been shown,
upon the same structural foundation and reasoning as does Re
spondent's policy of apartheid in education. 6 "Each part of the
7
record supports and confirms every other part." The education
1
2 See,e.g.id., pp. 47-63.
3 Infra, p. 458.
~ III, p. 219. (Italics added.)
~ The latter admittedlynumber more than 170,ooo. (Il, p. 402.)
6 See p. 362supra.
7 1, p.161. SOUTH WEST AFRICA
received by the "Native" child prepares the "Native" adult for
his distinctive role in the economie !ife of the Territory, that of
agricultural or industriallabourer. The Committee on South West
Africa, in its Report to the General Assembly for rg6o, stated that
"beyond sorne rninor teaching and menial positions at the lowest
levels, their training and education seems directed merely to
preparing the 'Natives' as a source of cheap labour for the benelit
1
of the 'Europ§ans.' Deniai of equality in the educational sphere
leads to a deniai of equality in aU other spheres, not only as a
conscious continuation of "the deliberate design that pervades the
severa! parts" 2 of the !ife of the Territory, but also as an inevita
ble consequence of the Jack of educational training. 3 Education and
economie status are inseparable, 4 as are economie status and political
rights and opportunities. 5
1 G.A.O.R. 15th ~;es SsW .A. Comm., Supp. No. 12 at 56 (A/4464).
2 1, p. 161.
3 Thus the Eisele.n, Commission reported in 1951, with respect to the "Ban tu"
desire for equal eduçational rights, facilitiesand opportunities:
"The insistence on exactly the same curricula and examinations as are found
in European schools is linked with the desire for the same certificates. This has
also an economie motivation for the Hantu fee! that if they do not follow
the same curricula and pass the same examinations they cannat obtain certi·
ficates of equal value. Consequent! y they would not have a daim to equal pa y,
and, although the Bantu do not rcceive the same pay, the possession of the
same qualifications is held to be a pov.:erful instrumentin pressing for improved
financial treatrr.-.cnt."
(Eiselen Commission Report, para. 235.)
• Thus did the G:roup of Experts report to the Secretary·General in 1964, with
respect to the educational needs of "Bantu" in South Africa:
"Technical education and vocational training must be givcn top priority,
bearing in mind the opcning up of wide fields of employment to those hitherto
restricted by law from skilled work in mines, in building and ali other fields."
(S.C.O.R., Report of S.G. at 30 (S/5658).) Similarly, the Anne.l' to I.L.O.: Report
of the Committee on Questions Concerning South A/rica, C.B. 158/2{5 (Interna
tional Labour Conlerence, 158th Session, Gcneva (1964)) states, with respect
to South Africa, that "discriminatory treatment to the detriment of the 'non-white'
sections of the popu]ation ... is the result principallyof the inequality of opportuni
ties for vocational training established by the legislation, which organises ali
education on a separate and unequal basis for persans of different races." (Annex,
p.1, paras. 2 and 3.} (The Annex is entitled "An l.L.O. Programme for the Elimina
tion of 'Apartheid' in Labour Matters in the Republic of South Africa.")
s "A special t:heory is developed in which the economie !ife of society is
subordinated toits political objectives, so that non-European workers are not
free to improve their standard of living if thereby they seek also to gain added
politicalopportu.nity or social advancement."
(de Kiewiet, The Anatomy of South African Misery 25 (1956).) (Italics added.)
The converse of th:: above was succinctly expressed by Dr. W. M. 1\1. Eiselen of
the Commission on Native Education (the "Eiselen Commission," sec footnote 5
on p. 365, supra) in 1959, when he wrote that "... the maintenance of white
political supremacy over the country as a whole is a sine qua non for racial peace
and economie prosperity in South Africa." (9 Optima S (Xo. 1, l\larch 1959); as
quoted in Roskam, Apartheid and Discrimination 87 (1960).) {See p. 439, infra.)
Jnasmuch as predsely the same considerations and circumstances apply in the
Terri tory, the foregoing comments regarding South Africa itself are relevant in ail
respects to the Territory. REPLY OF ETHIOPIA AND LIBERIA
Economie apartheid is necessarily based upon the same major
premises as is educational apartheid,' and produces identical results
with respect to the inhabitants affected. The "Coloured" inhabitants
fall between the "Native" and the "European" groups, and reflect
yet another application of the apartheid policy, inasmuch as the
rights, opportunities and burdens of "Coloureds" are likewise
wholly allotted on the basis of membership in a group. 2
Areas of the Territory occupied by "Europeans" are in ali re
spects economically weil cleveloped in comparison with the areas
occupiecl by approximately 75 per cent of the "Natives," 3 and
since the "Native" population is proportionally great, it follows that
an inevitable result of territorial apartheid is that "Native" labour
will, to a significant degree, be drawn from the reserves to service
4
the more advanced "European" economy on a migra tory basis.
Another consequence of economie apartheid is that the balance of
the "Native" labour force within the Police Zone is recruited from
among the inhabitants of the "Native" reserves within the Police
Zone,' or is obtained from "Natives" resident on "European"
farms or in urban areas. With respect to these latter two groups,
Applicants show in the Memorials that the ir status in the "White"
economy is both interminable and impermanent, by reason of the
sweeping powers of the Administration with respect to "Native"
6
rights of residence anywhere in the Territory. De ittre and de facto,
1
See p. 362, supra.
2Cf. pp. 144-145, supra. "\Vhatever segment or sector of the life of the Territory
may be examined, the import of the facts is identical.Each part of the record
supports and confirms every other part." (1, p. 161.)
3The 1960 figures were aS follows: "Natives" living in "Home Arcas" in the
Southern and ~orther Sectors totalled315,342, or 74·35 per cent of the total
"Native" population of 424,047. Of the remainder, 48,919 (11.53 per cent) were
distributed in urban areas (ali in the Police Zone) and 59,786 (14.09 per cent)
in rural areas (on farms in the Police Zone). (Computed from Odendaal Commission
Report, pp. 39 and 41, Tables XVIII and XIX, but exclu ding from "Natives" in rural
areas and from the total amount of "Natives" the "4,528 employees mostly from
Angola" listed in footnote"§" to Table XVIII.)
~Respondent, at Ill, p. 74, points outtha41 percent of the adult male ''Xatives''
employed in the Police Zone in 1960 came from Ovamboland and the Okavango
terri tory. The same figures (27,771 and 850, respectively)are given in the Odendaal
Commission Report, p. 39, para. 147; what Respondent bas not set forth in its
Counter-liiemorial is the fact that "these 28,621 workers represent approximately
10 [percent] of the population of the Northern Sector." (Ibid.)10 percent of the
population of the Northern Sector is the equivalent of approximately one-half of
the adult male "Natives" betwE·en the ages of eighteen and forty-two, or all of
the male "Natives" between twenty and thirty-two calculating life expectancy of
sixty years as a base. Manifestly, such a drain of manpower is, in the life of the
Northern reserves, an extremely significantfactor.
5 Of which the population in 1960 >vas28,866, or 6.8 percent of the total "Native"
population. (Odendaal Commission Report, p. 41, Table XIX.)
61, pp. 146-148. SOUTH WEST AFRfCA
the entire "Native" population of the Territory is so controlled
and powerless with respect to rights of residence and freedom of
movement thal any labour drawn therefrom is temporary in its
essence; the difference between a "Native" labourer in an urban arca
or on a lann and a "Native" labourer imported from outside the
Police Zone is one of degree.
The predilection of employers for low-cost labour, coupled with
Respondent's concern that no "European" persan be placed in
the position of "serving under the authority of a Native" 1 (on
which Respondent's educational policy so heavily rests), 2assures
that the horizon of "Native" economie potential remains confined
to the semi-skilledlevel.'
The Special Committee for South West Africa reported in r962,
alter a visit by two of its officers to the Territory:
"Under this discriminatory policy [apartheid]certain inadequate
arcas are reserved as the homelands of the indigenous groups.
Outside thos•Jareas, the country is regarded as belonging to the
White population and the presence of indigenous inhabitants is
considered to be temporary and as not giving grounds for political
or rclated rights. The entry of indigenous inhabitants into the area
outside the reserves, in particular into urban areas, and their
continucd rc~ide nhcre, are regulated by a pass system. In town,
they live in .:;egregatedtownships and locations and, except for a
few minor a.ctivities in those townships or locations, have no
economie possibilities other than wage labour.'' 4
Apartheid, whether territorial, economie, social or educational,
thus imposes upon inhabitants of the Territory an interlocking
series of consequences.
A factor contributing to economie stagnation of the Northern
reserves is the prolonged absence of approximately one-half of
the adult male population therefrom. \Vere the families of "Native"
labourers permitted to accompany them to their work, population
pressure upon the land inevitably would decrease 5with the possi
bility of a correspondingly more prosperons agriculture for those
remaining; similarly, the land in the Northern reserves would
tend to be farmed by persans who would devote themselves exclu
sively to farming, rather thau on a "part-time" basis by persans
who migrate to and from the Police Zone at intervals. In the
Northern reserves
"There is virtually no artisan tradition; [the inhabitants] ... con
sumewhat they produce and there isconsequent!ylittle buildingup of
permanent capital assets ... animal husbandry and crop production
1 III, p. g6.
2 Id., pp. 529·53C•.
3 See p. 419, infro'l.
• G.A.O.R. 17th Sess., Sp. S.\V.A. Comm., Supp. No. 12 at 13 (A/5212).
5 See Ill, p. S. for a description of the recent "rapid increase in population"
in the Northernres1~rves. REPLY OF ETHIOPIA AND LIBERIA
are practised mainly for self-maintenance, [and] there is always a
certain proportion of the male population who, as temporary
employees in the moncy or exchange sector, could put their abili1ies
ta more profitable use than in their own subsistence sector."
If equality of opportunity were afforded to inhabitants without
restriction basee! on "group," tribe or colour, many families would
remove from the reserves to the Police Zone; a surplus of production
would result in the reserves, in place of the subsistence economy
which now frustrates creation of capital or entrepreneurial skills
from within. Not only would production be more efficient, but a
natural modernization of agricultural methods would take place
rather than either of the two extremes suggested by Respondent. 2
Similarly, the reasons given by Respondent why "Northern
Natives ... do not acquire greater skill than they actually do" 3
would tend to disappear. These are mainly as follows:
"... the shortness of their period of contract service ... the
difficulties which they experience in aclapting themselves to forms
of work which are strange ta them, and ... the tendency on the
part of many of them, when they return to the Police Zone for a
second or further period of service, to explore new avenues of
employment rather !han to return to their former field of work.
These factors naturally militate against acquiring any considerable
degree of skillin any particular occupation." 3
Jn the present situation in the Terri tory, not only do the Northetn
"Natives" fail to acquire any considerable degree of skill, but when
they have returned to their reserves the few skills they may have
acquired do not match the requirements of the area. Thus the
Northern reserves are deprived, on the one hand, of the presence
of a large percentage of the able-bodied men and, on the other,
of their effectiveness when they return. At the same, lime, the
initiative for effecting changes devolves upon the women inhabitants
in addition to their accustomedlabour on the land. • Together with
the foregoing, the inhabitants cannat generale capital owing to
the subsistence economy which is fostered, in turn, by the large
population and by the Jack of adult males devoting themselves
exclusively to farming. It is one of the vicions circles of the policy
of apartheid.
The foregoing consequences of the policy are impossible to
reconcile with the positive obligations of Article 2 of the Mandate.
They would violate Respondent's obligations toward the inhabi
tants even if they were not based upon "group" differentiation. A
policy producing such effects by means of "group" differentiation,
1 Odendaal Commission Report,p. 315, para. 1286.
2 III, p22.For policy and results in comparable areas. see Annex 6, Section (1),
infra,p. 426.
3 Ill, p. 75·
4 JI, p. 325.410 SOUTH WEST AFRICA
then, is a fortiori a violation of the obligations of the Mandate.
Respondent has not concealed the racially discriminatory
motivation of economie apartheid. Thus, the Administrator of the
Terri tory, in rg6o, announced:
"I want to make a very special plea tonight here to ali our
municipalitie!:, industries, business concerns and private people: Do
your duty for the welfare of the people in this country and do with
as little non-European labour as possible. l'Vemust create a surplus
of labour. Thcre are thousands of Europeans who are willing to come
to this country to take over work. \Ve have got to see and realise
our prospects for the future if we are to remain a European race in
this country and be happy .... " 1
The relegation of "Native" interests to a law priority occurred
from the inception of the Mandate; it is apparent even from the
manner in which l~espond desncribes certain historical situations,
in its Counter-M emorial:
". . . Respondent could not rea.sonably have pursued a policy
permitting individual Natives, or small groups of Natives, to l2ve on,
or to roam ovcr large tracts of potentially useful land."
"The only way in which Respondent could have ensured the posses
sion of land hy Natives, was by creating reserves." 3
"There can be no objection to granting a right to a farmer to have
pcrsons removed from his land ifthey are not prepared to work for
him. The only possible objection relates to the !act that land was
granted to f&.rmersdespite the presence thereon of Natives." 4
"In the Police Zone, the Natives were at the inception of the
:Mandate to a considerable extent landless. ... " 5
Similarly, mutually contradictory contentions of Respondent
undcrscore its preoccupation with "European" interests and its
abdication of responsibilitieswith respect to "Native" interests. Thus,
Respondent asserts !hat
"... it has always been open to any Native to purchase land in
the so-called European farming areas. Their failure to do so, or
even to show any 'interest in this possibility, confirms Responde~t's
view ... that the Native population is on the whole not yet npe
for individua.l ownership of land." 6
1 G.A.O.R. 15th Sess., S.\V.A. Comm., Supp. No. 12 at 40 (A/4464), quoting
The Windhoek Advertiser, 14 January 1960. (Italics added.) The Committee noted
the policy implications of this statemewith "grave concern." (Id.,p. 43.)
2 Ill, p. 24lt is apparent in pages 28-33, id., that Respondent'sintroduction
of "European" farmers from South Africa was at no time accompanied by any
condition asto the share or participationpresent or future, of the "Natives" in
the agr.iculturalliof the Police Zone; rather, they were relegated to a status in
reserves conducive only to the profits and development of the Police Zone.
3 Id.,p. 31. (ltalics added.) 'fhe "Nativesacknowledged as living on land in
the preceding quotation were not, of course, in "possessionthereof.
4 Id.,p.25. (ltalics added.)
5 Id.,p. 31. (Italics added.)
6 Id.,p. 11. (ltalics added.) REPLY OF ETHIOPIA AND LIBERIA
And, further, that
"It is notable that outside the reserves in the Police Zone, no
Native has ever purchased land, despite the absence of any legal
impediment in that regard." 1
On the ·other ham!, Respondent states with respect to the leasing
of land by "Natives":
"The condition rcgarding miscegenation in the probationary lease
cannot by itself be relevant to 'well-being, social progress and
development in agriculture,' except to the extent that it indicates a
contemplation that such leases would . . . be granted to Europeans
on/y. Thal this has indeed been the cimlemplation, is admitted. When
Respondent deems the Native population ripe for ind2vidual land
settlement, provision can be made therefor."
lt is not surprising that no "Native" has ever purchased land.
"[A]ssistance under the land settlement laws had not been re
quested by, or granted to, Natives." 3Furthermorc, any such pur
chase would givc to a "Native" precarious tenure, inasmuch as
he could at any time be moved from his land "to any other place
within the mandated Tcrritory" • by a government in which he
is not represented.
Similarly, with respect to mining, Respondent asserts that
"... despite the fact that prospecting and mining in the Native
reserves have for ali intents and purposes been reserved to them,
the Native population of the Territory have thus far generally
shawn a lack of interest in mining adivtties. This is probably only
natural when regard is bad to their background and traditional
5
subsistence economy."
On the other hand, Respondent points out:
"As much as g6 per cent of the mining output in South West
Africa is controlled by two companies. This state of affairs is
ascribable to the nature of local mineral deposits and the high cost
of exploitation rcsulting from poor, or a lack of, water supplies,
lack of fuel and transport difficulties. These factors necessitate
large-scale operations requiring the employment of qualified and6
experienced t_echnical personnel, and substantial capital funds."
Respondent's assumption of inevitability of permanent main
tenance of the stattts quo has led to deprivation of opportunity and
incentive which helps in turn to assure the continuance of the
status quo.
t III,p. 31. (Italicaddcd.)
2 Id., p. 33· (Footnotesomitted and italics added.)
3 Id., p. z6; for referencto such assistance,see l,p.IIj, para. z6.
• Sec. I of the Native Administration Proclamation, No. 15 of 1928, The Laws
of South WestAjrica I928, pp. sSff.;sec I, pp. 139-qo.For a survey of a number
of such removals in the past, sec G.A.û.R. 12th Sess., S.\V.A. Comm., Supp.
No. 12at 15-17 (A/J6zG).
' III, p. 56. (Italiadded.)
6 Id., p.49· SOUTH WEST AFRICA
Rcspondent concedes, with respect to the discriminatory provi
sions of the Mining Regulations, 1 that they "... constitute one
of the 'unpopular control methods' which are consideree! desirable
in the phase of transition from guardianship to separa te self-realisa
tion, and which are destined ta fall away when developments in
the latter respect remove the reason for them." 2 The implication is
either that the "Natives" will develop their own comparable mining
enterprises or that they will, in any event, eventually be dischar
ged from employment in the Police Zone mines. The first alternative
is strikingly improbable, if only in view of the quotations set
forth hereinabove; the second alternative would lead to the labour
surplus desiree! by the Administrator, 3but to neither the material
well-being nor the social progress of the "Natives."
In !act, the actual result will be that the "Native" labour force
will continue to man the mines, under the same "unpopular con
trol measures," for many years into the forcseeable future. These
measures, although allegedly "destinee! to fall away," have an
indeterminate future, as they have had a long history. Thus, Re
spondent cites a letter written by its representative to the Perma
nent Mandates Commission in rg28, which advised the Commis
sion that
"Owing, however, to the present low state of civilisation among
the natives, no native is at present employee! either by the Ad
ministration or by the Railway Department on work involving the
risk of human life, such as driving a motor-car or working an engine.
A certain colour bar is therefore being observed in practice, but it is
certainly not a statutory enactment and z"spurely temporary, that is
until such time as the native is suff4ciently advanced to be able ta
undertake this responsible work.''
Similarly, any prospect for the disappearance of the policy of
racial discrimination applied in the Railways and Harbours Ad
ministration, 5 by "Natives" becoming "eventually .. , able to
occupy the highest posts in their own areas," 6 will be confinee!
for at !east fifteen years to the stretch of approximately twenty
miles of main railway line, from Keetmanshoop to Windhoek,
which passes through the Berseba-Tses Reserve. 7
Conjoined with the above elements is Respondent's abdication
of the positive and progressive obligations of the Mandate by its
2 See I, p. 12'· p.ua. 46.
Ill, p. 56. (Footnote omitted and italics added.)
4 Seep.411,supra.
5 III,p. 6g. (ltalics added.)
6 1, p.122.
7 Ill, p. 68.
Odendaal Commission Report, Fig. 57, facing p. 376; the Commission in its
for the near future," (id,, p. 381) and none of the Five-Year DevelopmentPlans
contained in the Report contemplate expansion (id.,pp. 481, 483). REPLY OE"ETHIOPIA AND LIBERIA
policy of "laissez-faire" with respect to tribalism. 1 Thus, with
regard to the widely-criticized policy of preventing the families
of "Natives" from the Northern reserves from accompanying
them on their tours of employment, Respondent states:
"Employers in the Police Zone have often requested that an
employee'sfamily should be allowed to accompany him to his place
of employment, but the tribal authorities have a/ways stem/y opposed
such suggestions." 2
An illuminating comparison may be made to Book III of the
Counter-Memorial:
"Already during the German period, numbers of Ovambo wcre
employed in the Police Zone. The general practicc was for Ovambo
men to work in the Police Zone for a periocl and then to return
home. This accorded with the wishes of the leaders of the various
tribes, who where jealously on gttard against all factors which could
lead to detribalisation.''
Thus tribalism, which was one of the reasons why "Native"
inhabitants were "not yet able to stand by thcmselves under the
strenuous conditions of the modern world," has been delibera tely
fostered through apartheid.
Inasmuch as Respondent's policy is assertedly founded upon
an "evolution towards separate self-realisation for Natives in
homelands of their own," ' and inasmuch as such· "homelands"
are to be orientcd entirely to tribal considerations, Respondent's
policy may fairly be charactcrized as a headlong advance into the
past. An exposition of economie apartheid in this respect has been
given by an authority with unquestioncd flrst-hand knowledge:
"The economie principles of apartheid are bad simply becausc they
are upside down. By trying to herd the native population back into
separate economie and political areas the Nationalist government
is in effect allying itself with the primitive and backwardcomponents
of native life, with those customs and practices which are the first
cause of povert y and stagnation.'' 5
Although, as this Honourable Court has held, Respondent is
under no legal obligation to conclude a Trusteeship Agreement
with respect to the Territory, and has obdurately refused to do so
despite repeated requests of the United Nations that it do so,
policies pursued by Govermnents which have assumed such re
sponsibilities, and standards enunciatcd by United Nations organs
with regard thereto, are relevant indications of current norms in
respect of the promotion of the well-being and social progress of
inhabitants of dependent Territories.
1 Cf.p. 387supra.
: III, p. 73· (Italics added.)
3 II, p. 325. (Footnote omitted and italics added.)
~ III, p56.
l de Kiewiet, The Anatomy of South African Misery 71 (1956).4'4 SOUTH WEST AFRICA
Applicants accordingly include, as Section (r) of Annex 6
hereto, 1 a summary of policies and practiccs in Trusteeship Ter
ritories involving situations analogons to those in South \Vest Africa.
The said Section, (r) of Annex 6 demonstrates the generally
accepted objective of maximum effort on the part of the Adminis
tering Authority to integrale inhabitants into the economy of
the Territory ae a whole, on an equitable and progressive basis.
(C) THE RESERVES
Respondcnt has introducecl its discussion of economie policy in
the "Native" reserves with a false c\ichotomy. Thus Respondent
states that the remoteness of the Northern territories from
"... the prindpal areas of modern economie devclopment ... could
have been altcrcd in one of two UNtys, viz., either by cncouraging or
forcing the people to !cave their lands and flock to the Police
Zone or, alb!rnatively, by a process of rapicl dcvclopment of the
2
Northcrn territories with the aïd of European initiative and capital. ''
Respondent's options were not in fact limitee\ to such extremes.
lndeecl, a sound sociological and economie approach woulc\ have
been to clevelop the Northern tcrritories with outsicle capital,
slowly at first, but with increasing specc\ as capital and surplus
resources werccrcatcd within the reserves themselves. Respondcnt's
dutyin this regard was one of education and systematic development.
The situation n:quired, and continues to rcquire, special effort; ali
the more so if, as Responclent asserts, thcre existee\ a so-e<tllecl
"Jack of interest" on the part of the inhabitants of the Territory
toward mining, land owncrship, and other aspects of "the strenuous
conditions of the modern worlc\." 3
Respondent rnarshals detailed argument in rcply to Applicants'
observation about the allocation and alienation of land to "Euro
peans" and the graduai. extension of the Police Zone 4 without,
however, explaining why "the Mandatory has progressive! y reduced
the proportion of farm land available for cultivation or pastoral
use by the 'Native' population, while it has progressively increasecl
the proportion of such farm land available to 'Europeans'." 5
1
2 1nfra, p.426.
3 III, p.22.(Italics added.)
The stimulation of economie development and activityin the Northern terri
tories, accordingto Respondent, "would necessarily have required exploitatioby
Europeans of the on!y available natural resources of those areas (i.e., the agricultural
potential),with a ~esulta lust of land by the Natives.(Id., p.22; italics added.)
It is from this fus': incorrect assomptiothat Respondent's incorrect conclusions
flow, e.g.: "Applicants' cornplaint [that) .Res pondent failed to creatc 'areas of
modern economie dcvclopment and activity' in [the Northern tcrritories] orto
make them 'part of the modern monetary economy' ... in effect amounts to a
complaint thal Respondent jailed to introduce European jarmers into these areas."
(Id., pp. 30-31; footnote omitted and italics added.)
• 1, p. 115, para25, and p. uS, para. 33(i).
5 Id., p.II8,para. 33(i). Cf, Ill, pp. 30-31. REPLY OF ETHIOPIA AND LIBERIA 415
Ta this Respondent merely replies:
"It was Respondent's duty to strikc a balance bctween [the]
conflicting considerations [of providing reserves for the 'Natives'
and farms for the 'Europeans'J, and, bearing ln tnind !hat Natives
are entitled to purchase agriculturalland in any part of the PoliceZ one,
it is submitted that the provisions that have been made, are not
unreasonable.'' 1
In view of the poverty of "Native" inhabitants, the fact that
financial assistance was availablc ta "European" settlers but not ta
"Natives," and that Respondent's laws and practices render resi
dence by any "Native" anywherc in the Territory insecure and
make it impossible for "Natives" to lease land, 2 therc is no valid
basis for Respondent's conclusion !hat "... the provisions that
have bccn made, arc not unrcasonable." 3
In contras! with l~esponde pnotiies on the "land question,"
a notee! scholar is reportcd ta have declaree! before the Jnly rg6o
Science Congress hele! in Johannesburg:
"... [B]oth the Covenant of the League of Nations and the
Charter of the United 1\-ations dcscribed the mandate as a 'sacred
trust' on the part of a civilised statc tmvards the indigenous people.
. . .Posing the question of whether South Africa had failcd in her
sacred duty towards the Natives Professor \Vcllington commentcd.
'\Ve seem to have Iooked aftcr ourselves very weil'." 4
The policy of "looking alter ourselves very weil" likewise appears
from Respondent's admissions conccrning the disparity in drought
relief as between "Europeans" and "Ncl!ivcs." 5 Rcspondcnt states
that "the picture drawn by Applicants is misleading, largely
becausc they fail to clistinguish between the types of 'assistance'
given ta the European population and the Native population
respectively." 6 Responclent proceeds to distinguish bctween loans,
on the one hanc!, and "free grants," 6 on the other. Without ex
plaining why the "Natives," with far fewer financial resources ta
begin with, should be Jess damaged in the over-all by the clrought
!han the "Europeans," Respondent asserts thal "there was no
question of [the 'Natives''] being forcecl off the land by reason
1 III, p. 31. (Italics addcd.)
2 See discussion at p. 41 supm.
3 Footnote 1of this page,supra.
4 Professor J. H. \Veltington,:formerly Professoof Geography, University of
\Vitwatersrand.(The Windhoek Advertiser, 5 July tg6o, p.1.)Inter alia, Professor
Wellington was reported to have statedthat "South Africa ...had allocatedonly
a small area to the Hereros in the southerHardeveld and had sent the remainder
of the Hereros to the barren Kalaharsand area. The Union bad then settled South
African farmers on the fertile Ha:rdeveld arca(Ibid.)
5 III, pp. 33-37; cf. 1, pp. II6-Ir].
6 Id.,p.34· SOUTH WEST AFRICA
of failure to pay interest or capital instalments on mortgages, or
inability to meet other obligations." 1 The figures produced by
Respondent afford the following comparisons, distingttishing between
types of assistanΠgiven: '
(!:<RAND)
''EUROPEA.Ks'' ''NATIVES''
Total Loans
4,900,000 rzo,soo
Loa11sper capita
66.70 .28
Total Grants
300,000 IJO,OOO
Grants per capita
4.08 -40
The "Native" population composes 85.24 percent of the combincd
total "Native" and "European" populations, yet was restricted
to 2.4 per cent of the total loans and 36.17 per cent of the total
grants made available for drought relief. Its share of the total
outlay was but 4·53 per cent. These figures must be viewed in
conjunction with the obvions factor that the margin of financial
elasticity, or "cushion" against adverse circumstances, is infinitely
less for the "Natives" than it is for the "Europeans" in the Terri tory
in spite of the fact that the "Europeans" have progressed to the
point wherc they may incur debt obligations.
This discrimination with respect to drought relief is consistent
with other legislative policies in the Territory as a whole. For
example, the Workmcn's Compensation Act, No. 30 of 1941, 3
differentia les between racial groups in the following ways: on his
dcath, a "European" or "Coloured" workman's family receives a
pension, with allowances forchildren, whereas a "Native" workman's
1 Ill,p. 35.
2 Population figures employed in arriving at pe.- capita estimations were the
figures given for 1960 by the Odendaal Commission Report (pp. 39 and 41; Tables
XVIII and XIX), being 424,047 "Natives" and 73,464 "Europeans," respectively;
financial data is derived solely from examination of Counter-Memot-ial, Vol. V,
pp. 36-4°·
3 Act No. 30 of 1941, Statutes of the Union of South Africa I94I,pp. 366-481, 1
The Laws of Soutl. West A ft-ica r956, pp. 4-129, as amended by: the \Vorkmen's
Compensation Amcndment Acts, No. 27 of 1945 (Statutes of the Union of South
A/rica I945. pp. 214-41; I The Laws of South West Africa 1956, pp. 129-55);
~o. 36 of 1949 (St,lfutes of the U11ion of South A ft-ica I949, pp. 306-27; 1 The Laws
of South West A ft-ica I95pp. 157-78); No. 5 of 1951 (Stattdes of the Union of South
A/rica 1951, pp. tG-21; I The Laws of South West Ajrica I956, pp. 179-83); No. 51
of 1956 (II Statutes of the Union of South A ft-ipp. 938-57, brought into force by
Proc. No. 173 of 1956 (S.A.), 1 The Laws of South West A/rica rgs6. pp. 206-o7);
and No. 7 of 1961 (l Statutes of the Republic of South A/t'ica rg6pp.36-49; I The
Laws of South West Ajrica 1960, pp. 10-23). REPLY OF ETHIOPIA AND LIBERIA
1
family receives a lump-sum settlement; a "European" or
"Coloured" workman's family receives L45 for burial expenses. and
a "Native" workman's family receives ;[15. 2 Benefits for disability
under The Workmen's Compensation Act are calculated by per
centages of wages, and therefore are not visibly discriminatory
by themselves. 3 Highly discriminatory, however, are the benefits
for pneumoconiosis undcr the Pneumoconiosis Compensation Act. "
5
SimiJarly, the Social Pensions Amendment Ordinance extended
old age, disability, and blind persans' pensions or grants to "Col
oured" persans in the Territory, although on a discriminatory
basis. The minimum incarne entitling a "European" person to a
pension is fixed at a higher rate than it is for "Colourecls," and the
maximum pension bcnefits payable to "Coloured" persans are
ftxecl at lower rates than for "Europeans." "Natives," who form
the overwhelming majority of the population in the Territory and
whose wages are often lower than the minimum incarne fixcd for
the receipt of social pensions, are excluded from these public pension
schemes.
(D) THE POLICE ZONE
6
The I.L.O. Programme annexee! to the Proposed Declaration
is a stuc!y of conditions in the Republic of South Africa conccrning
(i)equality of opportunity in admission to employment and training,
(ii) freeclom from forcee! labour (including practices which may
im·olve an element of coercion to labour), and (iii) freedom of
association and the right to organize. Applicants inclucle the !.L.O.
Programrne among the documentation herein, inasmuch as it ex
presses the juclgment of the Organisation with respect to recognized
1Act No. JO of 1941 (loc. ciJ. supra, p. 416, footnote 3), secs. 40 and 86,
2 Act No. JO of 1941 (loc. ciJ. Eupra, p.. p6,footnote 3), secs. 40(2) and 86(2).
3 The wages paid to "Native" labourers are extraordinarilylaw. The average
cash earnings per month of "Native" workcrs in the Administration, the railways,
the mines, on roads, in municipalities, in industriesand in domestic service was
rcported by the Committee on South West Africa as estimated at {,5 IDS.8d. for
1956. (G.A.O.R. rsth Sess., S.W.A. Comm., Supp. No. I2 at 4l (A/4464)·) The
Special Committee for South West Africa rcported after its visit to the Territory
in 1962 that "the basic wage under [the contracts for Northern labour] ... is 18
cents a day, increasing slightly with length of service." (G.A.O.R. r7th Sess.,
Sp. S.\V.A. Comm., Supp. No. 12 at 14 (A/5212) (footnote omitted).)
,. Act }:o. 64 of 1962, II Statutes of the Republic of South A/rica I962, pp. 1020-1 SJ,
which took effcct in South West Africa by virtue of Proc. No. 202 of 1962 (S.A.),
in Official GazetJe Extraordinarof South West A/rica, No. 2425 (1 September 1962),
Cf. III, pp. 6z-6J, para. 59; Respondent assertsthat the new·Act is "in no way
relevant to mine workers within the Territory." (Id., p. 62.) This may be true
as long as no Territorialmines have been scheduled as "controlled mines" within
the meaning of secs. r (r2) and 54(4) of the Act, but it is applicabta South West
African "Natives" who may contract pncumoconiosis in "controlled mines" in
the Republic, and is therefore relt!Vant in the premises.
' Ord. No. 2 of 1962, The Laws of South WesJ Africa I962, pp. 4-21.
6 See footnote 4 on p. 406, supra. SOUTH WEST AFRICA
standards applicable to the three said areas, and is basee! upon
examination of a legal and administrative system which is anal
agous, in ali relevant aspects, to that existing in the Tcrritory. 1
The parallels bel ween the Territ ory and the Rcpublic were
expressly recognized in the second area (freedom from forcee!
labour) by the United Nations-LLO. Ad Hoc Committee on
Forcee! Labour in 1953; with respect to complaints concerning
the pass law situation in South West Africa, the Committcc "rcfer
[red] to its conclusions with regard to pass laws and their possible
effect on the Natives concernee! in the Union of South Africa,
which apply also in the case of the terri tory of South-West Africa." 2
Similarly, with respect to compulsory labour, the Commit tee found
that "the legislation in force in the terri tory concerning, for exam
ple, habituallyunemployed Natives, breaches of contracts of service,
and the master and servants laws is similar to that applicd in the
Union ilself." 3 Consequently, "the Committee's findings on !hese
allegations (concerning compulsory labour] are the same as those
which it reached in the case of the Union of South Africa regarding
the compulsory nature of labour contracts for 'non-whites'. " 4
Similarly, the Committee s!ated in its final conclusions on the Terri
tory th:J.t "the evidence beforc the Committec leads it to confirm
in the case of South-West Africa the conclusions it reached with
5
regard to the L'nion of South Africa itself."
The United Nations Committce on South West Africa has accura
tely and expressly acknowlcclgcd the standards approvcd by the
I.L.O. in its Reports for the years rgs;-rg6o:
"The Committee continues to recommcnd that the labour laws
of the Territory should conform to the standards approved by the
1nternational Labour Organisation for non-metropolitan Territories
1 Of the three operative sections of the I.L.O. Programme, the first appliesin
its entiretyto similar patterns in the Terri tory (with the exception that thcre is
no parallel for the explicit provisionscontained in sec. tS); the laws describedin
the second section differ from Territorilegislationand practice only with respect
to the modalities of labour bureaux and farm prisons (secs. 49-54 and 62); and the
situation described in the third section is analogous save for certain detailscon
cerning unions (secS ~:~.tor t), specifie language of sec. 103, and the offence of
"sabotage" discussed in secs. 115-20 {which is not applicableta the Terri tory).
2 Report of the Ad Hoc Committee on Forced Labour, Studies and Reports (New
Series) No. 36at81 (lJ.N .Doc. Ej2431) (1953). Fortconvenience of the Court, Appli
cants have set forth the relevantconclusions of the Ad Hoc Committee, applicable
to both South Afrit;a and the Territory, as Section (2) of Annex 6, p. 431, infra;
for the conclusions with respect to the pass laws, see paras. 340-51 of section (2)
thercof, pp. 431-43], ÜJfra, and for the language quoted above see para. 382, p. 437,
in3ra.
Id., para. 384, p. ~18. For such "legislation in force in the territory," see
1,pp. 124·127.
• Id., para. 385,p.219. For the conclusionswith respect to the compulsory nature
of labour contracts for "non-Whites," sec paras. 352-60 of Section (2) of Annex 6,
pp. 433-434, infra.
5 Id., p. 219. For such conclusionswilh respect ta South Africa, sec sec. (2) of
Annex G, paras. 370-75. pp. 435-436, ùLfra. REPLY OF ETHIOPIA AND LIBERIA
and with the principles of the Mandates System and, in particular,
recommends that penal sanctions for the breach of labour contracts
should be abolished." 1
Keeping these standards in minci, Applicants will now turn to
a discussion of the three areas of economie rights discussed in
the I.L.O. Programme, with respect to the Territory in general,
and the practices in the Police Zone, in particular.
(r) Racial Discrimination in Respect of Admission 4o Employment
and Access to Vocational Training
2
The Apprenticeship Orclinance of 1938 , as amendee!,' provides
that in designated industries a minor may be eillployed only if
4
he has executed a contract of apprenticeship with his employer.
It is further provided, however, that only "European" minors
(with certain qualifications) may execute contracts of apprcntice
ship. 5 The Ordinance, as supplemented from time to time by
various Government Notices, 6 presently controls the following
7
industries: boot making, building, clothing, carriage building,
electrical and mcchanical engineering, food (baking and butchery),
furniture, leather, mining, 8 motor industry, printing, painting and
decorating. These Government Notices also establish criteria for
courses, practical work, and examinations required for qualification
in the trades specified.
Bccause of the restrictions imposee! undcr the Apprenticeship
Ordinance of 1938, it has not been neccssary to promulgate legisla-
1G.A.O.R. I'Lth Sess., S.W.A. Comm., Supp. No. 12 at 21 (Aj3626). (Italics
omîtted in part.) Substantially the same language appears in the Committee's
Reports for 1958 (G.A.O.R. 13th Sess., S.W. A. Comm., Supp. No. 12 at23 (Aj3go6)),
for 1959 (G.A.O.R. qth Sess., S.\V.A. Comm., Supp. No. 12 at 24 (A/4191)).
and for 1960 (G.A.O.R. 15th Sess., S.\V.A. Comm., Supp. No 12 at 43 (A/4464)).
2
3Ord. No. 12 of 1938, The Laws of South West Africa I938, pp. 214~35.
Amended by Apprenticeshîp Amendment Ordinance No. 15 of 1948, The
Laws of South West Africa I948, pp. 224~26 Apprenticeship Amendment Ordinance
No. 250f 1957, The Lawsof South West Ajricai957, pp. 252-54; and by Apprcnticeship
Amendment Ordinance No. 20 of 1959, The Laws of South West Africa I959· pp.
520~2j.
4The Laws of South West Africa rg48, p. 224, sec. I,amending Ord. No. 12 of
1938, loc. cil., footnot2 of this page, supra.
5Ord. No. 12 of 1938 (loc. cit., footnote2 of this page, supra), sec. 8(1).
6
See, e.g., G.N. No. 28 of 195/' (S.\V.A.), in Official Gazette Extraordinof South
West Africa, No. 2056 (1 February 1957), p. 84; G.N. No. 42 of 1957 (S.\V.A.), in
Official Gazette Extraordinary of South West Africa, No. 2058 (15 February 1957),
p. 124.
7 As specified in G.N. No. 122 of 1957 (S.\V.A.), The Laws of South West A/rica
I957, p. 480, the building indust:ry încludes the following trades for the purposes
of the Ordinance: bricklaying, plastering, carpentry, joinery, painting, decorating,
plumbing, sheetmetal working, sign~writ aidnwood~machining.
8
As specified in G.N. No. 128 oi 1957 (S. W.A.), id. at48the mining industry now
consists of the following trades for the purposes of the Ordinance: blacksmithing,
boilermaking, masonry, carpentry and joinery, electrician,fitting and turning,
motor mechanic, plumbing and sbeet metal workîng, radiotrician,rigging, welding,
diesel fitter and upholsterîng.420 SOUTH WEST AFRICA
tian similar to the South African legislation which prevcnts "Na
tives" from being employed "on skilled work" in any urban area
1
other than a "Native" arca.
With respect to the converse of job exclusion, namely the
opening up of jobs, the Committee on South West Africa included
the following in its rgs6 Report to the General Assembly:
"The Allgemeine Zeitung of 8 November 1955 ... reported that
the Chief Native Commissioner, acting under the direction of the
Minister for >lative Affairs, had stated that the use of 'Natives'
for qualitative jobs, as was under consideration in Northern Rho
desia, would not be permitted in South \Vest Africa. The statement
had been occasîoned by information which had been circulated
that 'Natives' in the Terri tory would perforrn work which had until
thcn been rcserved for 'Europeans'." 2
In addition to the skilled trades which Respondent has closed
to persans other than "Europeans," the fields of mining, 3railways
4 5
and harbours, and public transportation arc subject to the
effects of economie and social apartheid.
In addition to the clear ·violation of the cluty to promote the
inhabitants' social progress which such practices involve, they arc
wastcful, in the extreme, of available human resources. Thus
Mr. S. G. Mcnell, Chairman of the Anglo-Transvaal Consoliclated
Investment Company, Limited, statecl on 6 Deccmber rg63:
"I have heard the argument that the African is not yet ready to rise
above foreman level. However, there is little value in assessing people
in groups. In business, the employer seeks talented individuals
whose talents he tries to utilise ta their own and the company's
best advant~ It:i' 3o"this reason th.at the laws restricting certain
6
jobs to certam groups of the population seem illogical."
1 Native Building Workers Act, No. 27 of 1951, Statulcs of the Unio11 of South
Ajricai951,pp. 106-53. sec. 15{1) (a) (as amended by Act No. 6o of 1955);see
I.L.O. Programme, p. 18,para. 23.
z G.A.O.R. IIth :3ess., S.\V.A. Comm., Supp. No. 1~ at 23 (A/3151).
3 See 1, p. 121, and Ill, 55 (Respondent has omittcd two "European" positions
from its list, ibid.that of opera tor of a winding engine used for the conveyancc
of persans, and that of "onsetter,"i.e. a person authorizedto givc signais for the
raising and loweriniS of persans)(G.N. No. 33 of 1956 (S.W.A.) in The Laws of
South West A/rica I956, p. 541, secs. 66(2) and 71(1)).
"' See 1, p. 122.
.5l\1otor CarrierTransportation Act, No. 39 of 1930, Statutes of the Union of
South Africa I930, pp. 46o-83, as amended by: MotorCarricrTransportation Amend
ment Act, No. 39 of 1932, Statutes of the Union of South A/rica I9J2, pp. 236-59;
Motor Carrier Transportation Amendment Act, No. 50 of 1949, Statutes of the
Union of South A/rica I949. pp. 552-61; Motor Carrier Transportation Amend
ment Act, No. 44 of 1955, Statutes of the Unio11 of South Africa I955, pp. 422-67;
and l\Iotor Carrier TransportationAmendment Act, No. 42 of 1959, IStalutes oj
the Union of South Africa I959, pp. 424-31, The Laws of South West A/rica I959,
pp. 20-26. The principal Act, as amended, establishesseparate transport services
or, in certaincases, facilities for "Nativesand discriminates by race in the use
of public transportation.
6 The Financial Mail, Vol. X, No. 15, 13 Decembcr 1963, p. 887, coL 2.(Italics
added.) REPLY OF ETHIOPIA AND LIBERIA 42I
\Vith respect to Respondent's discriminatory practices in voca
tional training, the Court's attention is respectfully directed to
the section of this Reply on Education, 1 and to the I.L.O. Proposed
Declaration. 2
(2) Measures Having the Efject of Compulsion to Labour Which
Involve Racial Discrimination '
The exposition in Applicants' Memorials of Respondent's coercive
legislation concerning the relationship between "masters" and
"servants" 3 is correct in ali respects. Although it is true that the
Master and Servants Proclamation of rgzo, as originally enacted '.
did not define "Servant" in terrns of race, 5 it is also true that the
6
I923 amendment referred to by Respondent added to such defini
tion the category of "Natives" employed by the Administration,
the Railways and Harbours Administration, any local authority,
or employed under contract in railway or harbour construction.
Apart from this instance of explicit discrimination, it is significant
that those sectors of the economy in which the larges! number of
"Europeans" are employed in manual work are precisely those
7
which are not included in the original definition of "Servant,"
but which are included in the amendment of 1923 (which is speci
fically confined to "Natives" employed in those sectors). 8
In addition, Respondent's explanation of the background to the
legislation conclusively shows that it was in fact aimed at the
members of the "Native" group. 9 Thus the Ad Hoc Committee on
Forced Labour had no difficulty in weighing the effect and the
10
character of such legislation, and the I.L.O. Programme found
with respect to similar leg·islation in the Republic that in areas
other than those wherc specifie provisions are directed at "Natives,"
"provisions for penal sanctions for breaches of contracts of employ
ment, although not limited to 'native' workers, are in practice
applied overwhelmingly to such workers." 11
1Sec, in particular, pp. 383-386, supra.
2 Paras. 3, Io-15, 35, 145. 146, 148, and 149.
3 1, pp. 124-126.
4 Proc. No. 34 of 1920 (S.W.A.), The Laws of South West A/rica I9I5-I922,
pp. 336-66.
3 III, p. 81, para. 6.
6 Proc. No. 19 of 1923 (S.\V.A.), sec. 2 {b), in The Laws of South West A/rica r923,
p. 40, cited in III, p. 81.
' "(E]very persan employed for hire, wages or other remuneration ta perform any
handicraft or other bodily labour in agriculture, manufactures, industries or in
domestic service ors a boatman, porter or ether occupation of a like nature . ... "
(Proc. No. 34 of 1920 (S.\V.A.), sec2, as set out in IIIp.81.)
8 See [1961] South African Institute of Race Relations, A Survey of Race Re-
lations in SouthAfrica 219 (1962).
9 III, pp. 82-83.
10See Annex 6, Section (2), paras. 352-60, 372-75, pp. 433-434 and 436, infra.
11Para. 42; see also paras. 66,i'4•145, 146, 148 and 149. With respect to Respon
dent's contention that the l\laster and Servants Proclamation inures equally to the422 SOUTH WEST AFRICA
The Permanent Mandates Commission was bigbly critical of
the Master and Servants Proclamation. Tbus:
"illr. Grimshaw called attention to the labour legislation of rgz7
[for South West Africa]. ft was, in his view, a somewhat unhappy
fact that that during that year there should have occurred in a territory
under mandate a change in labour legislation direct/y opposed to the
tendency shawn in a/most every other country of the world which had
simt'larproJJlemsto face. An advance had been made towards increas
ed liberalism in Australia and the Argentine-tc name two countries
which had been mentioned in the discussion-in regard to the treat
ment of the nath:es. The Masters and Servants Proclamation of
1920 in South-West Africa, however, had been amended and made
much more severe by Proclamation No. ro of 1927. The monetary
penalties for offences under the Ordinance committed by natives bad
been generally doubled. The maximum fines bad been increased
from f3 to f7; !hat was to say, seven montbs' wages. The periods
of imprisonment had been extended and a new punishment, that
of whipping, had been introduced. Could Mr. Wertb inform the
Commission whether these severe measures had been productive of
thal better feelin1 between the white man and the natives wbich al!
desired to see?"
Penal sanctions for brcach of labour contracts illustrate the
dominance and privilege afforded "European" interests. As was
found by the United Nations-I.L.O. Ad Hoc Committee in 1953:
"There can, howcver, be no doubt, in the Committee's vicw,
that the fact that it is impossible for the worker to terminate his
contract unilaterally bcfore the expiration of its term, without
running the risk of hea vy penalties, constitutes a serions restriction
of his personalliberty."'
Respondent's laws witb respect to "Native" labour in the Police
Zone are inherently repugnant to the social progress or material
wcll-being of the "Natives." The Master and Servants Proclamation
forms an integral part of such restrictions, together with the "pass
laws" in effect in the Territory.' and deniai, to "Native" labour,
benefit of the master and the servant, it is ooteworthat an employee thereunder
is guilty of an offen:e if he commits certain breaches of contrac.t "withoutlawjul
cause" (secs. 46(1),. 46(2),and 48ts))"whereas the employer must not commit
certain acts "without reasonable and probable cause for believing" th at his action
is justiflcd(secs.65, 67, and 73) (italics added). Thus, in certain instances, an
employer may have recoursc to the criminal courts for enforcement of a labour
contract, even in cases of misunderstandingor dispute asto the terms thercof; on
the other band, the employer may be convicted only if he acts "unreasonably.''
1 P.:\I.C. ::\lin., Sess., p. 104. (Italics added.)
2 See Annex 6,Section (2)para. 36o, pp. 433-434, infra.
3 For a discussion of Respondent's policies with respect ta freedom of
movement, sce pp. 464-473, infra; see also l.L.O.Programme, p<:tras38, 40, 41, 43,
65, 71, 74, 145, 146, qS, and 149; and Annex CJSection (2), paras. 340-5I, at.
PP· 431-433, infra. REPLY OF ETHIOPIA AND LIBERIA
of the right to organize. The comment of a Member of the South
African Parliament, with :respect to pass laws, is equally applicable
to penal sanctions for breachcs of contract: "It is a cardinal prin
ciple except in a slave country, that the labourer may go where
1
the pay is highest." 2
Finally, the Vagrancy Proclamation of rgzo permits a first
offender to be committed for work on a private farm. 3 Such
practice likewise was condemned by the Permanent Mandates
Commission in an carly report to the Council of the League. The
Commission found that "this power of imposing forced labour for
the benefit of privatc individuals in lieu of the sentence of the
Court is a practice which cannat be approved." 4 Such practice has
been criticized and condemned by both the Ad Hoc Committec
on Forccd Labour 5 and the I.L.O. Programme. •
(3) Racial Discrimination in Respect of Freedom of Association and
the Right to Organize
The Committee on Freedom of Association of the Governing
Body of the International Labour Organisation has concluded,
with the approval of the Governing Body, that provisions of law
involving
". . . discrimination aga.inst African workers [with respect to the
right to organizc] [is] ... inconsistent with the principlcs that
workers without distinction whatsoever should have the right to
establish and, subject only to the rules ofthe organisation concerned,
to join organisations of their own choosing without previous
authorisation and that all workcrs7 organisations should enjoy the
right of collective bargaining.''
1 U. of S.A .. Pari. Deb., House of Assembly, gth Pari., 5th Sess. (weekly
ed., 1948), Col. 1670.
Similarly, a perusal of Rcspondent's description of the operation of the labour
recruiting system (III, pp. 72-73) rcveals that the contractoffered is a standard
contract, that the prohibition en recruiting by individual employers eliminates
all possibilityof competition between employers in the labour market, that the
restrictionson entry into the Police Zone make it virtually impossible for a
labourer from outside the Zone to obtain employment through his own effort,
or otherwise than through SWANLA, and that the choice is therefore between
accepting the standard contract or remaining unemployed.
~ Proc. No. 25 of 1920 (S.\V.A.), TM Laws of South West Ajrica I9I5-I92Z,
pp. 280-86, as amended by Proc. No. 32 of 1927 (S.\V.A.), The Laws of South West
A/rica r927, pp. 244-46, and by the Trespass Ordinance, No. 3 of 1962 (S.W.A.),
The Laws of South West A/rica r962, pp. 21-23.
3 Other than on a farm belonging to a magistrate or to a persan at whose
instance the prosecution was brought. (Proc. No. 25 nf 1920 (S.\V.A.) (loc. cit.,
footnote 2 of this page, supra), sec. 14.)
,. P.M.C. Min., Jrd Sess., p. 293. (Italics added.)
.5See Annex 6, Section (2), paras. 361-69, pp. 434-435, infra.
6 Paras. 43, 6o-62, 67, 71, 74, 145, 146, 148 and 149.
7 15th Report of the Committee of Freedom of Association, Case No. 102, para.
185(2), as quoted in the I.L.O. Pvogramme, para. 124. SOUTH WEST AFRICA
The l.L.O. Programme supports this view. 1
Respondent jm.tifies its failure to recognize "Native" trade unions
(of which therc are none in the Terri tory) for the purposes of col2ec
tive bargaining and the conciliation of industriaJ disputes by
assertions that "the Native employees of the Territory have not
as yet displayed any real interest in trade unionism," 3 that "the
interests of Native workers, if left to the protection of trade unions,
could be neglected and . . . such workers could be exploited by
unscrupulous individuals," • and that "the Native employees of
the Territory have gencrally not yet reachecl a stage where they
can partake in5collective bargaining on an equal footing with their
employers." The terms and conditions of work of "Natives"
are ]cft to the discretion of officiais of a government in which such
wor kers have no representation, and to conciliation by Conciliation
Boards composed of persans drawn entirely from "groups" which
Respondent's baoic policy distinguishes and separa tes from "groups"
of which "Native" workers are members. Furthermore, the reasons
advanced by Respondent for its restrictive policy should cali for
encouragement, training, and fostering of participation by "Na
tives" as representatives of "Native" workers, rather than the
converse.
The conditions of the employment of "Natives" are thus
left entirely to the judgment and management of members of
the "European" group, as are the terms of their contracts, the
places of their residence, and the limitations upon their jobs.
Administrative action by government officiais can be no substitute
for collective bargaining; this becomes truc a fortiori when the
government is representative of the employers, but not of the
majority of employees. Applicants submit that such a policy is
repugnant to the positive obligations containcd in Article 2 of the
Mandate.
(E) CONCLUSION
Applicants have demonstratecl that Respondent's policy of
economie apartheid is inconsistent with the Mandate in that it
degrades and frustrates what Respondent is obliged to promote.
Such a policy is inherently inconsistent by creating an endless
series of circularities, which, interwoven with the educational,
political,and civil policies of apartheid, aggravate the conditions
asserted as justifying the policies themselves. As the Chairrnan of
the Anglo-Transvaal Consolidated Investment Company, Limited,
stated (with reo.pect to South Africa) in December 1963:
1
Paras, 143, 145, q6148, and 149·
3 Ill, p. 92.129·130.
4Ibid.
' Id., p. 93· HEPLY OF ETHIOPIA AND LIBERIA
"We have no shortage of unskilled labour and the overseas
methods of collective bargaining have limited application in this
country. These circumstances work against changes in present
employment policies. This, in its turn, tends to restrict the wage
earning and spending power of the community, and thus its economie
growth. Consequently, n·c are presented with a vicious circle from
which, as always, there is only one way of escape-through acts
of free will on the part of enlightened, intelligent, well-informed
and detennined individuals acting in concert." 1
Economie apartheid is, moreover, wasteful and impractical by
its very nature. Thus, a noted authority has commented:
"The moment will certainly come when a competent study of the
policy of developing separate native economie and industrial
systems willreveal the shocking balance sheet ofimpossibleexpense,
inefficiency and social waste which must be the result of trying to
herd men into separate areas of life and labour." 2
Apartheid is based upon a fundamcntally unacccptable series of
major premises, which are wholly incompatible with the spirit
and the letter of Article 22 of the Covenant and Article 2 of the
Mandate. It reftects and assures domination of the many by the
few, of the underprivileged by the privileged, of the ward by the
guardian.
2 The Financial}Iail, Vol. X, No. 15, 13 December 1963, p. 887, cols. 2-3.
de Kiewiet, The Anatomy of South African Jlfisery 48-49 (1956). ANNEX 6
SECTIO" (r)
INTEGRATION OF INHABITANTS INTO THE ECONOMIES
OF DEPENDENT TERRITORIES, AS VIEWED BY THE UNITED
NATIONS
I. The organs of the United Nations have adhered to the standard
that indigenous inhabitants of dependent territories be allowed and
encouraged to participate in the economie life of such territories. In a
formulation of economie policy for all Non-Self-Governing Territories,
the Committee on Information laid down the following requirement in
two Reports to the General Assembly, each of which was approved by
General Assembly resolutions:
"[The] fundamental aim of economie policy in the Non-Self
Governing Territories must be to develop these Territories in the
intercst of ali sectors of the population, to raise the standard of living
by increasing individual real purchasing power, and to increase
the total wcalth of each Terri tory in order to make possible a higher
standard of social services and administration. Therc emerge from
this fundamentai aim the following concrete objectives ....
"(e) To secure the equitable distribution amongst the peoples of
the material benefits of the economy as expressed in the national
incarne ...
"(g) To conserve and develop the natural resourccs of the Terri
tories for the benefit of the peoples...." 1
The Trustccship Council has made many recommendations along
similar lines. lt recommended, for example, that the French Adminis
tering Authority of Togoland "take ali appropriate measures to en
courage and facilitate participation by the indigenous inhabitants in
the indus trial and mining activities of the Territ ory .... " 2 Increased
native participation "in the development of the abundant resources" of
3
New Guinea was urged by the Council in I949· In the same year it rec
ommended that the French Authority in Togoland "do everything in its
power, by making grants and loans or other forms of assistance available,
ta encourage and enablc indigenous inhabitants ta take a full part in
indus trial development. ''•
In calling for more participation by the indigenous inhabitants in the
economy of the Cameroons under British Administration, the Council
called for "the expansion of the system of credit facilities, the develop-
1 C.A.O.R. gth Sess., Comm. on Info., Supp. No. 18 at 16 (A/2729)reiterated
verbatim in G.A.O.R. 12th Sess., Comm. on Info., Supp.No. 15 at 13 (A/3647).
Approved by C.A. Res. 846 (IX), 22 November 1954. G.A.O.R. gth Sess., Supp.
No. 21 at 26 (A/28go); and by C.A. Res. II52 {XII), 26 Novembe1957. G.A.O.R.
12th Sess., Supp. No. r8 at 26 (A/38o5).
2 G.A.O.R. 12th Sess., T.C. Rep., Supp. No. 4 at 151 {A/3595)·
3 G.A.O.R. 4th Sess., T.C. Rep., Supp. No. 4 at 65 (A/933\ .
.. id., p. 46. REPLY OF ETHIOPIA A~D LIBERIA
ment of the co-operative movement, and the encouragement of the
technical training of the indigenous inhabitants.'' 1
l\!any long-range economie plans werc formulated with respect to Trust
Territories in the early 1950's, and with respect to each of them the
Council recommended goals similar to the one expressed with reference
to Ruanda-Urundi, that the plan "place special emphasis on increasing
the participation of the indigenous inhabitants, on a more responsible
leve!, in the economie !ife of the Territory." 2Although in individual cases
the recommendations were tailored to suit the particular economies
involved, the general rccommendation remained the same. Thus, with
respect to Tanganyika:
"The Council considers that, in the economie development of the
Territory, rneasures should be taken to increase the participation
of the inhabitants in the development of the Terri tory, particularly
as regards the exploitation of minerais and ether natural resources
and the production of basic raw materials and consumer goods.'' 3
ln addition, recommendations addressed to the problem of raising
the standard of living of inhabitants and increasing minimum wage
scales have been correlated to the importance of maximizing participation
of ali inhabitants directly in the modern economy of the Trust Terri
tories. For example, the Council explicitly recognized that the raising
of the standard of living in Tanganyika "should be a natural result,
and is also one of the prima.ry objectives, of the policy of the Adminis
tering Authority to increase African productivity and participation in
the economie Iife of the territory .... "4
2. The legally enforced separation of the peoples of South West Africa
into a predominately African "labour" area in the North and a predomi
natcly "European" industrial and urban area in the Police Zone exacer
bates the gulf betwecn "Native" well-being and the benefi.tsof the modern
economy, as weil as contrihuting to inefficient allocation of economie
resourccs to the detriment of the people as a whole. In the words of
the Economie Commission for Africa in a 1963 report to the Economie
and Social Council:
"... The setting aside of hm! for members of different racial
groups has almost invariably led to overcrowding and exhaustion
of much of the land set aside for Africans and under-utilization of
vther areas .... In brief, the division of the economy into arbitrary
African and non-African sectors rather than treating the economy
as one whole, has had and cannat but have deleterîous consequences.
Until land allocation is non-racial and all the other aspects of
agriculture are seen as non-racial problems the process of economie
development must remajn heavily and artificially burdened." 5
The Commission found !hat separation of heavy industry from the African
reserves has "tumed these areas generally into economically inactive
1
2 G.A.û.R. 13th Sess., T.C. Rep., Supp. No. 4 at 75 {A{3822, Vol. Il).
3 G.A.O.R. 6th Sess., T.C. Rep., Supp. No. 4 at 68-69 (A{1856).
G.A.O.R. sth Sess., T.C. Rep., Supp. No. 4 a12(A/r3o6).
• G.A.O.R. gth Sess., T.C. Rep., Supp. No. 4 at 62 {A{268o).
' U.N". Doc. EJCN.I4/I32/Rev. I,Economie a~l docial Consequences of Racial
Discrimina/oryPractices (V.N. PnblicationSales No. 6J.II.KI), at 38. SOUTH WEST AFRICA
centres-denuded of the prime of their manhood, and incapable of
attracting priva tc European capital." 1
Furthermore, therc is economie wastage in duplicating houscs, since
temporary accommodations must be provided for migrant workers 2
who might otherwise be living with their families in their own homes.
But the primary evil of territorial apartheid, such as that proposed by
the Odendaal Commission, and endorsed in principle by Respondent, is
maintenance of a. bare subsistence economy among the "Natives"
outside the Police Zone, and prevalence in the reserves of frustration.
In the words of the Committee on Information (approved by resolution
of the General Asoembly)
"... Material benefits to the advan tage of only a limited group
of peoples always breed discontent. If the advantage is to be found
only outside the community concerned, such discontent will be
bitter and justified. In the Non-Self-Govcrning Territories, it is
the proud responsibility of the Administering Members to seek
a broader natural basis for prosperity, creative initiative and
contentment.··· 3
3· Administering Authorities have progressively responded to such
directives by increasing the participation of indigenous inhabitants in
the economies of the whole of the respective territories. There is no
Mandated Territory or former Mandated Territory, other than South
\Vest Africa, in which Iand is divided along "racial" lines Such stark
dissociation of groups from centres of modern economie develop
ment would be illegal in any dependent territory. Apart from the negative
observation that geographical segregation is not allowed, the dependent
territory administrations have contributed positivcly to the economie
development of the indigenous inhabitants in response to legal require
ments as laid down by the appropriate organs of the United Nations.
In Tanganyika, for example, the Administering Authority instituted
"special credit facilities" for peasant farmers in the fonn of a "Local
Development Loans Fund, which makes loans at low-interest rates for
a.gricultural purposes." 4 In Ruanda-Urundi, steps were taken to increase
the number of indigenous trading centres and to organize indigenous
co-operatives. Th·::Council noted "with satisfaction" the development
of co-operatives and of "the increasing participation of Africans in retail
trade." 5
In its 1953 report, the Administering Authority of Ruanda-Urundi
stated,
"... as evidence of increased participation of indigenous inhabi
tants in the money economy ... their deposits with the Savings
Bank of the Belgian Congo and Ruanda-Urundi increased during
1952 from 2.Î'million francs in 2,377 accounts to 12.1 million francs
in 15,272 accounts." 6
1 Id.,p. 61.
2 Id., pp. 46, 47·
3 G.A.O.R. 6th Sess., Comm. on Info., Supp. No. 14 at 39·40 (A/1836). Approved
by G.A. Res. 564 {YI). 18 January 1952, G.A.O.R. 6th Sess., Supp. No. 20 at 59
(A/2II9).
4 G.A.O.R. gth S{:ss., T.C. Rep., Supp. No.4 at 53 (Afz68o).
5 G.A.O.R. rzth Sess., T.C. Rep., Supp. No. 4 at 63 (A/3595).
6 G.A.O.R. gth Sess., T.C. Rep., Supp. No. 4 at 84 (A{z68o). REPLY OF ETHIOPIA A~D LIBERIA
ln the Cameroons, under British Administration, one of the most
important measures to secure the participation of the indigenous popu
lation in the Territory's economy was the establishment, in the first
year of Trusteeship, of the Cameroons Development Corporation. This
Corporation has managed former German plantation lands and has also 1
operated hospitals, schools, and communication facilities. Its policy
includes extensive training of Africans in technical capacities, with a vicw
towards promotion to senior positions in the Corporation. 2 ln 1954 the
Corporation's board consisted of nine members, four of whom wcrcAfri
cans. 3 In response to the recommendations of the Trusteeship Council,
the Administering Authority's policy had consistent! y been one of eventu
ally entrusting the operation of the Corporation "to selected representa
tives of the indigenous population." 4 This policy was entircly consistent
with commercial profit and efficiency, as shawn in the Corporation's re
cords through 1952. 5
\Vith respect to the Camcroons under French Administration, the
Council commended the Administering Authority "for the establishment
of producing, processing, marketing and consumer co-operatives among
the indigenous inhabitants as a means of bringing about their more
effective participation in the economy of the Terri tory." 6 ln the following
year the Council commendcd the Administering Authority "for the
vigorous economie activity in the Territ ory," and rccommcnded a
continuance of the policy of "necessary assistance and encouragement"
to the indigenous inhabitants. 7
The Administering Authority reccivecl another commendation for its
policy of associating the indtgenous inhabitants with the Tcrritory's
industrial devclopment "by reserving for them 50 per cent of the shares
in the palm ail processing plants" when a buge palm ail plant complex
began operations in 1950. 8ln 1957 the Council further commended the
Administering Authority "for dc,·cloping the saving habits of the popula
tion, providing credit facilities, and increasing financial aid ta agricul
ture.''9
In 1957 the Council was able to say of New Guinea, a terri tory badly
~avage bd the war and extremely backward in its indigenous economy
m 1946:
" ... The Council notes the economie progress bcing made by the
Tcrritory and the incrcasing part which the indigenous people are
playing in it. It hopes thal the Administering Authority will
continue to assist indigcnous enterprise and that it will devote
particular attention to encouraging indigenous commercial and
trading activities." 1o
The case of Nauru offers a clear example of compliancc with United
Nations recommendations ta increase the participation of the indigenous
1 Id., p. 134·
2 Id.,p. 135·
3 Ibid.
+ Ibid.
5 Ibid.
6 G.A.O.R. 5th Sess., T.C. Rep., Supp. No. 4 at 52 (A/1Jo6).
7 G.A.O.R. 6th Sess., T.C. Rep., Supp. No. 4 at 136 (A{1856).
8
9 Id.,p. 140.
10 G.A.O.R. 12th Scss., T.C. Rep., Supp. No. 4 at 134 (A/3595)·
Id., p. 186.430 SOUTH WEST AFRICA
inhabitants in economie development and the wealth resulting therefrom.
In Nauru "the proceeds of the sales of phosphate ... provide the only
means of economie progress of the indigenous population." 1 Yet even
hy 1949 there was full employment of the indigenous inhabitants as a
result of phosphate mining, as \vell as a rise in indigenous expenditures
2
for clothing and luxuries. The royalties paid by the British Phosphate
Commissioncrs on tht phosphate proved adequate even for setting up
"special trust funds ... which will mature with later generations of
Nauruans." 3The Trusteeship Council noted that "since the Trustceship
Agreement wa.":concluded, the percentagc benefit to the Nauruans
against the value of phosphate at the point of export had increased
from just 4 percent to 24 per ccnt."i In addition, the total payments
to the Nauruans increased in the samc time span by a factor in excess
of thirty-four.
In its summation of a massive report on Economie Conditions in the
Non-Self-Governing Territories prepared by varions agcncies of the
United Nations in rg6o, 5 the Committee on Information statcd that
"... in most cases the dividing lines between compartments of
economie activity are no longer fixcd either hy policy or by preju
diccd conceptions of the capacity of indigcnous persons to take
part in more •:omplcx branches of the economy; the lines arc in fact
being crossed at an increasing rate, limitcd only by the timc needed
to acquire skills and capital. I\.fostGovernmcnts and many private
enterpriscs arc actively encouraging the steps by which indigenous
people can play a fuller part in all branches of the economy: snch
steps as promotion in employment from unskillecl to skilled labour
and from. there to supervisory and managerial positions; the
provision of credit, training and encouragement for the establish
ment of indcpendent entcrpriscs; and the reform of land tenure and
the organization of loan finance for the modernization and ex
pansion of agriculture and cattle raising. A favourablc climatc for
thesc dcvelopments is being cstablished in Territories \vhere the
people are acqniring a full share in the formulation of economie
and edueational policics and in the planning 6nd implementation of
programmes of economie dcvcloprnent."
1 G.A.O.R. 4th Ses'i., T.C. Rep., Supp. No. 4 at 73 (A/933)·
2 Id.,p. 74·
3 Ibid.
4 Ibid.
5 See Progrcss of the N.S.G.T.'sUnder the Charter (ST(l'H.lfSEIL\ft5fVol. 2).
6 Progress of the N.S.G.T.'Uuder the Charter, p. 3 (STfTRljSER.A/I5/Vol. 3). ANNEX 6
SECTION (2)
EXTRACT FRmiiŒPORT OF THE U.N.-I.L.O. AD HOC
COMMITTEE ON FORCED LABOUR
(U.N. Document Ef24JI: I953)
UNION oF SouTH AFRICA AND SouTH- \V EsT AFRICA 1
Union of South Africa
The Question of Pass Laws.
340. The varions pass laws in force in the Union of South Africa are
alleged to be a means of supplying European employers with African
labour, under the menace of a penalty. Non-whites, it is saicl, are
compelled to remain whcre they work through the application of snch
laws.
341. These charges seern serions enough to the Commit tee to warrant
an investigation of the relevant legislation and of how it affects the
people to whom it is applicd. lt can indecd be argued tha.t if, by such
deviees as passes, frecdom of movement is sufficiently rcstricted to
campel great numbcrs of persans to remain whcrc they arc, they will
be forcecl to accept \Vork at the conditions offered at thcir place of
residence. Furthermorc, the existence of such laws may also cnable
the Government to direct workcrs towards areas where labour is required.
Legislation of this kind may, thcrefore, be used as a direct or indirect
means of carrying out the economie plans or policies of the Govcrnment
or of private interests important for the economy of the country.
342. A prima facie case as to the relevancy of the allegation seems
therefore to be establishcd.
343- Legislation on pass laws bas been summarised in the document
transmitted by the Chairman to the Government of the Union of South
Africa. It is evident from this summary that the legislation concerJ?.ed
severely restricts the movcments of Natives, that urban authorities may
direct Natives to live in certain areas and may remove them from such
areas, that Natives may not come to or be introduced into such areas
without the writtcn permission of the competent authorities, that
contracts of service may have to be registered under regulations issued
by the Governor-General, thal pass areas may be defined by Procla
mation in the Gazette and that regulations for the control and prohibition
of the movement of Natives into, within, or from such areas may be
prescribed. Natives arriving in pass areas must report at the police
station or Native Commissioner's office and authorised officers may
refuse to issue or endorse passes for any Native to enter or lcave or
travel within a pass arca, for any reason appearing to such an officer
1 [Footnotespartiallyumittcd;the balanec rcnumbered.]432 SOUTH WEST AFRICA
to be sufficient (for instance, if the Native concerned is under ah unex
pired contract of employment).
344· Violations of this legislation by Natives are punished by fines,
or imprisonment \vith hard labour in case of non-payment of the fines.
345· The report of the Native Laws Commission (1946 to rg48)
considers such legislation nccessary because the settlement of Native
communities in proximity to European orres and contacts bctwcen
the Europcans and the Natives will, according to the Commission, be
regarded by a large portion of the white population as a danger to the
economie life of the country. The legislation is also consideted essential
for the maintenance of the principle of residential segregation.
346. In its comments and observations the Go\·crnment states tha.t
pass laws have now been repealed by the Natives (Abolition of Passes
and Co-ordination of Documents) Act, rgsz.
347· This Act, which consolidates the pass legislation, enables the
authorities to issue reference books to Natives having attained the age
of 16 years, in lieu of the various passes. The Native has to carry this
reference book with him and to exhibit it upon request to a competent
offieer. It contain3 the holcler's identity card as weil as other csscntial
particulars, sueh as his cmployment eontract, tax receipts and so on.
348. The South African Government states thal the pass system was
originally intended as a protection for Natives eompelled by economie
circumstanees to seck cmployment in the towns and eities of the Union.
Passport systems wcre also evolved, according to the Government, not
to control the movement of Natives but purely for identification purposcs.
The mass migration of the Bantu population into the industnal area.s,
newly developed since the First \Vorld \Var, has resulted in unemploy
ment, a decline in health and an increase in crime, and has eompelled
the Government to convert the passport into a means of controlling and
often preventing the movement of Natives towards the towns. The
registration of eontraets of employment, eurfews and the expulsion of
idle and undesirable persans have served the same purpose.
349· In view oithe evidence briefly examined above, the Committee
has found thal the pass legislation in the Union of South Africa con
stitutes a serions handicap to the freedom of movement of the Native
population and that it has, or may have, important economie conse
quences.
350. The Committee is of the opinion that this legislative deviee may
be used for the control and regulation of the flow of Native labour
from one part of the territory to the other. There can be no doubt !hat
such control may serve the purpose of directing a supply of ample, and
consequently eheap, labour towards regions where it is required for
economie reasons.
35L The former pass laws and the Natives (Abolition of Passes and
Co-ordination of Documents) Act, rg52, which replaces them, may
therefore be eonsidered as an indirect means of implementing economie
plans and policies, whether emanating from the Government or from
private interests powerful enough to command Government support. REPLY OF ETHIOPIA AND LIBERIA 433
The State, through the operation of this legislation, is in a position to
exert pressure upon the Native population which might create conditions
of indirect compulsion similar in its effects to a system of forced labour
for economie purposes.
The Compulsory Natzere of Labour Contracts for Non-Whites.
352. It bas been alleged thal, under the Native Labour Regulation
Act, I9II, a breach of a labour contract by an African, or his refusa!
to ohey a lawful arder, is a criminal offence. The Committee was of the
opinion thal such legislation might be conducive to forced labour
exacted for economie purposes. It therefore examined the relevant South
African legislation-the Native Labour Regulation Act, rgr r, as amended
by Act No. 56 of 1949.
353· This legislation is applied to those Natives (approximateiy
soo,ooo) who are recruited for employment or are employed or working
on any mine or works, i.e., a place wherc machinery is used. The legisla
tion con tains provisions designed to protect the Native against un
scrupulous dealings by labour agents. The Act also punishes by fines or,
in default of payment, by irnprisonment with or without hard labour for
a period not exceeding two months, any Native workcr who deserts or
absents himself from his place of employment or fails to carry out the
terms of his contract.
354· The Natives (Urbau Areas) Consolidation Act, 1945, and the
relevant regulations also contain detailed provisions punishing breaches
of contract by Native workers and failure to do work which it is their
dut y to do by virtue of such contracts.
355. \Vhen passing sentence the presiding judicial officer dealing with
such matters may, if the employer so desires, direct the Native concerncd,
after the sentence imposed upon him has expired, to return to work with
his employer and complete his contract.
356. The Government in its observations explains ·these provisions
by the fact thal Natives h:lVe no conception of the binding nature of
civil contracts. Abolition ofthe penal sanctions provided by law for any
breach of contract would, in the opinion of the Government, leave the
employer without means of obtaining redress, if, for instance, the
labourer deserted from his place of employment.
357. The evidence briefiy examined above appears to substantiate the
allegation that the legislation in force in the Union of South Africa makes
it "a criminal offencc to refuse to obey an arder or to break a contract".
358. It remains to be seen whether this legislation constitutes forced
labour within the meaning of the Committee's terms of reference.
359· The Committee notes, in the first place, thal at !east the recruit
ment of Natives for work in mines or works is not compulsory. The
Native enters voluntarily into the agreement. Penal sanctions are
applied only in the event of a breach of contract or sorne other violation
of the law.
360. There can, however, be no doubt, in the Committee's view, that SOUTH WEST AFRICA
434
the fact that it is impossible for the worker to terminate his contract
unilaterally before the expiration of its term, without running the risk
of heavy penaltic:;, constitutes a serious restriction of his persona!
liberty. 1Since the total number of Africans working under such contracts
ofemployment is very large, legislation of this kind, if abused or vigorous
ly implemented, might lcad to a system of forced labour for economie
purposes.
The Use of Penal Laws to obtain a Supply of Africans for Work in Industry
and Agriculture.
36r. The allegations reproduced under this heading referred to the
right of a magistra.te to declare that a Native leads an idle, dissolute or
disorderly life and to sentence him to be detained until he is assigned
to suitable employment. The allegations also mentioned that convict
labour is hired out to farmers and industrial enterprises at a nominal
amount per day.
362. \Vith regard to the first of these allegations, Section 29 of the
Native (Urban Areas) Consolidation Act, 1945, as amended by Section 36
of the Native Law3 Amcndment Act, 1952, rcproduccd in the comments
and observations of the Government of the Union of South Africa
lays clown that Natives may be ordered to be dctaine'd in a work colony
established undcr the Work Colonies Act, 1949, thal if a Native is
declaree\ to be an idle person he may be sent for a pcriod not exceeding
two years to a fann colony, work colon y or similar institution and that,
if the Native agree:;, he may be ordered to enter a contract of cmployment
with an employer and may be detained pending his removal to the place
where he will be employed.
363. This Act aims, according to the Governmcnt's observations, at
removing vagrant Natives to sorne place whcre they may be rchabilitated
and at giving them a chance to prove !hat they arc prcpared to lead an
industrious lifc.
364. The report of the Penal and Prison Rcform Commission,
cxamined by the Committec in connection with thcsc allegations, shows
that prison labour is hired out ta railways, harbours, local authorities,
certain gold mines, farmers and other private persans.
365. The report states !hat it has been the practice since 1934 to hire
out to farrners at 6d. per day non-European male first offenders under
going sentences of less than three months. Also, according ta the report,
it is a widespread practice in the Union to hire out ta private persans
at 2s. per unit per day non-European prisoners serving sentences of hard
labour. In its comments and observations, the Government of the
Union declares that pass offenders are not sent to farm prison outstations.
Under a scheme inaugurated 20 years ago, a petty offender admitted to
gaol could intimatc his preparedness to work in a rural area at a fixed
wage, but it is only at his express wish that he is engaged as a labourer
1 The Governmcnt of the Union of South Africa has not ratifieinternational
labour Convention No. 65 concerning penal sanctionsfor breaches of contractof
ernployment by indigenous workers. REPLY OF ETHIOPIA AND LIBERIA 435
fur the period of his sentence. It was recently decided to extend this
scheme to persons with sentences of up to four months.
366. ln the statement on farm prison outstations prcpared by the
Department of Prisons, the Government of the Union declares that in
certain areas there are associations of farmers formed at the Government's
request. These associations are authoriscd to construct prisons in
accordance with specifications laid down by the Department of Prisons.
A proper contract is entered into with these associations determining,
inter alia, the basis on which the Department would make prisoners
available to the association. The prisons themselves remain under the
supervision of the staff of the Department.
367. The only persons transferred to these stations are those who have
received sentences ranging from six months upwards for serions offences.
The districts whcrc these prisons are situated include the country's
highest food-producing centres, where labour is extremely short.
368. The Committee also noted thal in the rgso report addressed by
the Governmcnt of the Union of South Africa to the International Labour
Office on the Forced Labour Convention (No. 29) il is stated thal "the
advisability of abolishing the practice of hiring convict labour to private
companies and individuals has been the object of fuither study; however,
the situation remains unchanged, and the Union of South Africa is
accordingly unable to ratify the Convention".
369. In reviewing the evidence examined above the Committee has
lound thal the allegations made with regard to the use of penal labour
for work in industry and agriculture are substantiated by the legislation
in force in the Union of South Africa and by the comments and ob
servations of the Government of the Union. lt also seems certain that
the use of such labour is of sorne economie importance. The Committee
has noted in this connection that, in its comments a.nd observations,
the Government states that farm prison outstations are situated in
regions where labour is scarce. Since, moreover, a. very considerable
number of Natives arc committed for short terms for miner offences,
the Committee found that labour of the kind described above is of
importance for the economy of the country and that the laws might be
applied in such a way as to increase the Native labour force at the
disposal of the national economy and thereby lead to a system of forced
labour for economie purposes.
Conclusions
370. No allegation has been made regarding the existence of forced
labour as a means of political coercion in the Union of South Africa.
The Government of the Union of South Africa, in its comments and
observations, referred to the Suppression of Communism Act, 1950.
Its attention having been drawn to this legislation, the Committee
has examined its provisions in sorne detail. The Act, amended by Act
No. 50 of 1951, prescribes varions penalties up to ten years' imprisonment
for offences against its main provisions, such as furthering the achieve
ment of any of the objects of communism. The Government of the Union
of South A!rica states thal under the Act the propagation of the doctrine
of communism is a criminal offence but that no attempt is made to SOUTH WEST AFRICA
influence the opinion of any offender white he is serving his sentence,
and that the number of convictions under these Acts has becn so insig
nificant that "it could not conceivably be suggested that it plays any
part at all in the economy of the country".
371. ln the Cornmittee's view these Acts could be used as an instru
ment for the correction of the political opinions of those who differ
from the ideology of the State. Whether these laws will remain as a
simple deterrent for potential political offenders planning to overthrow
the constitutional Government by illegal means, or whether they will
become an instrument of political persecution and oppression, thereby
leading to a system of forced or corrective labour as a means of political
coercion or punü;hment, will depend on the meaning placed by the
competent judicial and administrative authorities on the numerous and
important provisions of these Acts which are susceptible to a. variety
of interpretations.
372. \Vith regard to the economie aspect of its terms of reference, the
Committee is convinced of the existence in the Union of South Africa
of a legislative system applied only to the indigcnous population and
designed to rnaintain an insuperablc barrier hetween thcse people and
the inhabitants of European origin. The indirect cffect of this legislation
is to channel the bulk of the indigenous inhabitants into agricultural and
manual \Vork and thus to creatc a permanent, abundant and chcap
labour force.
373· lndustry and agriculture in the Union depend to a large extent
on the existence of this indigenous labour force whose rnembers arc
obliged to live under the strict supervision and control of the State
authorities.
374· The ultirnate consequences of the system is [sic] to campel the
Native population to contribute, by their labour, to the implementation of
the economie policies of the country, but the compulsory and involuntary
nature of this contribution results from the particular status and situation
created by special legislation applicable to the indigenous inhabitants
alone, rather them from direct coercive measures designcd to campel
them to work, although such measures, which are the inevitable con
sequence of this status, were also found to exist.
375· It is in this indirect sense therefore that, in the Committee's
view, a system of forced labour of significance to the national cconorny
appears to exist in the Union of South Africa.
South-West Africa
376. Allegations concerning the existence of forced labour in the
territory of South-West Africa were made during the debates on forced
labour in the Economie and, Social Council by the representative of
Poland.
377· These allegations refer in substance to the following points:
(a) the conditions to which indigenous workers are subjected, as
reported in a m•,morandum addressed to the General Assembly of the
United Nations by the Reverend Michael Scott; REPLY OF ETHIOPIA AXD LIBERIA 437
(b) compulsory labour imposed on indigenous workers.
378. At its Fourth Session the Committee had before it the allegations,
the documentary material concerning them, the comments and obser
vations of the Government of the Union of South Africa and its reply
to the Committec's questionnaire. 1 The following are the Committee's
findings and conclusions concerning the alleged existence of forced
labour in South- West Africa.
The Conditions of Indigenous Workers.
379· The first of the allegations of this point refers to certain docu
ments, including petitions by South-West Africans. 2 The complaints
of the petitioners refer, inter alia, to the existence of pass laws and the
oppressive use that is made of them by Govemment authorities, to
the low wages paid for their work, and to the fact that Native workers
wishing to complain about ill-treatment by their masters, and appearing
before the police \Vithout a proper pass, are gaoled, and have later to
return to their place of employment.
380. In a report by the South-West Africa Native Labourers Commis
sion, also quoted in the document in question, it is stated that Natives
are unanimous in their criticism of the low wages paid to farm labourers.
38r. The Committee noted the comments of the Government of the
Union of South Africa to the effect that the main abject of the pass
laws is to provide identification papers for those members of the in
digenous population who ha.ve not advanced sufficiently to be able to
do without them, and that persans who have progressed beyond this
stage have been exempted from the provisions of these laws.
382. The Committee rcfers to its conclusions with regard to pass
laws and their possible effect on the Natives concerned in the Union of
3
South Africa, which apply also in the case of the territory of South
\Vest Africa. As to the low wages paid to workers, the Committcc
considers that investigation of this question would be outsidc its terms
of reference. It notcd the observations of the Govcrnment of the Union
on this matter.
383. Concerning the allegation that workcrs wishing to complain
about their employers have to carry a pass to be able to go to the nearest
police station and that failurc to carry such a document is punished
with imprisonment, the Government of the Union states that, according
to the law, Native workcrs in such circumstances may proceed without
a pass to the nearest authori:·.erl officer.
Compulsory Labour lmposed Olt Tndigenous Workers.
384. In connection with the 3~con alegation, concerning compulsory
labour imposed on indigenous v,·f)rkersin South- \V est Africa, the Com
mittee had before it the info11.,ation contained in United Nations
document T/I75· It is evident frcm this document that the legislation
in force in the territory concerning, for example, habitua!! y unemployed
Natives, breaches of contracts of seîvice, and the master and servants
laws is similar to that applied in the Cnion itself. The Committee noted
the comments of the Govern ment of th< Union referring (a) to a judg-
2 United Nations document EjAC.J6/II.
3 [See paras. 340·51, pp. 43l-43supra.]tA{C.4{L.66. SOUTH WEST AFRICA
ment of one of the Supreme Courts of the Union of South Africa;
(b) to the necessity of maintaining penal sanctions for brcach of labour
contracts because of the impossibility of enforcing such contracts
othcrwise; and (,;) to the protection afforded to the employee by the
master and servants la\VS.
Conclusions
385. The Committee's findings on these allegations are the same as
those which it rea·:hed in the case of the Union of South Africa regarding
the compulsory nature of labour contracts for "non-whites". 1
386. The evidence before the Committee leads it to confirm in the
case of South-\Ve3t Africa the c2nclusions it reacherl with regard to the
Union of South A!rica itself.
1 [See paras. 352-36o, pp. 433-434, supra.] ,
z [S:!c paras. 370-375, pp. 435-43supra.] 3· GOVERNMENT AND CITIZENSHIP
(A) INTRODUCTION
In section 4 of Chapter V of the Memorials, 1Applicants have
set out severa! respects in which Respondent has failed to promo te
to the utmost the welfare of the preponderant part of the popula
tion of the Mandated Territory of South West Africa. In sum
mary, Applicants have alleged that contrary to current and gcne
rally accepted standards of administration, l~espond eas:t
(r) Totally denied rights of suffrage to the "Native" population;
(2) Deniecl to the "Native" population any participation what
cver at the politicallevel of the Government of the Territory, and
confinecl to the lowest levels of skill and responsibility "Native"
participation in the administrative structure of that Government;
(3) Excluclecl the "Native" population from any meaningful
participation in the affairs of local government units, and of the
"Native" reserves.
Applicants allege that Responclent
". . . by law and by delibcrate and consistent practice . . . bas
failed to promotc to the utmost the development of the preponderant
part of the population of the Territory in regard to suffrage or
participation in any aspect of govemment. 1 thas not only failed
to promote such development to the utmost, it has made no notable
effort to do so. Ta the contrary, the 1V1andatoryhas pursued a
systematic and active program which prevents the possibility of
progress by the 'Native' population toward self-respect, responsi
bility or skill in any a.!:pectof citizenship or government, whether
Territorialor local or tribal."
It was further submittecl by Applicants that the terms of Ar
ticle 2, paragraph 2, of the Mandate must be construecl to inclucle
the obligation of promoting political advancement oî the peoples
of the Territory "through rights of suffrage, progressively increasing
participation in the processes of government, development of self
government and frec political institutions." '
Respondent attributes to the foregoing contentions the premise
that:
"... in the political sphere, as weil as in other respects, there ought
to be no distinction or differentiation between various inhabitants
of the Territory, and that the whole population is to be treated as
an integrated unit, with identical rights and facilities for all." ~
1 1, pp. IJI-143•
2 Id., p. 143.
3 Id., p!JI.
4 III, p. 105.440 SOUTH WEST AFRICA
Respondent argues that such a "premise on Applicants' part is
1
wholly unfounded, in fact and in law."
Respondent th us begs the central question, namely: which
"distinctions or differentiations" are permissible, and which con
stitute violations of the obligation to promote to the utmost the
well-being and social progress of the inhabitants?
The answer to this question rests upon Applicants' submission
that the policy of apartheid is repugnant to Article 2, paragraph
2, of the Mandate precisely because the "distinctions and differen
tiations" which it imports into the lives of the inhabitants of the
Territory are based upon membership in a "group," rather than
upon their qualities and capacities as individuals.
The unacceptable purposes and consequences of such a policy
constitute the decisive major premise upon which Applicants
rest their case; ali other premises, arguments and conclusions are in
cidental to, and derive from, this central premise.
In respect of Government and citizenship, l~esponde p o 's
icies-as might be expected-are ruthlessly consistent with its
pervasive policy of apartheid, or separate development, and are
merely specifie rneasures of implementation thereof.
Just as Respondent's policies in respect of education in the
Territory, as shown above, are grounded upon educational apart
heid, so its policies in respect of government and citizenship are
grounded upon political apartheid.
True to its philosophy of regarding its subjects as species ar
ranged in "groups," rather than as individual persans, Respon
dent forrnulates the premises of its policy with respect to political
institutions and activity as follows:
"... Its approach involved recognition of the White population
grou,p as one that could appropriately enjoy a mcasure of self
government and participation in processes of central government,
subject inter alia to control of Native affairs being the responsibility
of the Mandatory itself. The approach further involved recognition
of the scparatc identity, politically as in other respects, of each of
the non-JVhite groups, and according to each an opportunity of
developing on the basis of its own institutions and culture. ln
regard to theindigenous groups,the processof adaptation to modern
conditions was foreseen as one th<i.twould necessarily have to be
slow, and which could not be divorced from other facets of ad
vancement and progress." 2
The hollow and inhumane nature of such a premise is obvious;
every indiviclual member of an indigenous group, however gifted,
is ordained, by reason of the circumstanccs of his birth, to be
"slow" in "the process of adaptation to modern conditions"
so "slow" indeed, that after more than forty years of Mandatory
administration no single rnember of a "non-White group" has been
1 III, p. 105.
1 Id., p. 106. (lta.Iics added.) REPLY OF ETHIOPIA A:SD LIBERIA
441
found with the adaptability to exercise the franchise in respect of
members of the Territorial legislature. None has been found ca
pable of taking part in the Territorial Government at the political
leve!,nor at other than the lowest levels of skill and responsibility
in its administrative structure.
Under these circumstances, the voluminous detail with which
Respondent bulks its Counter-Memorial has at best a highly ten
uous relevance. Measures of political implementation of a fun
damentally defective policy, resting on an intolerable premise,
hardly justify an elaborate refutation.
In deference however to the importance of the issues presented
to the Court in these Proceedings, Applicants deem it appropriate
to indicate, at !east illustratively, in what respects Respondent's
purported explanations and justifications of its measures of po
litical apartheid are as fallacious as the systematic policy which
those measures are designed to effectuate.
(B) STATEMENT OF LAW
\Vith regard to political rights, the relevant and generally ac
cepted norms by which the obligations stated in Article 2, para
graph 2, of the Mandate should be measured, have been estab
lished by the United Nations. Thcse include the institution of
universal adult suffrage and the promotion of participation on
the part of ali qualified individuals in al! levels of government
and administration, within the framework of a single territorial
unit.
For an elaboration of the views of the United Nations which have
given rise to this standard, and of compliance by Administering
Powers therewith, the Court is referrcd to Annex 7 hereof. 1
In rcferring to the practice of the Trusteeship Council and the
General Assembly in respect of Trust Territories, Applicants do
not, of course, imply that as a matter of law the Territory for Sou.th
West Africa is subject to the Trusteeship Council or thal the Man
date must be construed as if it were a Trusteeship Agreement.
Applicants are weil aware that, of all territories previously under
Mandate, South West Airica alone has not been placee! under
Trusteeship, despite persistent urging by the organized inter
national community that Respondent follow the example of al!
other mandatory Powers and the clear expectation of the Charter.
The practice of the Trusteeship Council, approved by the General
Assembly, is adduced as evidence in support of the proposition:
thal there exist established principles and processes pertaining
to problems and objectives analagous in ail respects to those in
volved in Article 2, paragraph 2,of the Mandate; thal such principles
and processes are generally accepted by States comprising the
Trusteeship Council and members of the organized international
1 Infrap. 451.442 SOUTH WEST AFRICA
community; that these established principles and processes con
stitute norms by which the obligations stated in Article 2,paragraph
2, of the Mandate, and Article 22 of the Covenant of the League
of Nations, should be measured; and that Respondent's policies
and practices in the Territory are inconsistent with and repugnant
to such principlcs and processes generally accepted as applicable
in respect of government and citizenship in dependent areas.
(C) SUFFRAGE AND PARTICIPATION IN THE TERRITORIALGOVERNMENT
Applicants show, with respect to suffrage in the Territory, 1
that Responclent's electoral requirements preclude "non-White"
inhabitants of the Territory from voting for members of the Legis
lative Assembly. Insofar as participation in the Territorial Govern
ment is concerned, Applicants show that "non- Whites" are ex
cluded by law from serving as members of the Legislative Assem
bly, the Executive Committee of the Terri tory, and the South Afri
can Parliament, and are excluded by uniform practice from being
2
appointecl as Administrator of the Territory.
By way of reply, l~espondent
"... docs not dispute the allegations ... but wishes to point out
that thesc allegations concern only political institutions devised
3
and intcndcd solely for the White population group."
Respondent thus ignores the major point and begs the central
issue: full rights of franchise and citizenship are accorded only
to persans classified as members of the "White population group,"
even exclucling therefrom persans "who, although in appearance
are obviously white, are generally acccpted as Coloured persans." '
Respondcnt proceeds to set forth details of arrangements con
cerning the "indigenous population groups" in South West Africa,
both within and outside the Police Zone. 5
.From these, it will be seen thal such arrangements are envis
aged as "chanuels of communication," for the purpose of pro
viding a "link" with such groups and maintaining "close contact"
with them.'
Applicants submit as a self-evident proposition, thatsuch.''links,"
"contacts," or "channels" do not provide an acceptable sub
stitute for rights of franchise.
Nor does it suffice to afford vicarious representation through such
a deviee as the attenclance of the "White" Secretary for South
West Africa at the Executive Committee composed of four "Whites"
2 1, p.134·
Id., p.135.
4 III. pIJ2.
Sec 1, p. 109. Respondent nowhere alleges, however, that such persans arc
"slow" in ~he "pro·:ess of adaptation to modern conditions."
6 III,pp.l 12-IJO.
Id., p.I IJ. REPLY OF ETHIOPIA A~D LIBERIA 443
eJectee! by the "ali-White" Territorial Assembly, "whcnever mat
ters of policy or administration concerning non-Whites wcre con
sideree! by the Executive Commit tee." 1
ln reply to Respondent's assertion that it has "regularly con
sultee!" tribal leaders with regard to expenditure of "their funds," 2
the Court's attention is respectfully drawn to the discussion, in
another context herein, of the limits imposee! by Respondent
upon meaningful "consultation" with the "non-White" inhabi
tants of the Territory. 3
Even such "consultation" as does take place can have small
significance in light of the powers reservee! by Respondent:
(r) to appoint and depose chiefs and headmen;
(z) to pay them for discharge of their official duties, insofar as
they rcceive compensation; and
(3) to override, modify or abolish any authority delegated to
them. •
lt is not surprising, therefore, that Respondent describes eighty
one chiefs, headmen and tribal councillors as "officiais" whom
5
"Respondent employs."
\Vith regard to its plans for "future development," Respondent
rcfers to the allegee! success of Bantu Authorities in South
6
Africa," as suggesting "that a similar system may be fruitfully
applied in the Territ ory.'· 7 To this end, Respondent refers to the
work of the Odendaal Commission, the Report of which has been
8
released sinee the filing of the Counfer-M emorial.
As previously pointee! out, 9 Respondent has endorsed the prin
ciples and acceptee! "the main features of the argument and recom-
1 III, p1 12;and see id., p116 with reference to a similar procedure in Ovambo-
land.
2 Id., p. 118.
3Supra, pp. 312-327.
4 See 1, pp. 139-140.; Ilpp. 133 O.
6 III, p. 148.
ln respect of Respondent's repcated reliance upon its policies in South Africa
to justify its present and future course in the Territory, the Court's attention
respectfully is drawn to Applicants' discussion, p260, supra, of the dilemma with
which they are confronted by this method of pleading on Respondent's part.
Respondcnt, although correctly painting out that such policies "are not in them
selves matters for adjudication" (Il, p. 477) nevertheless adduces such policies,
notably its "Bantustan," or "Homelands," policies, as evidence relevant to its
deferree in the instant Proceedings. lnsofar as such evidence bas any probative value
in respect of the issues joined herein, Applicants submit that it goes no further
than demonstrating the essential short-comings and fallacies of the policy of
apartheid, or separate development, itself. The repugnance of such policy, and
its manifest inconsistency with Respondent's obligations under the Mandate are,
it is submitted, amply demonstrated by Applicants' showings with respect to the
purpose, nature and consequences of the policy of apartheid as it is npplied to the
inhabitants of the Territory.
7 Ill, p. 131.
8
9 Supra, p. I33·
Ibid. SOUTH WEST AFRICA
444
mendations [of the Commission] as an indication of the general
course to be adopted in the next phase of the development of
1
South West Africa." One of the basic conclusions reached by the
Commission, which Respondent explicitly approves, is that "the
objective of self-determination for the varions population groups
will, in the circumstances prevailing in the Territory, not be
promoted by the establishment of a single multi-racial central
authority in which the whole population could potentially be repre
sented." 2
Respondent, accordingly, projects the institution of territorial
apartheid, in which the large majority of the inhabitants perma
nently will be denied the right to vote for representatives to the
central governing authority or to participate therein. 3
Applicants submit that Respondent's presently pursued policy
of political apartheid violates its obligations, as stated in Article 2,
paragraph 2, of the Mandate, and that such policy would be aggra
vated and rende:red even more repugnant to the said Article, by
the policies projected in the Report of the Odendaal Commission.
Respondent's references to policies alleged to have been followed
in other areas have no relevance to the issues in these Proceedings. •
Conceding, arguendo, the accuracy of the facts set forth therein
as distinguished, however, from the inferences, particularly the
fallacious interpretation given by Respondent to the policy of
"indirect rule"-in none of the areas in question did the governing
Power apply the policy of apartheid, on the basis of which the
status, rights, dulies, opportunities and burdens of the population
were, or are, systematically allotted on the hasis of race, colour or
tribe. 5 Furthermore, none of the areas cited by Respondent is
presently administered under Mandate. ln respect of policies
pursued in Trust Territories, however, the Court's attention is
invitcd to Annex 7, herein. 6
ln the premises then, Applicants respectfully submit that Re
spondent's refusa] alter more than forty years of Mandatory
administration, to grant to the indigenous peoples of South West
Africa rights of suffrage and participation in government, within
the framework of the Territorial Government, constitutes a failure
1
Memorandum, 29 April 1964, Sec. B.5.
23Id., Sec. E. (21.
The corollary to this would be the establishmenof "Homelands," as recom~
mended by the Commission. Although Respondent bas announced its decision to
defer implementationof this proposai pending the Court's Judgment in the present
Proceedings, RespoEdent has endorsed the ptinciple in question and bas announced
its decision to purchase large areas of "\Vhite-owlands for no other purpose
than eventual incorporation into the "Homelands.(Id., Sec. C. q.)
5The sole exception, Southern Rhodesia, has similarly incurred the opprobrium
of theoverwhelmi wnight of the international community.
6Infra, p. 451. REPLY OF ETHIOPIA AND LIBERIA 445
to promote the political advancement of such peoples, and is
therefore a violation of the obligations of Article 2 (paragraph 2)
of the Mandate agreement.
(D) GE!ŒRAL Amn>~ISTRATI (CI>II SERVICE)
\Vith regard to the general administration (civil service) of the
Mandated Territory, Applicants allege that
"At the administrative levels of the Government of the Terri
tory, in the Public Service, the participation of "Natives" is minimal.
\Vith few exceptions, "Natives" are confined to the lowest l1vels of
cmployment, involving neither skill nor responsibility."
Respondent does not dispute the !act !hat in general the senior
posts in the Public Service in the Territory are exclusive!y occupied
by "Europeans," but contcnds thal the absence of "Natives" in
senior posts is due to the Jack of suitably qualified candidates for
such posts, 2 and !hat it envisages advanccmcnt of Native officiais
to positions of responsibility in the higher categories of the Public
Service in those areas and departments designed to serve the ethnie
3
group of which the official concerned is a mcmbcr.
The first of these contentions is, if true, mercly a self-indict
ment of a course of administration which, during a period of more
than forty ycars, has failed to produce numbers of persans quali
fied to unclertake administrative, professional and technical em
ployment in governmcn4. Analysis ·of Responclent's policies of
cclucational apartheid cxplains the result.
Such policies stand in sharp contras! to the vicw of the Trustec
ship Council of the United Nations thal education of indigenous
inhabitants "to lill responsible posts in the administration" should
be carried out so asto enable such inhabitants to have a "progres
sively important share in the conclue! of their own affairs and those
of the Territory as a whole." 5
Moreover, it is Respondent's policy affirmatively to cxcludc
"non-Whites" from senior ranks of the Civil Service, irrespective
of qualification. This is a reflection, and is in implementation, of
Responclent's policy of regarding higher levels of government and
administration as "political institutions clevised and intenclecl
solely for the White population group." 6
This, in turn, explains its second purported justification for
the absence of "non-Whites" in senior civil service posts, viz.,
that their advancement is envisagecl in connection with serving
"the ethnie group of which the official concerncd is a member."
1 1, p. 142.
2 See, e.g., III, p. 142.
3 Id., p. 164. (Italics added.)
4 Supra,pp. 362 ff.
5 Annex 7. sec. C. 1., p. 455. i11jra.
6 Ill, p. 132. SOUTH WEST AFRICA
This is, of course, a mere corollary of the basic policy of apart
heid and is designed to effectuate its most aggravated form, the
policy of territor.ial apartheid, or "Homelands."
(E) LOCAL GOVERN>!ENT
Applicants contend that:
''In the government of the established local units within the
Tcrritory-the municipalitics and the village management board
arcas~th 'eativc' population is almost entirely exduded from
participation or even any semblance of participation. The sole
faint approximation of any kind of participation is to be found in
the limited advisory role of the Native Advisory Boards with respect
to the 'locations,' 'Native villages' and 'Native hostels,' and even
this minimal role is carried out under the firm control of the 'white'
local authorities and the Administrator (alter April r, 1955, the
l\linister of Native Affairs and currently the Minister of Bantu
Administration and Development).'' 1
The refusai to permit the indigenous inhabitants of the l\Ian
dated Territory to participate in local government, constitutes
a failure "to promote to the utmost the development of the prepon
derant part of the population of the Territory" in regard to poli
tical advancement. It is submitted that Respondent has sub
stantially conceded the validity of the premises underlying the
foregoing contention. 2
Thus, with re3pcct to municipal councils and village manage
ment boards in the Territory, which are responsible for the local
government of the urban and town areas, Respondent does not
dispute that:
(r) the population of the said areas includes a signiflcant number
of non-White inhabitants;
(2) only "Europeans" may be members, or may participate
in the election of members, of any of the municipal councils; no
non-White inhabitant is in fact a member of any of the village
management boards; and
(3) the only local government institutions for "Natives" in the
urban areas are Native Advisory Boards, such boards having no
legislative or executive powers whatsocver. 3
The indefensible nature of the policy implicit in the exclusion
of "non-\Vhites" from agencies of local government is compoun
ded, rather than justifiee!, by Respondent's assertion that towns
and villages of the Territory "were never intended for the com
munal settlement of any of the indigenous inhabitants ... and
indeed such towns were something foreign and unknown to the
Native population." 4
1 1,p.142.
2 III, p. 167·193·
3 See 1, pp137·IJ8 .
• Ill, p. 168. REPLY OF ETHIOPIA AND LIBERIA 447
Respondent explains that
"... These people came not because of any need or desire for the
type of residential facilities of aEuropean town [sic], but specifically
to seek and fmd remunerative employmcnt in the \Vhite man's
monetary economy." 1
lt is submittcd !hat l~espond hasn tot justifiee!, and cannat
justify, exclusion from local government of persons solely on the
basis of their membership in a "group," without regard to indivi
dual qualification.
Respondent misdescribes this policy as a "system of indirect
rule," 2 citing its earlier discussion in which "integration" is con
3
trastee! with the "use of indigenous institutions." The notion of
"indirect rule," however defined, has nothing in common with the
systematic allotment of status, rights, privileges and burdens on
the basis of group or race. Apartheid is sui generis.
Respondent secks to justify exclusion of "non- Whites" from
local government on the further ground thal Respondent has
"... looked upon the administration and control of Native Affairs
as being its own responsibility to the exclusion of local authorities
in the Territory-at any rate as far as the formulation of policy
was concerncd." "
In fact, local urban authorities cxercisc powers which have a
major impact upon the welfare of ali the inhabitants subject to
their jurisdiction. Thus,
a. the local authority may exempt a "Native" from the obli
gation to rcsjde jn a segregated area; 5
b. the authority may c6ndemn and demolish dwellings on
grounds of public health ;
c. the authority may be, and in practicc usually is, entrusted
with the exercisc of the far-reaching powers involved in "influx
control," 7 including the power to expcl from the urban area any
"Native" who becomes unemployed, and to refuse entry to the
area to any "Native" who is not needed in terms of the labour
requirements of the area;
d. the authority may adopt regulations as to the terms and con-
1 Ibid. (Italicaddcd.) Respondent describesthis as the "positionbefore and
·when Respondent assumcd the Mandate." Neverthelcss,Rcspondent's policy of
exclusion persists, even thoughin Respondent's language, "Natives" have gained
"a basic degree of knowlcdge and experienceof the organizationand machinations
of urban and peri·urban society ..." (Id.p. 170.)
2 Ibid.
3 Id., Ilp. 422.
4 Id., IIIp. 173.
5 Proc. No. 56 of 1951 (S.W.A.),sec. 9(2) (d), in The Laws of South West Africa
I95I, pp. 104·06.
6 Id., sec. 16, pp. 111)-rS.
7 Id., sec22(1),pp 130·36. SOUTH WEST AFRICA
ditions of residence in locations, native villages and native hostels,
the prohibition or regulation of the entryof non-residents, the imposi
tion of penalties in respect of the failure topa y rents, the summary
ejection of persans who !ail topa y rents, the control and restriction
of meetings and assembliesof "Natives," and numerous other matters
affecting the daily lives of residents in urban and village areas; 1
e. the authority acts as prosecutor in criminal charges for failure
to pay rents and other breaches of ils regulations, and the fines
paid in such cases accrue to the authority. 2
Although subject to varying degrees of control on the part of
higher authority, such bodies exercise a discretion important to
the community as a whole, in which the welfare of ailthe inhabitants
is involved.
{F) GovER:<ME:-<T wnm:-< THE "NATIVE" TRIBES A:<D "NATIVE"
RESERVES
In respect of govcrnment within the "Native" !ribes and "Native"
reserves, Applicants contend thal
"In the administration of the 'Native' reserves, the same pattern
of discrimination, negation and frustration prevails. All significant
authority is confined to 'Europeans'. The only semblance of parti
cipation by the 'Native' population is to be found in the rucli
mentary functions of the 'Native' headmen and the 'Native'
members of the Native Reserve Boards in regard to the Native
Reserves within the Police Zone, and in the elements of traditional
tribal adminjstratjon under tribal laws and customs still permitted
to the 'Natives' in the Native Reserves outsidc the Police Zone.
As has becn pointed out, even this shadowy participation is kept
subject to co3plete, comprehensive and pervasive control by
'Europeans.'
\Vith regard to government in the reserves, outsicle the Police
Zone, Respondent contends thal
"... in Ovamboland, as in the other tribal areas beyonclthe Police
Zone, the Native inhabitants to ail intents and purposes govern
themselves through their chiefs and headmen according to thcir
own laws and customs." 4
As alreacly pointee! out, 5 however, such officiais are appointee!
6
by, paie! by, answerable to, and removable by, Respondent.
1 Id., sec. 32pp. 154~G2.
2 Proc. No. 30 of 1935 (S.W.A.), Sec. 15(d), in The Laws of South West Africa
1935, pp. 158~42 4rc. No. 56 of 1951 (5.\V.A.), Sec. 17{!) (a), in The Laws of South
Wesl A/rica 1951,p.IIS.
3 I, p. 143.
4 III,p. IIS.
~ Supra, p. 443·
6 Thus, Proclamation No. 15 of 1928, Sec.1 (a) provides:
"The Administrator shaH be vested with the following powers and authoritics
in any part of the mandated Tcrritoryof South \Vest Africa, thatISto say
(a) He may recognisc or appoint any persan as a chief or headmanin charge
of a tribc, or of a locationor a native reserve, and is hercby authoriscdto REPLY OF ETHIOPIA AND LIBERIA 449
In purported explanation of the grant of broad powers to the
Administrator, including those of defining the bou>;1dariesof the
area of any tribe or of a location, dividing existing tribes into two
or more parts, or amalgamating tribes or parts of tribes into one
tribe or constituting a new tribe, and ordering the removal of any
"Native" tribc or individual from any place ta any other place in
the Tcrritory, Respondent agrees that such powers
.. correspond to those enjoyed by any Native chief in South
Africa or South \Vest Africa, by virtue of Native law and custom,
in relation to heaclmen and tribesmen subservient to him, and ...
it\Vas necessary for the system of tribal government under the
control of a modern head of State to recognize a supreme chief in
charge of all chiefs and headmen, and to confer such powers upon
him." 1
Such an explanation, however, is beside the point: the inhabitants
of the Terri tory subject to the Administrator's authority have no
voice or vote in respect of his selection or the manner of excrcise
of his powers.
Possibly the most significant of the governmental powers in the
reserves (in tenns of the well-being and progress of the indigenous
inhabitants} concerns the expenditurc of funds from the varions
Trust Funds established from time to lime by I~esponde H ete.
again, the indigenous inhabitants have no effective control over
such cxpenditures since the funds must be "expended as directed
by the Administrator (now the Ministcr of Bantu Administration
and Development)." '
The Jack of practical significance of "consultations," which
l~espond aesnts are m"intained with the tribal leaders concer
3
ning this matter, has already been notee!.
With regard to indigenous political institutions within the Police
Zone, the samc situation prevails as in the reserves. The Native
Reserve Boards, of which a "European" is chairman, may discuss
possible cxpenditures from the Reserve Trust Funds, but the actual
process of decision-making is not permitted to any degree to the
"non-White" rnembers of the Boards. Respondent asserts that the
Board "assists the superintendent generally in the development
of the reserves," 4 but policy making with regard to reserve devel
opment is entirely in the bands of "Europeans."
Respondent concedes the central point at issue, in its argument
that
make regulations prescribing the duties, powers and privileges of such chiefs
or headmen. Any such recognition may at any time be withdrawn, and such
appointmentsmay be either permanent, temporary, or in an acting capacity,
and may be on such conditions asto emoluments or otherwise as he may deem
fit." (The Laws of South West Arg28, p. 158.)
1III, p. 134·
2 Id., p. 118.
3Supra, p. 443·
4 III, p. 127.450 SOUTH WEST AFRICA
"Although it is correct that magistrales have general control of
the Native rr:serves, these officiais have consistently encouraged
the headmen and the residents to assume full responsibility for
the proper control of thcir reserves, and where such responsibility
has been assumed, the superintendent concerned merely supervises
their actions.''1
(G) CoNCLUSIONS
It is submitted that, by virtue of the policy of apartheid, as
applied in the Terri tory with regard to government and citizenship,
Respondent has failed in any degree to promote the well-being
and social progress of the inhabitants of the Territory, and has
thereby violated its obligations as stated in Article 2, paragraph
z, of the Mandate, and in Article 22 of the Covenant of the League of
Nations.
1
III, p. 137. (Italics added.) ANNEX 7
GOVERNMENT AND CITIZENSHIP IN DEPENDENT
TERRITORIES, AS VTEWED BY THE UNITED NATIONS
(A) United Nations policy regarding establishment of universal adult
1
suffrage.
1. "Among the forms of development supported by the actions of
the [Trusteeship] Council either by approval of existing policies or by
recommendation, ha[s] been ... the introduction of methods of suffrage
2
leading eventually to elections by universai adult suffrage .... "
The continuing reaffirmation of this polîcy and the increasing compliance
therewith by ail Trusteeship Territories, including ali former class "C"
Mandates, evidences a clear standard from which substantial deviation
is illegal under the practice of the United Nations. In statements of
Administering Authorities of Trust Territories, there has been no devia
tion from this principle.
2. The Trusteeship Council bas consistently recommended "such
democratie reforms as will eventually givc the indigenous inhabitants
of the Trust Territory the right of suffrage and an increasing degree of
participation in the executive, legislative and judicial organs of govern
ment .... " 3 Following upon this recommendation to the British admi
nistering authority of Togoland, the Trustceship Council in 1950, noted
with satisfaction
"... thal a beginning has been proposed by the Coussey Committee
in the introduction of methods of suffrage on alllevels of government,
appreciating the clifficulty of introducing at once a modern system
of suffrage, recommends that ali necessary educative measures be
undertaken to prepare the population for the adoption of universal
4
suffrage with the !east possible delay."
ln ils 1954 report to the General Assembly, the Trusteeship Council
noted with satisfaction "the decision to extend direct, universal adult
suffrage to the whole of the Trust Territory .... " 5 Togoland under
British administration achieved ils independence on 5-6 March 1957. 6
In ils 1957 report, the Trusteeship Council noted the establishment of
universal adult suffrage in three Trust Tcrritories- The Cameroons
under French administration, 7 Togoland under French administration, R
1 I, pp. IJI-134·
2 4 Repertory of Practice of United Nations Organs rog (1955); accord, id{Supp.
No. 1, at rSr (1958)).
3 G.A.O.R. 4th Sess., T.C. Rep., Supp. No. 4 at 36 (A/933).
+ G.A.O.R. 5th Sess.,T.C. Rep., Supp. No. 4 at 73 (A/rJo6).
5 G.A.O.R. gth Sess., T.C. Rep., Supp. No. 4 at 185 (A{268o).
6 See G.A.O.R. rzth Sess., T.C. Rep., Supp. No. 4 at 23 (A/3595)·
7 Id. p. 129.
8 Id., p. 149·452 SOUTH WEST AFRICA
and Nauru. 1 Ali such extensions of suffrage were effectuated in response
to prior Council recommendations. The principle of universality of
suffrage has never been in doubt. Thus, in an earl y recommendation con
cerning trew Guinea, the Council called for "increasingly grcatcr parti
cipation in the Legislative Council to the indigenous inhabitants, leading
to the cventual establishment of an indigenous rnajority.'' 2
Achievement of independence of all the Trust Terri tories in Africa by
1962 demonstrates the peaccful transition from the status of adminis
tered tcrritory to one of democratie majority rule with full franchise by
adult indigenous inhabitants.
A concise summary of the attitude of the Trusteeship Council favouring
the introduction of methods of suffrage based upon a wide and democratie
franchise may be found in 4 Repertory of Practice of United Nations
Organs rrr-12 (1955).
(B) United Nations policy regarding the treatment of a tcrritory as an
integrated zm:it.3
1. The Repertory of Practice of United I\ra/ions Organs summarizes
the Trusteeship Council's attitude tmvard this question as follows:
"Among the forms of development supported by the actions of
the Council either by approval of existing policies or by recommen
dation, have been the development of a sense of territorial unity
or national consciousness on the part of the inhabitants, the de
vclopment of executive and legislative organs through which the
inhabitants might play a progressively larger part in territorial
affairs, mainly by means of greater representation and the extension
of powers and responsibilities of the organs; the dcvclopment of
broadly representative organs of local govcrnment, espccially
where tribal or similar systems of authority prevail; the intro
duction of methods of suffrage leading cventually to elections by
universal adult suffrage; and the intensification of the training of
local persons, and particularly indigenous persons, to equip them
to take incn:asingly higher administrative and technical posts.'' 4
The Trusteeship Council has encouraged "the developmcnt of a sense
of territorial consciousness among all the inhabitants" as "an essential
ingredient of ... political evolution." 5 To this end, the Visiting Mission
to Tan ganyika
"... considered that the Administering Authority should encourage
African political associations, particularly those working in tribal
areas, and that it should foster the development of a territorial
consciousness extending beyond the bounds of purcly local or
communal interests.'' 6
1 Id., p.IgS.
2 G.A.O.R. 4th Sess., T.C. Rep., Supp. No. 4 at 65(A/933).
3 1,pp. I3J-I42.
4 4 Repertory of Practice of United Nations Organ109 (1955).
J G.A.O.R. gth Sess., T.C. 1\.ep., SupXo. 4 at 41 (A(z6So).
6 G.A.O.R. 7th Sess., T.C. Rep., Supp. No. 4 at 30(A/215o). REPLY OF ETHIOPIA AND LIBERIA 453
2. The importance attached to the developmcnt of territorial integrity,
with identical political rights for ail, by the Trusteeship Cotmcil is evi
denced by its recommendations concerning local tribal authorities in
African dependent territories. In 1952 the Administering Authority of
Tanganyika reported that it \Vas encouraging "amalgamations and
federations of tribal units" as a step in the direction of territorial
consciousness. 1The Council in 1954 reaffirmed its approval of efforts of
the Administering Authority "to amalgama te or federate" tribal units,
2
noting explicitly that "the great number of separa te tribal authorities"
involvcd, was an obstacle to progress toward self-govcrnment of the
Territorv as a whole.
\Vith respect to Ruanda-Urundi, the Trusteeship Council recommended
a sweeping although graduai change in local government without
reference to the wishes of the inhabitants as follows:
"The Council, noting that the Administering Authority has pre
served the indigenous political and tribal structure of the Territory,
commends the Administering Authority for not forcibly uprooting
the indigenous institutions and customs, but suggests that the
present system does not offer sufficient opportunity for the develop
mcnt of a sense of political responsibility among the indigenous in
habitants as a whole, and that their political, economie, social and
educational advancement could better be promoted by the pro
gressive establishment oflocal organs ofself-government. The Council
invites the Administering Authority to study the desirability and
feasibility of gradually establishing one system of government in
which bath Europeans and indigenous inhabitants would participate,
and in which the indigenous inhabitants would assume eventually
the principal functions and responsibilities." 3
Such recommendations unde:rline the importance attachcd by the Council
to a unified political structure for each territory in which ali inhabitants
would have equal rights in the government and before the law.
3· A further example of the Council's requirement of a totally inte
grated political unit for cach Territory is its discussion with respect
to a "multi-racial" society in Tanganyika, an African former class "B"
mandate of roughly the same territorial size as South \Vest Africa. The
1954 Visiting Mission found that the government of the territory was
only "multi-racial" ln the sense that each of the three main "races"
had equal representation in the Legislative Council. 4 In the view of the
Council, the principle of majority rule clcarly called for government of
the Territory "mainly by Africans," 5 hence the Council recommended,
at its Eleventh Session, that although the principle of equal represen
tation "represents a useful step as an interim measure, this proposai
does not offer a satisfactory long-term solution .... " 6
t Ibid.
2 G.A.O.R. gth Sess., T. C. Rep., Supp.No. 4 at 41-42 (Aj268o).
1 G.A.O.R. 3rd Sess., T.C. Rep., Supp. No. 4 at 29 (Aj6o3). (Italicadded.)
4 G.A.O.R. 10th Sess., T.C. Rep., Supp. No. 4 at 31 (A/2933)·
3 Ibid.
6 G.A.O.R. 7th Sess., T.C. Rep., Supp. No. 4 at 32 (A/2ISo). SOUTH WEST AFRlCA
454
In its 1959 report to the General Assembly, the Council noted
"... with satisfaction the statement made by the Governor of
Tanganyika at the opening of the Legislative Council on 14 October
1958, in which he declared that in view of the !act that Africans
werc and would remain an ovenvhelming majority of the population
of Tanganyika, African participation bath in the legislature and in
the executive should steadily increase; that it had never been
intended to make parity a permanent feature of the Tanganyika
scene; that the !act that the legislature and the government of a
self-governing Tanganyika were likely to be predominant! y African
should in no way affect the security of the rights and interests of
the minority communities; and that there was complete agreement
on this matb~ rmong the responsible leaders of major political
parties.
"The Council also notes with great satisfaction that this statement
of policy was warmly welcomed throughout the Territory .... "'
According to the rg6o Visiting Mission, :African participation in the
legislature and executive continuously 2ncreased, without attendant
insecurity on the part of minority groups. Constitutional developments
in Tanganyika, announced for 1960, involved reconstitution of the
Legislative Council on the basis of a broad franchise, with a majority of
the scats occupied by African elected members. In the Trusteesh1p Coun
cil's \vords:
"The Visiting ~~lis osisorned that the most noteworthy feature
of the political situation in Tanganyika was the peaceful and
hannonious atmosphere of good will. Nowhere, the Mission stated,
did it get the impression that there were any political tensions or
any current threat to law and order. lt found excellent relations
existing between persans of different races and it considered that
the present !=.ituation in Tanganyika was an encouraging example
3
to other multiracial socîeties."
Accordingly, the Council resolved at its Twenty-sixth Session:
"The Council wekomes the important constitutional reforms taking
place in Tanganyika and notes with great satisfaction that the
Territory is moving into the last stages of political evolution
before independencc in an atmosphere of harmony and good will."-+
On 9 December rg6r, fifteen years alter it became a Trust Territory,
Tanganyika was granted full political independence.
4· South West Africa is not the only territory consisting of a diversity
of peoples and cultures, as the following statement of the French ad
ministcring authority for the Cameroons suggests:
"The indigenous population consists of a great diversity of races,
with different languages and customs; they vary from the Bantu
tribes, who occupy the forest areas in the south and have rudimen
tary social and political organizations, to Sudanese in the north,
who until recently lived under a feudalistic system." 5
1 G.A.O.R. 14th Sess., T.C. Rep., Supp. No. 4 at 23 (A/4roo}.
2 G.A.O.R. rsth Sess., T.C. Rep., Supp. No. 4 at 31 (A/4404).
3 Ibid.
• Ibid.
' G.A.O.R. 4th S<:ss.,T.C. Rep., Supp. No. 4 at 16 (A/933). REPLY OF ETHIOPIA AND LIBERIA 455
Nonetheless, unit ywas not beyond the capacity of a \villing Administering
Authority:
"The Council, noting with interest the statement of the Adminis
tering Authority thal, in spite of the artificiality of the boundaries
and the heterogeneity of the inhabitants, a sense of territorial
unity is being developed, and, being of the opinion thal full de
velopment of suclt a sense of unity and commott identity is essential in
the evolution of the T1'ust Territory as a distinct political entity,
recommends thal the Administering Authority foster this develop
ment by ail possible means, such as the intensification of education,
the improvement of communications and the encouragement of
common political activiûes in the Territory.''1
Achievemcnt of universal adult suffrage and a single electoral college in
2
this Territory in rg56, and complete independence on r January rg6o,
attests to the success of this policy.
(C) United Nations policy regarding encouragement of meaningful
native partz"cipationin government and administration. 3
r. The Trusteeship Council has constant! y urged greater participation
of indigenous inhabitants in the government and administration of the
Territory in which they live. Thus, with respect to Ruanda-Urundi,
"The Council recommends thal the Administering Authority, in
order to grant the indigenous inhabitants a progressively important
share in the conduct of their own affairs and those of the Territory
as a whole, shottld provide increased facilities for training indigenous
inhabitants to (ill responsible posts in the administration, and should
study the possibility of granting them, at the earliest possible
moment, direct representation in the higher administrative organs." 4
At ils Ninth Session, the Council recommended thal the FrenchAdminis
tering Authority for Togoland "assimilate the chiefs into the adminis
trative structure" aftcr having noted the "successful reorganization of
indigenous administration and the modification of the role of the
chiefs." 5 The Council has often stressed the importance of training in this
regard.It drew the attention of the Administering Authority of New
Guinea "to the desirability of training indigenous inhabitants in increas
ing numbers to assume increasingly responsible positions and thus to
participate to a greater extent in the administration of the Territory." 6
With respect to Nauru, the Council urged not only "wider facilities for
the training of Nauruans in administrative positions" but also "oppor
tunities for experience in rublic office". 7
In its consideration o contentions concerning the requirement of
experience in office, the Cou:ncilrejected the question-begging argument
thal experience is a prerequisite to public office, noting thal the only
t Id., p. 21. (ltalics added.)
2 G.A.O.R. 12th Sess., T.C. Rep., Supp. No. 4 at 128-29 (A/3595).
3 1, pp. 135-137·
4 G.A.O.R. 3rd Sess., T.C. Rep., Supp. No. 4 at 9 (A/6oJ). (Italics adCled.)
5 G.A.O.R. 6th Sess., T.C. Rep., Supp. No. 4 at 184 (A/1856).
6 G.A.O.R. 5th Sess., T.C. Rep., Supp. No. 4 at 123-24 (A/1306}.
1 G.A.O.R. 4th Sess.T.C. Rep., Supp. No. 4 at 77 {A/933). SOUTH WEST AFRICA
way to achieve such experience is by providing suitable training and
opportunities therefor:
"The Council . . . noting the statemcnt of the Administering
Authority that it could not, without failing in its duty and ignoring
its rcsponsibilitics, contemplate the riskinvolvcd in placing Nauruans
in any of the positions calling for professional or tcchnical qualifi
cations nntil they obtain the required qualifications and experi
ence ... endorses the vie\V of the Visiting Mission that it should
not be too reluctant to take a certain amount of risk in placing
them in positions where they can obtain the necessary experience." 1
2. There has been general compliance with the Trusteeship Council's
rccommendations for greater indigcnous participation in government
and administration in all the Trust Terri tories. Thus, the British Adminis
tering Authority for the Cameroons in 1951 assured the Council that it
was "full y in sympathy" with the Council's recommendation "to increase
the number of administrators and technical officcrs to advise the indige
nous inhabitants and train them progressively to assume increasing
responsibilitics in the Administration." 2 .The Administering Authority
stated that this end was ensured not only by an increase in the tech
nical staff,
"... but also by the selection of Cameroons inhabitants for scholar
ships and training schemes, by technical education such as that
which would be provided at a new trade centre in the south near
Victoria, and by appointments to important positions, for example,
3
on the board of the Cameroons Development Corporation.''
That this Territory achieved independencc in 1961 was duc in no small
measure to the success of the training program for indigcnous inhabitants
in the Tcrritory's administration.
In the Camcroons under French administration, the first year of
trusteeship saw the creation of a common civil service for Africans
4
and Europeans, \\..-hichwas commended by the Council. This section of
the Cameroons achieved its political independencc on I January rg6o.
The reports of the Trusteeship Council are replcte with notations of
progress in indigenous participation in civil service. By 30 June 1951
it noted that of 302 persans employed by the Administration of Nauru,
5
250 were Nauruans. By the end of 1958, 4,713 out of 5,251 persans
in the public service of Somaliland -qnder 1talian administration were
Somalis. 6 The Council noted that in many cases these were positions
of high authority:
"The Council, taking note that fourteen of the nineteen departments
of the Territory's Govcrnment are directed by Somalis ... commends
1
2G.A.O.R. 14th Sess.,T.C. Rep., Supp. No. 4 at 157·58 (A/4100).
3 G.A.û.R. 6th S(:ss.T.C. Rep., Supp. No. 4 at 106 (A/1856).
4Ibid.
5G.A.O.R. 4th St!SS.T.C. Rep., Supp. No. 4 at 22 (A/933)·
G.A.O.R. 7th Sess., T.C.Rep., Supp. No. 4 at 259 (A/2r5o).
6G.A.O.R. 14th Sess., T.C.Rep., Supp. N"o.4 at 69 (A/4100). REPL Y OF ETHIOPIA AND LIBERIA
457
the Administering Authority for the continued progress in the
Somalization of the Administrative services of the Terri tory." 1
As a result of such steady and progressive improvement, Somalîland
achieved its political independence on r July rg6o.
3· Finally. the Committee on South West Africa has consistently
found !hat Respondent's policies in the Territory with regard to political
rights are repugnant to its Mandate objectives. A typical illustration of
the Committee's views, often repeated in the years since 1954, is:
"The Committee deplores the continued implementation of a
system of administration based on apartheid, which inter alia,
deprives the Territory of political institutions representative of
the population as a whole, and denies the 'Non-European· in
habitants of the right to vote and seek office and the opportunity to
particîpate in the administration as weil as to participate fully in
the economie, social and educational development of the Territory.
The Committee reiterates !hat the policy of apartheid is a flagrant
violation of the Charter, the Mandate and the Universal Declaration
of Human Rights, and reaffirms its considered opinion that the
practice of apartheid will eventually operate to the detriment of
ail sections of the population of the Territory.
"The Committee is deeply concerned at the continued failure of
the Union Government to take steps to comply with the previous
recommendations of the Committee that measures be taken to
provide the Territory with organs representative of all sectors of
the population, to recognizc political rights for the 'Non-European'
inhabitants and their right to participate in the administration,
to eliminate ali discriminatory legislation and practices which
operate to the disadvantage of the 'Non-European' population,
and to ensure the revision of existing policies and practices of ad
ministration so as to makc them consistent with Article 22 of the
Covenant of the League of Nations and the Charter of the United
Nations.
"The Committee urg.>S!hat priority be given to the training of
the 'Non-Euopean' inhabitants of the Territory to enable them
to play their full and rightful part in the executive, legislative and
judicial branches of Govcrnment." 2
1 Ibid.
2 G.A.O.R. 15th Sess.,S.W.A. Comm., Supp. No, 12 at rg (A/4464).458 SOUTH WEST AFRICA
4· SECURITY OF THE PERSON, RIGHTS OF RESIDENCE,
AND FREEDOM OF MOVEMENT
1
In their Mcmorials, Applicants summarize the interlocking
statutes, regulations, decrees, orders and administrative policies
and practices by which inhabitants of the Territory, solely on the
basis of their "group," tribe or colour, are subject to restrictions
on their security, rights of residence and freedom of movement.
As in the case of related measures for implementation of eco
nomie, educational and political apartheid, described above,
Hcspondent adroits the decisively relevant fact that such legislative
and administrative policies and practices are bascd upon the per
vasive premise of differentiation according to "group." Hespon
dent seeks to explain and justify its restrictions upon the "non
European" inhabitants, as it likewise purports to do in the case
of other aspects of its apartheid policy, in terms of premises which
Applicants submit are unsound and unacceptable.
\Vith respect particularly to rights of residence and movement,
Hespondent relies heavily upon the premise that restrictions upon
the presence in the Police Zone of "Natives" defined as "idlc
persons," 2 bence considered "redundant" to the cconomy
"... involveE. rcmova1 from an area in which their presence serves
no purpose in the absence of wtïlingness to work, to a place which is
their real home. These considerations do not apply to \Vhite or
Coloured per:.ons whose only real home may be in urban or pro
claimed arcru..:J•
Among the purportcd justifications for thus consigning sorne
IJO,ooo inhabitants who spend most of their working lives in the
Police Zone away from their "real home" without normal family
!ife, to reserves far from their places of livelihood, Hespondent
relies upon its version of history as justifying pre-emption of 70
per cent of the Territory for a small minority of the population.
Although Respondent's historical survey deals with South Africa
itself,thus raising a question of relevance in respect of the inter
national obligations assumed with respect to the Mandate, Ap
plicants arc constrained to set straight the historie record, inas
much as Respondent places so heavy an emphasis upon its own
version. -4
Applicants, accordingly, fee! it necessary to correct the fundamen
tally false impression Respondent creates of a kind of historie
1 I, pp.143~152.
2 See, e.g., III, p. 214.
3 Id., p. 219. (Italics added.)
4 See .e.gIJ ,1>.4.62. REPLY OF ETHIOPIA AND LIBERIA 459
"separateness" or apartheid, which it asserts as an explanation
1
and justification for its present policies based upon the fiction
that reserves are the only "real home" of the "Natives."
(A) RELEVANT HISTORICAL RESUMÉ
Contrary to Respondent's account that before the whites began
to settle in the seventeenth century Southern Africa was "nearly
empty," the eastern half of the country was effectively occupied
2
by Bantu-speaking farming tribes, and the western half was oc
cupied more thinly, but effectively, in relation to their economy,
by hunting and herding peoples whom the whites were to cali
Bushmen and Hottentots. 3 Thereafter any prospect that distinct
racial communities might develop along their own !ines in separa te
terri tories in Southern Africa was rapidly underrnined. The Dutch
(1652-1795, 1803-1806) and British (1795-1803, 1806 and after)
governments of the Cape Colony did try to keep the area of white
settlement separate, first, from the Hottentots and Bushmen, and
later from the Bantu-speaking tribes; but they failed, because
the white settlers themsclves took occupation of land previous
ly used by Bushmen, Hottentots and Africans, and because the
white settlers themselves became dependent on the use of
Bush men, Hottentot and African labour, as weil as the labour of
imported slaves. The white South Africans' appetite for Jane!,
and for the labour of the previous inhabitants of the land, has long
since destroyed any prospect there rnight have been of dividing
Southern Afi·ica into self-sufficient, autonomous, uni-racial terri
tories; and South African society, within the frontiers of white
settlement, has always been a plural or multiracial society, domi
nated by its white minority. •
Today nearly ali the productive land in seven-eighths of the
I<epublic is owned by white South Africans. Until about 1870
the labour needs of the whites were limited by the !act that most
of them were pastoral farmers; but now that the mineral resources
are being exploited and there is a wide range of manufacturing
industries most of the non-whites as weil as the whites are involved
in a modern exchange economy. At the time of the 1960 census only
about 39 percent of the Africans in South Africa were in the "Ban tu
Areas," which are scattered lands amounting to about one-eighth
of the Republic, producing very little for internai exchange and
virtually nothing for sale in the "white areas," let alone for export,
1 Il, pp. 46o.
2 'Wilson, "The Early Historv of the Transkei and Ciskei,"African Sludies,
Vo3.18,No. 4, 1959,pp. I6J-79·.
Schapera, The Khoisan Peoples of South A/rica27-3·1, 40-43 (1930); Marais,
The Cape Coloured People I652-I937s-8, IJ-t6 (1939)-
4 Marais,op. cit282-284: van der HorstNative Labour in South A/ric319-322
(1942); de Kiewiet,A His/ory of South Ajrica: Social and Economie,19-20, 24
(1941); "'al keA History of Southern A/ric(3d ed. 1957). SOUTH WEST AFRICA
and de facto having the economie function of labour reservoirs for
white-owned farms and white-controlled industries. 1 Consequently
now, more than ever, the real task confronting the government
of the Republic is the task of dealing with the realities of a plural
or multi-racial society.
White settlement and economie development started in South
West Africa much later than in most other parts of Southern
Africa. Nevertheless the rg6o census figures, as reportee! by the
Odendaal Commission, show that at the time of the census ten
per cent of the total population of the northern sector of South
West Africa (and thus about twenty percent of the male population
and perhaps fifty per cent of the male adult population of that sec
tor) were working (for "Whites") in the southern sector; and that
of the people domiciled in the southern sector, 47 percent were
in the towns, 37 per cent were in the ("White") rural areas and
only r6 per cent were in what the Commission calls their "Home
areas". 2 In South West Africa, as in the Republic itself, a plural
or multi-racial society is a fact; policies basee! upon a contrary
premise rest upon fiction. 3
Before the nineteenth century the government of the Cape
Colony failed to exert effective control over the situation beyond
the vicinity of the Cape peninsula, with the result that most of
the white settlers became very much a law unto themselves.
Since the only non-whites they encountered were their slaves,
their servants, or their enemies, and since they were imbued
with a simplistic version of Calvinism, they became an exception
ally colour-conscious people. ' The Great Trek of the r83o's-r84o's,
in which many of the Afrikaner farmers left the Cape Colony, was
in large measure an ideological protes! against the attempts which
the colonial government had been making to apply the rule of law
to the entire colony and to abolish legal discrimination on racial
grounds. Thereafter in the South African Republic and the Orange
Free State the Afrikaner Voortrekkers established a caste system
in which only "\Vhites" were deemed to be members of the body
politic and ali non-"\Vhites" were subject peoples. In the Cape
Colonv, on the other hanc!, the idea that the law should not dis
crimifiate between people on account of their race or religion gainee!
considerable support among ali sections of the population. Thus
1
The Native Reserves and their Place in the Economy of the Union of South Africa:
U.G. J2/I946 (1946); Summary of the Report of the Commission for the Socio-Economic
Deuelopment of the Bantu Areas within the Union of South AfriU.G. 6I/I955
(1955).
2 Odendaal Comm·ission Repo,.t, pp. 39, 41, paras. 146-49 and tables XVIII-XX.
3 Thus, 170,720 "Natives" and 23,590 "Coloureds" reside and work in the
"White" Police Zone, which comprises 70 pet cent of the Territory. (IV, p. 21.)
• MacCrone, Race Attitudes in South A frica: Historical, Experimental and Psycho
logicaltudies (1957), 107-108, 129-130. REPLY OF ETHIOPIA AND LIBERIA
J.W. Sauer, a leading Cape politician, told the South African Native
Affairs Commission of 1903-I905:
"1 do not believe that where representative institutions exist ...
a class that is not represented will ever receive political justice,
because after all it is rnaterial interests that will eventually prevail
and, therefore, the cla:;s or classes having no political power will
suffer."1
On the eve of the National Convention, which met in 1908 and
1909 to draw up a constitution for a united South Africa, Olive
Schreiner, the authoress of The Story of a South African Farm,
warned ber fellow "White" South Africans that
"... if \Ve,as a dominant class, realize that the true wealth of a
nation is the health, happiness, intelligence, and content of every man
and woman born within its borders ... then 1 think the future of
South Africa promises greatness and strcngth. But if we fait in
this?- ... then 1 woul.drather draw a veil over the future of this
land." 2
Moreover the Cape delegates to the Convention, of bath parties,
pledged themselves to uphold the Cape system. For the ruling
South African party F. S. Malan announced that
''TheSouth African Party is against drawingacolour line forpolitical
purposcs." 3
On the other band the delegates from the northern colonies, in
cluding Natal, were determinee! to debar ali non-whites from
exercising political power in the Union, for the sentiments com
plained of by Landdrost Alberti of Uitenhage a century earlier were
still cxpressed in their parliaments. In the Orange I~ivc Colony
parliament, for example, .J. P. G. Steyl declaree! in 1909 that
"The Hon. the Attornev-General said that the native was a man
and that he was entitled to rights. He did not agree with that.
If he were, then he would grow long hair. Providence had decreed 4
that he should remain a drawer of water and a hewer of wood."
The result was that the Cape delegates agreee! that only "Whites"
should be eligible to become members of the South African parlia
ment and that the franchise laws of the four colonies should remain
in force in the respective provinces of the Union, until they were
alteree! by parliament; and the way was thus paved for the es
tablishment and maintenance of a caste system throughout South
Africa.
Between 1910 and 1948 racial discrimination was embodied in
a series of laws restricting the rights of Africans in politics, and
1 Quoted in Thompson, The Unification of South AjrI902~I9 I14 (rg6o).
2 Schreiner,Gloser Union 28··29 (znd ed., n.d. [c. 1961]).
3 Thompson, p. II6, cited footnote 1 of this supra.
{ Quoted id., p. 333· SOUTH WEST AFRICA
in land ownership and in industry outside the reserves. 1The slogan
that was used by the South African government to describe this
policy was "Segregation", and segregation was justifiee! on the as
sumption that Africans had a real choice between living their tra
ditionallives in their reserves or coming out to work for "Whites,"
and the further 2cssumption that if they chose the latter they coule!
fairJy be treated as temporary migrants. But as time wcnt by it
became more and more evident to anyone who tried to discover
the facts that the choice was not a real one, for most Africans were
economically obligecl to earn wages, at !east intermittently, and
many of them hacl become permanent residents of the "White
areas" complete] y clivorcecl from the reserves and from the tribal
structures.
These facts werc actually embodiecl in a series of official publi-
cations. In 1932 the Holloway Commission reported:
"Views have bccn cxpressed which would mean that the Natives
should live in a part of the country set aside for them, and
that individuals should be admitted into the European arca
on temporary permit to work; they should not, however, make
their homes in the European area, and those who have so made
their homes should gradually be transferred to the Native area.
Your Commission cannat give any support to this view. Besicles
being impracdcablc, it would be unfair to Natives who have already
become permanent town-dwellers or dwellers on European farms.
1\:loreoverit would mean that Native labour in the European arca
would alwavs be casual labour, and if this were to continue there 2
would be gr"ea.tdifficulties in the way of increasing its effi.ciency."
In 1946 the government-appointcd Social and Economie Planning
Council declared
''...that the ut.mostcxtension ofthe Reserves possible under the present
law, and their utmost developmcnt, will stillleave outside them large
masses of the Native population to be provided for. No Reserve
policy ... will make it possible for South Africa to evade the issues
raised by the presence of the Native in European farming areas
and in urban areas. These must be considered on their own
merits .... " 3
In rg48 the Fagan Commission warned:
"From what we have alrea.dy said it should he clcar, tirstly,
that the idca of total segregation is utterly impracticable; secondly,
that the movcment from country to town has à background of
economie necessity-that it may, so one hopes, be guided and regu
lated, but that it cannat be stopped or be tumed in the opposite
1 Roskam, Apartheid and Discrimination55-58 (196o).
2 Union of South Africa,Report of Native Ecmtamic Commission 1930-1932:
U.G. 22/1932 (1932).p.101, para.694.
3 Union of South Africa,Social and Economie Plamting Cotmcil Report No. 9:
The Native Reserves and their place in the Economy of the Unio" of South A/rica:
U.G. 32/1946 {1946),p.3. para.Il· REPU:' OF ETHIOPIA AND LIBERIA
direction; and, thirdly, that in our urban areas there are not only
Native migrant labourers, but there is also a settled, permanent
Native population. These are simply facts, which we have to face
as snelL The old cry, 'Send them back!'-still so often raised when
there is trouble with Natives-thereforenolongeroffersasolution." 1
And in the same year the Social and Economie Planning Council
made an accurate appraisal of the rcalities of the South African
situation:
"South Africa, in short is pursuing the experiment in race relations
of finding a basis on which a multi-racial society, composed of people
of varying standards of education and culture, can develop in
harmony in the same country.
"The esscntial !act is that South African society to-day is divided,
firstly, into two main castes, a sma.llcr upper caste of Europeans,
and a. larger lower caste of non-Europeans. This lowcr caste is
also sub-divided into thrce, Asiatics, Colom·ed and Natives, though
the caste barriers are in this case less rigid. Each caste is again
div ideelintoclasses, mainly on an econornicancloccupational basis. ''
ln 1929, when he was Leader of the South African Opposition,
General ] . C. Smuts admitted that
"These urbanized natives living among the whites constitute the
real crux, and it is a difficulty which goes far beyond the political
issue. They raise a problem for the whole principle of segregation .... ''
ln the same work Smuts said that an industrial colour-bar was
"both impracticablc and an offcnce against the modern conscience",
and !hat ali classes and colours should have some sort of represen
4
tation in the South African parliament.
In 1941 Dr. C. W. de Kiewiet, who had been brought up as a
white South African, but had lcft South Africa to become, succes
sive!y, professor of history in the State University of Iowa and
professor of history in Cornell University, and who later becamc
President of Rochester University, wrote:
"Segregation is a myth, a !ancy, anything but a !act. As a word
it describcs a hope or a policy but not a real situation. It is denied
by the sight of hundreds of thousands of natives dwelling perma
nently in the town, and upon European farms. The census-takcrs
of rg36 found 559,675 more natives outside the reserves !han inside
them. It is dcnied by the recruitcrs of native labour for the mines,
by the farmers who possess the bulk of good land, by the taxes
which cornpel the natives to go out to earn moncy by their labour.
It is denied above ali by the !act !hat industry has been, in the
language of the horticulturalist, budded or grafted on to the stock
1 Union of South Africa, Report of the Native Laws Commission I946-48: U.G.
z8tr948 (1948),p. 19,para. 28.
2 Union of South Africa, Social and Economie Planning Council Report No.IJ:
The Economie and Social Conditi.ms of the Racial Groups in South Africa: U.G.
53/I948 (1948), p. 108, para. 162.
3 Smuts, A/rica and Some World Problems 98 (1930).
4 Id., pp. 94, 96. SOUTH WEST AFRICA
of native labour.It is denied by the !act thal the native population
was no longer homogeneous. The greatest differences had developed
in their ranks.... What has been twisted together by history
cannat be readily disentangled by laws. To unwind the woven corel
of native a1d European life is simply to requirc history to retrace
itssteps."
Applicants submit that, on the basis of the foregoing correct
version of developments in South Africa and in the Territory, no
tenable basis exists for the premise that the "Europeans" and
"Coloureds" in the Police Zone are the only inhabitants entillccl
to regard it as their "real home," making use of the "Natives" so
far as necessary to the prosperity of the dominant group.
As clemonstrated in the Memorials, 2 and elaboratcd below,
Respondent's restrictive and discriminatory laws and practices
justify the conclusion of an authority thal
"... the con\·entions and laws which inhibit the flow of men and
their familie!: to the towns can only become a sentence of poverty
and deprivation . ... The segregation laws are an embargo upon
the devclopment of the non-European population. . . . These
laws seek to imprison the population within its own backwardness
and set up blockades against the flow of experience, skills, and
amenities ou which modern progress is based. ... The whole
myth of separate native culture collapses when it is rccognized
that, for theAfrican, progress and emancipation depend upon an 3
escape from the tribe;mel a deeper entry into the !ifeof the West."
Rcspondent's concept and premise, however, upon which the
policy of apartheid rests, and the restrictions upon seeurity, resi
dence and movement which effectuate that policy, relegatcs to
"the tribe," as their "real home", inhabitants whose "progrcss and
emancipation" Respondent undertook in rgzo to promote to the
utmost.
(B) ANALYSIS OF l\1EASURES OF h!PLEMEKTAT!ON OF APARTHEID
WITH RESPECT TO RES!DE>ICE, FREEDOM OF l\10VEMEKT, A>!D
SECURITY OF THE PERSON
Restrictions imposed by Respondent on the rights of residence,
freedom of movement, and security of the persan of the indigenous
inhabitants of South West Africa, comprise a mechanism whereby
the policy of al;artheid is implemented and "non-White" inhabit
ants are confined to the poorest areas of the Territory, except for
purposes of mi!;ratory labour on behalf of "European" employers.
Respondent concedes that "Natives" from beyond the Police
Zone, although possessing rights of residence within the reserves,
are not permitted to effect a permanent change of residence so
as to live in the Police Zone generally, or in urban areas within
1
2 de Kiewiet, pp. 242-.t3, cited p. 281, supra.
1 1, pp. 143-152.
de Kiewiet, op. cil., 48, 54 (1956). REPLY OF ETHIOPIA AND LIBERIA
1
the Police Zone. It is concedee\ further that labourers recruited from
the reserves for the purpose of employment within the Police Zone
2
must return to the reserves alter two and a hall years at the most.
Respondent admits also that "non- Whites" working in urban
areas in the Police Zone are restricted to "non- White" areas of
the cilies and towns and are not permitted to reside in what are
consideree\ "White" areas; 3 if an incligenous inhabitant is seeking
work in an urban arca, he has three elays in which to get permission
to remain a further two weeks-anc\ if employment cannot be founc\
within that periocl, he must leave. 4 ln orcier "to control the influx
5
of Natives into [urban or proclaimecl] areas" and to implement
the restrictions on freeclom of residence imposee! by Responclent on
"non- White" inhabitants, "Native" work-seekers must register with
6
designated offlcers upon entering such areas.
The entire complex of laws and regulations implementing apart
heid by restric ting freeclom of residence of the incligenous inhabitants
of South West Africa is supplementecl and complementecl by
what have become generally known as the "pass laws." Thus it is
aclmittecl by Responclent that upon pain of criminal conviction
and punishment, a "Native" must upon demanc\ procluce a pass
if he is travelling within the Police Zone but beyoncl the confines of
his location or reserve or away from the farm or place where he
resides or is employee\; 7 must procluce a pass upon clemancl if
8
his domicile is beyond the Police Zone and he is within the Zone;
must have a written permit cnabling him to remain in an urban
or proclaimccl area; 9 and must have a written permit to avoid
10
possible curfew restrictions in "White" urban arcas.
Insofar as "Natives" are to be found in urban or proclaimcd areas,
but are not in the employ of the Govcrnment orof"White" employers,
removal or work is certain. Thus, shoulcl a "Native" be c\eclarecl
1See Ill, pp.~66·275·
2 Id., p. 276, paras.q8~4g. See Proc. No. ~9 of 1935 (S. \V.A.), Sec. 6(4), in
The Laws of South West Africa I9JS, Vol. XIV, p. 152, as amendcd by Proc. ?\o. 38
of 1949 (S.\V.A.), Sec. 2,in The: Laws of South West A/rica I949. Vol. XXVIII,
p. 360.
III, pp.277~29 se; Proc. No. 56 of 1951 (S.\V.A.) in The Laws of South West
A/rica I9SI, Vol. XXX, pp. 9ü·I7I.
4III, p. 28g. Although Section 25 of Proclamation No. 56 of 1951 bas not been
invoked in terms,a policy calling for the removal of "Natives" "in excess of the
reasonable labour requirements" of a given area is endorsed and ma.intained by
Respondent (see id., pp. 208-209. paras184·88).
5 Id., p. 291.
6 Ibid.
7 Id., p.315; sec Proc. No. II of 1922 (S.\V.A.), Sec. 10, in The Lawsof South
West Africa I9I5-I922, pp. 751~52 .pplicants concede the existence of class
exemptions (sec id. p. 316, para. G4) but these cannatchange the essence of the
cam plaint.
8 Id., p. 322, para. 85; see Proc. No. 29 of 1935 (S.\V.A.in The Laws of South
West .Africa I9JS, Vol. XIV, pp. 148~j 8a,ticularlySec. 9, at p. 154·
9 Id., pp.324~327.
10 Id., pp. 327-329. SOUTH WEST AFRICA
an "idle persan" he will be ordered removed from the urban or
proclaimed area, or if he had previously agreed to enter into a
contract of employment, he may be ordered into employment un
der the tenns of the contract. 1 If a "Native" in a reserve within
the Police Zone remains idle, the superintendent of the reserve may
"order such person to take up employment on essential public
works or services at a sufficient wage to be determinee! by the super
intendent." 2
Respondent defends its reserve policy by emphasizing the exist
ence of different population groups in the Territory, the need to
restore tribal !ife, differences in systems of land tenure, and the
3
need to prevent alienation of "non- White" land. The fallacy of
such premises has been demonstrated in Applicants' analysis of
the nature and consequences of the policy of apartheid as a whole. •
Respondent asserts 5 that the Permanent Mandates Commis
sion was aware of and approved the reserve policy. During the
early years of Mandatory administration, the Commission was
deeply interested in the economie and political development of
the reserves. The Commission, however, did not approve a policy
of confining inhabitants to reserves and forbidding them to take
up permanent residence in the Police Zone generally, or in urban
areas within the Police Zone. Thus, at the Thire! Session of the
Commission, the Chainnan asked the South African representative
(SirE. Walton): "\Vbat was the policy of the South African Govern
ment in regard to these Reserves? \Vas it its intention to main tain
these reserves and to constitute new ones, or did it contemplate
in the uear future the possibili6y of bringing the 1uliive population
in contact with c~ivilization?"
At the same session, the Chcürman inquired "whether this
[reserve] system coule! be reconciled with the spirit of the man
dates and the civilising mission with which the Mandatory was
7
entrusted." Similarly, during the Fourth Session of the Com
mission, l\1.Beau stated that " ... he wanted to draw attention
to the difficulties which resulted from the system of reserves,
as at present practised, in connection with the development of the
natives, confined as they were in a sort of 'watertightcompartment.' " 8
Respondent further seeks to justify its policy on the ground that
"... the exclusion of residence by White persans in the Native
reserves is absolute." 9 The false equivalence is clear; reserves
provide no more than a subsistence economy, whereas the sevcnty
1
III, pp. 214·216, paras. 65·69.
3zId., p. 220, paras. 89·90.
Id., pp. 240·245.
• Supra, pp. 268 {j.
6 P.M.e. Min., 3rd Sess., p. 104. (ltalics added.)
7 Id., p. 105. .
8 P.M.C. Min., 4th Sess., p. 63. (ltalics added.)
9 III, p. 267, parl.19. REPLY OF ETHIOPIA AND LIBERIA
percent of the Territory set aside as the "real home" of the "Eu
ropean" inhabitants, contains most of the wealth of the Ter
ritory and a highly developed economy. Indeed, as Respondent
concedes, 1 this is precise!y why indigenous inhabitants wish to
come ta the "White" areas in the fi.rst place. As Lord Hailey has
stated:
"... it is when one contemplates the poverty of soil and lmv
agricultural possibilities of these Reserves that one realizes the
difficulty ·of assuming that the Native can ever achicve a really
adequate standard ofliving in the areas set aside for his occupation.'' 2
Respondent asserts as a justification for its reserve policy and
pass system, the objective of "influx control," assertedly to pre
vent a rush of ''Natives" to the urban areas, thus causing unem
ployment and attendant social evils, such as prostitution, venereal
disease, alcoholism, crime and the like. 3
The true cause of the social evils to which Respondent refers,
however, is not ta be found in the fact that "Natives" congregate
in urban and proclaimcd areas; it is in fact found in the cliscrim
inatory system of migratory labour itself. Splitting of bmilies,
an evil attribute of the system Respondent nowhcre sccks to
justify, generales many of the evils the influx control policy is de
signed to meet. Thus, the United Nations Economie Commission
for Africa has found that
"In brief, the system of migra tory labour produces two economie
ills~neg lfec tricultural production on the reserves and an
unstable, uneconomic labour force. Besicles, therc arc the many
cvil social consequences, particularly the disruption of family life.
Urban centres arc crowdcd with men whose wivcs and families
are on the reserves, creating the problem of a disproportionate
number of men to women in the cities and, converse!y, more women
than men on the reserves; situations which breed the problems of
venereal disease, prostitution, crime and delinquency." 4
1Ill, p. 299, para. 5·
2 Hailey, An African Survey 764 (3d cd. 1957). The unjustifiable nature of the
discrimination practised against indigenous inhabitants is compounded by the
fact that the reserves within the Police Zone are not, in fact, tribal.Thus Lord
Hailey has pointed out that such reserves " ... have not bccn proclaimed in the
name of particular tribes or sections of tribes;many of them indeed contain a
considerable variety of tribes. Hercro are ta be found in at least six of the Reserves;
in several of them therc is almost an equal number of Hottentot and Bergdama,
together with a slightly larger number of Herero." (Ibid.}His conclusion is that
the reserves in the Police Zone "are not in the true sense tribal Reserves." (Id.,
p. 697-)
3 See III, pp. 279-287.
4 U.N. Doc. E/CN.14{132{Rcv. I, Economie and Social Conseque1ices of Racial
Discrimina/ory Pradjces (U.N. Publication, Sales No.: 6J.JI.K.I} at 27. The
Commission also stated that "'under the migratory labour system the able-bodied
male population spends part of its time on the native reserves and part working in
industry, living in compounds in towns or on the mines. The rcsult is that in the
dtics there is a preponderance of males over females, white in the reserves the
contrary is true.African homes arc in fact chronically 'broken homes', which SOUTH WEST AFRICA
Lord Hailey, in a discussion of the migratory labour system, stated
that
"lt is not difficult to visualize the social effect on an indigenous
society of the absence of large numbers of its adult males; it is
to be seen in the loosening of kindred and tribal tics and the
\veakening of the influence of the traditional rules rcgulating
social conduc.t. The cffect on the wives remaining bchind in the
villages may weil be imagined. Equally unfortunate has been the
growth of prostitution in the urban centres and the consequent
spread of venercal disease among migrant workcrs." 1
It would seem then, that the best that can be said for l{espond
ent's "influx control" policy is that it is designed to ameliorate
the effects of another of Respondent's policies, i.e., the preserva
tion of a system of migratory labour. The two policies taken together
are at the core of the implementation of the policy of apartheid.
\Vith respect to unemployment, which "influx control" assertedly
elimina tes, the central point again in this context is that Respon
dent's failurc to devclop in any meaningful sense the economies
of the reserves, rcsults in pressures upon "Natives" to come to
urban areas seeking employment. The position is then, that
under "influx control" the "Natives," who have a far greater
need for. employment than most of the white inhabitants of the
Territory, are given at most two weeks to fincl such employment.
If they do not succeed, they are sent back to the very areas they
hacl triecl to escape-to areas where "one realizes the diffi.culty
of assuming that the Native can ever achieve a really adequate
standard of living." 2
As in the case of other aspects of implementation of the policy
of apartheid, thB basic fallacy and evil of the "influx control"
measures, pass la\VS,and other restrictive deviees, consist in the
premise that ali "Natives" are to be treated alike, whatever their
individual merit, capacity or potential. The presence in the "\\'hi te"
zone, of a "Native," regard\ess of his persona! skill or attributes,
"serves no purpose in the absence of willingncss to work"; he is
3
to be relegated to his "real home" in a reserve.
A "European," on the other hand, is in his "real home" in the
Police Zone; "absence of \\~lling tn e srk on his part" is not
relevant. The unconscionable implications of so double a stand
ard justify the conclusion thal:
"The sum of segregation laws are an effort to prevent failure in
a white man and success in a black man.""
unavoidably results in a high rate of divorce, polygamy, prosdrunkenness,
crime and general restlessness in the towns. In the reserves women's morality tends
ta1become more and more loose." (Id., p. 46.)
2 Hailey, pI386, cited p. 467, supra.
3 Id.p. 764.
4 III, p219.
de Kiewiet, The Anatomy of South Ajrican Misery 55 (1956). REPLY OF ETHIOPIA AND LIBERIA
Respondent seeks to justify its "influx control" policy by refe
rence to assertedly similar policics in other countries. In no case,
however, are the policy considerations underlying limitations on
urban immigration basee! upon total and permanent separation
of "Whites" and "non-Whites" in the highly developed sections. 1
"Influx control" cannat justify the total ban on residence by "Na
tives" in the urban areas of the Territory. Housing problems, no
matter how serions, cannat rightly be the basis for "Native"
urban residence limitee! to "European" labour requirements.
Respondent asserts that restrictions on "Native" liberty of
movement and residence are designed ta "protee! ... !ribes from
disintegration" 2 or "detribalization." 3
This again serves as an instructive example of Respondent's
policy of classifying ali inhabitants on the basis of "group" or
tribe, ignoring individual merit or need.
Conceding that Proclamation No. 29 of I935 requires "Natives"
recruited from reserves beyond the Police Zone to return ta reserves
alter two and a half years at most, Respondent contends that
such a requirement
"... was made at the specifie rcqucst of the tribal authorities in
the Northern arc~ waso wish to protect their tribes from dis
integration and tu maintain tribal relations."2
Not a ward is said concerning the wishes or needs of the individual
who has come from the reserves to work as a labourer in the Police
Zone. Respondent's professee! solicitude for preservation of tmdi
tional forms of tribalism is, in fact, self-serving. As Lord Hailey
stated in r956:
"In the prevailing philosophy of South Africa the Native in the
urban areas is a transitory resident who in the \\rords used in the
Transvaal 'should depart therefrom when he ceases to minister
to the needs of the \Vhite man."'"'
The inescapable !act is that the entire complex of legislative and
administrative restrictions implementing apartheid by restricting
freedom of movement, residence, and security of the persan is
designed for the convenience of the "European" inhabitants of the
Territory. Almost without exception, the provisions complainccl
of by Applicants in part 5 of Chapter V of the M emorials keep
"non- Whites" and "Whites" apart, except for labour demandee!
of the former. Thus Respondent states with sorne candor that
"... Natives are not entitled to obtain permanent residential
rights or ownership in the urban areas in the Police Zone. Since
Natives are, hm\·ever, allmved to enter these areas in arder to
t Ill, pp. 285-2paras. 176-Sr.
2 Id., p. '2]6, para. 149.
l Id., p. 323, para. 87.
4 Hailey, p. 428, cited p. supra.470 SOUTH WEST AFRICA
obtain employment, it bas been necessary to provide proper
accommodation for them for the purpose of such employment." 1
Similarly, the pass system is the mechanism enabling Respondent
to keep "Natives "and "Europeans" apart, except for purposes of
migra tory labour. Respondent states that pass laws do "not unduly
restrict the movement of Natives" 2 because "Respondent bas
endeavoured to make it as easy as possible for Natives to obtain
passes." 3 The e>Sence of the evil is not that passes are difficult
to obtain, but that a system is enforced in which individuals are
categorized and treated solely as members of a "group," not as
persans.
The inherent evil of the system has been widely recognized and
commented upon, by authorities both within and outside South
Africa.
Thus, a leading South African industrialist has concluded that
"... there was a time when it might have been reasonable to
regard the bulk of the Africans in the urban areas as temporary
residents. But that time is long past and today ... there is a very
large and increasing African population in the towns whose con
nexion with their original tribal homes bas almost or entirely
ceased to exist. ~Ioreov teere urban Africans are absolutcly
indispensable to the industrial life of the country. Nevcrtheless
they are trea.ted as though they were migrants and the pass laws
and other legislation operate to prevent their obtaining the right
of permanent occupation of the only homes they have. Ifthey Jose
their jobs and do not find another one within a short period they
may be uprooted and forced to go to quite a different part of the
country. In this way, families are broken up and the urban African
is dcnied that sense of permanence and security which is one of the
prime neecls of all human beings.
It is difficult to exaggerate the sense of frustration these featurcs
of African urbanlifecause, particularly among the growing number 4
of intelligent and educated men who hold responsible positions."
The 1nternational Commission of J urists, in a stucly dealing
with South Africa, found that
"The most basic, and at the same time perhaps the most resented,
application of apartheid is to be found in the restrictions imposed
upon the movement and residence of non-whites. Particularly
as applicd to the African these restrictions reveal the fundamentally
economie purpose of the policy of separation. In short, the movement
and residence of the African labour force is regulated to meet t5e
industrial and agricultural requirements of the European."
1
Ill,p. 294, para. 205. (ltalics added.)
3 Id., p. 314, para. 61.
4Id.,p. 316, para. 66.
H. F. Oppenheimer, Chairman of the Anglo~Americ Carporation of South
Africa, Ltd., quotein South A/rica and the Rule of Law (1g6o), p. 37· (Pub. of
In5ernationaCommission of Jurists.)
Op. cit.p. 27. The Commission also statedthat "... an objectiveanalysis of
the present! y existing restricof movement canon! y bring forth the conclusion REPLY OF ETHIOPIA AND LIBERIA 47I
When regard is had to statements made by Respondent such as
·"Permission to be in a proclaimed area may be refused iftherc is
a surplus of Native labour available in such area. ... " 1
it is difficult to reach any conclusion other than that reached by
the International Commission of J urists.
Other restrictions on "Native" freedom of movement are directed
at the same objective. Legislation differentiating between "White"
and "Native" people also controls egress from and entry into the
Territory. 2 In respect of egress from the Territory, Respondent
states the "reason for this differentiai treatment is to ensure that
Natives in the Territory who are inexperienced, illiterate or in
poor financial circumstances, do not in ignorance embark upon
trips to South Africa without realizing the implications of such
3
ventures." Thus "Natives" require passes togo to South Africa.
Exempted from the requirement, however, are "Native" females
and "Native" males fourtecn years of age and under, !hus con
firming that the legislation in !act is designed to serve the labour
requirements of the "Europeans" in the Territory and the Republic.
Similarly, curfew restrictions on "Natives" are said to protee!
against "disturbances" and "crime." 4 Yet such curfew restrictions
apply on!y in "White" areas, and on!y to "non- White" peoples.
The system is roundcd off by Rcspondent's legislation restricting
the security of the person. Thus, although Respondent gives many
reasons why the Vagrancy Proclamation in South West Africa 5
is justifiable, it cannot be denied !hat it is much easier for a "Native"
to be found a vagrant, !han it is for a "White" man. The Proclama
tion is not applied in the areas beyond the Police Zone, nor in
reserves within the Police Zone. 6 It is applied precisely where
the "Native" most needs his pass-in the "White" urban areas.
The Jack of a pass might weil result in a "Native" being declared
a vagrant. 7
that the Government has for the purpose of allocation of labour betwecn industry
and agriculture erected a carefulsystem of discriminatory legislation. This legis
lation docs not seem or even pretend to protect, but only restricts the African
and is cleverly designed to complement equally discriminatory restriction of
residence." (page 31.)
1 Ill, p. 324, para. 93·
1 Id., pp. 319-322.
3 Id., p. 320, para. 78.
• Id., p. 328, para. 107.
5 Proc. No. 25 of 1920 (S.\V.A.),in The Laws of South West A/rica I915-I92Z,
p. 280. Sec III, pp. 198-214.
6 III, p. 333, para. 127.
7 lndeed, Respondent concedes that vagrancy was one of the reasons the pass
system was devised in the first pJace. Respondent quotes from a Commission
Report of 1921 that a pass system is desirable since "it cannat now be readily
ascertained whether a Native found travelling along a raad or across country is
a vagrant or not ... " (Id., p. 311.)
Respondent's version of the attitude of the Permanent Mandates Commission
toward the pass system and the Vagrancy Proclamation is not correct. The Report •
472 SOUTH WEST AFRICA
Respondcnt's policy of apartheid in the Territory is further
implementee! by the Natives (Urban Areas) Proclamation of rgsr,
1
as amendee! in I954· Under the Proclamation, an idlc "Native"
in urban or proclaimed areas may be removed from such arca, or
if he had previously agreed to a contract of employment, may be
ordered to carry out the employmcnt, regardlcss of his wishes; 2
if he is removcd to a reserve within the Police Zone, he may be
ordcred to work on essential public works within that reserve.
Respondent's deferree is its argument conccrning the policy of
"influx control." 3
The policy of apartheid is similarly effcctuated by legislation
authorizing a superintendent of a reserve within the Police Zone
(i.e., within the highly developed area of the Tcrritory) to arder
4
idle "Natives" to take up employment on cssential public works
and permitting the Administrator to remove "undesirable" "Na
5
tives" from certain reserves \vithin the Police Zone.
In sum, Respondent's measures restricting rights of residence,
freedom of movement, and security ofthe inhabitants are based upon
of the Commission to the Lcugue Council {3rd Session) 1;riticized the Proclamation
on the ground, inte;' atiathat a magistrate was authorized "... in lieu of the
punishment prescribed, to adjudge the accused ta a term of service on public
works or to employrnent under any municipality or private persan othcr than the
complainant, for a tcrm not exceeding that for which imprisonment might be
imposed, at such wages as the magistrate deemed fair. This power of imposing
forced labour for the bcnefit of private individuals in lieu of the sentence of the
Courtisa practice which cannat be approved." (P:M.C. 1\-lin.,3rd Sess., p. 293.)
As for the pass system, it is instructiveto note the vicws of Lord Lugard. At
the third session of the Commission he is reported to have "called attention to the
system of passes whkh was imposed on the natives" (italics added) and the Chairman
thought "it would be weil to ask the reasons for these restrictionsupon persona!
liberty". (P.l\l.C. :\lin., 3rd Sess., p. 61.) At the fourth session, Sir Lugard asked
"whether the pass system-which was a form of clttss legislatio11 which one would,
if possible, desire to abolish-wasabsolutely necessary, togcther with the obligation
ta obtain permits to enter or ta leave the country orto travet." (P.l\l.C. Min., 4th
Ses1., p. 64 (italics added).)
See III, pp. 214-219.
2 See Id., paras. (•6-68.
3Supra, pp. 467-+68.
4 III, pp. 220-221. Applicantsconcede that the provisions relating to farm colonies
are not applicable in the Territory, but the policy of ordering idle "Natives" ta
work is admitted by Rcspondent to be implemented, as discussed above.
Respondent state:; th at " .no objection can be raised against the habitually
idle and unemployed resident of a Native reserve within the Police Zone being
compelled to takc up cmployment in lieu of being sentenced as a criminal offender
to imprisonment under the prm:isions of the Vagrancy Proclamation." (Id., p. 220,
para. 91.) The views of the International Labour Organisation regarding such
practices are discussed infra, pp. 474-475.
~ III, pp. 222-224. That the powers given must be exl!rcised in a bona fide manner
(p. 221, para. 93; p. 224, para. 104) is not responsive ta Applicants' complaint that
the power is largely a discretionary one. Discretion in the exercise of immensely
important powers concerning the welfare of the indigcnous inhabitants îs also
the essence of Applicants' complaint concerning Seçtion 1 of Proclamation No. 15
of 1928 (S.\V./\. )d, ps ·7~.para. 143. and the essence ofthe cam plaint regard
ing the power nf an·est under the vagrancy and pass laws. REPLY OF ETHIOPIA AND LIBERIA 473
•
membership in a "group" and are designee! to effectuate the po-
licy of apartheit(, or separate development. A key feature of !hat
policy, as has been shown, is the tolerance of presence of "Natives"
in the highly developed areas of the Territory only as migrant
and temporary labourers.
As Lord Hailey has stated:
•·From time to time Europeans who have settlcd in other territories
have shown an inclination to look to South Africa for countenance
in their effort to maintain policics bascd on separatist ideas, while
to those who look forward to a grcater measure of integration, the
regime of the Union has become a. natural target for attack. But
therc is here something more than a contrast of philosophies.
Both sides realize thal the essence of the matter lies in the !act
that the doctrine of apartheid implies that the European community
must continue to hold a position of control over the non-European
communities. It is actually on this basic issue, and not because
of any argument about the maintenance of a European pattern of
civilization, that the two schools of thought tend to range themselves
so decisively in opposite camps." 1
(C) ST.HEMENT OF LAW
By reason of the !act !hat in no dependent territory other than
South West Africa does there exist a system of restrictions on
security, rights of residence, and freedom of movement, based sole!y
upon membership in a "group," currcnt standards in this area
have not had to be evolve<leither by the Trusteeship Council or the
Committee on Information from Non-Self-Governing Territories.
The Committee on South West Africa, howevcr, whose annual
reports have bcen approved by the General Assembly, has dealt
explicitly with such restrictions on inhabitants of the Territory
and has consistently viewed such restrictions as a violation of the
Mandate agreement.
Periodic condemnation by the Committee of the limitations on
security, rights of residence, and freedom of movement in the
Terri tory delineates the standard established by the United Nations
with regard thereto.
Severa! illustrations make clear the Committee's views. In 1954
the Committee on South West Africa reviewed the restrictive legis
lation described above and concluded that "[t]he Committee feels
that the measures enumeraied above speak for themselves. The
Committee observes that such measures are clearly inconsistent
with the principles and purposes of the Mandates System. In the
opinion of the Committee, any further comment on these measures
would be superfluous." 2
In 1958 the Committee stated thal it had
"... drawn attention to the stringent control measures which are
applied to 'Native' labour in the Territory. lthas recommended,
1 Hailey, p. 169, cited p. 467, supra. (Italics added.)
2 G.A.O.R. gth Sess., S."'.A. Comm., Supp. >l"o.14 at 25 (A/2666).474 SOUTH WEST AFRICA
and continues to recommend, that every effort should be made
to promote awareness in the Territory of the fundamental principle
that labour is not a commodity, and that the labour laws of the
Territory should be altcred to conform to the standards approved
by the International Labour Organisation for non-metropolitan
Territories and to the principles of the Mandates System." 1
With regard to freedom of movement, the Committee noted that
it had "drawn the attention of the General Assembly to the severe
restrictions placed on the freedom of movement of 'Non-Euro
peans' in the Territory, and partieularly the 'Native' majority, as
weil as to the extensive contrais established to ensure the appli
cation of the restrictions. Many of these restrictions and controis ...
largely related to the labour requirements of the 'European'
community. Considering them as a whole, the Commit tee finds it
impossible to regard them as compatible with the social, moral and
material welfare of the 'Native' inhabitants of the Territory and
therefore with the 'sacred trust' undertaken by the Union of South
1
Africa when it accepted the responsibilities of the Mandate."
The General Assembly approved the Report of the Committee on
South West Africa on 30 October 1958. 2
Current standa.rds in thisarea havesimilarly been established by the
International Labour Organisation. Thus, the Ad Hoc Committee on
Forced Labour of the International Labour Officefound in 1953 that
"the pass legislation in the Union of South Africa constitutes a seri
ous handicap to the freedom of movement of the Native population
and that it has, or may have, important economie consequences." 3
The Committee concluded also that the pass laws
"... may be usedfor the control and regulation of the flowof Native
labour from one part of the territory to the other. There can be
no cloubt that such control may serve the purposc of directing a
supply of ample, and consequently cheap, labour towards regions
where it is required for economie reasons." 4
The Committee accordingly concluded that the pass system
may ((... be consicleredas an indirect means of implementingeconomie
plans and policies, whether emanating from the Government or
from private interests powerful enough to command Govcrnment
support. The State, through the operation of this legislation, is
in a position to exert pressure upon the Native population which
might create conditions of indirect compulsion similar in its effects to
a system of forced labour for economie purposes." '
1 G.A.O.R. 13th Sess., S.W.A. Comm., Supp. No. 12 at 23 (A/3906).
2 G.A. Res. 1245 (XIII)30 October 1958, G.A.O.R. 13 Sess., Supp. No. 18 at 30
(A/4090).
3 ECOSOC, O.R., 16th Sess., Supp. No. 13, 1953, p. 75, para. 349· This and
other findings by the Committee with regard ta pass Iaws were made directly
applicableta South West Africa (Id .. p. 81, para 382). (See Annex 6, Sec. (2),
paras.382·86, at pp. 437·438 supra.)
4 Id., p. 75, para. 350.
' Id., para. 351. (Halics added.) REPLY OF ETHIOPIA AND LIBERIA
475
In February of 1964, the Committee on Questions concerning
South Africa (a Committee appointee! by the Governing Body of
the International Labour Office) callecl for the abolition of pro
visions regula ting the entry of "Natives" into urban and proclaimed
areas and their stay in such areas, and called for the abolition of
the pass system (in the form of the Natives (Abolition of Passes and
Co-ordination of Documents) Act, 1952). The Committee also
called for the repeal of the vagrancy provisions contained in the
Natives (Urban Areas) Consolidation Act, 1945. These recommen
clations were part of a larger program calling for an end of all
legislation which involves any "form of direct or indirect compulsion
to labour, including discrimination on grozmds of race in respect of
travel and residence.'' 2
Although the recommencled program is in terms applicable to
South Africa, the policies unclerlying the legislation to which the
3
Committee objectee! are similarly implemented in the Territory.
As such, the recommendations are relevant in all significant respects
to the Territory.
(D) LEGAL CONCLUSIONS
Applicants reaffirm the Legal Conclusions, set forth in the Me
marials, ' thal Respondent's policies and practices in respect of
security, equal rights and opportunities in respect of home and
residence and protection of basic human rights, violate Respon
dent's obligations toward the inhabitants of the Territory.
Such policies and practices constitute measures of implementa
tion of the policy of apartheid, which in itself violates Article 2,
paragraph 2 of the Mandate, by reason of the !act thal it allots
the status, rights, dulies, opportunities and burclens of the popula
tion on the basis of membership in a "group," or colour, rather thau
on the basis of inclividual quality, capacity or potential.
The findings and conclusions of the Committee on South West
Africa and of the I.L.O. Ad Hoc Committee on Forcee! Labour
confirm a generally acceptee! current international norm or stan
dard, according to which Respondent's obligations should be mea
sured and, as !hus measured, shoulcl be adjuclgecl by this Honourable
Court to be incompatible with Respondent's obligations uncler the
Mandate.
1 I.L.O. Annex: Proposed Declamtion Concerni1tg the Policy of "Apartheof the
Republic of South A/rica {Feb. 1964), p. 35, para. 74, cited p. 406, footnote 4, supra.
3 Id., pp. 34-35, para. 73· (Italics added.)
See for example, Froc. No. 29 of 1935 (S.W.A.), Sec. û (4), in The Laws of
South West Ajrica I935. Vol. XIV, p. 152, as amended by Proc. No. 38 of 1949
(S.W.A.), Sec. 2, in The Laws of South West A/ricaI949. Vol. XXVIII, p. 760;
Ord. No. 25 of 1954 (S.\V.A.), Secs. 3 and 4, in The Laws of South West Africa I954.
Vol. XXXIII, pp. 736-41; Froc. No. I of 1922 (S.W.A.), Sec10, in The Laws of
South West A/rica I9C5-I922, pp. 751-52 .
• l, pp. 164-165. CHAPTER V
LEGAL BASIS AND LEGAL NATURE OF RESPONDENT'S
OBLIGATIOKS TOWARD THE INHABITANTS OF THE
TERRITORY
In the foregoing sections of this Reply, Applicants have analysed:
(r) the nature of the Mandate, generally considered and as viewed
both by this Honourable Court and the Permanent Mandates Com
mission; 1 (z) Re;pondent's policy with respect to the inhabitants
of the terri tory; "and (3) Respondent's measures of implementation
of its aforesaid policy. 3 ·
Applicants now consider the legal basis and legal nature of
Respondent's obligations toward the inhabitants of the Territory,
as stated in Article 2, paragraph z, of the Mandate.
Before turning to a demonstration of the legally cognizable
norms according to which Respondent's obligations under Article
2, paragraph 2, cau and should be judicially determined, an ob
servation is in arder concerning Respondent's contention that
the Mandate as a whole has lapsed "and that Respondent is con
sequently no longer snbject to any legal obligations thereunder." '
As will be elaborated more lully bclow in Applicants' analysis
of Respondent's arguments with regard to the asscrted lapse of
Articles 6 and 7 of the Mandate, 5Respondent's contention that the
Mandate as a wh.olehas lapsed is based upon re-argument ofpoints
twice previously laid before this Honourable Court; the first lime
6
in the Proceedings leading to the Advisory Opinion of T950, and
the second time in the Proceedings in respect of the Preliminary
Objections herein. 7
As has been pointed out above, 8 the Court, in its Judgment of
zr December r962, reaffirmed the law of the case, as declared in
the Advisory Opinion of r950, in the following terms, inter alia:
"The unanimous holding of the Court in rgso on the survival
and continuing effect of Article 7 of the Mandate, continues to
reflect the Court's opinion to-day.... The validity of Article 7,
in the Court's view, was not affected by the dissolution of the
1 Chapter III, sut•ra, pp. 231-254.
2 Chapter IV (B), secs. 1-3 inc., supra, pp. 260 to 327.
3 Id., sec3.c.supra, pp. 362-475.
4 II, p.1.See ger1erally JI, pp. 165-256.
5 Infra, pp. 520-546.
6 Advisory Opinion of II julI950; LC.J. Rep. 1950, p. 128.
7 ]udgment, p. 319
8 Supra, p. 220. REPLY OF ETHIOPIA A~D LIBERIA 477
League, fust as the Mandate as a whole is still in forcefor the reasons
stated above." 1
Upon the premise that the obligations set forth in Article 2,
paragraph 2, of the Mandate arc in force, together with the whole
of the Mandate, as the Court has hclcl, there remain for considera
tion the questions whcther such obligations are·of a legal chenac
ter and, if so, whether they are justiciable, bath of which proposi
tions Applicants affirm and Respondcnt denies. 2
Responclent's arguments dealing with the legal principles inval
veel in Applicants' Submissions regarding allegecl breaches of the
provisions of Article 2, paragraph 2, of the Mandate arc largely
subsumed under the heacling "Statemcnt of the Law," set forth in
the Counter-Memorial, Vol. IV, Chapter II. 3
As Applicants understand these arguments and their underlying
premises, both explicit and implicit, they may fairly be summarizcd
for clarity of reply, by the six following propositions:
1. The Mandate asserteclly creatcs no legal obligations justi
ciable as between Applicants and Respondent, in terms of the com
promissory clause containecl in Article 7 of the Mandate;
2. Article 2, paragraph 2, docs not, in any event, create or
embocly obligations of a legal nature, but is assertedly a mcrcly
political or moral exhortation; this argument Responclent sccks
to reinforcc by reference to the gcncrality of the terms of the Article;
3· Even if Article 2 be dccmecl to embocly a legal obligation, it
is asserteclly one of a political character which should be !cft for
determination by a political body rather than by a Court; and in
any event, Responclent argues compliance with the Article couic!
be judgecl by the Court only upon the basis of Respondcnt's good
or bad faith;
4· Even if the obligations uncler the Article werc justiciable,
therc exist, l~espond nsnits, no legal norms or standards for
judging the actions which Applicants contend to be in violation
thereof;
5· If any such norms or standards werc applicable, they woulcl,
1
Advisory Opinion of II]uly .cgso; l.C.J. Rep. 1950, pp. 153,334335· (Italics
ad2ed.)
Respondent's contentions on both points are summarized as follows: (1)
"Reading Article 2 as a whole and in light of the provisions of Article 22 of the
Covenant ... no limits in respect of subject-matter were placed on the full power of
administration and legislation granted by the article ... " (II, p. 387) (italics added.);
and (2) "if the Court were to decide whether in fact a particular policy promoted
the 'well-being' of the inhabitan'to the utmost', it would have to consider that
policy and weigh it against other policies which might be followed in an attempt
to achieve such a purpose . ..The Court's function in so deciding would be one
wh3ch is, in itsery nature, not a judicial one(Id.,p. 391.)
Il, pp. 384-403. SOUTH WEST AFRICA
Respondent implies, be those governing as of the time the
Mandate was entrusted to Respondent; and
6. Even if current standards existee! and wcre deemed applicable,
Respondent's policy with respect to the inhabitants of the Terri
tory is asserted to be in compliance with them .
• ••
Consideration will be given to each of these six propositions in
turn, in orcier to demonstrate their insupportability.
I. The first proposition, viz., that the Mandate creates no legal
obligations bctween Applicants and Respondent has already been
decided by this Honourable Court in its ]udgment in respect of the
Preliminary Objections herein. 1 Respondent's endeavour to re
open and re-argue'the Court's holding with regard to the effective
ness and scope of the compromissory clause in Article 7 of the
Mandate, already referred to, is more lully discussed below. 2
~. In Applicants' submission, Article 2, paragraph 2, crcates
and embodies obligations of a legal nature, notwithstanding the
generality of the terms in which it is expressed.
ln the J udgment of 2I December I962, the Court rejected
Responclent's contention, in support of its Third Preliminary
Objection, that Applicants "have no legal right or interest in
the observance by the Mandatory of its dutics to the inhabitants." 3
If, as the Court hele!, Applicants have such a legal right or interest,
it follows thal Responclent's obligations are of a legal nature or,
at the verv lea,.t, inasmuch as the Court held thal the Mandate
created legal obligations between the parties in respect of the
application and interpretation of its clauses, the Court should con
strue such clauses as having a legally binding character.
Respondent argues that Article 2, paragraph 2, because of the
generality of its formulation, is merely "an expression of an idealis
tic objective," • and that it is of a "purely political character." 5
Respondent's interpretation of the scope of its obligations under
this Article reftects the same misconception, noted in other con
texts in this Reply, 6regarding the fiduciary nature of the l\[andate
institution and the human ends sought to be served thereby.
The legally binding, rather than merely exhortatory character
of Article 2, paragraph 2, is confirmee!, inter alia, by its origins.
Lord Milner'>. proposee! draft "C" Mandate of 28 June 1919
contained the following formulation of Article 2, paragraph 2:
1 ]udgment, pp. 335-42.
2 Infra, pp. 520-546.
3 judgment, p. 343·
4 II, p. 387.
6 Id., p. IS.J.
Supra, pp. 2JI-·l54 and infra, pp. 520-546. REPLY OF ETHIOPIA AND LIBERIA
479
"The mandatory Power ... accepts the mandate to govern the
mandated territory . . . as guarantor of the well-being and the
development of its inhabitants. " 1
A new and strengthened draft was adopted by the Milner Com-
mission on IO July 1919:
"The mandatory Power agrees ta increase, byalt means in its power,
the material and moral well-being and the social progress of the
natives [of the Mandated Territory]." 2
The final draft from the J\:Iilner Commission, approvecl on 5
August 1919, rephrasecl the clause as follows:
"The mandatory Power agrees ta develop, as muchas is in its power,
the moral and material well-bcing as weil as the social progress
of the inhabitants subject to this ;vrandate." 3
The latter cirait was submittecl to the leg<tl<tclvisorsof the Draft
ing Committee of the Peace Conference, whose task was not to
change the substance of the worcling, but to put the worcls in the
form of a legal obligation. The result was a cirait submittecl by the
Milner Commission to the Principal Alliecl and Associated Powers
on 24 December 1919:
"The Mandatory Power undertakes to promote to the utmost the
material and moral wcll--beingand the social progr4ss of the inhabi
tants of the territory subject to this Mandate."
The final clraft of the Mandate Agreement approvccl by the Conn
cil of the League of Nations on 17 December 1920 substitutecl the
word "shall" for the words "undertake to."
The severa! drafts th us show a progression in the scope of the
Mandatory's obligation: from Lord Milner's original "accepts the
mandate ... as guarantor of the well-being and the clevelopment
of its inhabitants" to the final formulation "shall promote to the
utmost the material and moral well-being and the social progress
of the inhabitants." It would seem evident thal the founders of
the Mandate System were aware that basic legal obligations were
being imposed upon the Manclatories and were careful to produce
an acceptable worcling.
President Wilson, in a olatement to the Council of Four on 17
May 1919 said thal
"The \Vhole theory of mandates is not the theory of permanent
subordination. ft is the theory of development, of putting upon the
mandatory the duty of assisting in the development of the country under
mandate, in arder thal it may be brought to a capacity for self-govern
ment and self-dependence which /or the time being il has not reached,
1
Conférence de la Paix, I9I9-I9Recueil des A etes de la Conférence, Partie VI A,
p.2330. (1934). (Italics added.)
3 Id., p. 379. (Italks added.)
4 Id., p. 407. (Italics added.)
[I9I9] IX Foreign Relationsof the United States(Paris Peace Conference)
655-56 (1946). (Italics added.) SOUTH WEST AFRICA
and that therefore the countries under mandate are candidates, so
to say, for full mcmbership in the family of nations." 1
That the Mandates, including the Mandate for South \Vest
Africa, were conceived and executed as legally binding instruments
-as a whole and in each of their parts-is confirmed by the views
of the Permanent Mandates Commission, 2 scholarly authority
and opinions of juclicial tribunals.
Thus, Quincy Wright has statecl:
"The mandate texts or charters have bcen regarded by the League
and the manda.tories as the fundamental law for the areas. Legis
lation contrary to their terms has been criticized by the League
Council and usually considered void by the mandatory's own courts.
They are, it is true, documents of international law, resting on
international agreement and interpretable by the Permanent Court
of International Justice, but they are also the fundamental consti
tution from which internai governing authority in the areas derives.
In each of these areas there is also a local constitution . ... These
documents ... are considered subordinate to the mandate texts,
by the League organs and also in most cases by the mandatories'
courts. They usually recite that document as the basis of authority,
are interpreted in accord with it, and are void if in violation of it."
Courts in the Manclated and Manclatory areas have frequently
held that legislation within the Jvlandated Territories must be
consistent with the obligations of the Mandate charters. The therne
runs throughout these cases that the Mandate charter is the basic
ordinance for the Mandated Tcrritory, thus positing their legally
binding nature.
Thus, in the case of District Governor, Jerusalem-Jatfa District
v. Mzma [rgz6] A. C. 321 (P.C.), [rgz5-rgz6] Ann. Dig. 46 (No.3z),
the British Privy Council held, inter alia, that the Supreme Court
in Palestine "was fully justifiee! in entertaining an argument as to
the valiclity of the Orclinance [of the Government of Palestine].
The Ordinancc was made under the authority of the Orcierin Conn
cil of May 4, 1923, and if so and so far as it infringecl the condi
tions of that order in Council the local Court was entitled and in
deed bouncl to treal it as void. Among those conditions was the
stipulation that no Ordinance should be promulgated which was
repugnant to or inconsistent with the provisions of the Mandate,
and in view of this stipulation it was the right and cluty of the
Court to examine the terms of the Mandate and to consicler whether
the Orclinance was in any way repugnant to those terms." 4
In Attorney-General v. Altshuler (Palestine Supreme Court, May
5
rg28), a municipal by-law passed by the Local Council of Tel-
1
V id.at700. (l':alics added.)
3 Supra, pp. 246-254.
4 Mandates Under the League of Nations 516-17 (1930).
5 [rgzo-1933L.R. Palestine 283; [1927-1928] Ann. Dig. 55 (No. 33). REPLY OF ETHIOPIA AND LIBERIA
Aviv was held ta be invalidas contrary ta the provisions of the Man
date since it tended ta discriminate on the basis of religion.
ln Winter v. Minister of Defence (South Africa, Supreme Court
(Appellate Division), 13 December 1939). 1 Chief Justice de Wet
stated that the power of administration and legislation of the Man
datory "is given subject 1:0the terms of the Mandate" 2 and the
learned Justice went on ta hold that the Proclamation of Emer
gency Regulations in question were not "in conflict with the duty
ta promote the well-being of the inhabitants of the terri tory." 3
Thus, the Court had no difficulty in deciding whether or not
legislation was consistent with the broadly formulated obligations
of Article 2, paragraph 2, of the Mandate.
The Permanent Court of International Justice, in the Mavrom
4
matis Palestine Concessions cases, was concerned with an alleged
infringement of Article II of the Palestine Mandate by the Man
datory power because of the granting by the latter of varions
concessions. Quincy Wright summed up the significance of these
cases by stating that the Permanent Court "evidently regards a
mandate as a document limiting the competence of the manda
tory and susceptible of judicial interpretation in ail its parts.... " 5
The fact that Article z, paragraph z, is stated in general terms
does not in any degree modify, or detract from, its legally binding
character. On the contrary, the generality in which the obligation
is couched is consistent with, and indicative of, the institutional
and constitutional nature of the Mandates System. Basic ordinances,
constitutions and charters are characteristically drawn in broad
!enns, as befits their fundamental and dynamic objectives. Far
from depriving them of a legal character, their generally stated
obligations endow them with an enduring vitality as standards to
be applied by organs of government and, in many systems, ta
be interpretee! by the judiciary.
The Charter of the United Nations is, perhaps, the most note
worthy example of international undertakings, typically formu
lated in general terms, the interpretation and application of which
may be, and have been repeated subjects of judicial determination. 6
1[r940l So. Afr. Rep. App. Dh·. 194 (1939); [1938-1940] Ann. Dig. 44-46 (No. 20).
2Id. at 197; [1938-rg4o]Ann. Dig. at 46.
3 Id. at rg8; [rg38-1940] Ann. Dig. at 46.
4P.C.I.J.,Ser. A, Nos. 2 (1924), 5 (1925), and II (1927).
5 \Vright, p. 158, cited p. 480, footno3. supra. (Italics added.)
6Article 65 of the Statu te of the Court, authorîthe Court to "give an advisory
opinion on any legal question"obviously would be dcprived of its intent and impor
tance if the phrase "legal question" were interpreted to refer only to specifically
formulated provisions.Cf., e.g., the case concerninConditions of Admission of a
State to Membership in the United Nations, I.C.]. Rep. 1947-1948,p. 57 (advisory
opinion); the case concerningCompetence of the General Assembly for the Admission
of a State to the United NationsLC.J. Rep. 1950, p. 4 (advisory opinion); the case
concerning Certain Expenses of the United Nations, I.C.J. Rep., 1962, p. 151 (advisory
opinion); and, most pertinently to the Cases at bar, the case of the lnternational
Status of South-West A/rica itself, I.C.J. Rep., 1950, p. 128 (advisory opinion). SOUTH WEST AFRICA
Numerous other illustrations are set forth in tne Separate Opin 1
ion of Judge Jessup, in the Court's Jttdgment oj2r Decemberr962.
The context in which these illustrations are set forth does, it is
true, relate to the question whether Applicants' interest in the
interpretation and application of the Mandate in respect of the
inhabitants of the Terri tory is an interest of a legal nature. What is
significant for the purposes of the discussion here, however, is
the !act that many of the illustrations embody generally jormt~
lated obligations, or sets of obligations, which provide for, or have
actually been the subject, of jndicial interpretation.
Thus, Judge Jessup refers, inter alia, to:
(a) The Minorities Treaties at the end of World War I; illus
trated by the provision in Article II of the Treaty of St. Germain
2
en-Laye, ro September rgrg; and the same provision in Article
6g of the Peace Treaty with Austria, and Article 6o of the Treaty
of Trianon with Hungary.
(b) The Genocide Convention, which came into force on rz J anu
ary rgsr, Article IX of which provides for submission to the Court
of disputes between the Parties relating to the "interpretation,
application or fulfilment" of the Convention, "including those
3
relating to the :responsibility of a state for genocide.... "
(c) The Consütntion of the International Labour Organisation
and conventions concluded thereunder. ' The gcncrality of the
obligations forrnulated therein, and made subject ta judicial
interpretation, is exemplified by Convention No. ros (Abolition
of Forced Labour, 1957), 5 as to which proceedings of a judicial
nature have been conducted, referable in each instance to the
International Court of justice under Article zg of the Constitution
of the I.L.O. 6
It is clear from the foregoing examples, ta which many others
could be added, that interests and obligations of an economie,
political or humanitarian nature are normally formulated in gen
eral terms in instruments of an institutional or constitutional
nature, and that this !act does not deprive them of a justiciable
character.
The European Convention for the Protection of Human Rights
1JudgmenJ, pp. 425-33.
2Quoted id., p. 425; I. Hudson, ]nlernaJional Legislati312, 318-19 (1931).
3Quoted I.C.J. R.ep., 1962, p. 426; 78 United Nations Tl'ealy Set'ies 278, 282(1951).
The crime of "genocide," as defined in Article II of the Convention, comprises such
broadly formulated acts,ntel' alia, as "causing serions bodily or mental harm" to
members of a group, "with intent to destroy, in whole or in part a national, ethnical,
racial or religions g-:oup, as such."
• Cited and quot~d inJudgment, pp. 426-28.
6Judgment,epp. 427-28.retUy SNies 292 (1959). REPLY OF ETHIOPIA AND LIBERIA
and Fundamental Freedoms 1 embodying a comprehen,tve clause
on non-discrimination, guarantees civil and political rights taken
from the Universal Declaration of Human Rights of the United
Nations. These include such broadly formulated rights as the right
to !ife, the right to liberty and security of persons, the right to
respect for family !ife, the right to freedom of thought, conscience
and religion, and many others. Procedures provided for remedy
in the event of violation include submission to the European Com
mission of Human Rights. Following a decision by the Commission,
the issue may be referred to the European Court of Human Rights
by the Commission or by a State Party concerned. 2
The Mandate for South West Africa, as was true of ali Man
dates, falls precise!y within this category, as has been demonstra
ted in this Reply.
In addition to the instruments of an international character
referred to above, Judgc Jessup similarly points out that, e.g., in
respect of the United States Constitution:
"Certainly courts can determine and have determined whether
particular laws or actions comply with general broad criteria such
as 'due process,' 'equal protection' and 'religious freedom' ....
There is no reason whv this Court should be unable to determine
whether various laws ~md regulations promote the 'material and
moral well-being and the social progress of the inhabitants' of the
mandated territ ory." 3
3· Close!y related is Respondent's contention that the generality
of the obligations stated in Article 2, paragraph 2, of the Mandate
stamps them with a "political" rather than legal character, which
should be left for determination by a "political body." One aspect
of this proposition, as Respondent contends, is that, in the light
of the assertedly "political" nature of the Article, Respondent's
compliance therewith in any event could be judged by the Court
on!y on the basis of Respondent's "good or bad faith." '
The foregoing proposition, as formulated by Respondent, runs
as follows:
a. The decision whether a particular policy promotes the well
being and progress of the inhabitants "can only be based o5 social,
ethnological, economie and political considerations." It is "for-
1 213 United Nations Tt'eaty Series 222 (195signed at Rome, 4 November 1950;
entered into force3 September 1953,upon deposit of the tenth instrument of ratifi·
cation.
2 The Court bas bad before it two cases:De Beckerv. Belgium, European Court of
Human Rights, ser. A, No. 4 (:!7 March 1962),involving an alleged violation of
Article 10 of the Convention guaranteeing the right to freedom of expression; the
other, Lawless v. !t'eland,European Court of Human Rights, scr. A, No. 3 (1
July 1961),involving alleged violation of the right, guaranteeby Article5 of the
Convention, of an accused persan to be brought to trial"within a t'easonable time."
3 judgment, pp. 428·29; relevant decisions of the United States Supreme Court
cited p. 428.
4 See, e.g.II, p.390.
5 Id.,p. 391. SOUTH WEST AFRICA
eign to the essential nature and purpose of the Court to entertain
matters of a purely political character, and it is unlikely that the
authors of the Mandate intended that the Court should perform
such a function in the Mandate System .... " 1
b. It was "in the nature of things impossible ... for the authors
of the Mandate to reduce the objective of promoting the well
being and development of the inhabitants of the Territory to a
series of specifie: injunctions or prohibitions, breaches of which
would be capable of objective determination .... " 2 The formu
lation of Article 2, paragraph 2, in its context consequently indi
cates "the objective to be pursued by the Mandatory, or the spirit
with which he should be imbued, in exercising his power of admi
3
nistration and legislation."
c. "Whatever the Court may think of the merits of a particu
lar legislative or administrative act, practice, or policy, if it was
devised and performed or practised in the exercise of the Manda
tory's discretion with the bona fide intention of benefiting the in
habitants of the Territory, it could not constitute a violation of
Article z of the Mandate." •
Applicants submit that the foregoing propositions are based
upon a taise syllogism, which mày be stated as follows:
I. An obligation phrased in broad terrns, such as promotion
of well-being and social progress, is a "political" obligation;
2. On!y "poli.tical" bodies should deal with such obligations;
Therefore: 3· Such obligations are not justiciable.
The syllogism is wrong in each of its parts and as a whole; the
proposition based upon it is untenable.
It is untenable, in Applicants' submission, in that it miscon
ceives (a) the role of the Court in respect ofthe Mandates System,
in particular; and (b) the true nature of the judicial process in
general.
(a) The role of the Court in affording judicial protection in the
Mandates System and its applicability to Article 2 of the Mandate
has been established as the law of the case. The Court, in its fudg
ment of 2I December r962, held:
"\Vhile Article 6 of the .Mandate under consideration provides
for administrative supervision by the League, Article 7 in effect
provides, with the express agreement of the Mandatory, for judicial
protection by the Permanent Court by vesting the right of invoking
the compulsory jurisdiction against the Mandatory for the same
purpose in each of the other Members of the League. Protection
of the material interests of the Members of their nationals is of
1 II, p. 184.
2 Id., p. 386.
3 Ibid.(Italics added.)
• Id., p. 392. REPLY OF ETHIOPIA AND LIBERIA
course included within its compass, but the well-being and develop
mcnt of the inhabitants of the Mandated territory arc not less
important." 1
The Court's attention is respectfully drawn to the discussion
of the role of the Court in the lliandates system, in the context
of Applicants' reply to Respondent's re-argument in respect of
Article 7 of the Mandate. 2
{b) Applicants turn now to an analysis of Respondent's miscon
ception of the nature of the judicial process, implicit in its propo
sition that the Court should leave to a "political body" determi
nation of the obligation stated in Article 2, paragraph 2, of the
Mandate, even if such obligation is deemed to have a legal charac
3
ter.
For the purpose of this analysis, Applicants will defer for sub
sequent consideration • Respondent's contention thal "there are
no norms of a legal (as distinct from a political or technical) nature
for deciding on merit whether a Mandatory has or has not pro
moted well-being and progress to the utmost."'
As Applicants have demonstrated, 6 courts have found no dif
ficulty in dealing with political, economie or humanitarian issues,
even when formulated in general terms.
\Vhen passing upon issues of this character, courts-bath inter
national and national--<:ustomarily apply knowledge extracted
from experience, from social, physical and political sciences, and
from ail other sources from which man derives guidance in the
conduct of his !ife and relationships with others.
In municipal systems, courts do not hesitate to pass upon such
questions as the reasonableness of rates chargecl by enterprises
affected with a public interest, fair or unfair methods of competi
tion, disputes concerning patents or copyrights, and countless
other confticts of legal daims in the conclue! of society.
Similarly, international tribunals have often derived their judg
ments from sources, and upon the basis of considerations, which
Responclent woulcl characterize as "social, ethnological, economie
and political." 7
Thus, in the case of the Customs RégimeBetween Germany and
1 judgment, p. 29. The Court held accordingly that the dispute in the Cases at
bar "isa dispute asenvisaged in Article 7 of the Mandate." (Ibid.)
2 Infra., pp. 520-546.
3 In Respondent's formulation, aspointedoutsupra, p. 256, theCourtcanonlypass
upon Respondent's "bona fide intention," whatever the Court "may think of the
merits" of Respondent's acts, practices or policies.
4 See discussion of Respondent's Proposition 4. infra, pp. 491-501.
5 Il, p. 394· Applicants submit, awillbe shawn, that such legal norms do exist,
are readily ascertainableand are determinative of the issue joined with respect
to Article2,paragraph 2,of the Mandate.
6 Supra, pp. 480-481.
7 Il, p. 391. SOUTH WEST AFRICA
Austria, 1 the question before the Permanent Court was whether
a proposed customs union was consistent with Austria's treaty
obligation to abstain from engagements which would compromise
her "independenŒ". The Court gave an Opinion on a problem
which clearly involved an assessment of future political contin
gencies. 2
In Lawless v. freland, the European Court of Human Rights
determined that an Irish Proclamation of 1957 was justified by
a "public emergency threatening the !ife of the nation," and that
the Irish l~epublk A rmny was "serions! y jeopardizing the relations
3
of the Republic of Ireland with its neighbour."
The International Court has similarly applied concepts derived
from the natura! sciences in cases such as Diversion of Water from
the Meuse • and the Corfu Channel Case. 5
The case of ]erusalem-]affa District Governor v. Murra, cited
by Respondent as showing that "the functions of courts of law
do not normally extend to the realm of politics," 6 held merely
that whether fair provision had been made for compensation for
expropriation, depended "upon principles of sound legislation." The
Judicial Committee of the Privy Council pointed out that the
Ordinance in question was subject to an Order in Council stipu
lating that no Ordinance might be promulgated which was incom
patible with the Mandate. The Court stated explicitly that "it
was the right and duty of the Court to examine the terms of the
Mandate and to consider whether the Ordinance was in any way
repugnant to those terms." 7
Respondent also cites Dr. Rosenne, "with regard to the functions
of international courts." 8 In the passage quoted by Dr. Rosenne,
the learned author emphasizes, quite properly, that "the Court is
a court of justice and not of ethics or morais or of political ex
pediency. Its function is to 'declare the law.' " 9 With this, Ap
plicants lully concur.
10
In the Corfu Channel Case, the Court held that the obligation
incumbent upon the Albanian Government to notify the existence
of a mineüeld in Albanian territorial waters was based "on cer
tain general and well-recognized principles, nam ely: elementary
considerations of humanity." 11In a Separate Opinion, Judge
1P.C.I.J., Ser. A/B, No. 41 (1931).
:zEuropean Court of Human Rights, ser. A, No. 3 (1 July 1961).
3Id., p. 56.
• P.C.I.J ., SA/B, No. 70 (1937).
5 I.C.J.Rep. 1949, pp. 4, 21-22 (merits)cf.Fisheries Case,I.C.J. Rep. 1951,
p6. 127·28.
7 Il, p. 184.
1 [<926] A.C. 32<, 327 (P.C.).
Il, p. 184.
10osenne, The International Coure of just62(1957).
I.C.J. Rep. 1949, p. 4·
u Id., p. 22. REPLY OF ETHIOPIA AND LIBERIA
Alvarez stated that the "characteristics of an international delin
quency are that it is an act contrary to the sentiments of human
itv." 1
·u is, of course, in the highest traditions of courts in ali civilizcd
systems to draw upon humane, moral and political standards in
deriving the sources of law.
In the United States, Justice Felix Frankfurter, concurring in
Louisiana ex rel. Francis v. Resweber, argued that
"a State may be found to deny a persan due process by treating
even one guilty of crime in a manner that violat2s standards of
decency more or less universally accepted .... "
Justice Frankfurter stated further that "we cannat escape ack
nowledging that it [the issue of 'cruel and unusual punishment']
involves the application of standards of fairness and iustice very
broadly conceived. They are not the application of merely persona!
standards but the impersonal standards of society which atone iudges,
as the organs of Law, are empowered to enforce." 3
In Brown v. Board of Education, 347 U.S. 483 (1954). the Supreme
Court of the United States found that separation of Negro school
children "from others of similar age and qualifications solely be
cause of their race generales a feeling of inferiority as to their
status in the community that may affect their hearts and minds
in a way unlikely ever to be undone," and that "whatever may
have been the extent of psychological knowledge at the time of
Plessy v. Ferguson [r8g6], this linding is amply supported by modern
authority.""
Judicial process in civil law systems similarly draws upon humane,
moral and political standards as sources of law, and does so par
ticularly where legal rights or duties are not explicitly defined.
Examples, derived from French jurisprudence, are the doctrines
of abus de droit, bonnes moeurs and ordre public.
"z. - ...la doctrine moderne a énoncéla règlequ'une personne
peut êtreresponsable dans l'exercicede son droit lorsqu'il y a abus
du droit. La théorie de l'abus du droit est devenue classique.
L'expression a cours devant les tribunaux. Il est fréquent devoir
l'un des plaideurs prétendre que l'autre a abuséde son droit. Des
tr~va; it~porta nnts étéconsacrés dans la doctrine à cette
theone....
"rr. - La difficultévient ici de ce que la loi ne déterminepas
toujours d'une façon précise les limites d'un droit. Lorsque le
tribunal saisi admet qu'il y a abus du droit, il décidepar là même
que le droit ne comprend pas certaines prérogativesqui paraissent
pourtant incluses dans sa définitionou sa nature. La jurisprudence
1 Id., p. 4-5·
2 329U.S. 459, 469 (1947). (Italics added.)
3 Id., p. 470. (Italics added.)
• Id., p. 494· SOUTH WEST AFRICA
a étéainsi amenée à préciser le contenu des droits, ce qui constitue
une tâche diflicile et suscite pour chaque droit une série de contro
verses." 1
Similarly, with regard to ordre public:
"r.- La notion de l'ordre public est difficile à définir: elle vise
à reconnaître une force plus grande à une source ou à une règle
de droit. L'ordre public ne saurait, par exemple, êtreidentifié avec
la loi impérative dont ni l'objet, ni la méthode, ni les caractères,
ni la sanction ne sont nécessairement d'ordre public. Il a pour objet
de faire triompher les intérêtsgénérauxde la sociétésur les intérêts
particuliers, alors que la loi impérative peut viser à protéger un
intérêtprivé. D'autre part, tandis que la loi détermine l'impératif
selon une méthode généraleet abstraite, l'ordre public étant défini
concrètement par la contradiction que lui porte la source de droit
le menaçant, seul le juge peut procéder à cette détermination qui
suppose une comparaison entre deux sources de droit contraires.
En conséquence, l'ordre public a des caractères de relativité, puisque
sa détermination est actuelle à la contradiction qui lui est faite,
de variabilité, car la sociétén'a point toujours les mêmesobjectifs
fondamentaux, et de gradation, pour que la sanction s'adapte aux
buts qu'il sauvegarde .... "
"10. -L'ordre public a pour source principale la loi, car il est,
selon les termes mêmes de l'article 6 du code civil, une manière
d'être de la loi. (Conf. Cass. belge, 9 déc. 1948, Pasicrisie 1948.
I. 699.)"2
Related to the foregoing doctrine is thal of bonnes moettrs, author
itatively described as follows:
"1.- Le droit entend consacrer un certain minimum de moralité
sociale et refuse de protéger les actes qui en sont dépourvus. La
notion de bonnes mŒurs, à côtéde celle d'ordre public, vient appor
ter des limites toutes naturelles au grand principe de la liberté
contractuelle; par une prohibition généraleédictéeen têtedu code
civil, il est défendu de porter atteinte à l'ordre public et aux bonnes
mŒurs (art. 6). Ces deux notions, qui ont les mêmeseffets, sont
liées,mais di~.ti n cus ast.s qui leur sont contraires sont illicites
par le fait même, sans avoir besoin d'être interdits par une dis
position légale. Leur rôle est précisément de compléter ce qui
échappe à la loi, pour donner des critères assez compréhensifs de
ce qui doit êtrejugéillicite.
2. - Le caractère moral de ce critère empêche de le définir en
termes juridiques. La jurisprudence se contente de le déterminer
relativement à chaque sorte d'application. La doctrine se réfère
assez vaguement aux règles de la morale courante ou communément
admises. La conception des bonnes mŒurs est essentiellement
relative à un pays et à une époque, par conséquent variable avec
l'évolution des mŒurs et des idées.... "
"6. - Cette notion constitue un recours aux règles non écrites
--1-Dalloz,Encyclopédie de Droit Civil (jurisprudencGénéraleDalloz}, Vol. I,
p.'29 (1951).
2 Id., Vol. III, p. 668. REPLY OF ETHIOPIA A~D LIBERIA
de la morale sociale pour suppléerà l'insuffisance des règles juri
diques. ... " 1
It is readily apparent, therefore, that it is in the nature of the
juclicial process in ali systems to adjudicate upon issues in which
laws do not determine "d'une façon préciseles limites d'un droit,"
and that, in such cases, courts will draw from "règles de la morale
courante ou communément admises.''
The judicial objective, as in the cases.at bar, is the protection
of "les intérêtsgénérauxde la sociétésur les intérêtsparticuliers."
It was precisely the general interest of the organizecl international
community in the promotion of the wellcbeing and social progress
of the inhabitants of Mandated Territories which the authors of
Article 22 of the Covenant of the League of Nations intencled to
protect. Denialof a legal basis upon which this Court may and should
assure the achievement of this objective would, it is respectfully
submitted, recluce the "sacred trust" to an idealistic abstraction. 2
In respect of obligations of humanitarian objective, of which the
Mandates System is a classic example, it is instructive to consider
the human rights provisions of the Charter of the United Nations
which, as an international treaty, clearly emboclies obligations of
a legal character.
A penetrating analysis of the legal import of such provisions,
3
in particular Article 56, has been macle by Oscar Schachter,
Director, United Nations Legal Department. •
The analysis considers, inter alia, whether the obligation is by
its "nature" capable of execution by the Courts-the same issue
raisecl by Responclent in respect of the obligations set forth in
Article 2, paragraph 2, of the Mandate-in the following terms: 5
"As there is no explicit provision in the Charter itself, or any
evdence [sic]of legislative intent, which would deprive Article 56
of self-operative effect, we are left with the question of whether the
obligation is by its 'nature' capable of execution by the courts. For
it has been asserted that the pledge to take action to promote respect
for and observation of human rights is too vague and indcfinite to
enable a court to givc it practical effect in a concrete situation; and,
hence, that legislative measures are requircd in arder that the
obligation might have the degree of precision and clarity necessary
for judicial action.
1 Id.,Vol. 1,p.491.
2Cf. Applicants' analysis, infra, pp. 520-546, of Respondent's interpretation of the
compromissory clause in Article 7 of the Mandate, which would likewise and for
the same reason, strip Article2~of the Covenant of itslegal significance.
3 "AU Members pledge thcmselves to take joint and separate action in coopera
tion with the Organization for the achievement of the purposcs set forth in Article
55·" (Article 55 provides,interalia, for promotion of "universal respect for, and
observance of, human rights and fundamental freedoms for ail without distinction
asto race, sex, language or religion.")
4 "The Charter and the Constitution: The Human Rights Provisions in Amcrican
Law," 4 Vanderbilt Law Review 643 (April 1951).
l Id., at 655.490 SOUTH WEST AFRICA
"This point requires careful consideration. It is, of course, true
that the supremacy clause of the Constitution does not campel a
court to enforce a treaty provision which is so incomplete or indefi
nite !hat it cannet be applied in a particular case. 1 It must also be
grant cd that the meaning of human rights and fundamental freedoms
is in many respects a subject of controversy and that even where a
particular right has been generally agreed upon, it is by no means
clear just how far a court may go to promote its observance.
"These are certainly important considerations in determining
the extent to which the Charter obligation may be deemed self
operative; but it does not follow from them !hat there are no cases
at all in which the courts may give effect to this obligation. There is,
in the first place, no ground for assuming !hat because 'hunian
rights and fundamental freedoms' are broad and elastic concepts,
American courts are for that reason unable to apply them in the
absence of legislative definition. These concepts, as we have shawn
above, do have specifie content based on the Charter itself and on
precedent and practice; the important and recognized rights and
Ireedoms are no vaguer than any number of well-known constitu
tional and statutory expressions which have been left to the courts
to app!y. 2 Probably even more pertinent is the fact !hat the con
cepts of human rights and fundamental freedoms are closely akin
to the basic rights and freedoms which American courts have
traditionally heen required to define, in varying circumstances, for
the purpose of detennining the scope of constitutional protection.'' 3
Respondent's contention !hat the obligations of Article 2,
paragraph 2, even if of a legal nature, are not appropria te for
judicial decision, but should be remitted to "political" bodies,
involves a dual fallacy.
In the fi.rst place, it erroneously assumes that courts and judges,
if not unused to dealing with legal issues, the resolution of which
1 ''Thus, in Foster v. Neilson,2 Pet. 253, 7 L.Ed. •P5 (1829),thecourtconsidered
that the provision reHarding ratification and confirmation of grants of land required
a legislative act for full effect. But it is interesting that this construcwas later
overruled in United States v. Percheman, 7 Pet. 51, 8 L. Ed. 604 (1833), in which
it was held that the t.reaty itself ratifted and conftrmed the grants by its own force.
See also Cameron Septic Co. v. Knoxville, 227 U.S. 39, 33 Sup. Ct.zog, 54 L. Ed. 407
(1913), which held the provisions of a treaty on patent rights to lack the specifie
terms necessary for judicial enforcement in a case involving individual rights."
[Footnote in original.]
2 ••It cannat be said that a greater degree of precision is required in a trcaty provi
sion than in an act of Congress." [Footnote in original.]
3 ••The Supreme C:mrt bas often been required to decide which fundamental rights
are entitled to constitutionaprotection. For example, see :Missouri ex rel. Gaines v.
Canada, 305 U.S. 337, 59 Sup. Ct.232, 83 L. Ed. 208 (1938); Meyer v. Nebraska, 262
U.S. 390, 399, 43 Su p. Ct.625, 67 L. Ed. 1042 (1923); Buchanan v. \Varley, 245
U.S. 6o, 38 Sup. Ct. r6, 62 L. Ed. 149 (1917); Truax v. Raich, 239 U.S. 33, 36 Sup.
Ct. 7, 6o L.Ed. 131 (r915); Vick \Va v. Hopkins, II8 U.S. 356,6 Sup. Ct. 1064, 30 L.
Ed. 220 (r885).In addition, the specifie rights and freedoms enumerated in the first
ten amendments and in the Fourteenth Amendment, such as freedom of speech, of
press, of religions worship, freedom from self-incrimination, equal protection of
law, etc.,have been mainly the subject of judicial rather than legislative application.''
[Footnote in original.] REPLY OF ETHIOPIA AND LIBERIA 491
depends largely on economie, political or sociological considerations,
at !east tend to shy away from the intricacies of such matters.
Thus, Respondent asserts that:
"It is true that a particular provision of a statute in municipal
law, or of a treaty in international law, could have the effect of
requiring a Court to venture on to one or other of these terrains." 1
To the contrary, as has been demonstrated, a court, no less
than a political body, ventures on to such terrains whenever the
judicial duty is engaged to adjudicate upon legal rights and interests
of litigants with standing to invoke the competence of the Court.
The second fallacy is that, for reasons unexplained, Respondent
appears to assume that it is not as difficult for a political body to
deal with a generally stated obligation, or with one based upon
economie, social or political considerations, as it is for a court.
Human experience, both in respect of national and international
parliamentary bodies, belies such an assomption.
Finally, Respondent's contention that the Court should leave to
a political body determination of the "social, ethnological, economie
and political considerations" 1 underlying Article 2, paragraph 2,
of the Mandate would have more weight if Respondent's violation
of the obligations stated therein were less patent and pervasive.
On the basis of considerations adduced in the Memorials, 2 and
in this Reply, supra, pages 260-475, Respondent's negation ofits dut y
to promote to the utmost the material and moral well-being and the
social progress of the inhabitants of the Territory by the systematic
application of the policy of apartheid, or separate development,
is so clear as to obviate any need for technical specialization or
political expertise, which otherwise might be called for in a close
case or marginal situation.
4· Respondent's fourth proposition (in the series which Appli
cants have sought to formulate, in aid of a clear Reply to Respon
dent's legal analysis of Article 2, paragraph 2) is that even if the
obligations stated in !hat Article were deemed to be of a legal
nature, and to be justiciable-bath of which premises Respondent
denies-no legal norms exist for judging the actions which Appli
cants contend are in violation of the said Article.
It is apparent that the propositions thus formulated are inter
related. Respondent's contention concerning the assertedly "polit
ica!" nature of the obligations of Article 2, paragraph 2, is based
upon the erroneous premise that
"there are no norms of a legal (as distinct from a political or techni
cal) nature for deciding on merit whether a Mandatory has or has
not promoted well-being and progress to the utmost." J
1 Il, p. 39I.
2 Chapter V.
3 Il, p. 394·492 SOUTH WEST AFRICA
Accordingly, in demonstrating that such legal norms do exist
and are readily ascertainable, Applicants regard as relevant to
their demonstration the considerations adduced above, showing
that the obligations stated in Article 2, paragraph 2, are of a legal
nature and are justiciable. In this connection, Applicants reiterate
their contention that Respondent's purported distinction between
"legal" norms, on the one hand, and norms of a "political or
technical" nature, on the other, misconceives the trne nature of
the judicial process. As has been shawn, Courts cnstomarily and
necessarily draw upon ali sources relevant to a just disposition of
confiicts of legal rights or interests, and do not shun the judicial
duty in the face of technical, political or other complexities .
•
• •
Before turning to a demonstration of the existent and ascertain
able legal norms governing Respondent's obligations pursuant to
Article 2, paragraph 2, of the Mandate, Applicants consider it
important to make clear the precise nature of the alleged violation
thereof.
As set forth in the Memorials, 1 Applicants contend that Respon
dent's violation of its obligations under the said paragraph 2 of
Article z consists in a "systematic course of positive action which
inhibits the well-being, prevents the social progress and thwarts
the development of the overwhelming majority" of the inhabitants
of the Territory. In pursuit of such course of action, and as a per
vasive feature thereof, Respondent has, by governmental action,
installed and maintained the policy and practice of apartheid, or
separate development. In the language of the Memorials:
"Under apartheid, the status, rights, duties, opportunities and
burdens of the population are determined and allotted arbitrarily
on the basis of race, colour and tribe, in a pattern which ignores
the needs and capacities of the groups and individuals affected,
and subordinates the interests and rights of the great majority
of the people to the preferences of a minority." 1
The point of departure of an examination of the legal norms
relevant to judicial interpretation of Article 2, paragraph 2, of
the Mandate may be taken from the contrasting contentions of
the Parties to the present Proceedings:
Respondent denies that
"the policy of separate development runs counter to modem con
ceptions of human rights, dignities and freedoms, irrespective of
race, colour or creed." z
Applicants, on the other hand, insist that the allotment, by
governmental policy and action, of rights and bnrdens on the
1 },p.108.
2 II,p.467. REPLY OF ETHIOPIA AND LIBERIA 493
basis of membership in a ''group," irrespective of individual quality
or capacity, is impermisoible discrimination, outlawed by legal
norms weil established in the international community.
In the following analysis of the relevant legal norms, the terms
"non-discrimination" or "non-separation" are used in their prev
alent and customary sense: stated negatively, the terms refer to
the absence of governmental policies or actions which allot status,
rights, dulies, privileges or burdens on the basis of membership
in a group, class or race rather than on the basis of individual
merit, capacity or potential: stated affirmatively, the terms refer
to governmental policies and actions the objective of which is to
protect equality of opportunity and equal protection of the laws
to individual persons as such.
As is shown below, there has evolved over the years, and now
exists, a generally accepted international human rights norm of
non-discrimination or non-separation, as defined in the preceding
paragraph. Such a norm is evidenced by international undertakings
in the form of treaties, conventions and declarations, by _judicial
decisions, the practice of States and constitutional and statutory
provisions by which such a norm is incorporatcd into the body of
laws of States.
The existence and virtually universal acceptance of the norm of
non-discrimination or non-separation, as more fully described
below, gives a concrete and objective content to Article 2, paragraph
2, of the Mandate.
Such a norm of non-discrimination is, moreover, gencrally ac
cepted as a minimum norm of official policy and practice on the
part of a government toward persons subject to its jurisdiction.
The obligation stated in Article 2, paragraph 2, of the Mandate
is to "promote ta the utmost" the well-being and social progress of
the inhabitants. Failure to apply the minimum norm, accordingly,
involves, a fortiori, failure to comply with the more demanding
standard of the Mandate.
The sources which, severally and in their totality, comprise the
generally accepted norm, described above, and which impart
specifie content and objective meaning to Article 2, paragraph 2,
of the Mandate are, for purposes of convenience, set out in enumer
ated sections, as follows:
I. LEAGUE OF NATIONS PEHIOD
As has been pointed out, 1 as a consequence of the exercise by
the Permanent Mandates Commission of its function of super
vision, there evolved over the nincteen-year period of its existence,
a substantive content in respect of the generally formulated obliga
tion stated in Article 2, paragraph 2, of the Mandate. Such a con
tent was developed through continuons application of general
1 Supra, p. 25 r. 494 SOUTH WEST AFRICA
criteria or norms to specifie situations involving Respondent's
policies and practices, as weil as those of other Mandatories.
In view of the manner in which such a content evolved, considera
tion thereof in this Reply is given in the context of analysis of
Respondent's measures of implementation of its obligations ta
ward the inhabitants of the Territory. 1
As evidenced by the standards which guided the Commission in
its work, Mandates were regarded, first and foremost, as what
would be described, in the universallyaccepted current terminology,
as "human rights documents."
Although numerous examples could be given from the Commis
sion's proceedings, severa! typical illustrations may suffice.
Thus, upon request of the Council of the League of Nations,
the Commission formulated certain "General Conditions which
must be fulfilled before the Mandate Regime can be brought to
an end in Respect of a Country placed under th,;t Regime." The
report by the Commission, which was endorsed by the Council,
prescribed, inter alia,that:
"r. The mandated territory 'must possess laws and a judicial
organization which will afford equal and regular justice to all.'
"2. 'The new State should ensure and guarantee the effective
protection of racial, linguistic and religions minorities."'
A noteworthy statement was made to the Commission by the
Right Honourable Malcolm MacDonald, then United Kingdom
Secretary of State for Colonies, the follo\\ excerpt from which
is of particular relevance here:
"... [T]he well-being to which paragraph 1 of Article 22 of the
Covenant rderred did not simply mean material and physical
well-being,it mean! the physical, mental and moral well-being of
the people, and, above ail, Mr: MacDonald would have thought,
the latter. The mandate system was very much concerned with
the moral well-being of ail peoples. Surely !hat term meant !hat
these peoples should be regarded as having an equal moral status
with any oth<rpeople in the world, and !hat they had certain funda
mental right:; as human beings and as a people. They were equal
with the other peoples who came under the mandates system in
their possession of certain fundamental rights, and the whole purf;ose
of the mandates system was thal those fundamental rights shoutd not
be interfered with in the stressesof the modern world, !hat they
should not be injured or destroyed by forces which were materially
or physically more powerful than they were." 3
Concern was olten expressed in respect of Respondent's policies
or actions involving discrimination or separation on the basis of
membership in a race or group.
1 See Chapter IVsupra.
3 P.M.C. Min., 3tith Sess., p. 279. (Italics added.)
P.M.e.Min, 36thSess.,p. 125(Italics added.) REPLY OF ETHIOPIA AND LIBERIA
495
Thus, during one of the earliest Sessions of the Commission,
one of the Members observed that:
"from the general spirit of the report [Respondent's annual report],
it might be inferred thal there was a tendency ... to effect a
complete separation between the two races."
1
"The Chairman agreed with these observations."
During the same Session,
"The Chairman [the Marquis Theodoli] enquired what were the
motives and what were the advantages and disadvantages of this
separation of the two races. Was it in the interests of the native
or of the white population thal this segregation was imposed?"
Fol!owing Respondent's reply,
"The Chairman enquired whether this system could be reconciled
with the spirit of the mandate and the civilising mission with which
the Mandatory was entrusted. " 2
In more specifie contexts, the Commission frequently made
inquiries or commented critically concerning such rights, inter
alia, as participation in processes of government; 3 freedom of
movement and security of the persan; 4 discrimina tory and repres
sive labour legislation; 5 and rights of land tenure. 6
The standards developed and applied by the Pernament Mandates
Commission with respect to non-discrimination or non-separation
were entirely consistent and, indeed, identical with those which
were proclaimed or prescribed in other international contexts as
weil.
Thus, the severa! Minorities Treaties which entered into force
following the First World War had features in common insofar
as concerns the development of an international norm of non
discrimination. These were, in summary, the general protection
of fundamental rights, such as !ife and liberty without distinction
as to race; equality of treatment before the law; equal enjoyment
of political and civil rights; and a rule preventing the States con
cerned from barring persans from admission to public employment
or functions, or the exercise of professions because of race. 7 An
example of protective clauses is the Albanian agreement of 2
October 1921, in force from 17 February 1922:
1 P.M.C. Min., Jrd Sess., p. 61.
2 Id., pp. 104-05. (Italics added.)
3 P.M.e. Min., z6th Sess.,p.52; P.M.e. Min., 36th Sess.p. 18.
4 P.M.e. Min., 4th Sess.,p.64; id.,p.79·
5 P.M.e. 1\Iin., qthSess.,p.104; P.M.C. Min., 15th Sess.pp. 121-22.
6 P.M.C. Min., 5th Sess.,p.17B.
7For the texts of the minor.itieprovisions, seeL. of N. Doc. e.L. 110.1927.
1. Annex, in League of Nations Pub. I.B. minoriti(I920-JJ). SOUTH WEST AFRICA
ARTICLE 2
"Full and complete protection of life and liberty will be assured
to all inhabitmts of Albania, without distinction of birth, nation
ality, language, race or religion....
ARTICLE 4
"AH Albarrian nationals shall be equal before the law, and shall
enjoy the same civil'and political rights without distinction as to
race, langua ogrreligion ....
AHTICLE 5
"Albanian nationals who belong to racial, religious or linguistic
minorities will enjoy the same treatment and security in law and in
fact asother Albanian nationals ....
ARTICLE 6
"... ln town~ and districts where there is a considerable proportion
of Albanian nationals belonging to racial, religious or linguistic
minorities, thcse minorities \Villbe assured an equitable share in
the enjoyment and application of sums which may be provided
out of public funds under the State, municipal or ot1er budgets,
for educational, religious or charitable purposes."
The League of Nations act cd as the guarantor of the rights
established by the Minorities Treaties.
Beyond the League system for the protection of minorities, the
norm of non-discrimination was given further impetus by private
bodies of noted juridical or political standing. Thus in 1929, the
Institut de Droit International adopted a Declaration of Inter
national Rights of Man, which included the following provisions:
ARTICLE I
"It is the duty of every State to recognize the equal right of
cvery indiviclual to lifc, liberty and property, and to accord to all
within its territory the full and entire protection of this right,
without distinction as to nationality, sex, race, language, or reli-
gion....
ARTICLE IV
"No motiYe based, directly or indirectly, on distinctions of sex,
race, language, or religion empowers States to refuse to any of
their nationals private and public rights, especially admission to
establishments of public instruction, and the exercise of the differ
ent economie activities and of professions and industries.
ARTICLE v
"The equality herein contemplated is not to be nominal, but
effective.It excludes all discrimination, direct or indirect."
1 L. of N. Doc. C.L. 110. 1927. 1. Annex, in League of Nations Pub., I.B. minorities
(1920-33}, pp. 4-5.
2 Annuaire de l' llrstitut de Droit 1nternational, Vol. Jl, at 298-gg (1929), translated
in 35 American jou.rnal of InternationLaw 664 (1941}. REPLY OF ETHIOPIA AND LIBERIA 497
The significance of the Declaration was evaluated by Philip
Marshal Brown, short! y alter its adoption, as follows:
"Such a revolutionary document, while open to criticism in
terminology and to the objection that it has no juridical value,
cannot fail, hmvever, to exert an influence on the evolution of
international law. It marks a new era which is more concerned
with the interests and rights of sovereign individuals than with
the rights of sovcrcign states. .." 1
In 1936, the Declaration on the Foundations and Leading Prin
ciples of Modern International Law was approved by the Internatio
nal Law Association, the Académie Diplomatique Internationale,
and the Union Juridique Internationale. Article 28 of the Declara
tion provides:
"Every State shaH afford to every individual in its territory full
and complete protection of the right to !ife, freedom and property,
without any d2scriminat-ionbased on nationality, sex, race, language,
or religion.''
In 1944, the Commission To Study the Organization of Peace,
in a report dealing with the international safeguard of human rights,
recommended, inter alia, the establishment of a United Nations
Commission on Human H.ights, one of whose primary functions
"would be to seek avoidancc of discrimination based on fortuitous
factors like race, religion, language, sex, or country of national
3
origin.''
Although of insubstanlial juridical value, these early forerunners
of the norm of official non-discrimination on the basis of group or
race foreshadowed the generally accepted norm which attended
the establishment of the United Nations.
2. THE u~rTED NATIONS CHARTER
One of the most significant of sources for the norm of non-dis
crimination is the Charter of the United Nations. The Preamble of
the Charter stipulates that one goal of the United Nations is "to
reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women
and of nations large and small."
Article I (3) of the Charter provides that among the purposes
and principles of the United Nations is that of
"promoting and encouraging respect for human rights and for
fundamental freedoms for ali without distinction as to race, sex,
language, or religion ... "
Article 13(b) states, inter alia, that the General Assembly shall
initiale studies and make recommendations for the purpose of
1 Editorial Comment, 24A»w·ican Journal of International La126,127 (1930)
3 39 International Law Association, Conference Rep. 338 (1936).
Fourth Report, Part III, p. 19 (1944). SOUTH WEST AFRICA
"assisting in the realization of human rights and fundamental
freedoms for ail without distinction as to race, sex, language, or
religion.''
Article Ss(c) enumerates as one of the tasks of the Organization
the promotion of
"universal respect for, and observance of, human rights and funda
mental freedoms for all without distinction asto race, sex, language,
or religion."
Article 56 provides that "ali Members pledge themsclvcs to take
joint and separate action in co-operation with the Organization
for the achievement of the purposes set forth in Article 55."
Article 6z(z) gives the Economie and Social Council the power
to "make recommendations for the purpose of promoting respect
for, and observance of, human rights and fundamental freedoms
for al!."
Article 76(c) states that one of the basic objectives of the Trus-
teeship System is
"to encourage respect for human rights and for fundamental free
doms for all without distinction as to race, sex, language, or reli
gion.... "
Ali of thesc provisions taken together make manifest the con
cern of the international community for the protection of basic
hum an rights; the most fundamental norm-non-discrimination
is repeated no !css than four times. Thus, even though the Charter
does not makc cxplicit the hnman rights and fundamental free
doms of which it speaks, it does make clear that, irrespective of
the right in question, a fundamental norm lies at its base: official
non-discrimination on the basis of membership in a group or race.
The legal obligation of Meni.ber States not to discriminate or
distinguish on the basis of membership in a group or race (whatever
specifie human right or freedom may be involved) is set out in
Article 56 of the Charter. 1
The legaliy b:inding character of the human rights provisions
of the Charter is confirmed by the highest scholarly authority, as
the foliowing citations demonstrate: Judge Jean Spiropoulos
(when a Delegate to the United Nations):
"As the obligation to respect human rights was placed upon Member
States by the Charter, it followed that any violation of human rights
was a violation of the provisions of the Charter." 2
Judge Philip C. Jessup:
"Since this book is written de lege ferenda, the attempt is made
throughout to distinguish between the existing law and the future
goals of the law. It is already the law, at !cast for Members of the
2 See Schachter,c•p.cit. supp. 489, footnot4-,at 646-59.
G.A.O.R. 3rd Sess., 6th Comm., 138th mtg., 7 Decembe1948, p. 765. REPLY OF ETHIOPIA AND LIBERIA
499
United Nations, that respect for human dignity and fundamental
human rights is obligatory. The duty is imposed by the Charter, a
treaty to which they are parties. " 1
Quincy Wright:
"Article 56 of the Charter in form imposes obligations upon the
Members of the United Nations. The word 'pledge' implies obligation
and the reference ta 'separate' action as distinct from 'joint' action
indicates that the l\i[embers arc inclividually bound ta act 'for the
achicvement' of 'universai respect for, and the observance of, human
rights and fundamental freedoms for all without distinction as ta
race, scx, language or religion... .'
"[C]ommon sense suggests that 'separate action in cooperation with
the organization' implies, as a minimum, abstention from separa te
action, such as enforcement of racially discriminating land laws,
which would oppose the purpose of the organization .... It is
reasonable to infer from the phrase 'in cooperation with the organi
zation' that the Members, in fulfilling thcir pledge to take 'separate
action,' shall be guided by the purposes stated in the Charter
and by the more detailed interpretation of the mcaning of those
purposes and the appropriate methods for keeping them, which
2
organs of the United Nations have recommended."
Paul Guggenheim:
"Différentes dispositions admettent explicitement que les Etats
sont obligésd'accorderaux individus qui dépendent d'eux les droits
fondamentaux. Un engagement formel de ce genre se trouve par
exemple à l'art. 55, litt. c, de la Charte ....Cette obligation n'est pas
annulée, bien que sa valeur en soit certainement diminuée, par le
fait qu'elle ne contient pas de définition précise de ce qu'il faut
'entendre par 'droits de l'homme' et n'établit pas le catalogue des
droits à protéger.'' 3
C. Wilfred Jenks (quoting the human rights provisions of the
Charter):
"The principle of non-dùcrimination has been internationally recog
nizeâ in the most solemn form.'' 4
James Brierly (in a discussion of the legal efïect of the human
rights clauses of the Charter:
"[S]ome even argue that the Charter clauses only contain a pious
injunction to co-operate in promoting respect for human rights and
do not impose any legal obligation on members with regard to their
own nationals. The latter argument seems in any event togo tao far,
since a pledge to co-operate in promoting at least implies a negative
obligation not so to act as to undermine human rights; for this
1 A Modem Law of Nations 91 (1948).
2 "National Courts and Human Rights-the Fujii Case," 45 American Journal of
InternationalLaw 62, 70, 72 (195 1).
3 I Traité de Droit internationa{ public JOI-02 (1954). (Italics added.)
4 Human Rights and InternationalLabour Standards 74 (1g6o). (Italicadded.)soo SOUTH WEST AFRICA
reason South Africa's racial segregation poiicies appear to be out of
1
harmony with ber obligations under the Charter."
The statements quoted above concerning the legal nature of
the human rights clauses of the Charter and the norm of non2dis
crimination in the Charter are not exhaustive.
There is also a body of case law which upholds the proposition
that the human rights provisions of the Charter contain legally
binding commitments prohibiting Member States from discrimi
nating or distinguishing on the basis of race.
In Oyama v. California, 332 U.S. 633 (1948), a case dealing with
the Alien Land Law of California, Mr. Justice Black, joined by
Mr. Justice Douglas, said in a concurring opinion:
"There are additional reasons now why that law stands as an ob
stacle to the free accomplishment of our policy in the international
field. One of these reasons is that we have recently pledged ourselves
to cooperation with the United Nations to 'promote ... universal
respect for, and observance of, human rights and fundamental
freedom for all without distinction as to race, sex, language, or
religion.' How can this nation be faithful to this international
pledge if state laws which bar land ownership and occupancy by
aliens on account of race are permitted to be enforced?" 3
4
A decision of lesser authority is that of Fufii v. California,
decided by the District Court of Appeals of California. This case
also concerns theAlien Land Law ofCalifornia. The Court quoted from
Articles r, 2, 55 and 56 of the United Nations Charter, saying:
"A perusal of the Charter renders it manifest that restrictions
contained in the Alien Land Law are in direct conflict with the plain
tenns of the Charter abovc guoted and with the purposes announced
therein by its framers. It is incompatible with Article 17 of the
Declaration of Human Rights which proclaims the right of cveryone
to own property.
"Clearly such a discrimination against a people of one race is
contrary both to the letter and to the spirit of the Charter which, as
a treaty, is paramount to every law of every state in conftiù with it.
The AlienLand Law must therefore yield to the treaty as the superior
authority. The restrictions of the statute based on eligibility to
citizenship, but which ultimately and actually are referable to race
or color, must be and are therefore declared untenable and unenforce
able." 5
1 The Law of Nations 293 (6th ed. 1963). (Italics added.)
2 See, e.g., staternentmade before the International Law Commission in 1949
by Judge Roberto Cordova, Judge Vladimir Koretsky, Georges Scelle, and Judge
Ricardo Alfaro, [1949] Yearbook of the InternationaLaw Commission 148, 169-70.
See also the discussion by Lauterpacht in International Law and Human Rights
147-48 (1950).
3 Id. at 649-50 .
.f217 P.2d 481, rehearing denied, 218 P.2d 595 (1950), vacated, 38 Cal. 2d 718,
242 P.2d 617 (1952:1 (reversintrial court on different grounds).
5 Id. at 488. IŒPLY OF ETHIOPIA AND LIBERIA sor
It should be noted that in each of the above-cited cases, racial or
religious discrimination is regarded as a violation of, inter alia,
the human rights provisions of the Charter. The issue in the above
cases is not so much the barc deniai of a right or privilege, as it
is the discriminatory deniai of a right or privilege. The explicit
or implicit assumption that such conduct is incompatible with
the Charter, even though the human rights and fundamental
freedoms referred to are not explicitly spelled out therein, confirms
that a legal norm of official non-discrimination is to be found in
the Charter of the United Nations.
3· THE UNIVERSAL DECLARATION oF HmiAN RIGHTS
Further evidence for the proposition that official non-discrimi
nation has become a generally accepted international human rights
norm is the Univers.tl Declaration of Human Rights, adopted by
the General Assembly in 1948. Article 2 of the Declaration states:
"Evcryone is entitlcd to ali the rights and freedoms set forth in
this Declaration, without distinction of any kind, such asce, colour,
sex, language, religion, political or ether opinion, national or social
origin, property, birth or ether status.. .. "
4· DRAFT DECLARATION ON RIGHTS AND DUTIES OF STATES
The Declaration, which was intended to supplement the state
ment of Principles in Article 2 of the United Nations Charter,
was adopted by the International Law Commission in 1949 by
II votes to z.
Article 6 of the Dra ft Declaration provides:
"Every State has the duty to treal ali persans under its juris
diction with respect for human rights and fundamental freedoms,
without distinction asto race, sex, language, or religion."2
S· TRUST TERRITORIES AGREEMENTS
Each of the eleven Trust Territories Agreements contains a
provision which contributes to the univcrsal acceptance of the
norm of official non-discrimination, or non-separation on the basis
of membership in a group or race. The varions provisions are ali
worde3 with reference to Article 76(c) of the United Nations Char
ter. The general tenor of each of the provisions is a commitment
to administer the Territory in such a tnanner as to achieve the
1 G.A.O.R. 3rd Sess., Resolutions, at 71 (A/810).
z G.A.O.R. 4th Sess., Rep. of the lnt'l Law Comm'n, Supp.10,at 8 (A/925).
3 See G.A.O.R. tst Sess., Part 2, Supp. No. 5·502 SOUTH WEST AFRICA
objectives of the Trusteeship System as set out in Article 76 of the
Charter.
The prohibition against racial discrimination was expressed most
clearly in the Agreement for the Territory of Somaliland under
Italian Administration. After reference to the Trusteeship articles
of the Charter, Article 3(3) of the Agreement provides that the
Administering Authority shall "promote the social advancement
of the inhabitants, and to this end shall protee! the rights and
fundamental freedoms of all elements of the population without
discrimination.'' 1
Article zo of the Agreement states thal:
"The Administering Authority shall guarantee to the inhabitants
of the Territory complete freedom of speech, of the Press, of assem
bly and of petition, without distinction as to race, sex, language,
political opinion2or religion, subject only to the requirements of
public order."
Finally, Article 8 of the annexed Declaration of Constitutional
Principles provides that:
"The Administering Authority, in accordance with the principles
laid down in its own Constitution and legislation, shaH guarantee
to all inhabitants of the Tcrritory human rights and fundamental
freedoms and full equality before the law without distinction as to
race, sex, language, political opinion or religion." 3
6. RESOLUTIONS oF THE GE:<ERAL AssEMBLY
Since the founding of the United Nations, there have been more
than thirty resolutions of the General Assembly specifically con
demning racial discrimination or segregation, whether in South
Africa itself, South West Africa, or generally in Non-Self-Governing
Territoric.s. 4
1 G.A.O.R. sth Sess., Supp. No. 10 at 6 (A/1294).
1 Id. at 8.
3
4 Id. at 10.
See General Assembly Resolutions: 103 (I), 19 November 1946, G.A.O.R.
1st Scss., Resolutions at 200 (A/64); 328 {IV), 2 December 1949, G.A.O.R. 4th
Sess., Resolutions at 41 {A/1251); 395 (V), 2 December 1950, G.A.O.R. 5th Sess.,
Supp. No. 20 at 24 {A/I775); 511 (VI), 12 January 1952, G.A.O.R. 6th Sess.,
Supp. No. 20 at 19 (A/2119); 616 (VII). 5 December 1952, G.A.O.R. ;th Sess.,
Su pp. No. 20 at 8 (A/2361); 644 (VIIJ, 10 December 1952, G.A.O.R. ;th Sess.,
Supp. No. 20 at 32 (A{2361); 721 (VIII), 8 Decembcr 1953, G.A.O.R. 8th Sess.,
Supp. No. 17 at(, (A{2G3o); 820 (IX), 14 Dcccmbcr 1954. G.A.O.R. gth Sess.,
Supp. No. 21 at 9 (A/28go); 917 (X), 6 Deccmber 1955, G.A.O.R. IOth Scss., Supp.
No. 19 a.t 8 (A/3116); 1016 (XI), 30 January 1957, G.A.O.R. nth Sess., Supp.
No. 17 at 5 (A/35/2); ll78 {XII), 26 November 1957, G.A.O.R. 12th Sess., Supp.
No. 18 at 7 (A/3805); 1248 (XIII), 30 October 1958, G.A.O.R. 13th Sess., Supp.
No. 18 at 7 (A{4ogo); 1328 (XIII), 12 December 1958, G.A.O.R. 13th Scss., Supp,
No. tS at 35 (A{4090); 136o (XIV), 17 November 1959, G.A.O.R. 14th Sess ..
Supp. No. 16 at 28 (A/4354); 1375 (XIV), 17 November 1959, G.A.O.R. 14th Sess .•
Supp. No. t6 at 7 (A/4354); 1464 (XIV), 12 Decembcr 1959, G.A.O.R. 14th Sess.,
Supp. No. t6 at 35 (A/4354); 1536 (XV), 15 Decembcr 1g6o, G.A.O.R. 15th Sess., REPLY OF ETHIOPIA AND LIBERIA 503
Almost ali the resolutions state explicitly that racial disCrimina
tion, or the policy of apcrrtheid, arc in violation of the Charter of
the United Nations, and most of the resolutions conccrned specifi
cally with South West Africa state thal such policies of racial
segregation or apartheid are also in violation of the Mandate
agreement.
Although resolutions of the General Assembly are not in them
selves legally binding on Members of the United Nations, the
repeated and strongly worded judgments by the General Assembly
that racial discrimination, separation, or apartheid are in vio
lation of the Charter, and in the case of South West Africa, also
in violation of the Mandate, are significant evidence of the general
acceptancc of a legal nonn of non-discrimination or separation on
the basis of race.
7· REsoLuno"s oF THE SECURITY CouNCIL
The Security Council has also, on three occasions, statcd its
view thal the general policy of apartheid is a violation of the
Charter of the United Nations. 1
The following excerpts provide clcar statements of the Security
Council's view, within the context of South Africa itself, of Respon
dent's policies of apartheid:
(a) "The Security Council ...
"Strongly deprecates the policies of South Africa in its per
petuation of racial discrimination as being inconsistent with the
principles contained in the Charter of the United Nations and
contrary toits obligations as a MemberState ofthe United Nations;
"Catis upon the Government of South Africa to abandon the
policies of apartheid and discrimination .... " 2
(b) "The Security Council ...
"Strongly deprecating the policies of the Government of South
,--.,-----
Supp. No. 16 at 27 (A/4684); 1565 (XV), 18 December 196o, G.A.O.R. 15th Sess.,
Supp. No. 16 at 31 (A/4684); 1567 (XV). 18 December 1960, G.A.O.R. 15th Sess.,
Supp. No. 16 at 32 (A/4684); 1568 (XV), 18 December 1960, G.A.O.R. 15th Scss.,
Supp. No. 16 at 33 (A/4684); 1596 (XV), 7 April 1961, G.A.O.R. 15th Sess., Supp.
No. 16 A at 7 (A/4684/Add. I); 1598 (XV), 13 April 1961, G.A.O.R. xsth Sess.,
Supp. No. r6A at 5 (A/4686/Add. x); 1663 (XVI), 28 November 1961, G.A.O.R.
16th Sess., Supp. No. 17 at 10 {A/sxoo);t6g8 (XVI), 19 December 1961, G.A.O.R.
16th Sess., Supp. No. 17 at 37 (A/5100);1702 (XVI), 19 Dccember tg6r,G.A.O.R.
16th Sess., Supp. No. 17 at 39 (A/5100); 1761 (XVII),6 November 1962, G.A.O.R.
17th Sess., Supp. No. 17 at 9 (A/5217); 1779 (XVII), 7 Deccmber 1962, G.A.O.R.
17th Sess., Supp. No. 17 at 32 (A/5217);1780 (XVII), 7 Deccmber 1962, G.A.û.R.
17th Sess., Supp. X o. 17 at 32 (A/5217); 1805 (XVII)14 December 1962, G.A.O.R.
17th Sess., Supp. Ko. 17 at 38 (A/5217);r85o (XVII), 19 December 1962, G.A.O.R.
17th Sess., Su pp. No. 17 at 43 (A/5217); 1899 (XVIII13 November 1963, G.A.O.R.
18th Sess., Supp. No. 15 at 46 (A/5515); 1904 (XVIII20 N'ovcmber 1963, G.A.û.R.
rSth Sess., Supp. No. 15 at 35 (A/5515}; 1979 (XVIII}17 Dccember 1963, G.A.O.R.
18th Sess., Supp. No. 15 at 51 (A/ssxs).
l s.e.Res., I April Igûo (S/4300)s.e. H.es., 7 August 19Û3 (S./5386)s.e. Res.,
4 December 1963 (S/5471).
2 S.C. Res. 7 August 1963 (S/5386). SOUTH WEST AFRICA
Africa in its perpetuation of racial discrimination as being incon
sistent with the principles contained in the Charter of the United
Nations and with its obligations as a ~{embe State of the United
Nations,
"Recognizing the need to elimina te discrimination in regard to
basic human rights and fundamental freedoms for ail individuals
within the territory of the Rcpublic of South Africa without dis
tinction as to race, sex, language or religion,
"Expressing the firm conviction thal the policies ofapartheid anù
racial discrimination as practised by the Government of the Republic
of South Africa are abhorrent to the conscience of mankind and
that therefore a positive alternative ta these policies must be found
through peaceful means ...
"Urgently '<quests the Government of the Republic of South
Ah·ica to cease forthwith its continued imposition of discriminatory
and repressive measurcs which are contrary to the principles and
purposes of the Charter and which are in violation of its obligatioris
as a I\lember of the United Nations and of the provisions of the
1
Universai Declaration of Human Rights .... "
8. HUMAN RIGHTS COVENANTS
The severa! articles of the Draft Covenant on Civil and Political
Rights. and of the Draft Covenant on Economie, Social and Cul
tural Rights, ho.vc been the subject of discussion in the Third
Committee of the General Assembly for many years, beginning in
1954. The Draft Covenants as a whole, intended to constitutc
legally binding obligations, will not be considered by the Asscmbly
itself until alithe articles have been adoptcd by the Committee.
Neverthelcss the Committee has already, by overwhelrning majori
ties, approved articles of the Draft Covenants which preclude the
application of the policy of apartheid.
Thus, paragraph r of Article 2 of the Draft Covcnant on Civil
and Poli!ical l~igh trsvides:
"Each State Party hcreto undertakes to respect and to ensure ta
ail individuals within its terri tory and subject toits jurisdiction the
rights recognized in this Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status."
The ovcrriding weight attached to the norm of non-discrimina
tion may be seen from the wording of paragraph I of Article 4
of the same Covenant:
"Intime of public emergency which threatens the life of the nation
and the existence of which is officially proclaimed, the States
Parties hereto may take measures dcrogating from their obligations
under this Covenant to the extent strictly required by the exigencies
of the situation, provided that such measurcs are not inconsistent
1
2 S.C. Res., 4 Decembe1963 (S/5471).
Adopted by the Third Committeof the General Assembly at its 125gth meeting,
11 November 1963, bya vote of 87-o-2.Text in Report of 3rd Comm. (A/sGss.
Annex). REPLY OF ETHIOPIA AND LIBERIA
505
with their other obligations under international lav.·. and do not
involve discrimination solely on the ground of race, colour, sex,
language, religion or social origin." 1
Article 24 of the Draft Covenant on Civil and Political Rights
reads:
"All persans are equal before the law and are entitled without any
discrimination ta equal protection of the law. In this respect the
law shall prohibit any discrimination and guarantee to ali persans
equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status." 2
Finally, Article 2, paragraph 2, of the Draft Covenant on Econo-
mie, Social and Cultural Rights provides:
"The States Parties hercto undertake to guarantee that the rights
enunciated in this Covenant will be exercised without discrimination
of any kind as to race. colour, sex, language, religion, political or
other opin3on, national or social origin, property, birth or other
status."
9· U:-!ITED NATIONS DECLARATION ON THE ELIMINATION OF Au.
FoRMS oF RACIAL DISCRHtiiNATION
On 20 N'ovember r963, the Eighteenth Session of the General
Assembly unanimously adopted (Respondent taking no part) the
Declaration on the Elimination of Ali Forms of Racial Discrimina
tion. ' The Declaration makes it clear that racial distinctions, be
they called racial discrimination, segregation, separate develop
ment, or apartheid, are unacceptahle. 5
1 Adopted unanimously by the Third Committee at its 1262nd meeting, 13 No
vember 1963. (Ibid.)
2 Adopted by the Third Committee at its 1102nd meeting, 13 November 1961,
by a vote of 72-0-5. Text in Report of Third Comm. (A/5000, para. gS and Annex).
3 Adopted by the Third Committee at its rzo6th meeting, ro December 1962,
by a vote of 86-o-5. Text in Report of Third Comm. (A/5365, Annex).
i C.A. Res. 1904 (XVIII), 20 November 1963, G.A.O.R r8th Sess., Su pp. No.
'5 at 35 (A/55'5).
5 The first seven operative articlesof the Declaration are particularly relevant
to the case at bar:
ArticleI
"Discrimination between human beings on the ground of race, colour or
ethnie origin is an offence -ta human dignity and shaH be condemned as a
deniai of the principlesof the Charter of the United Nations, as a violation
of the human rights and fundamental freedoms proclaimed in the Universal
Declaration of Hu man Rights, as an obstacle to friendly and peaceful relations
among nations and as a fact capable of disturbing pcace and security among
peoples.
Article 2
"1. No State, institution,group or individual shaH make any discrimination
whatsoever in matters of hu man rights and fundamental freedoms in the treat
ment of persans, groups of persans or institutions on the grounds of race,
colour or ethnie origin.safi SOUTH WEST AFRICA
Of particular relevancc, insofar as Respondent's policies in South
West Africa are concerned, is Article z (3). This provision specifical
ly prohibits the use of special measures of development as a justi
fication for allotting rights and burdens on the basis of member
ship in racial groups. This is reinforced by Article 5, which bans
racial discrimination, segregation, separation and apartheid.
Although the Declaration on the Elimination of All Forms of
Racial Discrimination does not in itself have legally binding force,
its importance is nonetheless great, as a solemn instrument attesting
"2. No State shall encourage, advocate or lend its support, through police
action or othenvise, to any discrimination based on race, colour or ethnie
origin by any group, institution or individual.
"3. Special concrete mcasures shaH be taken in appmpriate circumstances
in arder to secure adequate development or protection of individua.ls belonging
to certain racial groups with the abject of ensuring the full enjoyment by such
individuals of human nghts and fundamental freedoms. Thcse measures shaH
in no circumstances have as a consequence the maintenance of unequal or
separate rights ror different racial groups.
AYticle 3
1. Particular efforts shall be made to prcvent discrimination based on race,
colour or ethnie origin, especially in the fields of civil rights, access citizen~
ship, education, religion, employment, occupation and housing.
"2. Everyone shaH have equal access to uny place or facility intended for
use by the general public, without distinction as to race, colour or ethnie
origin.
Article 4
"Ail States shall take effect mivatues to revise governmental and other
public policies and to rescind laws and regulations which have the effect of
creating anÇ perpetuating racial discrimination wherever it still exists. They
should pass legislation for prohibiting such discrimination and should take ali
appropriate measures to combat those prejudices which lead ta racial dis~
crimination.
Article 5
"An end shall be put without delay ta govemmental and other public
policies of racial segregationand especially policies of apa,-theid,as well as all
forms of racial discrimination and separation resulting from such policies.
Article 6
''No discrimination by reason of race, colour or ethnie origin shall be ad~
mitted in the enjoyment by any persan of political and citizenship rights in
his country, in particular the right to participatein elections through universal
and equal suffrage and to take part in the government. Everyone bas the right
of equal access to public service in his country.
Article 7
'' J.Everyone bas the right ta equality before the law and ta equal justice
under the law. Everyone, without distinction as to race, colour or ethnie
origin, bas the right to security of persan and protection by the State against
violence or bodily harm, whether inflicted by government officiais or by any
individual, group or institution.
"z. Everyone shall have the right ta an effective remedy and protection
against any discrimination he may suffer on the ground of race, colour or
ethnie origin with respect to his fondamental rights and freedoms through
independent national tribunats competent to deal with such matters .... " REPLY OF ETHIOPIA A~D LIBERIA 507
to the general acceptance of the norm of non-discrimination m the
international community.
IO. INTERNATIONAL CONVENTION ON THE ELIMINATION 0F ALI.
FoRMS OF RACIAL DrsCRIMINATIO>~
In Resolution 1906 (XVIII) of 20 November 1963, the General
Assembly requested the United Nations Commission on Human
Rights to give "absolute priority" to the preparation of a draft
international convention on the elimination of al! forms of racial
1
discrimination. A draft was adopted by the Human l~ights
Commission at its twentieth session, ending in March of 1964, and
a request was made to the Economie and Social Council to transmit
the draft to the General Assemblv for consideration at its nine
teenth session beginning in the autumn of 1964. 2
1 U.N. Doc. EJCN.4JL.wgjAdd.5 (tG March 1964).
2 The general provisions of the Draft Convention most relevant, in tcrms of
Respondent's policies in South ·west Africa, arc as follows:
"The States Parties to this Convention,
"Considering that the Charter of the United Nations is based on the principle
of the dignity and equality inherent in ali human beings, and that all States
~lember have pledged themselves to take joint and separate action in co·
operation with the Organi:r.ation for the achievementof one of the purposes
of the United Nations which is to promotc and encourage universal respect for
and observance of human rights and fundamental freedoms for ali without
distinction as to race, sex, language or religion,
"Considering that the Universal Declaration of Human Rights proclaims
that ali hu man beings are born frcc and equal in dignity and rights and that
everyone is entitled ta all the rights and frecdoms set out therein, without
distinction of any kind, in particular asto race, colour or national origin ...
"Concerned by manifestations of racial discriminationstill in evidence in
sorne areas of the world and by governmcntal policies based on racial superior
ity or hatred, such as policies of apartheid, segregation or separation ...
"Have agreed as follows:
ArticlI
"1. In this Convention the term 'racial discrimination' shall mean any
distinction, exclusion, restriction or preference based on race, colour, [nationalJ
or ethnie origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and
fondamental freedoms in the political, economie, social, cultural or any ether
field of public life. [In this paragraph the expression 'national origin' dacs not
caver the status of any persans as a citizen of a given State.}
"2. Special mensures taken for the sole purpose of securing adequate devel
opment or protection of certain under-developcd racial groups or individuals
belonging to them in arder to ensure to such groups or individuals equal en
joyment or exercise of human rights and fondamental freedoms shall not be
deemed racial discrimination,provided, however, that such measures do not,
as a consequence, lead to the maintenance of separate rights for different
racial groups and that they shall not be continued after the objectivesfor
which they were taken have been achieved.
Article II
r. States Parties to the present Convention condemn racial discriminationso8 SOUTH WEST AFRICA
As with the equivalent articles of the Declaration on racial
discrimination, special cmphasis shoulcl be placee! on Articles I (z)
and III of the Draft Convention. They make clear the Human
Rights Commission's view that Responclent's policy of separate
clevelopment, or apartheid, is not acceptable to the worlcl com
munity.
II. INTERNATIO~ LABLOUR ÜRGANISATION CONSTITUTION AND
CONVENTIONS
The principle of equality of opportunity and treatment was
formulatecl as follows in the Declaration of Philadelphia, adoptee!
by the International Labour Conference in 1944. and incorporatecl
into the l.L.O. Constitution:
"... aU human beings, irrespective of race, creed, or sex, have the
right to pursue hoth their material well-being and their spiritual
development in conditions of freedom a1d dignity, of economie
security and equal opportunity... ."
Accorcling to the International Labour Office, "this principle,
which, from the very beginning, has constitutecl one of the bases
for ali the stanclarcl-setting activities of the International Labour
Conference, has been enunciatecl in greater detail in the Conven
tion and Recommenclation concerning discrimination in respect of
employment and occupation, adoptee! by the Conference in 1958." 2
The Convention is an attempt to achieve the elimination of "any
distinction, exclusion or preference made on the basis of race,
colour, sex, religion, political opinion, national extraction or social
origin, which bas the effect of nullifying or impairing equality of
opportunity or 1reatment in employment or occupation" (Article
r (r)). Article 2 of the Convention provides:
"Each Member for which this Con'lention is in force undertakes to
declare and pursue a national policydesigncdto promote, by methods
appropriate to national conditions and practice, equality of oppor
tunity and treatment in respect of employment and occupation,
3
with a view to eliminating any discrimination in respect thereof."
and undertake :o pursue by ail appropriate means and without delay a policy
of eliminating racial discrimination in ali its forms. ...
Article III
"States Parties particularly condemn racial segregation and apartheid and
undertake to prevent, prohibit and eradicate, in territories subject to their
jurisdiction, all practices of this nature."
1 l.L.O. Const., Annex, art. II, para. 6, 15 United Nations Treaty Series 36, 106
(1948), incorporating Declaration Concerning the Aims and Purposes of the I.L.O.,
International Labour Conference, 26th Sess., Record of Proceedings 621,622 (1944).
2 U.X. Doc. No.. \fAC.ns/L.'.l10,September 1963.
3 Convention Concerning Discriminationin Respect of Employment and Oc
cupation (Convention No.11 1)in International Labour Conf., 42nd Sess., Record
of Proceedings 834 {rg58). REPLY OF ETHIOPIA AND LIBERIA 509
The Convention concerning Social Policy in Non-l\Ietropolitan
Terri tories of 1947 provides that:
"It shall be an aim of policy to abolish ali discrimination among
workcrs on grouncls of race, colom·, sex, belief, tribal association or
trade union affiliation in respect of:
"(a) labour legislation and agreements which shall afford equit
able economie treatment to ail those lawfully resident or working
in the territory;
"(b) admission to public or private employment;
"(c) conditions of engagement and promotion;
"(d) opportunities for vocational training;
"(e) conditions of work;
"(f) health, safety and welfare measures;
"(g) discipline;
"(h) participation in the negotiation of collective agreements;
"(i) wage rates, which shall be fixed according to the principle
ofequal pay for work of equal value in the same operation and under
taking to the extent to which re1ognition of this principle is accorded
in the metropolitan terri tory."
12. l~EGIO: TREALTIES AND DECLARATIO:<S
(A) The European Convention for tl.e Protection of Human Rights
and Fundamental Freedoms
The Convention, signed at Rome on 4 Novcmber 1950 and entered
into force on 3 September 1953, is evidence of European practice
with regard to the norm of non-discrimination. Article 14 of the
Convention proviclcs:
"The cnjoymcnt of the rights and frcedoms set forth in this con
vention shall be secured without discrimination on any grounds
such as sex, race, colour, language, religion, political or other
opinions, national or social origin, association with any national
minority, property, birth or other status." 2
The rights protected by the European Convention do not mark
an advance beyond the rights already enjoyed by citizens of each
of the parties. Thus it has been said that "the rights and freedoms
providecl for in the Convention consist of the lowest common de
nominator of those guaranteed in practically each of these coun
tries." 3 This is furthcr evidence that the nonn of non-discrimina
tion is a basic and fundamental righi which is comprised within a
legal commitment to "promote to the utmost" the welfare of the
inhabitants of a mandatecl territory.
1 Art. tS(t)I.L.O. Convention No.82, 218 United Nations Treaty Series 346, 358
('955)-
2 213 United Nations Treaty Serie222,232 (1953).
3 Ganji, lnJernational Protectio-n o-fHuman Rights 271 (1962). 510 SOUTH WEST AFRICA
(B) Charier of the Organization of American States
The Charter, which was signee\ at Bogota on 30 April 1948 and
entered into force on 13 December 1951, contains two articles which
confirrn the general acceptance of the norm of non-discrimination.
Chapter II of the Charter is entitled "Principles", and contains
only Article 5:
"The Arnerican States reaffirm the following principles ...
"'j)The American States proclaim the fundamcntal rights of the
indiviclual without distinction as to race, nationality, creed or
scx .... "
Article 29 of the Charter, which is in Chapter VII ("Social Stand
ards") contains the following provision:
"The illember States agree upon the desirability of developing their
social legislation on the following bases:
"a) Ail human beings, without distinction as to race, nationality,
sex, crecd or social condition, have the right to attain material
well-being and spiritual growth under circumstances of liberty, 1
dignity, equality of opportunity, and economie sccurity . ... "
(C) American Declaration of the Rights and Dulies of Man
The Declaration, which is the Final Act of the Ninth International
Conference of American States (1948), provides in Article li:
"AU persans are equal bcfore the law and have the rights and duties
establishcd in this Declaration, without distinction as to race, sex,
language, cre1 or any other factor." 2
(D) Draft Declaration of the International Rights and Dulies of Man
Prepared by the Inter-American Juridical Committee, this
Draft Declaration of 31 December 1945 provides, inter alia, in Article
XVIII that:
"Ali persans shall be equal before the law in respect to the enjoy
ment of their fundamental rights3 There shall be no privileged
classes of any kind whatsoever."
CoNCLUSION
Applicants submit that the general acceptance of the norm of
non-discrimination on the basis of mernbership in a group or race
is of decisive relevance to the Cases at bar.
Whether or not the norm of non-discrimination or separation
on the basis of race has become a rule of customary international
law, it is submitted that as a generally acceptee\ legal norm, non-
1
2 119 United Nations Treaty Seri3, 52-536o-6z (1952).
3 43Amert'can journal of International LSupplement 133, 134 (1949).
40American journal of International LaSupplement 93, 99 (1946). REPLY OF ETHIOPIA AND LIBERIA 5II
discrimination imparts a :;pecific and objective content to Article
2, paragraph 2, of the Mandate.
First, it would seem clear that non-discrimination on the basis of
race is generally consideree! to be a basic, fundamental, and mini
mum right. Thus, for exarnple, Lauterpacht has written that "the
daim to equality before the law is in a substantial sense the most
fundamental of the rights of man. lt occupies the ftrst place in
most wr1tten constitutions. lt is the starting point of al! other liber
tics.''
The International Commission of Jurists, in a Report published
in 1960, stated that the policy of apartheid is "contrary to gener
ally acceptee! concepts of justice and principles of human rights." 2
Given the basic and fundamental nature of the norm of non
discrimination on the basis of group or race, it would seem evi
dent thal the violation of this rule by Respondent is ipso facto a
violation of Article 2, paragraph 2, of the Mandate agreement.
To fall short of a basic minimum standardisa fortiori to fall short of
the more demancling standard and obligation to "promote to the
utmost" the welfare of the inhabitants of South \Vest Africa.
That the policy of apartheid is contrary to the terms of the Man
date bas been statecl repeatedly by the General Assembly of the
United Nations. 3
The International Commission of Jurists expressed its support
of this determination, adding !hat Article 2, paragraph 2, of the
Mandate was limited by the "explicit requirement" that the
Mandatory "shall promote to the utmost the material and moral
well-being and social progress of the inhabitants" of South \Vest
Africa, and !hat
"... \Vhen full consideration is given to the nature and extent of
the legislation pertaining to apartheid, which we have reviewed
above, the impossibility of reconciling the application of these laws
with the latter requirement becomes manifestly apparent." 4
Applicants accordingly submit that, by undertaking a legal com
mitment to promote the welfare of the inhabitants of South West
Africa "to the utmost," Respondent bas obligated itself, at the
very !east, to carry out in the Mandatee! Territory the generally
recognized minimum basic norm of non-discrimination on the
basis of membership in a group or race.
lt is undoubtedly true that the content of international legal
norms regulating human rights and fundamental freedoms is in
many respects still in astate of evolvement. Nevertheless, certain
minimal aspects arc clcar; undcr any conception of eurrent stand
ards, a policy so extreme in its discriminatory and repressive
1 Lauterpacht,An Internatiol:alBillofthe RightsofMan 115 (1945).
2 South Africa and the Rule of Law gi (tg6o).
3 See, e.g., G.A. Res. 1567 (XV) of 18 Dcc. 1g6o, G.A.O.Rrsth Sess., Supp.
No. 16 at 32-33 (A/4684).
4 SouthA/rica and the Rule of Law SS (196o).512 SOUTH WEST AFRICA
character as apartheid, must be found to violate even the most
minimal standards universally accepted (cxcept by Respondent)
as governing the relations between a State and its subjects .
• • •
5. Attention is now turned to the tifth in the series of Responcl
ent's propositions, which Applicants have formulatecl in their
own terms in an endeavour to present to the Court a clear and
responsive reply to Responclent's arguments, as unclerstoocl by
Applicants.
The proposition in question, which arises by implication rather
than explicitly, embodies Respondent's apparent contention thal
if legal norms existee! for juclging Responclent's obligations uncler
Article z, paragraph z, of the Mandate, they woulcl be those govern
1
ing at the time the Mandate was entrustecl to Respondent.
In the light of the nature and purposes of the Mandate in
stitution, analy"ed above, 2 as wcll as the explicit language of
the Article in question, the untenability of such a proposition
appears to be self-evident.
The relevance of the evolving practice and views of States, growth
of experience and increasing knowleclge in the political and social
sciences, to the determination of obligations bearing the nature
and purpose of the 1\Ianclate in general, and Article 2, paragraph 2,
thereof in particular, far from being "obviously absurd," as l~e
spondent suggests, is of the very essence of the obligation itself.
Discharge of the obligation to promote wcll-being and social
progrcss necessarily involves continuous, dynanlic and ascending
growth. The rcquirement thal utmost efforts be directed toward
thal end, adds both urgency and dimension to the undertaking.
The proposition, implied by Respondent, thal its obligation is to
be measured by its so-called "intentions" as of rgzo is manifestly
incompatible with, and repugnant to, the essence and purpose
of the obligation itself.
Indeed, by ils very method of presenting its case to the Court,
Respondent reveals awareness of this fact.
Thus, in introducing an exposition of its policies, under the
heading of "Post-War Adjustments," Respondent avows thal it
1 Jn disputingApplicants'contention concerning applicabiliof the doctrine
of in pari materia in respect of interpretation of the Mandate in the light of cogna te
provisions of the United Nations Charter (1, pp. IO.J·Io8) Respondent argues:
"To asscrt, however, that a conventioconcluded in 1945 can be used as
an aid to ascertain the intentioof the parties to a conventioconcluded
between different states in 1920, is, in Respondsubmission, so obviously
absurd as not to warrant serious consideratio(Il, p. 395.)
1 Supra,pp. 231-:a54· REPLY OF ETHIOPIA AND LIBERIA 5I3
"did not set about its task of administering South West Africa
with a set of fixed and unalterable ideas, or with1a policy based on
an inflexible political or economie philosophy."
Throughout the Chapter, the very title of which concedes the
neecl for continuing "acljustments" of policy, Responclent refers
to assertecl "adaptations" to changing neecls, interests and circum
stances in the Terri tory. Most significant in this context, is Responcl
ent's purportecl explanation for the slower, so-callecl "progress"
in the implementation in the Territory of a policy of separate
clevelopment, on the grouncl that Responclent asserteclly wishecl 2
firstto establish its "soundness in practice in South Africa itself."
Applicants have elsewhere in this Reply aclclrcssecl themselves
to the Jack of merit in the foregoing contention; it is citecl here as
clemonstrating Responclent's awareness-however faultily it has
in practice clischargecl its obligations-thal such obligations, in
their very nature, must be measurcd and appraiscd in accordance
with changing and evolving social, economie, scientific and political
experience, knowleclge and requirements.
The practical necessity and wisclom of applying current standards
in interpreting obligations, such as those emboclied in the Mandate,
are confirmecl by the funcla.mental or organic nature of the Mandate
instrument itself, as weB as the dynamic and cvolving character
of the rights of the inhabitants which it protects, and the correlative
obligations of the Manclatory which it enjoins.
The view of the Permanent Mandates Commission that the
Mandates were "the constitutional law of the territories under
3
mandate" has been clemomtrated. The history of Article 22 of the
Covenant confirms the valiclily of such a view. Not on!y is the lerm
"mandate" itself significant in this respect, but it was usecl syn
onymously with "charter." Thus, Marshal J. C. Smuts early
recommenclecl that
" ... the degree of authority, control, or administration exercised
by the mandatory state shall in each case be laid clown by the
League in a special act or charter... " 4
Ali three of President Wilson's Paris clrafts of the Covenants
referrecl to "charter" in the same context, as cliclthe text agreecl
upon by Wilson and Lord Cecil on r8 March rgrg and the cirait
of z6 March rgrg, presentecl to the Drafting Committee. 5
The Mandate instrument shares, in common with ali typical
charters, constitutions and basic ordinances, generality in formula-
1 II, p. 457 and Chapter VII, p·assim.
2 Id., p. 476.
3 Supra, pp. 480-4r.
4 The League of Nations- A Practical Suggestion (1918)cited in Miller The
Drafting ofthe Covenant, Vol. 2, pp. 23, 32 (1928).
5 Id., pp. 88, 104, 153, 589 and G55, respectiveDelction of the term by the
Drafting Committec did not reflect an intention to change substan(Id., Vol.J,
p. 47·) SOUTH WEST AFRICA
tion and dynamic flexibility in application. The obligations created
by Article 22 of the Covenant and the Mandate must, accordingly,
be construed in the light of current standards, as determinee! by
contemporary knowledge, conditions and requirements.
The highest judicial authority confirms such an imperative of
interpretation of the obligations created by the Mandates System.
Thus Judge Bustamante, in the Preliminary Objections phase
of the Cases at bar, stated in his separate Opinion:
"An international Mandate is, by its very nature, temporary and of
indetenninate duration. Its duration is limited by the fu]filment
of the essential purpose of the Mandate. thal is ta say, by the com
pletion of the process of development of the people under tutelage
through their acquisition of full human and political capacity." 1
In the Case of the Readaptation of the Mavrommatis J erttsalem
Concessions (Jurisdiction) Judge Caloyanni, discussing the "full
powers" clause in Article II of the Mandate for Palestine, said:
"It is by reference to the spirit of Article 22 of the Covenant of
the League of Nations that one finds the essential element under
lying the Me.ndate from the point of view of the full powers in
question; indced, it is upon the idea of 'dcvelopment'thal the princi
ples of Article 22 are mainly based; whenever the exercise of the
full powers is therefore concerned, the Administration has an
obligation to exercise them, because in the development of the country
a great dealof its mission and alltïs activities are comprised. It could
not be otherwise, having regard to the responsibihty voluntarily
assumed by the Mandatory when accepting the Mandate." 2
The significance of the foregoing judicial references to the neces
sity for determining constitutional-type obligations in terms of
current and developing norms is highlighted by the case of Brown
v. Board of Education, in which the United States Supreme Court
held unanimously that state legislation requiring schools to be
segregated on the basis of race violated the Fourteenth Amendment
of the Constitution of the United States, which assures ta ali
persans the "equal protection of the laws":
"In approaching this problem, we cannat tum the clock back ta
r868 when the Amendment was adopted, or even ta r8g6 when
Plessy v. Ferguson was written. \Ve must consider public education
in the light of its full developmenand its Present place in American
!ifethroughout the Nation. Only in this way can it be determined if
segregation in public schools deprives these plaintiffs of the equal
protection of the laws."'
The central issue in the Brown decision is, of course, analogous
to that in the instant Cases, viz.,the question whether separation
1 ]udgment, p. 357·
2 P.C.I.J., Ser. A, No11(1927) (Judgment No. 10). p. 51 (dissenting opinion).
(ltalics added in:rt.)
3 347 U.S. 483, 492-93 (1954). (Italics added.) REPLY OF ETHIOPIA AND LIBERIA 515
of individuals, by governmental policy, on the basis of member
ship in a group or race, is consistent with the well-being and pro
gress of the persans affected by such a policy.
As has been pointed out, 1 the Brown case is relevant to Appli
cants' contention that obligations are not deprived of a legal
character merely by reason of being formulated in general terms,
nor do Courts hesita te to exercise thcir judicial function even when
issues, in Respondcnt's phrase, fall also within "the realm of
poli tics."2 Nor do Courts fear "to venture onto one or other of ...
[the] terrains" 3 of "social, ethnological, economie and political
considerations," • even in cornplex and controversial issues, in
which individual human rights are asserted against governmental
action or policy.
In the present context, the Brown case, as has been said, is
particularly i!luminating in respect of the judicially perceived
necessity to interpret broadly-formulated, constitutional-type obli
gations, on the basis of current standards, rather than on the basis
of the presumed "intentions of the parties" at the time the obliga
tions were conferred and accepted.
The Supreme Court of the United States, in the light of experience
and insights which had evolved during a pcriod not much longer
than that in which the Mandate for South West Africa has existed,
unanimously rejected the earlier doctrine, announced by the same
Court, that governmental separation of races, on pretext of equality,
afforded to the individuals affected the "equal protection of the
laws." A governmental poliey considered acceptable in r8g6 has
now become impermissible in the light of change and experience.
Representative of scholarly authority similarly confirming the
necessity for applying current standards in interpreting the obliga
tions fixed by the Mandates System are the views of J. Stoyanovsky
and Quincy Wright.
Stoyanovsky concludes:
" ... le systèmedu mandat est, essentiellement, un systèmedynamique,
un système d'évolution; pour en établirles principes, c'est l'évolution
elle-mêmequ'il faut envisager, et non pas un point statique quel
conque.''5
To the same effect, Wright states:
"Article 22 ... seeks not so much to define a status as to guide an
evolution. It attempts not merely to provide for the transfer of the
territories and for the government of their inhabitants, but for the
evolution in them of communities eventually capable of self-deter
mination .... We must attempt to define the status of these
1
2 II, p. 184.7.
3 Id., 391.
4 Ibid.
s La Théoriegénéraledes mandats.internationau81 (1925). (Italics added.)sr6 SOUTH WEST AFRICA
territories in tenns of the future as weil as of the present and the
past." 1
To similar effect is a resolution of L'Institut de Droit Internatio-
nal, adopted in 1931, which states:
"Les pouvoirs conférésà l'Etat mandataire le sont dans l'intérêt
exclusif des populations sous mandat. Il est du devoir de l'Etat
mandataire de favoriser le développementpolitique de ces populations
de manière à tendre vers la réductionprogressive du degréd'autorité,
de contrôle ou d'admi-nistration exercéspar le -mandataire." z
Judicial and scholarly authority, cited above, demonstrates the
necessity of interpreting Respondent's obligations toward the
inhabitants of the Territory on the basis of relevant and accepted
current norms. The character of such norms has also been
shawn by reference to the practice of States and to international
organizations, international agreements, judicial decisions and
scholarly authority.
Applicants turn now to a demonstration that Respondent's
obligations must be measured on the basis of current standards,
upon the additional ground that, inasmuch as Respondent has
acccpted the applicability of such standards by reason of its ratifi
cation of the Charter of the United Nations, interpretation of
Respondent's obligations on the basis of standards prevalent in
1920 would lead to an anomalous and intolerable result.
3
Article 73 of Chapter XI of the Charter embodies obligations
which, as Respondent concedes, "may he in advance of what was
current thought in 1920." 4 Thcre can be no question as to the
validity of this proposition, in the light of the frequent application
and interpretation of Article 73, by United Nations resolutions and
actions since the inception of the Organization. 5
1 Wright, op. cie., p500. (Italics added.)
2 Quoted in Pelichet, La Personalilé Internationale Distincte des Collectivitéssous
Mandat 29·30 (1932).
3 Article 73 provides, in part:
''l\lembers of the United Nations which have or assume responsibilitifor the
administrationO:ltferritories whose peoples have not yet attained a full mcasure
of seff.governmentrecognize the principle that the interests of the inhabitants
of these territories are paramountand accept as a sacred trust the obligatiou to
promote to the uimost, wîtbin the system of internationalpeace and security
establishedby the present Charter, the well·being of the inhabitants of these
territories,d, to this end:
"a. to ensure, with due respect for the culture of the peoples concerned,
their politice,~onom iocal, and educational advancement, their just treatment,
and their protec.:ionagainst abuses;
"b. to develop self·government, to lake due account of the political aspirations
of the peoples, and to assise them in the progressive devrlopmcnt of their frce
political institulions, according to the particular circumstof each territory
and itspeoples and their varying stages of advancement.... "
4 II, PP· 396·397·
5 The United Nations bas fostered economie, social and educatîonal ad\·ancemcnt
in the territoriesthrough measures not former! y applied to :Mandated Terri tories
as such. Thus, e.g., all recommendations,in these fields, of the General Assembly REPLY OF ETHIOPIA AND LIBERIA 5I7
It is not necessary, for the purposes of the present Proceedings,
to consider in detail the scope of Respondent's obligations under
Article 73 of the Charter, inasmuch as Applicants' Submissions do
not allege violations by Respondent of such obligations.
The point made hy Applicants in the present context is, insofar
as the provisions of Article 73 of the Charter may be in advance of
what was current thought in rgzo, an interpretation of the Mandate
text in terms of rgzo standards could result in the application of
standards short of the Charter (Article 73) standards. It could, in
principle, thus be found that Respondent had met the rgzo stan
dards by policies and practices which nonetheless failed to meet
the requirements of Article 73· Such a result is impermissible,
whether or not Article 73 is legally applicable to Mandated terri
tories.
On the assumption that Article 73 is applicable to Mandated
Territories, in order to avoid conflict with the obligations of the
Charter, its standards must govern insofar as the rgzo standards
fall short of the Charter standards.
Article 103 of the Charter is designed to preclucle such a conflict:
"In the event of a confiict between the obligations of the l\Iembers
of the United Nations under the present Charterand their obligations
under any other international agreement, thcir obligations under
the present Charter shall prevail."
Alternatively, if Article 73 is not legally applicable to 1\landated
terri tories, the relationship between the principles of Article 73 and
the principles of the Mandate nonetheless is extremely close. The
two sets of principles are addressed to the same type.of problem
and subject-matter, and are strikingly similar in language and
intent. 1 The Lear,'l.teof Nations Resolution of r8 April rg46,
provicles, inter alia, !hat the League Assembly:
"Recognizes that, on the termination of the League's existence,
its functions with respect to the mandated territories will come to
an end, but notes !hat 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. ... " 2
Application of the standards of rgzo to the interpretation of the
1\landate, could, in principle, result in a finding that the standards
of Article 73 had not been met. The practical effect of such a result
and the Economie and Social Council, are equally applicable to Non-Self-Governing
Territories and independent nations; certain principles containcd in the Declaration
of Human Rights and in the draft Covenants were drawn up specifically with
reference to such territories; dependent territories participa te in sorne Specialized
Agencies.For a fuller discussion, see Aset al., The United Nations and Promotion
of the General Welfare 871-933 (1957).
1 This is the basis of Applicants' contentioI, pp. 105-106, that the doctrine
of "in pari materia" is applicable as a guide to the construction of the Mandate and
of Article22 of the Covenant of the League of Nations.
z League of Nations Off.J.,21st Ass., Sp. Supp. No. 194 at 58 (1946).sr8 SOUTH WEST AFRICA
would be to establish three distinct sets of standards: those for
Mandates, those for other Non-Self-Governing Territories, and
those for Trusteeship areas. The lowest standards would be those
for the Mandates.
Nothing in the history of the system of international supervision
of the administration of non-independent territories would justify
such a result. Nor is there anything in that history to justify a
contention that a Mandated territory may properly be governed
by standards below those required of other Non-Self-Governing
Territories.
The use of current!y accepted standards in the interpretation of
the Mandate charter, accordingly, becomes logically imperative.
Even if Article 73 were not applicable in ali its particulars to
Mandated territories, the use of the old standards in interpreting
the Mandate texts would be equivalent to rewriting the League
Resolution of r8 April 1946 so as to say that Chapter XI of the
Charter embodies principles not corresponding to those of Article 22
of the Covenant. For such a result no justification can be found.
Precisely the same reasoning applies in respect of Articles 55 and
56 of the Charter, relating to the promotion of, inter alia, "obser
vance of human rights and fundamental freedoms for ali without
distinction as to race, sex, language, or religion."
It must be concluded, on the basis of the foregoing, that the
norms, in accordance with which Respondent's obligations as
stated in Article 2, paragraph 2, of the .Mandate are to be judged,
are the relevant norms currently and generally accepted, rather
thau standards or criteria which may have been deemed applicable
or acceptable at the time the Mandate was conferred and undertaken.
6. Respondent 's final proposition-in the series formulated by
Applicants as a framework for this section of their Reply-is that
even if current standards existed and were deemed applicable,
Respondent's policy with respect to the inhabitants of the Territory
is in compliance with such norms or standards.
It is submitted, for ali the reasons set forth above in respect of
the nature and consequences of the policy of apartheid, or separate
development, as applied in the Territory, and on the basis of the
norms relevant to a determination of Respondent's obligations as
stated in Article 2,paragraph 2, of the Mandate, that Respondent's
conduct has been and remains in violation of these obligations.
In Applicant's submission, the policy and practice of apartheid
is, ipso facto, a violation of international law, in terms of Article 38,
paragraph1 r {b) and (c) of the Statu te of the International Court of
Justice.
t The standard of "separate but equal" treatment of the inhabitantof the
Territory, which is asserteby Respondent to underlie the policy oapartheid
(seeIl, p. 471)is, in fact and in law, a standard which, in application and effect,
is "separate" and systematicallunequal, as bas been demonstratedin the Me~
morials, Chapter V, and in this Reply, passim. REPLY OF ETHIOPIA AND LIBERIA srg
The "international custom" outlawing discrimination and separa
1
tion, as defined above, togcther with the wide introduction of such
a norm into "the general principles of law recognized by civilized
nations," warrants a determination that the policy of apartheid,
which strikes at the heart of the Mandate and of Article 22 of the
Covenant of the League of Nations, is a violation of international
law.
Even in the absence of such a determination, however, it is
submitted that the policy and practice of apartheid, or separate
devclopment, as defined and analyzed in the Memorials and in this
Reply, violates Respondent's obligations, as stated in Article 22
of the Covenant of the League of Nations and in Article 2,paragraph
2, of the Mandate, as measured by the relevant and generally accept
ed legal norms and standards described in the Memorials and in
this Reply. ·
1Supra, p. 493· CHAPTER VI
JŒSPONDENT'S VIOLATIONS OF ITS OBLIGATIONS
TOWARD THE UNITED NATIONS
A. THE RELEVANT SUBMISSIONS
Applicant's Submissions relevant to contentions in this Chapter
VI of the Reply are as follows: 1
"r. South West Africa is a terri tory under the Mandate conferred
upon His Brit:annicMajesty by the Principal Allied and Associated
Powers, to be exercised on his behalf by the Governmcnt of the
Union of South Africa, accepted by his Britannic l\'lajestyfor and on
behalf of the Govcrnment of the Union of South Africa, and con
f!rmedby the Council of the League of Nations onDecember I7, 1920;
"2. the Union of South Africa continues to have the international
obligations stated in Articl22 of the Covenant of the League of
Nations and in the Mandate for South \Vest Africa as weil as the
obligation to transmit petitions from the inhabitants of that Terri
tory, the supervisory functions to be exercised hy the United
Natians, to which the annual reports and the petitions arc to be
submitted ....
"7· the Union has failed to render to the General Assembly of the
United Nations annual reports containing information with regard
to the Territory and indicating the mcasurcs it has taken ta carry
out its obligations under the Mandate; that such failurc is a violation
of its obligations as stated in Article 6 of the Mandate; and that the
Union has the duty forthwith to render such annual reports to the
General Assembly;
"8. the Union has failed to transmit to the General Assembly of
the United Nations petitions from the Territory's inhabitants ad
dressed to the General Assembly; that such failure is a violation
of its obligations as Mandatory; and that the Union ha~ the duty
to transmit such petitions to the General Assembly;
"9· the Union, by virtue of the acts described in Chapters V, VI,
VII and VIII of this Memorial coupled with its intent as recounted
herein, has attempted to modify substantially the terms of the
Mandate, without the consent of the United Nations; that such
attempt is in violation of its duties as stated in Article 7 of the Man
date and Article 22 of the Covenant; and that the consent of the
United. Nations is a nccessary prerequisite and condition precedent
to attempts on the part of the Union direct!y or indirectly to modify
the terrns of the Mandate."
B. DECISIVE AND UND!SPUTED FACTS
Respondent does not dispute or deny Applicants' showing that
it has faiJed and refused, and continues to fail and refuse,
1 1, pp. 197-198. REPLY OF ETHIOPIA AND LIBERIA 52I
r. to render to the General Assembly annual (or other) reports
containing information with regard to the Territory and indi
cating the measures it has taken to carry out its obligations under
the Mandate, and
2. to transmit petitions to the United Nations from the inhabi
tants of the Territory.
On the contrary, startin1 from the premise that "the Mandate
as a whole has lapsed," Respondent contends that its
"... Obligationsto reportand account to, and submit to the super
vision of, the Council of the League of 1\~ati lansed, upon
dissolutionof the League and have not been replaced by obligations to
sttbmit to the supervision o2 any organ of the United Nations or any
other organization or body."
As shawn by the history of the Mandate, 3Rcspondcnt has acted
in a manner consistent with the forcgoing contention and
"... express!y disclaim.5that its right of administration is based on
continued existence of the l\landatc.""
C. ANALYSISOF LEGAL BASIS AND NATURE OF RESPONDENT'S
OBLIGATIONT SowARDTHEUNITEDNATIONS
l~esponde nrtu' snts in Book II of the Cottnter-Memorial
centre essentially on two points: that the Mandate has ceased to
exist; and that Respondent, accordingly, has no obligation to
report to the United Nations for its administration of the territory
of South West Africa, or in any other manner submit toits super
vision. 5
The Court hele!in rgso, in unanimous judgment, that the Mandate
does, as a matter of law, continue to cxist, In rgso, the Court like
wise ruled, two J udges dissenting, that Respondent has an obliga
tion to report ta the United Nations for its administration of the
Territory of South West Africa. 6In I955 and in rg56, the Court
rendered further Opinions concerning the obligations of South
7
Africa under the Mandate. 8hesc severa! Opinions arc briefty
summarized in the M emorials.
In the Proceedings lcading to the Advisory Opinion of I950, the
Court had received Rcspondent's \Vritten Statement and had
heard its Oral Statement thereon. In bath, Respondent presentee!
arguments underlying its contention that the Mandate has lapsed
and that its obligation to submit to international supervision
likewise has lapsed.
1 ][,pp.97, I73.
2 Id., p. 164. (Italics added.)
3 I, pp. 43-82; and Chapters II andpassim.
4 II, p. 174; see p. supra.
6 Id., p. I64.
7 Advisory Opinion II july 1950;I.C.J. Rep. 1950, p. 128.
8 I.C.J. Rep. 1955, p. 67 and id. (1956), p. 23, respective1y.
l, pp. 51·54·522 SOUTH WEST AFRICA
In its Preliminary Objections to the present Proceedings, Respond
ent reiterated these contentions and presented Arguments in
support thereof, both in written and oral statements. In its ]udg
ment of zr December r96z, 1 rejecting the Preliminary Objections,
the Court indicated that it saw no reason to depart from its hold
ing in the 1950 Advisory Opinion.
The opinion of 1950 was, it is true, an Advisory Opinion and is
not, therefore, binding upon Respondent in the strict sense of res
iudicata. It is aloo true that the Court's 1962 Judgment related to
the issue of competence, and did not constitute an adjudication
upon the merits of the dispute. As a practical matter, nevertheless,
lapse of the Mandate and lapse of the obligation to respond to
international supervision are issues which twice have been lully
presented to the Court by Respondent in written statements and
in oral statements in 1950 and in 1962. As a result, the Cozmter
M emorial is on these issues an argument de novo against the law
of the case.
It is in the nature of legal proceedings, and perhaps especially
so of a Proceeding before this Honourable Court, that the parties
are entitled to the fullest opportunity to be heard. Applicants can
nat, and do not, dispute Respondent's privilege to reassert in a con
tentions proceeding that the Mandate, and the obligation to respond
to international supervision, have lapsed, even though the argu
ments are the same as those twice before considered in r950 and
r962. In reasserti:ngthese arguments, however, Respondent confronts
Applicants with two difficulties which may appropriately be men
tioned at the outset.
Because the arguments with respect to lapse of the Mandate and
lapse of international accountability already have been considered
by the Court, itis difficulto resta te the arguments without cutting
across Opinions already given on the matter by Judges now sit
ting on the case. Moreover, in re-arguing the law of the case as
declared by the Court, the Counter-M emorial does not mere!y main
tain positions inconsistent with severa] of these Opinions. In many
instances, Respondent singles them out for critical analysis.
Without suggesting that Respondent is not at liberty to proceed
in this manner, Applicants would prefer not to join issue with the
Counter-Memorial in its critical analyses of Opinions by members
of this Honourable Court. It is one thing to maintain positions in
consistent with Opinions expressed by Judges now sitting. Appli
cants themselves will respectfully maintain views in this Reply
that may not always be consistent with all these Opinions. It is
quite a different thing to place such Opinions in controversy.
Applicants do not believe that any useful purpose would be served
by replying to what the Counter-Memorial has to say about them.
Furthermore, inasmuch as the issues of lapse of the Mandate and
1 Judgment, p. 334· REPLY OF ETHIOPIA AND LIBERIA 523
lapse of international accountability already have been presented
to the Court by the parties, it is difficult for Applicants to deal
with these issues \vithout engaging in mere repetition of ar
guments already made in the Preliminary Objections phase of
these Cases. The Counter-111emorial repeats, often without rephras
ing, 1 arguments already advanced by Respondent in the Prelimi
nary Objections herein. Applicants deem it appropriate to refrain
in their Reply from a merely mechanical repetition of the replies
previously given to Respondent's arguments. Applicants there
fore venture a somewhat different approach to the task of present
ing to the Court their arguments concerning this aspect of the
merits of issues in dispute.
Applicants consider that such a course may make the arguments
already advanced on bath sides more meaningful by placing them
in a slightly different context. Applicants therefore endeavour in
this Reply to identify the nature and apparent explanation under
lying differences between the parties. In this manner, Applicants
show that the parties reach divergent and mutually inconsistent
conclusions concerning interpretations of the relevant texts, be
cause of essentially differing views in respect of the nature of the
obligation of international accountability.
Issues in dispute, relevant to Respondent's obligations toward
the United Nations, may be summarized as follows:
(r) The legal import and enforceability of the "sacred trust"
and "tutelagc," as formulated in Article 22, paragraph r, of the
Covenant2of the League of Nations. This issue has been analyzed
herein.
(2) Continuing effectiveness of the Mandate and of Respondent's
obligations thereunder. Respondent contends that such obligations
as it owed under the Mandate have lapsed, together with the assert
ed lapse of the Mandate as a whole; at the same time, its rights
of possession and administration over the Territory are asserted
to have survived, on a theory Respondent has not sought to dis
close. Applicants contend, to the contrary, that the Mandate is
in effect and that, in the words of the Court,
"To retain the rights derived from the Mandate and to deny the
obligations thereunder could not be justified."3
(3) Among the obligations which have lapsed, in Respondent's
submission, are those embodied in the compromissory clause in
Article 7 of the Mandate, and in Article 6 of the Mandate. It is
common cause that international accountability is of the essence
1 Cf., e.g1, p30 with Il, ppIOJ-104.
2 Supra,pp. 476-519 (Ch. V).
3 Advisory Opinion of II july I9I.C.J. Rep. 1950, p. 133; quoin]udgment,
p.333· SOUTH WEST AFRICA
of the Mandate. 1Respondent contends that if, as it asserts, the
duty of international accountability lapsed with the dissolution
of the League, it is "impossible for a Court to presume that the
authors of the Mandate would have intended it to continue in
existence .... " 2 Applicants, to the contrary, contend that inter
national accountability must survive so long as rights or powers
over the Terri tory are asscrtcd, as the Court has twice made clear. 3
Applicants contend,- furthermore, that the restrictive significancc
attributed by I~espond tentte compromissory clause would bath
deprive it of meaning and would strip the "sacree! trust" principle
of al! legal signiftcance.
It "~l leadily be apparent that each of these interrelated sets
of conflicting contentions revolves about divergent major premises
concerning the essential role of accountability under the Mandates
System. Argnments in support of each of the points have been
presentee! by Respondent in two previous appearances before the
Court, and have twicc bcen consideree! and rejected by the Court
in fundamental aspects. The similarity of the argnments previously
addressed to the Court on the same issues is apparent, from a
summary thereof, which Applicants have set out in Annex 8,
herein, 4 including a summary of the Court's holdings with respect
thereto. The Court's attention is respectfully drawn to the afore
said Annex, induding the conclusion thercof governing "the law
of the case."
•
• •
The divergence of the views of the parties with respect to the issue
of international5 accountability has been noted in Applicants'
demonstration that the "sacree! trust" and the legal nature of
the "tutelage" principles of Article 22 of the Covenant importee!
obligations of a legal nature, compliance with which is an interest
of the organized international community.
Respondent's contention that its obligations were merely contrac
tual with the League of Nations and lapsed when the League
terminated is, of course, irreconcilable with Applicants' conten
tion, already sustained by the Court, that the Mandate was a
"new international institution," and that an essential principle
thereof was "the recognition of 'a sacree! trust of civilization' laid
upon the League as an organized international community." 6
In this section of its Reply, Applicants respectfully show that
r. Respondent's obligation, as stated in Article 6 of the :Mandate,
1
2 Ibid.170.
3Supra, footnote 3, p. 243.
4 Infra, p. 547·
5 Supra, pp. 231-254 (Ch. III).
6 judgment,p. 329. (Italics added.) REPLY OF ETHIOPIA AND LIBERIA 525
is in effect, and Respondent is accountable thereundcr to the United
Nations, as the "organized international community ;" 1 and
2, The compromissory clause in Article 7 of the Mandate is in
effect, and the said clause, in nature and purpose, assures judicial
protection of the legal interest of the organized international com
munity in respect of the "sacred trust."
1, Respondent's obligation as stated in Article 6 of the Mandate is
in etfect, and Respondent is accountable thereztnder to the United
Nations as the "organized international community."
a, The Leagzte of Nations as the "organized
international comnmnity''
Severa! alternatives were considered by the authors of the
Covenant of the League of Nations and of the Mandates System
in their search for agreement upon methods of implementation of
the legal obligation inherent in the "sacree! trust" and "tutclage"
prineiples of Article 22 of the Covenant. 2
Consideration of the origin and nature of such alternative
methods is relevant to an appraisal of Respondent's obligations of
international accountability and cxplain why such obligations
survived the dissolution of the League of Nations and continue
to exist so long as Respondcnt asserts or cxcrcises po\vers of
administration or possession, or any other rights whatever, with
regard to the Territory,
One alternative was for the League of Nations itself to assume
direct discharge of the responsibility, creating for that purposc an
international administration. ln this manner, the organizcd inter
national community couic! have assuree!, by its own direct action,
the well-being and social progress of the inhabitants of mandated
territories.
Another possibility, which was the one adopted, was to entrust
administration of the territories to a Power, undcr a mandate to
clischarge Or:behalf of the organizcd international community a
trust with regard to the well-being and social progress of the
inhabitants,
Various combinations of the foregoing alternatives likewise wcre
considered,
Thus, the League might have assumed authority over a territory,
but designate a State or States to carry out the task under the
League's direct instructions, Altcrnatively, such a territory could
have been entrusted to a mandatory, subject only to loose and
occasional inquiry on the part of the League.
General Smuts was among those who startecl from the premise
that direct authority and control over the colonial possessions
1
2 Ibid.
suPra.e legal nature of such principtcs is demonstmtin Chapter Illp. 231,526 SOUTH WEST AFRICA
should be placed in the League of Nations. In a pamphlet pub
lished on r6 December rgr8, entitled "The Leagm of Nations: A
Practical Suggestion," elaborating his ideas for international control
of colonial areas in Africa and Asia, 1 General Smuts recommended
that "any authority, control or administration which may be
necessary in respect of these territories and peoples, other than
their own self-determinee! autonomy, shall be the exclusive function
of and shall be vested in the league of nations and exercised by or on
behalf of it." 2 His plan envisagee! the right on the part of the
League of Nations "to delegate its authority, control, or administra
tion in respect of any people or terri tory to sorne other state3whom
it may appoint as its agent or mandatery [sic] .... "
In the draft Covenant for a League of Nations presentee! by
President Wilson at the Peace Conference, a Mandatory would be,
in effect, an agent of the League of Nations. The League would
assume the guarclianship of inhabitants and would commission
mandatories to exercise such guarclianship for it. President Wilson's
first Paris clraft adoptee! almost intact the plan for a mandate
system proposed by General Smuts in December, 1918.
Thus, it provided:
"Any authority, control, or administration which may be necessary
in respect of these peoples or territories other than their own self-deter
mined and self-organized autonomy shall be the exclusive function
of and shall be vested in the League of Nations and exercised or
undertaken by or on behalf of it."
It further provided:
"ft shaHbelawful for the League of Nations to delegate its authority,
control, or administration of any such people or territory to sorne
single State or organized agency which it may designate and appoint
as its agent or mandatory . ... " 4
The first Paris clraft of President Wilson further providee!:
"... the degree of authority, control, or administratio.n to be exer
cised by the mandatory State or agency shaH in each case be
explicitly defined by the League of Natwns in a special Act or
Charter which shaHreserve to the League of Nations completepower
of supervision and of intimate control ... ". 5
In his second Paris draft, President Wilson included similar
provisions and provided in addition:
"The object of ali such tutelary oversight and administration on the
part ofthe League of Nations shall be to build up in as short a time
as possible out of the people or territory under its guardianship
1 South West Africa was not included.
2 Smuts, The League of Nations: A Practical Suggestion 14 (1919).
l Id., p.17.
• II MillerThe Drafting of the Covenan88 (1928).
$ Id., p. 88. (Italics added.) REPLY OF ETHIOPIA AND LIBERIA 527
a political unit which can take charge of its own affai1s, determine
its own connections, and choose its own policies."
The plans of both General Smuts and President Wilson, according
ly, were based upon a concept akin to tutelle, as made clear by the
latter's references to "tutelary ovcrsight" and "guardianship."
President Wilson's proposai, however, envisaged "complete power
of supervision and of intima te control" on the part of the League,
with the objective of self-determination, or at !east self-manage
ment, "in as short a time as possible."
2
The British "Draft Convention Regarding Mandates," on the
other hand, proposee! a plan whereby so-called "vested territories"
would be entrusted to States which woulcl be "invested with ali
powers and rights of a sovereign government," but which would
"report annually to the League of Nations on ail matters relating
3
to the discharge of their obligations" under the Convention.
The British draft also provided for the establishment by the
League of a commission
"toassist the Leagueinthe supervision of the mandatory states. ... " "
The draft was accompanied by a Note suggesting, inter alia,
a preamble in which the parties would recognize
"... that the League of Nations must be regarded as the guardian
of the scttlement !hus arrived at, and in ali matters not so finally
settled, as Trusteefor the peoples of the territories.... " 5
• The second paragraph of Article 22 of the Covenant emergee!
and crystallized from a full consideration by the authors of the
System of the varions alternatives thus put forwarcl. In the final
text, threc concepts-trust, tutelage, and mandate-were inter
woven. These concepts underlie and explain the method adoptee!
for effectua ting the Mandates System.
It is necessary at the outset to point out the fallacy in Respon
dent's contention !hat tutdage was merely intended in a "broad,
metaphorical sense," 6 and that the mandatum concept "could hardly
have been known to the Peace Conference as a whole." 7
Such a comment is impossible to reconcile with the insistent
repetition of the terms by the wartime leaders and their wide
public discussion by authorities, as noted above in this Reply. 8
There is little room for doubt that the concept of trust incorporated
in the Covenant was an adaptation to the needs of the Mandates
System of the same concept in municipal legal systems.
1 Id.p. ro4.
:zId.,Vol. I, ppw6-o7.
3 Id., p. 107.
• Ibid. {Italics added.)
' Id., p. ro8. (Italics added.}
6Il,p. 103,
7 Ibid.
8 Supra, pp. 234-242. SOUTH WEST AFRICA
528
This is not to suggest that the term "mandate" is used in the
same sense as in such systems, nor that the law of "trust," as
developed in the domestic field, was incorporated as such into
international law.
International law devclops by adaptation into its system of
legal relationships and concepts having their origin in municipal
law. Thus, development of the rules of international law relating
to international agreements surely owes much to the law of con
tracts in domestic systems. In thcir references to common and civil
law concepts of trust and mandate, Applicants proceed from the
point of departure not that the Mandates System incorporated rules
of domestic law as such, but that this new international institution
adapted to its own purposes and necds analogous concepts of
n1unicipal systems. 1
The concept of trust involves essentially a splitting between
"control" and "benefit." The trustee is put in a position where he
contrais the trust, yet must use it for the benefit of another.
That the concept is familiar to Respondent's legal system is made
clear by a noted scholar, as follows:
"The trust of English law ... is but one species ofthe genus 'trust'.
As the very \vord indicates, the characteristic feature of the tn1st is
not the division between legal and equitable ownership-this is the
specifie deviee employed by English law to achieve the purposes
of the trust--but the separation between the control which owner
ship gives and the benefits of ownership." 2
•
Dean Hahlo, pointing out that the essence of the concept is
separation betwcen "control" and "beneflt," conclucles:
"there can be but few civilian systems that do not have sorne form
of trust or trust-like institutions.''3
Although civi\ law systems do not favour the concept of a limited
ownership, in the sense of the common law distinction between
"equitable" and. "legal" ownership of a trust res, it is clear that
such a distinction is "in no way essential to an effective law of
trusts." 4
Renee, when clistinguishecl from commonlaw concepts of property
intercsts, the concept of trust is universal.
Thus, Professor Lepaullc points out that the concept of trust cloes
not rest upon the common law distinction between legal and equit
able estates, but is a broader principle, which he formulates as
1 In so doing, Applicantsconceive that they follow the guideline set forth in the
lndividual Opinion of Judge Lauterpacht in the Case Concerning Norwegian Loans,
that, when internahonal law on a subject is not sufficientlabundant ta permit
generalization,"some help may justifiablbe sought in applicablgeneral principles
of law as developedin municipal law." (l.C.JRep. 1957, p. 56.)
z Hahlo, "The Trust in South African Law," z Jnter-American Law Review
229-30 (1g6o).
3 Id.,p. 241.
• Lawson, A Common Lawyer Looks at the Civil Law 203 (1953). REPLY OF ETHIOPIA AND LIBERIA 529
follows: "l'essence du trust n'est pas, nous croyons l'avoir démontré,
une forme nouvelle de pr priété: c'est l'affection à un but déter
miné." 1 0
He concludes, as do Dean Hahlo and Dr. Lawson, that the trust
concept is consistent with the legal institutions of civil law countries,
because it rcsts on a concept of division bctween control and benefit,
which is familiar to them. 2
Adaptation of the concept of trust, as thus understood in ali
civilized municipal legal systems, was particularly appropriate to
the objective of assuring the legal obligation to protee! and promote
the well-being and social progress of inhabitants of mandated
territories.
It provided a solution for those who opposed vesting in the League
of Nations direct operational control of the territories, whether
by control cither by its own administration or py delegation to a
State as, in effcct, its operating agent. The solution involved vesting
of responsibility in the organized international community, with
accountable administration in the bands of a mandatory under
"trust."
The mandatory would administer the territory, not for its own
beneflt, but for !hat of the inhabitants. It was the solemnity of this
undertaking which justified the characterization "sacred," which
was neither cynical nor merely figurative rhetoric.
It is, undoubtedly, this intention to split benefit from control
which accounts for the holding of the Court that
"To retain the rights derived from the Mandate and to dcny the
obligations thcreunder could not be justified."3
Surely, the word "justifted" is intended in a legal, rather th'm
rnerely moral, sense; the reason why such a posture is unjustificd
is precisely because it daims benefits for the trustee, whereas
Respondent, under the Mandate, was given control only for the
benefit of the inhabitants of the Territory.
\Vhen the concept of trust is seen as a splitting between control
and benefit, the legal nature of "tutelage" becomes obvions. "The
trust is but one of severa! institutions in which there is a splitting
between control and benefit. Other examples that immediately
come to minci are the varions fonns of guardianship and the ad
4
ministration of an insolvent or deceased estate." The distinction
between trust, as an institution, and other similar institutions, is
the degree of control accorded to the trustee. In the Common Law,
the trustee is given the maximum control possible, which is an
estate of ownership. In the Civil Law, a guarclian woulcl generally
1 Lepaulle,Traité Théoriqueet Pratique des Trus354 (1932).
2 ld.,Chapter X, passim.
3 Advisory Opinion of II july rgso; I.C.J. Rep. 1950, p. 133; repeated, with
implied approva.l i]udgment,p. 333·
• Hahlo, p. 241, cited p. 528, footnotsupra.530 SOUTH WEST AFRICA
be given, not ownership, but lesser forms of control over the proper
ty of the ward. Alter examining the degree of control vested in a
tmstee, Professor Lawson comments:
"But if you are still dissatisfied with the protection afforded to the
beneficiary, you can makc him owner and give the trustee limited
powers of management. This is not at all inadmissible in the Civil
Law, for it takes place evcry day where guardians and cxecutors
are concerned." 1
\Vhether the control be limitee\ to powcrs of management, as
in the case of guardian, or whether it be as extensive as legal
ownership, as in the case of a common-law trustee, it is to be exer
cised not for the benefit of the person in control but for the bene
fit of another. From this basic division between control and bene
fit flow two consequences: thcre must be an accounting concerning
the exercise of the control; there must be supervision by a public
authority.
The trustee is genemlly required to account for the exercise
of his control over property in the Common Law system.
"In many states trustees, at least trustees acting under a will, are
under a duty to account in court before they are dischargecl. In sorne
states it isthe duty of trustees to rendcr an accounting in court at
periodic intervals. In some states if a trustee fails to render an
accountjng jn court, the court can on its mvn motion cite him to
render an accounting ... The ref2sai of a trustee to makean accounting
is a ground for his removal.''
Comments, such as the foregoing, concerning the law of trusts
in the United States are indicative of the importance of the cluty
of accounting usually, incumbent upon a trustee. Lepaulle empha
sized the rolc played by Courts in the supervision of the trustee:
"Le trust vit à l'ombre du Palais de Justice qui lui apporte à la fois
le conseil et le contrôle." 3
"A guardian of the property of a person who is under an incapacity
is a trustee in the broad sense of the term. He is under a duty to his
ward to deal with the property for the latter's benefit. Like a trustee,
a guardian is a fiduciary." 4
Even though he is not a trustee in the strict sense of the tcrm,
a guardian is under a duty "to render accounts from time to
time, usually annually." sIn the United States,
"... courts of equity often retain a general jurisdiction ovcr the
persans and estates of infants, though, as a rule, the matter of
guardianship is exclusively delegated by statute to the probate
court or other similar tribunal." 6
1
2 Lawson, p. 203, cited p. 528, footnote 4, supra.
3 Scott, The Law 'JfTrusts, Vol. II, p. 1289 (2nd ed., 1956).
4 Scott, op. cit., Vol. I, p. 70. footnote r, supra. (Italics added.)
s Madden, Handbook of the Law of Persons and Domestic Relations 508 (1931).
6 Id., p. 46r. REPLY OF ETHIOPIA AND LIBERIA 531
The practice in civil law countries is to specify in codes a re
quirement of accounting applicable to guardians. Thus, Articles
469, 470 and 471 of the French Civil Code require accounting on
demand from the family council for tutors other thau the father
or the mother, and final accounting at the end of the tutelage for
alitu tors. Inasmuch as the rcquirement is dictated by public policy,
the tutor cannat by agreement in advance avoid the requirement.
In speaking of the law of France and in Quebec on this point, Rodys
states:
"La reddition de com.pte est une obligation que la loi impose att tuteur.
Nul n.e peut l'en dispenser à l'avance, ce serait contraire à l'ordre
Pf.tblicet aux principes essentiels de la tutelle."1
Codes of a number of Latin American countries explicitly pro
vide that the cluty of accounting by the tutor cannat be avoided,
for the reason that such duty is an expression of public policy. 2
Judicial supervision of the tutor in sorne form is usual in civil
law countries. Speaking of the role assumee\ in the matter by the
French courts, a treatise states:
"Ce recours de caractèrt: contentieux aboutit à faire du tribunal le
véritablearbitre souverain de la tutelle." 3
In a number of States of Latin America, the tutor may act
only alter appointment by judicial decree. • In some of thcsc
5
States, administrative as weil as judicial supervision is proviclec\.
In the context of the problem prescnted by the colonial issue
at the Peace Conference, the institution of guarclianship readily
suggested itself as a means of providing legal protection for the
inhabitants of the terri tories to be placed under mandate. Reliance
was explicitly placed upon accounting and supervision as mcans
of insuring an effective splitting between control and benefit, exactly
as in the case of trusts in municipal systems.
Contrary to Respondcnt's contention, 6 tutelage was a universal
ly acceptee\ concept, designee\ for the protection of persans "not
yet able to stand by themselves." 7 Delegates to the Peace Confer
ence from States outside the common-law system werc familiar
with the institution of lttielleor tutelage; those from common-law
jurisc\ictions faune\ it convenient to express the principle of guar
c\ianship in terms of "trust," which ran through the British and
United States proposais for the disposition of the colonial issue.
2 Rodys, Cours E/émentaire de Droit Civil Français et Canadien 56 (1956).
E.g., Argentina, arts. 385, 414, 458, 459; Chile, arts. 415; Mexico, arts. 590,
6o3.
Colin & Capitant, Cours Elémentaire de Droit Civil Français,Vol. I, p. 590
(1447).Cf. Lepaulle, as citcd p. 530, footnote 3, supra.
E.g., Civil Codes of: Argentina, arts. 388, 399; Chile, art. 373; Mexico, art 498;
Pa5ama, art. 268; Peru, art. 346.
6 E.g., Civil Codes of: Argentina, arts. 381, 491-494; Panama, art. 255.
7 II, p. 103.
Covenant of the League of Nations, Article22, para.1.532 SOUTH WEST AFRICA
In short, the institution of "guardianship" in domestic law, just
as the concept of "trust," was adapted to the needs of the organ
ized international community, in accordance with the international
legal objective sought to be achieved in the Mandate System.
The third concept embodied in Paragraph (z) of Article 22 of the
Covenant was tbat of mandate.
Situations in which this concept previously had been used in
international practice are summarized in the Study of the Mandates
System published by the League of Nations in 1945· The Study 1
points out that Great Britain took over protection of the Ionian
Islands in r8r5 under a "mandate" conferred by Russia, Prussia
and Austria at the Conference of Paris of r8r5. Moreover, the
intervention of France in Lebanon in r86o to protee! the Christian
population of that country was based on a "mandate" from the
Great Powers. Other instances given in the Study indicatc an in
ternational connotation of the concept of "mandate," prior to the
2
drafting of the Covenant.
In addition to the cases citee! in the Stuc!y is the plan for govern
ment of the Samoan Islands, offercd by a special three-power com
mission in r8gg, according to which Great Britain, German y and
the United States would concur in the appointment of an adviser
to the Government of Samoa. This aclviser was to act as a man
datory of the three Powers, charged with the duty of maintaining
peace and protecting the interests of foreign subjects in Samoa. 3
The implication of these historical antecedents is that a "man
date" was an authorization or direction given by States to another
State to act for them and in their stead. The concept of mandate
refiectcd in such historical antecedents is analagous to, though
not the samc ae., the concept of mandatmn in Civil Law.
In Roman Law, the mandate, originally, was a gratuitous con
tract. "Mandate is a contract whereby one persan (mandator)
gives another (mandatorius) a commission to do something for
him without reward, and the other accepts the commission." •
A mandate is not necessarily gratuitous in the modern civil law,
but in other respects resembles what it was in Roman law. Al
though sometirr.es translated as "agency," and used to create agen
cy, it is not, in principle, an agency as such. A mandate is, in
essence, conferrnent by one persan upon another of responsibility
for management of designatcd transactions. 5
In the period immediately preceding the Peace Conference,
however, the word "mandatory" in the international field had, in
1 Sttpra, pp. 233, 237 and 242.
2 The MandatesSystem:Origin-Principles-Application,op. citpp. 1~12 s,pra.
3 [1899]Foreign Relations of the United Stpp. 614, 632, 638640~4 68,-55,
654-659 (1gor).
5 Lee,Elements 'JRoman Law 327 (1st ed., 1944).
See,e.g.art. 1984 of the French Civil Code and art. 2116 of the Chilean Civil
Code. REPLY OF ETHIOPIA AND LIBERIA 533
any event, acquired a special meaning in the context of the colo
nial issue.
Whereas in municipal law systems it is in the nature of a con
tract of "representation," in the context of the discussions leacling
to the Covenant of the League and the Mandates System, the tcrm
"mandate" servecl to provicle a formula of compromise betwccn the
Wilson-Smuts pro.posals that "authority, control or administration"
should be the "exclusive function" of the League, 1 or shoulcl be
under the League's "complete power of supervision and of inti
mate control," 2 and, on the other hanc!, proposais, such as the
British, which favourecl a more broaclly delegated authority over
the manclatecl territory.
Uncler these circumstances, the municipal law concept of "man
date" couic! not have been, and was not, imported literally into
the System. The term, rather, was employed as a descriptive one,
set alongsicle "trust" and "tutelage"; it made clear that the "tu
telle" was not vested in the League, yet the tutor, or trustee, was
responsible and accountable to the League of Nations as the or
ganized international community.
Applicants conceive, with respect, that it was in this sense and
for this reason that the Court correctly stated in the Aclvisory
Opinion of rgso that
"The League was not ... a 'mandator' in the sense in which this
term is used in the national law of certain States,"
and that
"The 'Mandate' had onlv the name in common with the several
notions of mandate in national law." 3
In proposais made with a view to ensuring legal protection for
inhabitants, the word "mandate" was usecl to indicate that a
colonial power was not entitlecl to administer a colonial possession
as beneficiai owner. Rather, it would receive a commission, or
"mandate," to administer the territory solely for the benefit of
the inhabitants. Hence, the term "manclatory" had come to be
synonymous with "non-annexation."
Notwithstanding differences in terminology, ail formulas rejectcd
proposais for annexation. ,ln its first meeting on 23 January rgrg,
the Council of Ten agreed to hear territorial daims before ali others.
On 24 January rgrg, Prime Minister Hughes of Australia, General
Smuts of South Africa and Prime Minister Massey of New Zealand
presentecl their daims for annexation of former German colonies.
On 27 January, Japan aclvanced her request for annexation of
the former German Paciiic Islands north of the Equator. On
1 Supra, p. 52(Smuts).
2 Ibid.(\Vilson).
3 Advisory Opinion of II ]uly 1·gso; I.C.J. Rep. 1950, p. 132.534 SOUTH WEST AFRICA
28 January 1919 the French Colonial Minister claimed the right of
annexation of German Equatorial Africa.
President Wilson opposed annexation, 1 and the conference
approached a breakdown. President Clemenceau, however, ex
pressed sympathy for the position of President Wilson. Reversing
his Colonial Ministcr, he announced that France was wilJing to
make concessions. Conciliatory statements also were made by
Lord Balfour and by Lloyd George. 2
The principal difficulty of the British Dominions in accepting the
mandates was the principle of the open door, embodied in bath the
British draft and the draft proposed by President Wilson. Australia
was particularly intent upon the maintenance of a closed door. policy
with respect to trade and immigration in German New Guinea. 3
The Covenant did not embody the plan of President Wilson,
under which the League of Nations itself would have directly
administered the Mandate, or done so through a State as its ad
ministrative agency. Instead, the Covenant vested responsibility
in the organized international community to assure that manda tor
ies would promote the well-being and social progress of inhabitants
of mandated territories.
Paragraph 2 of Article 22 makes clear that the use of the ward
"trust" in the flrst paragraph, meant "tutelage." The interest of
peoples not yet able to stand by themselves were declared to be
a responsibility of the organizcd international community, as then
represented by the League of Nations.
Inasmuchas theLeaguewas not invested with direct authority,con
trol or administration over the inhabitants of mandated territories,
the manda tories could not act as agents of the League. They were com
missioned to exercise, on behalf of the organized international com
munity, a tutclagc of peoples not yet able to stand by themselves.
The function of administrative supervision as distinguished from
direct administration, accordingly, devolved upon the League as
the then existing body politie of the organized international com
munity. Such supervision, as Respondent concedes, was "an in
tegral portion of the Mandate System," • in the light of its central
feature: the splitting of control from benefit.
Respondent's conception of the relationship between itself and
the League (as the organized international community) as one of
mere contract, likewise misconstrues the nature of the interest
1See pp. 236-240, 526-527, supra.
2[1919] Foreign Relations of the United States, Vol. III (Paris Peace Conference},
pp.]IS-28,738-48, 758-]I,]85-95, 797-808 (1943).
3Scott, Official History of Austrin the War of I9I4-I9I8Vol. XI, pp. 763-
89 (1938);Latham, The Significance of the Peace Conference from an Australian
Po4nt of View 1-1~(~920).
Il, p. 169(So :muchso,indecd, that in Respondent's submission, the Mandate
as a whole cannat be deemed to have survived without such supervision.(Id.,
pp. '73·174-) REPLY OF ETHIOPIA AND LIBERIA 535
of a public hody, in any system of law, in the proper performance
of a trust or tutelage obligation. The public body, whether adminis
trative or judicial, performs such a function not to serve an interest
of its own, but to serve a public interest. The beneficiaries are, on
the one hand, the ward or other person protected and, on the other,
the organized community, whose interest it is to assure protection
of those "not yet able to stand by themselves." 1
Similarly, in the Mandates System, the Mandatory was assigned
the function of exercising guardianship and of reporting its accom
plishments for the benefit of the peoples concemed. The League
was to examine such reports in order to ensure the protection and
promotion of the intercsts of the inhabitants. Hence, the Manda
tory and the League served, respectively, the interest of peoples
not able to stand by thernselves and the interests of the organized
international community. in seeing to it that such peoples wcre
adequately protected.
The acting Secretary-General of the League of Nations put the
matter clearly:
"Co-operating in the fulfillment of their respective tasks, under the
searchlight of public opinion, the mandatory administrations and
the organs of the League of Nations have, in general, ensured the
application of the principles enunciated in faveur of the natives and
of the comnzunity of nations." 2
No other interpretation of the nature of the mandates would
be consistent \\~t the principle of promoting the welfare of the
peoples concerned which, in the words of a leading authority
"... is the real heart of the system . ... Only the native-wclfare 3
part of the mandate system was accepted as uhiversally valid."
The cxercise of the function of Mandatory necessaril y was
linked to the League, as the sole organization then existing able
to rcceivc reports and supervise the administration of the territories
through a Commission established by it for that purpose. The words
"on behalf of the League" indicated !hat the League and its meru
bers were parties in interest to the System. The French text is more
accuratc than the English text in stating that Mandatorics were
to exercise the tutelage "m• nom de la Société."
The compromise in paragraph 2 of Article 22 consisted in the
surrender by President 'vVilsonof his plan to vest in the League
direct administrative responsibilities for the inhabitants. lnstead,
the Mandatory would act "on behalf," or "in the name of," the
League of Nations. The eompromisc did not surrender the prin
ciple of the "sacred trust," nor produce a situation "close to annex-
1 Covenant of the League of Nations, Arti22, para.I.
2 The Mandates System: Origin-Principles-Apptication, p. 6 (League of
Nations Pub. 1945. VI. A. 1). (ltalics added.)
3 Hall. 1\-fandates, Depcndencit·s and Truste65 (I948). SOUTH WEST AFRICA
ation," as Respondent contends. The Mandates System, rather, in
volved adaptation of the institution of guardianship, familiar ta
all municipal law systems, and tcrmed the result "mandate."
An analysis by Fauchillc of the true significancc and effect of
Article 22, paragraph 2, of the Covenant fully confirms the foregoing
1
interpretation.
M. Fauchille's comments appear to Applicants of sufficient rel
evance and importance to warrant extensive quotation, as follows:
"C'est dam le texte mêmede l'article zz du pacte qu'il faut
chercher la nature juridique du mandat international. Or ce texte
indique d'une manière très nette les deux traits qui le caractérisent:
1° Le mandat est une tutelle. 2° Il s'exerce au nom de la Société
des Nations. En déclarant que le mandat international est une
tutelle, l'article22 a introduit dans le droit des gens une notion
qui n'était jusqu'alors connue qu'en droit privé. Constituant une
tutelle, le mandat présente un caractère personnel beaucoup plus
qu'un caractère territorial: ce n'est pas la protection du territoire
placésous mandat, c'est la protection des peuples habitant ce terri
toire que le mandataire doit assurer. La tutelle, en effet, est donnée
à la personne mêmedu mineur, et si le tuteur a des pouvoirs sur les
biens de celui-ci, c'est seulement en vue d'en protégerla personne .... "
"En droit privé, la tutelle implique une mainmise complète sur
la personne du pupille: celui-ci ne peut rien faire; c'est le tuteur
qui, le représentant, agit à sa place. Il en est de mêmeen principe
dans le mandat international: le mandataire assume l'administration
du territoire dans l'intérêtde ceux qui l'habitent .... "
"La seconde notion essentielle du mandat international est que
l'Etat désignépour administrer un autre peuple n'agit pas en son
propre nom, mais uniquement 'en qualité de mandataire, au nom
de la Sociétédes Nations': il ne possède vis-à-vis des peuples dont il
a la charge qu'une autorité déléguée .a situation juridique du
mandataire est ainsi absolument différente de celle d'un Etat
colonisateur: c'est en effet en son nom personnel et sous sa souverai
netéqu'une puissance administre ses territoires coloniaux, et ce n'est
qu'à titre de devoir moral, non à titre d'obligation juridique, en ne
tenant compte que de ses seuls intérêts,qu'elle peut exercer une
mission de civilisation sur les peuples arriérés. Les régions sous
mandat n'appartiennent pas au contraire au mandataire, elles lui
sont seulement confiéesen vue d'une gestion conforme aux intérêts
des habitant3; en acceptant d'exercer le mandat 'au nom de la
Sociétédes Nations', le mandataire s'impose des obligations, pour
une mission de civilisation, vis-à-vis de la communauté internationale,
comme le tuteur en contracte en acceptant la tutelle. Ce ne sont
pas des droits que le mandataire acquiert, mais ce sont des devoirs
qu'il assume, et ces devoirs sont juridiquement sanctionnés, car,
comme le tuteur, il doit en rendre compte .... "
"Création anglo-saxonne, car les principaux inspirateurs en furent
le généralSmuts et le président Wilson, l'institution du mandat
1Fa.uchille, Trait-! de Droit InternatPublic, Tome r, 2e Partiepp. 820-24
(1925). REPLY OF ETHIOPIA AND LIBERIA 537
international offre une réelleanalogie avec le système des trustees,
qui est en vigueur en Grande-Bretagne et aux Etats-Unis. Le
'trttstee' est, en effet, celui qui administre un bien pour le compte
d'autrui. La constitution d'un trust peut avoir lieu en termes exprès
ou résulterde l'intention des parties ou de l'effet de la loi: nul ne
peut devenir trustee sans sa volonté. Le degréde soins qu'un trustee
doit apporter à l'exécution de son trust est celui d'un homme
d'affaires ordinaire prudent dans l'administration de ses affaires
semblab1es; un trrestee ne peut pas faire de profit personnel sur le
trttst. ''
b. The United Nations as the "organized international community"
Applicants have demonstrated that, in the words of Fauchille,
quoted directly above, 2
"Les régionssous mandat n'appartiennent pas au contraire au
mandataire, elles lui sont seulement confiées en vue d'une gestion
conforme aux intérêtsdes habitants; en acceptant d'exercer le
mandat 'au nom de la Sociétédes Nations', le mandataire s'impose
des obligations, pour une mission de civilisation, vis-à-vis de la
communauté internationale, comme le tuteur en contracte en accep
tant la tutelle." '
The obligations of the Mandatory, since the dissolution of the
League of Nations, have been and are now owed to the United Na
tions as the organized "commztnautéinternationale."
Under the Mandate, Respondent was entrusted with power of
administration and legislation over the Territory, on the basis
that it was not to benefit thereby, but was to promote to the ut
most the well-being and social progress of the inhabitants of the
Territory. Article 6 of the Mandate obliged Respondent to make
to the Council of the League of Nations annual reports, containing
information with regard to the Territory and indicating the measurcs
taken to carry out its obligations. The Council of the League of
Nations was empowered to supervise the observance of such obligat
ions with the assistance of a Permanent Commission which would
reccive and examine the annual reports and advise the Council in
respect of its supervision of the Mandate.
Respondent contends thal its obligations to report on its ad
ministration of the Mandate and the right of the League to super
vise and verify its observance of thesc obligations, were undertakings
of a contractual character. It argues thal the obligation to report
and the right to supervise were intenclecl to give practical effect
to the words "mandatorics on behalf of the League" in accordance
with the principle of "mandatum," which is a contractual prin
ciple. The suggestion is thal the League delegated authority to
the mandatories and received in exchange their promise to report
to the League and to submit to its supervision. On this basis,
1 Fauchilleop. cit.pp. 822·824.
2 Supra, p. 536, footnot1.
3 Op. citp. 823. (Italics added.) SOUTH WEST AFRICA
Respondent conknds that on dissolution of the League, the notion
of "mandatories on behalf of the League" fel!, and with it Res
pondenfs underi:aking to report and to submit to international
supervisiOn.
Applicants submit that the meaning ascribed by Respondent to
the phrase "Mandatories on behalf of the League," in paragraph
2 of Article 22 of the Covenant distorts its intended significance
and effect.
Applicants have shawn that the League of Nations was not vested
with direct administrative responsibilities over "peoples not yet
able to stand by themselves." The proposai of President Wilson
ta that effect was not adopted. Hence, the League could not dele
gate to mandatories a power it did not possess; the provisions for
reporting to the League and supervision by the League were in
tended, in the 'ense put forward in the British proposais, as a
commission, or mandate, from the organized international commun
ity, which had assumed responsibility of a legal nature with re
gard ta the tutelage of certain peoples. In arder ta ensure effective
supervision, it was necessary to requirc accounting ta the League of
Nations, in its capacity as the only existing institution through
which the organized international community at that timc could act.
Applicants already have demonstrated that it was inherent in
the nature and purpose of the Mandates System that powers of
administration and legislation over mandated territories were
entrustcd to Mandatories solely for the purpose of promoting the
well-being of peoples not yet able to stand by themsclves and pre
paring them for self-determination.
Reporting by the llfandatory and supervision by the League
were incorporated in paragraphs 7 and g, respectively, of Article
22 of the Covenant as necessary corollaries of the fiduciary charac
ter of the mandates. Inasmuch as the Mandatories were entrusted
with responsibilities toward peoples not yct able to stand by them
selves, solely for their benefit, it was necessary to verify that such
responsibilities were discharged lully and fairly.
As bas likewise been demonstrated, in the concepts of trust
and tutelage, adapted from analagous municipal law systems, the
obligation of a trustee or tutor to account to public authority
is not an obligation resting upon contract. The obligation is found
ed upon public interest and public policy; the community is
responsible, in the last analysis, for the proper care of wards and
others who are beneficiaries of tutelage.
Similarly, the duty of international accountability in the case
of Mandates wa:; imposed in arder to protect the public interest and
responsibility of the organized international community in the
promotion of the well-being and social progress of the inhabitants
of territories under Mandate. The international community, as
shawn above, had undertaken such responsibility, and mani- REPLY OF ETHIOPIA AND LIBERIA 539
fested such interest, in paragraph I of Article 22 of the Covenant.
It follows that, in performing its supervisory function with res
pect to Mandates, the League of Nations was, in the words of this
Honourable Court, acting not as party to a contract, but "as an
1
organized international community."
The United Nations ho.s rcplaced the League of Nations as such
"organized international community," and Respondent's obli
gation of international accountability, accordingly, is owed ta
the United Nations in that capacity. No other result would be
consistent with the fact
"... that each Mandate under the Mandates System constitutes
a new international institution, the primary, overriding purpose of.
which is to promote 'the well-being and development' of the people
of the territory under }!andate." 2
Consistently with the foregoing, and as was to be expected in
the light of such "overriding purpose" of the Mandate, the proceed
ings at the period of the dissolution of the League of Nations and
the organization of the United Nations, manifested the clear in
tention of ali concerned to preserve and assure proper discharge
by the organized international community with respect to its re
sponsibilities toward the inhabitants of mandated territories.
The facts concerning such proceedings have twice been fully
presented to the Court. The Court has held that
"... obviously an agreement was .reached among all the Members
of the League at the Assembly session in April rg4Gto continue the
different Mandates as far as it was practically feasible or operable
\\-ith reference to the obligations of the Mandatory Powers and
therefore ta maintain the rights of the Members of the League,
3
notwithstanding the dissolution of the League itself."
The Court's holding, it is submitted with respect, is to be read
m the light of its further holding that
"The findings of the Court on the obligation of the Union Govern
ment to submit to international supervision are thus crystal clear.
Indeed, to exclude the obligations connected with the Mandate
would be to exclude the very essenceof the Mandate." •
The foregoing holdings, together with the holding that "the Man
date as a whole is still in force," 5 constitute the law of the Case. 6
As bas been shown, 7 and as is obvious from the history of the
Mandate since the inception of the United Nations, that Organi-
1 Judgment, p. 329.
2 Ibid.
J Id., p. 338.
4 Id., p. 334-
5 Id., p. 335-
6 No "new facts," or other relevant evidence, are adduced by Respondent to
justify reopening or reconsidering of issues twice previously presentcd to the Court
an7 twice decided by it.
Supra, Chapter II, pp. 222-230; 1, pp. fi. SOUTH WEST AFRICA
zation has consistently maintained its right and duty to exercise
supcrvisory authority over the Mandate, and such a position has
reftccted the virtually unanimous expression of the organized in
ternational comrr1unity.
Thus, by overwhelming majority, the General Assembly, in
resolution 749 (VIII) of z8 November rgsz, declared that "without
United Nations supervision the inhabitants of the territory are
deprived of the international supervision envisaged by the Covenant
of the League of Nations." The resolution further states that the
United Nations "would not fulfil [sic] its obligations towards the
inhabitants of South West Africa if it were not to assume the super
visory responsibilities with regard to the Territory of South West
Africa which were formerly exercised by the League of Nations." 1
The views of the organized international community, titus clear
ly cxpressed and consistently maintained, are obviously entitled
to weight in detcrmining the nature and purpose of the obligations
to which they relate.
2. The Compromissory Clause in Article 7 of the Mandate is in etfect,
and the said Clause assures the judicial protection of thelegalinterest
of the organized international community in respect of the "sacred
trust.''
Respondent's contentions 2concerning the comprornissory clause
of the Mandate illuminate the contrasting views of the parties
in respect of the legal nature and scope of the "sacred trust."
As is shawn below, Respondent's contention that the compromis
sory clause has lapsed and that, in any event, it does not extend
to the judicial protection of the interests of the inhabitants of
the Territory, strips the "sacred trust" of its significance.
Respondent's contention with respect to the assertedly limitee!
scope of the compromissory clause no doubt is essential to its
argument that the lapse of Article 6 of the Mandate collapsecl the
Mandate as a whole. Unless Respondent succeecls in showing that
the compromissory clause is so inconsequential in purpose and
consequence as, in effect, to be de minimis in the scheme of the
Mandate, Respondent obviously cannat carry its contention that
the Mandate as a whole has lapsed by reason of the asserted lapse
of Article 6.
The clause, set out in Article 7 of the Mandate, provides for
reference to the Permanent Court of International Justice of dis
putes "relating to the interpretation or the application of the pro
visions ofthe mandate." The text raises the question, twice present
cd to and adjudgecl by the Court: what are the provisions of the
Mandate, asto which disputes concerning interpretation or appli
cation are propcrly referable to the Court?
1
2 G.A.O.R. 8th Sess., Supp. No. I7 at 26 {A/263o).
II, PP· 17tf. REPLY OF ETHIOPIA A~D LIBERIA 541
The relevant Mandate provisions include Articles 2, 3, 4, 5, 6,
and the first paragraph oi Article 7- Article 2 defines the powers of
the Mandatory in the Territory, explicitly requiring that the Man
datory shall promote the material and moral well-bcing and the
social progress of the inhabitants of the Territory. In Article 3,
the slave trade is prohibited; likewise the traffic in arms and am
munition; likewise, the supply to the "natives" of intoxicating spir
its and beverages. Article 4 prohibits the military training of
"natives," except under certain conditions. Article 5 insurcs
freedom of conscience and the frcc exercise of ali forms of worship.
Article 6 requires the Manda tory to report on measurcs taken by it to
carry out its obligations undcr the previous Articles. The first
paragraph of Article 7 prohibits the unilateral mocliftcation by the
mandatory of the terms of the Mandate.
In orcier to !ali within the scope of the comprornissory clause,
a dispute with the Mandatory must, therefore, conccrn compliance
on the part of the Mandatory with its duty to promote the well
being and social progrcss of the inhabitants to ensure that they
are not enslaved, to protec:tthem from traffic in arms and ammuni
tion, to deny them intoxicating spirits and bcvcragcs, to draft
them for military service only as pcrmitted, to assure their frec
dom of conscience and worship, to report on the discharge of its
obligations to them, and to refrain from unilateral modification
of the tenns of its obligations. Respondent, on the othcr hand,
contends that, at !east asto certain of these obligations, Applicants
have no standing to submit to the Court a dispute conccrning their
interpretation and application. Respondent argues that a dispute
with respect to their application and interpretation does not in
volve a legal interest; that Applicants do not have, and may not
assert, a legal interest in the well-being and the social progress of
inhabitants of the Territory. ln other words, Respondent contends
that it is under no cognizable legal responsibility for the proper
performance of its obligation toward the inhabitants of the Terri
tory. The legal untenability of this contention has been analyzed
above.
What is more directly relevant in this context, however, is
that Respondent's contention rcnders the compromissory clause
meaningless.
ln an effort to avoid so patently absurd a result, Respondent
suggests that there are, in the Mandate, provisions which do not
deal with the interests of the inhabitants, and that the compro
missory clause has meaning, bccause it may be deemed applicable
to this type of provision. 1 The difficulty with the suggestion
is twofold.
First, there arc no orga.nic provisions in the MandrLte that do
not deal in some manner with the intcrests of the inhabitants. The
t II, p. 386; id., pp.ff.y542 SOUTH WEST AFRICA
prohibition agaim:t the building of military bases and fortifications
in Article 4, is, inter alia, incidental to the general prohibition
against the improper use of the inhabitants for military purposes. 1
lt is obviously deemed to be in the interest of the inhabitants to
preclude Respondent from making a military base of the Terri tory.
Article 5, assuring entry and travcl to foreign missionaries, mani
festly is incidenta.l to the Article's general guarantce of freedom of
conscience and worship for the natives.
Secondly, as the Court has alrcady held, the phrase "any dispute
whatever" clearly refers to disputes concerning interpretation or
application of any and ali provisions of the Mandate. 2
Applicants submit that the scope of the compromissory clause,
thus determinee! by the Court, makes clear that it is the inter
national community of states which has a legal responsibility for
the protection of inhabitants of the Terri tory. Under the scheme of
the Mandate, certain States members of the community, such as
Applicants hcrein, accepted the rights and dutics of membership in
the "organized body," 3 representing the international community,
by becoming members of such organized body-formerly the
League of Nations, now the United Nations.
Among the rights and duties thus accepted by Applicants, isthat
of submitting for adjudication by this Honourable Court a dispute
concerning Respondent's conduct of its obligations toward the
inhabitants of the Terri tory.
Respondent's interpretation of the compromissory clause does
more than deprive the danse of meaning; it puts into issue the
basic nature of the Mandates System. It seeks to transmute the
concept of "sacred trust" into a moral principle, rather than one
of legal effectivencss.
Respondent bases its construction of the clause upon the com
promissory claus,es as formulated in "B" Mandates. ln contrast to
the "C" Mandates, the organic provisions of which arc concernee!
with the well-being and social progress of the inhabitants of the
Territory, "B" Mandates contained two types of provisions; one,
like the "C" Mandates, dealt with the duties of the Mandatory
with respect to the well-being of the inhabitants; the others gave
to nationals of Members of the League of Nations certain rights,
including particularly so-called "open door" rights, ensuring them
equality of treatment in economie matters.
The compromissory clause, which was first introduced by the
United States in connection with the drafting of the "B" Mandates,
made clear the legal distinction between the two types of provisions.
One paragraph of the draft prO\'ided that, if any dispute arose
regarding the interpretation or application of the provisions of the
Mandate, such dispute would be referred to the Permanent Court
1
2 Seep. 553, infra.
3 id., p. 346.343· HEPLY OF ETHIOPIA AND LIBERIA 543
of International Justice. Another paragraph of the draft likewise
provided that, if nationals of Members of the League of Nations
were denied rights granted to them in the M1ndate, they could
similarly refer such disputes to the Court.
Hence, the legal interest of a Member of the League concerning
the manner in which the Manda tory was discharging its obligations
under the Mandate toward the inhabitants was distinguished from
the legal interest of a national of a Member of the League with
respect to the rights granted to him.
When the United States proposed the foregoing compromissory
clause to the Milner Commission, which was preparing the draft
Mandates, no objection was raised to the division of the clause into
the two aforementioned paragraphs. It was understood that the
distinction was required by the presence in the draft "B" Mandates
of two different types of legal interests. The French Delegatc and
Lord Milner, however, objectcd to permitting nationals of Members
of the League individually to institute proceedings against a Manda 2
tory for infractions of the rights given to them in the Mandate.
In the view of Lord Milner, proccedings involving the rights of
nationals of Members of the League should be instituted only by
the States of their nationality. Lord Cecil thereupon proposed a
modification of the second paragraph of the compromissory clause.
As modified, it provided that "States members of the League of
Nations, may also, on behalf of their subjects or citizens, bring
daims before the Court" :for infractions of the rights granted to
their nationals. 3
Accordingly, although the compromissory clause proposed for
the "B" Mandates remained divided into two paragraphs, in each
case, a State Member of the League could institutc proceedings in
the Permanent Court of International Justice.
On ro July rgrg the Commission approved the version of the
second paragraph of the clause, as amended in accordance with
Lord Cecil's suggestion. Both the first and second paragraphs of the
clause were incorporated in the draft "B" Mandates, and both
remained in the draft when approved by the Milner Commission
on 5 August rgrg. '
Far from the foregoing history supporting Respondent's conten
tion that the compromissory clause in the "C" Mandates does not
mean what it says, on the very same days, 9 and ro July rgrg,
that the llfilner Commission prepared and approved the incorpor
ation in the draft "B" Mandates of the aforesaid first and second
paragraphs of the clause, the Commission proposed and approved
the incorporation in the draft "C" Mandates of only the first
1 Conférence de la Paix, I9I9-I9Recueil des Actes deConféreltcPartie VI
A 1,p. 342 (I934)-
2 1d., p. 349·
3 Id., p. 350.
~ Id., pp. 4oz-o3, 406 SOUTH WEST AFRICA
544
paragraph of the clause. In other words, the Commission inserted
merely the paragraph dealing with the interest of a State Member of
the League conc:erning the manner in which the Mandatory dis
1
charged its obligations toward the inhabitants of the Terri tory.
The significance of this action is likewise clear from the record.
Japan was pressing for inclusion in the draft of the "C" Mandates
of "open door" rights for its nationals. The answer, as Lord Cecil
put it, was that "the stipulations of the C mandates [apply] only
to the interests of the natives." It was repeatedly stressed during
the discussion that "the sole obligations of the [C] Mandatory
Power are those which concern the protection of the natives." 2
There was no need, therefore, and it would have been incongrnous,
to insert into the compromissory clause of the draft "C" Mandates a
paragraph dealing with the interest of Members of the League concer
ning the discharge by the Mandatory of its obligations with respect to
their nationals. Ail that was required was a clause dealing with the
interest of Members of the League concerning the discharge by the
Manda tory of ite obligations toward the inhabitants of the Territory.
Accordingly, only the first paragraph of the clause was incorpo
rated in the final draft of the Mandate for South West Africa when it
was approvcd by the Milner Commission on 5 August 1919. 3
Not only does the foregoing history confirm the obvions textual
meaning of the clause; it also makes clear the understanding that
the clause vested in Members of the League a right to submit to
the Court a dispute concerning the discharge by the Mandatory
of its obligations toward the inhabitants of a Mandated Territory. 4
Thecontrastingviews ofApplican tsand Responden t, as they emerge
from the foregoing analysis of the latter's contentions in respect
of the compromissory clause may fairly be summarized as follows:
In Applicants' view, the drafters of the Covenant intended to give
legal effect to the concept "sacred trust." The design was assumption
of legal responsibility on the part of the international community
with regard to designated inhabitants of Africa and Asia. The
exercise of such responsibility, insofar as concerned the inhabitants
of South West Africa, was entrusted to Respondent. A member of
the commnnity, by becoming a Member of the League, accepted the
right and duty to assure that Respondent exercised this responsi-
2 Id., pp. 354, 356.
3 Id., p. 336.
4 Id.,p. 408.
The signiftcant:c of eliminatiof the second paragraph of the clause in the
"B" Mandates is not relevant to the issues in dispute hcre. It is sufficient to note
that the question arose in the first 1\Iavrommatis Case, atthough in the context
of an "A" rather than a "B" Mandate; The Court was divided as to whether
by the Mandatory; on analysis of the arguments and opiniùns, it would appearationals
that the action brought by Grecce '\Yould have been proper, in the view of all
concerned, if the dispute had involved a proceeding for violation by the Mandatory
of its obligations teowardthe inhabitants of the Mandated Tcrritory. (Mavrommatis
Case, P.C.I.J, Ser. A, No. 2 (1924).) REPLY OF ETHIOPIA AND LIBERIA 545
bility. The clause thus gave eflect to the purposes of the Covenant.
In Hesponclent's view, to the contrary, "sacree\ trust" impartecl
a mere!y moral obligation; the international community assumee\
no legally enforceable responsibility for well-being and progress
of the inhabitants concernee\. A member of the community, by
becoming a Member of the League, acquirec\ a merely moral in
terest in the treatmcnt accordee\ the inhabitants of the Territory.
Insofar as the organic provisions of the lllanc\ate relate to the
treatment of inhabitants of the Terri tory, the compromissory clause
served no purpose and is legally meaningless.
In arder to avoid the clear and natural meaning of the text of
the compromissory clause, Hespondent asserts that the drafters
coule\ not have intenc\ec\ to subject it to juclicial proceedings with
respect to the discharge of its obligations to inhabitants, for two
reasons. One is thal, otherwise, the clause woulc\ open Hespondent
to a multiplicity of proceedings. Seconclly,inasmuch as the clause has
been invokecl only once in the history of the Mandates, it coule\not
have been intcnded to permit the institution of such proceedings. 2
Compromissory clauses are to be faune\ in many multilateral
agreements. 3 Ali hale\ in theory a possibility of multiplicity of
proceedings. Some arc rarely invoked, inasmuch as compliancc
with obligations is, fortunately, the rule rather than the exception.
It does not follow that such clauses do not mean what they say.
Hesponclent ac\vances two additional theses to support its conten
tion. One is that Hespondent's obligations toward the inhabitants are
political or technical, rather than legal obligations; bence the drafters
coule\ not have intended to have them cletermined by judicial pro
cess. 4 Applicants have already analyzec\ the reasoning underlying
such a thesis, and submit that it is untenable. 5 At best, it begs the
question of the proper interpretation of the clear t.ext of the clause.
Respondent argues also that if its obligations towarc\ the inhab
itants were coverec\ by the clause, the Permanent Court woulc\
have been in a position to overrule decisions of the Council approv
ing the manner in which the lllandatory performed its obligations;
the drafters couic! not have intended this result. ' This also begs the
issue. It assumes that the obligations of the Mandatory were not
legal in nature, bence that they were for the Council to decide
rather than for the Court.
In making provision for judicial action with respect to a Man
datory, the clrafters of the Mandates System acted in accordance
with a general and salutary policy of reliance upon international
judicial process. The compromissory clause in the Minorities Trea-
1
2 Il,pp. 191·192.
3 Id., p.192.
E.g., the MinoritieTreatie dis.ussed in other contextspp. 482, 495,supra.
5 II, p. 183.
6 Il, pp. 18ff.r V, pp. 476-519. SOUTH WEST AFRICA
ties is significant in this respect. It indicates that there was nothing
unique in the inclusion in the Mandate instruments of a clause
permitting a Member of the League to submit to judicial deter
mination the concluct of a Mandatory with respect to the inhabitants
of a mandated territory.
The exercise of the right of judicial recourse was, it is true, re
stricted to State,. on the Council of the League, in the case of the
Minorities Treaties. The effect of the clause was nevertheless the
same, inasmuch as such clau1es afforded judicial protection to the
treatment of minorities, just as Article 7 affords such protection to
the inhabitants of the Territory.
The Covenant of the League itself expressed a policy of reliance
upon international adjudication in Articles r2 and 13. Article rz
required Members ofthe League tosubmit to eitherarbitration, orjudi
cial settlement, ortheCouncil ofthe League, any dispute between them
likely to lead to "a rupture" and in no casetoresort to war untilthree
months alter the award of the arbitrators, or the judicial decision,
or the report of the Council. Such a general policy of reliance upon
judicial process may explain the absence of any indication in the
legislative history of the Mandates System that any of the parties
concerned questioned the inclusion of the compromissory clause.
In conclusion, Respondent's interpretation of the compromis
sory clause refleets Respondent's assumption, discussed elsewhere
herein, that the Mandate bas lapsed, that the Mandate was, in
effect, "close to annexation" and that it is vested with "day to
day ... attribu tes of sovereignty" over the Territory. 2
D. CONCLUSION
As this Honourable Court bas held:
"The unanimous holding of the Court in 1950on the survival and
continuing effect of Article 7 of the Mandate, continues to refiect
the Court's opinion today. Nothing has since occurred which would
warrant the Court reconsidering it. Ail important facts were stated
or referred to in the proceedings before the Court in 1950 ....
The validity of Article 7, in the Court's view, was not affected by
the dissolution of the League, just as the Ma3date as a whole is
still in force for the reasons stated above."
Applicants submit, with respect, that the foregoing holdings
constitute the Law of the Case and that nothing bas occurred since
the Court's ]udgment of 2I December I962 which would warrant
the Court's reconsideration of that Judgment.
1 See, for exampl•!S, Article 12 of the Treaty Between the Principal Allied and
Assocîated Powers and Roumania, 9 December 1919, 5 League of Natians Treafy
Series 337, 343, 345 {1921), and Article 7 of the Declaration Concerning the Protec
tion of Minorities in Albania, 2 October 1921, 9 League of Nations Treaty Series
175. 179 {1922).
3 Supra, p.240.
Judgment, pp. J.H. 335· ANNEX 8
BRIEF SURVEY OF LEGAL ARGUMENTS PREVIOUSL Y
ADVANCED BY RESPONDENT, AND DISPOSITIONS THEREOF
PREVIOUSL Y MADE BY THIS HONOURABLE COURT, \VITH
RESPECT TO RESPONDENT'S OBLIGATIONS TOWARD THE
UNITED NATIONS
I. PROCEEDINGS LEAD1NG TO THE ADVISORY ÜPINION OF 1950
Respondent first prcsented to the Court arguments in support of the
severa! pointsenumerated, pages 520-546, supra, intheProceedingsleading
to the AdvisoryOpinim• of II ]uly rgso. 1 In its written and oral statements
therein, Respondent adduced the following considerations, set forth below
in its own formulations:
"Now, these phrases - 'sacred trust of civilization,' 'the world
acting as trustee through a mandatory,' and 'the world community
as the ultimate holder of the Mandate' - are, I would submit,
political phrases from which I much confess I see no way of extract
ing any precise legal meaning." 2
"Mandatories were never responsible to the world at large. The
international community, i.e., the community of all recognized
States, I would submit. is not a distinct legal en3ity, capable as
such of having any rights or obligation. ... Mandatories, then,
were responsible not to this vague fictional entity, the world com
munity, not to each and every recognized State, but only to the
League, and only members of the League were rccognized to have
any locus standi to question the manner in \vhich a mandatory
4
fulfilled its obligations under the Mandate.
"Apart from this concept of the world community, no Govern
ment has attempted to explain how a mandatory relationship is to
be continued without a mandator orto whom the obligations of the
mandatory would in such a case be owing, or by whom or how these
5
obligations could be invoked against the mandatory."
"Clearly, the Union of South Africa can have no obligations under
the Mandate towards the non-existent League of Nations, so thal
assuming that that organization had no successor in law, the
Mandate as a legally enforce6ble instrument must be regarded as
having ceased to exist."
"It appears to be correct to say, therefore, !hat the United Nations
can have legal rights only in respect of those functions previously
1
Advisory Opinion of II july I95o; I.C.J. Rep. 1950, p. 128.(International
St2tus of South-West A/rica.)
International Status of South-West Ajrica-P!eadings,Oral Arguments and
Do3uments 277.
4 Ibid.
Id.,p. 278.
' ld.,p. 279·
6 ld.,pp. 74•75· SOUTH WEST AFRICA
exercised by the League of Nations which the United Nations has
specilically assumed." r
"It is clear, therefore that \vhereas the United Nations assumed
none of the League's functions or powcrs \Vith respect to mandates,
and whereas the League recognized that its own functions in that
respect have come to an end, there could be no continuation of
obligations under the mandates towards the United Nations. The
mandates, and in particular the Mandate for South-\Vest Africa,
must, therefore, neccssarily have ceascd to cxist as legally enforceable
instruments.'' 2
"But if ... in spite of the considerations which I have advanced,
it should nevertheless be held that the Mandate has continued to
exist, I wou!d submit that there could scarcely be found a more
appropriate set of circumstances on the basis of which the doctrine of
reims sic stantibm could be invoked. It being clear that the United
Nations bas neither succeeded to, nor assumed, the functions of the
League of Nations relating to the Mandates System, certain essential
elements of that System must necessarily have ccased to exist in
consequence of the dissolution ofthe League ... AHthcse circumstances
indicate a change of so radical a nature in the application of, and in
the method of implemcnting, the Mandates System, that the Union
Governrnent would, in my submission, be fully justified in clairning
that they are no lo~g eound by the terms of the Mandate." 3
2. THE ADVISORY ÜPINION OF 1950
In its Advisory Opi,.io" of II ]uly I950, the Court considered and
disposed of the foregoing contentions as follows:
Tn respect of the Mandates System, the ;court held that "two prin
ciples werc considercd to be of paramount importance: the princip le of
non-annexation and the principle that the well-being and dcvelopment
of such peoples fonn 'a sacred trust of civilization.' " 4
In respect of the meaning of the word "manda tory," the Court said:
"The League wa~ :o; ... a 'mandator' in the sense in which this term is
used in the national law of certain States ... The 'll'landate'had only the
narne in common with the several notions of mandate in national law." 5
The Court held further: "The Union Governmen t was to excrcise an
international function of administration on behalf of the League, with
the object of prcmoting the well-being and development of the inhabi
tants." 6
The Court, in respect of the effect of the dissolution of the League, held:
"For the above reasons, the Court has arrived at the conclusion
that the General Assembly of the l.'nited Nations is legally qualified
to exercise the supervisory functions previously exercised by the
League of Nations with regard to the administration of the Terri-
1 Id.,p.76.
2 Id.,pp. 7677 .
3 Id.,p. z88.
'~Advisory Opim:on of II july I950, I.CRep. 1950, p. 128, at 13International
Status ofSouth-WestAfrica).
~ Id., p. 132.
f>ibid. REPLY OF ETHIOPIA A~D LIBERIA
549
tory, and that 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
The Court held explicitly thal the Mandate had not lapscd, saying:
"It is now contendcd on behalf of the Union Government thal this
Mandate has lapsed, because the League has ceased ta exist. This con
tention is based on a misconception of the legal situation created by
Article 22 of the Covenant and by the Mandate itself." 2 The Court added:
"If the Mandate lapsed, as the Union Government contends, the
latter's authority would equally have lapsed. To retain the rights
derived from the Mandate and to deny the obligations thereunder
could not be justified.""
The Court, referring to the obligations established in the Mandates
System for the benefit of inhabitants, held:
"Thesc obligations represent the very essence of the sacrcd trust
of civilization. Their raison d'êtreand original abject remain. Since
their fulfilment did not depend on the existence of the League of
Nations, they could not be brought to an end mere!y because this
supervisory organ ceased to cxist. Nor could the right of the popula
tion to have the Territory administered in accordance with these rules
depend thereon." 4
3· THE PIŒLIMINARY ÛBJECTIOXS
In the Preliminary Objections herein, Respondent re-argued the basic
issues prcviously argucd, and which were decided by the Court in its
Advisory Opinion of I950.
In respect of Article 22 of the Covenant, Respondent contended:
"The wording of the Article as a whole, as weil as its historical
background, suggest strongly that thcsc references to 'trust,' 'tutc
lage' and 'Mandatory' were not intended to bear technical legal
meanings, by exact or close analogy to5municipal law institutions
of trust, tutelage and mandatum."
To the same cffect, Respondent added:
"It seems then that what was said in the opening paragraphs of
Article 22 concerning a 'sacred trust' and 'tutelage,' must be regar
ded as being descriptive of the idealistic or humanitarian objectives
involved in the mandates system, and that the reference to 'manda
tories on behalf of the League' is to be understood as affording a
broad indication of the method whereby those objectives woulcl be
sought to be attained." 6
Respondent also contended:
"The source and origin of this obligation to report and account
was contractual, the Mandatories becoming bound thereto by their
1
Id.,p. 137·
3 Id., p.132.
Id.,p. IJJ.
• Ibid .
.s 1p.301.
6 Id.,pp. JOI~J02.550 SOUTH WEST AFRICA
agreement to the Mandate instruments," 1 adding that "by nature
and content, tao, the obligation and the right correlative thereto
were of a purely contractual or 'persona!' nature, as distinct from
'real' rights and obligations." 2
\Vith respect to the dissolution of the League of Nations, Respondent
argued that
"... the League of Nations and all its organs ceased to exist,
and it accordingly became impossible for any Mandatory to comply
with the obligation that had been imposed 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 inha
bitants of the Territory." 3
To the sarne effect: "Respondent submits that the Court will in
this case, for the reasons advanced above, conclude that Respon
dent's obligation, derived from the Mandate agreement, to report
and account to, and submit to the supervision of, the Councilof the
League of Nations, lapsed upon dissolution of the League and has
not been replaced by any similar oblié)ationto submit to the super
vision of any organ of the United Nations or any other organisation
4
or body."
Respondent concluded its First Preliminary Objection with the con
tention that: "... [I]n the sense that the mandate was in thetimeofthe
League of Nations a treaty or convention, it had lapsed and was no
longer in force within the meaning of Article 37 of the Statute of the
Court," and insisted that the dispute was not with "another member of
the League of Nations," that there was no "dispute" in the sense inten
ded by Article 7 of the Mandate; and that there had been no "negotia
tions" in the sense required by that Article.
4• jUDGMENT ON THE PRELIMINARY ÜBJECTIONS
ln its ]<tdgmen!of 2I December rg62, the Court referred toits Advisory
Opinion of rgso, and rejected Respondent's contentions in ali respects.
In its Counter-Memon"al,Respondent reiterates all arguments pre
viously made in the Proceedings leading to the Advisory Opinion of rgso
in support of its Preliminary Objections herein.
Respondent contends: "It seems then, that what was said in the
opening paragraphs of Article 22 conceming a 'sacred trust' and
'tutelage,' must be 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 under
stood as affording a broad indication of the method whereby those
objectives would be sought to be attained." 6
Respondent likewise reiterates its contention with respect to the con
cept of Mandates:
1 Id., p. 104.
z Id., p.105.
3 Id. p.rog .
.. Id .. p. IJS.
5 Id., p. 148.
6 Il, p. 104,cf.Rcspondent's identical language in 1, pp. JOI-J02. REPLY OF ETHIOPIA AND LIBERIA 551
"The Mandates System, whilst also containing provisions in
accordance with the '~acr trd st' and 'tutelage' ideals, sought to
overcome this weakness and uncertainty by the introduction, in
accordancc with the mandatum concept, of international accoun
1
tability in the form of League supervision."
It further argues :
"The only provisions whereby practical effect was sought to be given
to the notion of 'Manclatories on behalf of the League,' were those
rcquiring report and accountability to, and thus supervision by,
2
the Council of the League.... "
On this premise, Respondent concludes:
"In the result, the dissolution of the League brought about not
only a cessation of the notion of 'Mandatories on behalf of the
League,' but also of ali provisions whereby practical effect was
3
sought to be given to thal notion .... "
Respondent argues thal there is no basis for "rejecting the prima
facieconclusion thal the mandatory's obligation to report and account,
together with the subsidiary function of forwarding petitions, lapsed on
dissolution of the League." 4
Respondent concludes, on the basis of its analysis of actions taken by
the League of Nations and by the United Nations:
"These statements show unmistakably a general understanding
amongst Members of the United Nations that no supervisory
functions regarding Mandates ... had been taken over, and thus 5
refute any suggestion of a generaltacit intention to the contrary ... ."
hence thal "the Mandate as a whole must be held to have lapsed conse
quent upon the lapse of the Mandatory's obligations of report and ac
countability to the Council of the League." 6
Respondent adds:
"A contention that the Mandate as a whole has lapscd has, on oc
casions in the past, re~ult inethe raising of the further questions
whether, in such event, Repondent would have to rely on a basis
other !han the Mandate as such for a right or title to administer the 7
Territory of South West Africa and if so, what the basis would be."
Denying thal this is an issue within the ambit of the present case,
Respondent avers that it "does not daim, but on the contrary expressly
disclaims, that its right of administration is based on continued existence
of the Mandate." s
In its argument with respect to lapse of the Mandate as a whole,
Respondent reiterates the contentions advanced in support of the
Preliminary Objections. It argues that the present dispute is not one
l 11,p. II].
2
3 Id., p.IJO.
Ibid.
5 Id., p.I24.
Id., p. q8.
6 Id., p.I73·
7 Ibid.
Id.,p. 174.552 SOUTH WEST AFRICA
between "members of the League," that it is not a "dispute" in the
legal sense, and that there have been no "negotiations."
Respondent repeats all arguments advanced in the Preliminary
Objections in support of its contention thal the Advisory Opinion of I950
is not controlling and that it should be reconsidered and reversed.
Rcspondent re-asserts that "newly discovered information," allegedly
not placed before the Court in rg5o, would have led the Court to a
contrary resuit.
All such assertedly "new facts" were placed bcforc the Court in the
Preliminary Objections and in Respondent's Oral Arguments thcreon.
The Court nonetheless reaffirmed its Advisory Opinion and, in the words
of the Court:
"Ail important facts were stated or referred to in the proceedings
before the Court in rg5o." 1
Accordingly, no purposc would be served by showing, as Applicants
submit, that Resp•Jndent's reiteration of the alleged "new facts" ade!
nothing "new."
5· THE LAw OF THE CASE
On the basis of the foregoing, it is submitted that the contentions of
Respondent in respect of the lapse of the Mandate, or any of its pro
visions, are res judicata by virtue of the Judgment on the Preliminary
Obieclions.
if not res fudicala, technically speaking, by virtue of the Advisory
Opinion of I950, they are nonetheless res judicala within the broacl
meaning of the doctrine, on the basis of the Advisory Opinion. The.
rationale of the doctrine is that there must be an end ta litigation.
Respondent has now re-argucd the same points three times. Its arguments
have been in sorne cases identical to, or a mere repetition of, those
advanced in 1950 and considered by the Court then. It is fair to say
that Respondent has had its day in Court on these issues.
If the Opinion of r950 is not res judicata, it is at !east the law of the
case, hence precedent, in the sense that the Opinion ought to be followed
in the intcrest of the reliance to which Opinions of this Honourable Court
are entitled, particularly when reaffirmed by a Judgment in a contentious
proceeding.
Applicants do not contend that the Court is bound by a rule of prece
dent. It is submitted, however, that ali judicial systems favour giving
effect to prior holdings of the same Court, in the absence of overriding
reasons to the contrary. This is true both in the civil law and common
law, although each system achieves the sa:_meresuJt through different
processes.
Precedent "operates as a sign of impartiality and objectivity in the
legal system, and helps to lift the adjudicative process above the imme
diate controversy." In following precedent, a Court "not merely uses
precedent, but creates it as weil; objectivity is built upon objectivity;
source upon source."~
1 ]udgment, p. 334·
2 Kaplan and Katzenbach, The Political Foundations of InternationalLaw
258 (1961). CHAPTER VII
RESPONDENT'S VIOLATIONS OF ITS OBLIGATIONS BOTH
TOWARD THE INHAB!TANTS OF THE TERRITORY AND
TOWARD THE UNITED NATIONS
A. RESPONDENT'S VIOLATIONS OF ARTICLE 4 OF THE MANDATE
r. Statement of Law
Respondent has given a narrow meaning to the "military clause"
contained in Article 4 of the Mandate by the use of dictionary
definitions and its own assertions. 1 A narrow meaning is, however,
inconsistent with a. the broad purpose of the military clauses in
the Mandates System, b. the plain meaning of the clause on its
face, and c. the interpretation of the military clauses by the Per
manent !\:Iandates Commission.
a. The military clauses had a broad general purpose and the
terms therein cannat be narrowly interpretee!. Their basic princi
ple was "... the complete neutralisation of mandatee! terri tories2
inthe event of war, whether the manda tory is bclligerent or not."
Their language is sweeping and categorical. Respondent qualifies
this, however, by stating th at the clause "... was probably ...
intended to prevent the Mandatory from using the Mandatee!
Territory as a base of aggression, by training large Native armie3, or
by establishing military or naval bases in the Territory," and,
secondly, by stating that there is "no doubt that a Mandatory
was to be entitlcd to train the inhabitants of a Mandatee! territory
(including the Natives) for the defencc of that Mandated territory," 4
since "the duty-and the right-to defend the Territory, is that
of Respondent .... "'
\Vith respect to the first qualification, that military bases must
somehow be relatee! to aggressive designs, Applicants submit that
the purpose of the Mandate is to benefit the inhabitants of the
Territory and that even though military and naval bases, or forti
fications, may have no present! y intended offensive purpose-at
!east as unilaterally defined by Respondent-they are inconsis
tent with the Mandate because they are susceptible of offensive
use. The Court should not be asked to examine the subjective at
titude of a particular government at a given moment of time in
orcier to ascertain the charactcr of the violation. What the Mandate
and Article 22 of the Covenant prohibit is the "establishment of
1 "Consequently,failing the purpose of utilization for operations or a campaign,
actual or prospective, by a force or an army, a place cânnot be said ta be maintained
as a military or naval base." IV, p. 50. (Italics omitted.)
t Stoyanovsky, La théorie générale demandats internationaux174 (1925),
qu3ted in P.M.e. Min., 7th Sess., p. 157.
4 IV, p. 48.
Id., p. 50. For further discussion of this point, see Annex 9, sec. (!), p. 565, infra.
j id., p. 48.554 SOUTH WEST AFRICA
fortifications or rnilitary and naval bases," not rnerely the formu
lation of aggressive plans or purposes for their use.
Respondent's second qualification, that Respondent has a "right
and duty'' to defend the Territory, is wholly out of keeping with
the nature and ,.ubstance of the Mandate institution, and ignores
the basic relationship between the Mandatory and the League of
Nations. The objective of the military clauses being the "complete
neutralization of rnandated territories in the event of war," 1 the
primary safeguard for such terri tories did not reside in the strength
of the Mandat ory, but in the system of collective security established
by the League. 2As Duncan Hall wrote in Mandates, Dependencies
and Trusteeship, "... the Mandate System was desigued to function
inside the general framework of a collective security which it
3
was assumed would preserve peace." As has been elsewhere des
cribed in this Reply, the Mandates System was founded upon a
new, dynamic concept of collective responsibility. • It is consistent
with this that the League should bear the ultimate responsibility
in the event of an attack upon a Mandated Terri tory severe enough
to overwhelm the native forces which would have been trained
for "interna! police and the local defence of the territory." In ad
dition, the framers of the "A" Mandates felt that it was necessary
to insert specifie language to permit the "A" Mandatories so much
5
asto transport their own forces in the Mandated Territories.
Finally, Respondent attempts to exclude military training camps
from the definition of "military base," 6 referring to "considerable
permanent military forces stationed within [the] boundaries [of
practically all the African terri tories und er Mandate J," yet failing to
point out that such forces were almost entirely composed of natives.
AU of the other "African territories under Mandate" were under
"B" Mandates, the language of which prohibited the Mandatories
from organ ising "... any native military forces in the territ ory
except for local police purposes and for the defence of the terri
tory." 7 Respondent's whole argument 8 becomes strained as soon
as the ward "native" is added to al! of Respondent's assertions
concerning "permanent military forces." 9
For the reasons given, it is submitted that the intention and the
result was to frame the prohibition against military bases in broad
and sweeping language.
lSupra, footnote 2,p. 553·
2 See Article1,and Articles 8-17, of the Covenant of the League of Nations.
4 Hall, Mandates, Dependencies and Trusteeship 69 (1948).
See Chapter VI of this Reply,supra.
6 For further dis,:ussion of. this point, see Annex 9, sec. {2), p. 565, infra.
IV, p. 50.
8 P.M.e. Min., 7th Sess., p. I57·
9 IV, p. 51.
\Vith respect to the question and answer given in the 18th Session of the
P..M.C. concerning Tanganyika, the troops învolved were native troops and the
concentration of "the battalion in reserve" was a "native military force" being
trained precisely forhe purposcs permitted. (P.M.e. Min., t8th Sess., p. 34.) REPLY OF ETHIOPIA AND LIBERIA
555
b. Since the language of the mandates expressly recognized that
natives of the Mandated Territories may be trained for police and
defence purposes, and since it is obvions that such trained natives
(or, in the case of the "B" Mandates, such "native military forces
in the territory") must be based somewhere, obviously the correct
reading of the provision respecting bases and fortifications is that
it is inapplicable to natives trained for the permissible purposes. 1
The distinction between the objectives of the first and second
sentences of Article 4 is that natives who have been given military
training only for purposes of police and local defence do not threaten
the neutrality of the Mandated Territory, either as a possible base
of aggression or serving otherwise to attract military attack from
outside, either for offensive or defensive purposes. Nor are they
available for service in the armed forces of the Mandat ory. Onthe
other hand, military or naval bases established bythe Mandatory,
or any fortifications erected thereby, for whatever purpose, in
crease the Mandatory's offensive capability, thereby serving as
targets for capture or for exploitation by other Powers.
Finally, the discussions cited by Respondent in the Council of
Ten demonstrate a preoccupation with the raising of large African
2
armies. Such "great amlies" could hardly have been raised with
out the creation of bases. If the prohibition on military bases had
been considered to be applicable to native forces, the discussions recited
on pages 49 and 50 (IV) of Respondent's Counter-Memorial would
have been wholly unnecessary. The prohibition on military bases
could not, thercfore, have been considercd as being applicable to
native forces.
This conclusion is in keeping with the obvions purpose of Article
4, which was to effect "... the complete neutralisation of mandatee!
terri tories in the event of war. ... " '
c. The views of the Permanent .Mandates Commission on the
military clauses demonstrate with singular clarity the common
assumption that they were intended to be scrupulously adheree!
to and vigorously enforced. 4A broad interpretation of the phrase
1For further discussion of this point, see Annex 9, sec. (3), p. 566, infra.
2 IV, p. 49.
3Stoyanovsky, p. 174, cited p. 553, footno2.supra; cited in P.M.e. Min., 7th
Sess., p. I57·
4 See, e.g., the Memorandum by M. Van Rees, "What is the Military Organisation
Allowed in TerritoriesderBar.deMandatcs?" (P.l\I.C. Min., 7th Sess., pp.xs6·58).
The following year, a Report by Mr. Freire d'Andrade, "Military Organisation of
Territories under B and e Mandate," was appended as Annex 4 to the Minutes
of the 9th Session (P.M.e. Min., 9th Sess., pp. 193-95), and its second sentence
stated:
"As regards fortifications and military or naval bases, the position is quite
clear; the mandatory Pow•!r may not establish any military or naval bases
nor erect any fortifications in the mandated territory." (Id., p. 193.)
Similarly, the first of Mr. d'Andrade's four conclusions was that "the Mandatory
cannat establish any naval or military base or erect any fortifications in the man
dated territory."ss6 SOUTH WEST AFRICA
"military or naval base" îs consistent with this, as well as with
the great concern shown by the Commission from I932 to I935
with respect to rumours that Japan had constructed a naval
base in one of the islands uncler Mandate. 1
In the clebates on the alleged Japanese naval base in the Paciftc,
the Chairman (Ma.rquis Theodoli) "... emphasised that the appli
cation of an extremely important principle of the mandates was
2
involved ... " Wbile questioning the representative of Japan
(Mr. Ito), l\1.Rappard askecl him if he could,
"state that he knew from a reliable source that no establishment
existed in the South Sea Islands that could be called a naval base?
"The Chairman stated that he was anxious that there should be
no ambiguity on this point. A naval base might not be self-evident
sincc harbour works permitting of the entry of ships could be used
by submarines. He preferred therefore to ask M. Ito to statc quite
frankly whether the \Vorksundertaken were intended only to promote
mercantüe navigation.'' 3
The sweeping approach of the Commission ("no establishment
... that could be ca/led a naval base") is even more strikingly reflec
ted in the Minutes of the zSth Session, where again Mr. Ito of
J apan was being questioned about the Pacifie Islands:
"The Chainnan drew attention to Chapter XVII of the report
relating to military clauses (page 93 of the report). The terms of
this chapter were cxtremely definite, and the Chairman asked M.
Ito to confirm that the inference was that there was not a single
soldier or a single sailor belonging to the navy in the entire territory
uu.dermandate.
"M. Ito reptied that therc was not in the entire territory a single
soldier or sailor on the active list. The policemen were often former
non-commissioned officers of the anny.
"The Chairman requested the Commission to lake note of this
clear and definite statement, which it would certainly record with
great satisfaction." 4
This question, posed in 1935, weil illustrates the problem pre
sented in the Cases at bar. Applicants respectfully contend that
the only meaning which may be givcn to the second sentence of
Article 4, in the context of the Covenant and of the purpose and
scope of the Mandates System, is the broadest possible interpreta
tion consistent with complete neutrality of the Mandated Terri tory.
The evil the injunctionagainst bases and fortifications aimed at pre
venting was clearly the destruction of moral and material well-being
1 P.M.e. 1\lin., 22nd Sess., pp. II4P.M.e. Min., 2Sth Sess., pp. 134, 138.
:zP.M.e. Min., 22nd Sess., p. II5.
3 Ibid. (Italics added.)
4 P.M.C. Mln., z8th Sess., p. 134. (Italics added.) REPLY OF ETHIOPIA AND LIBERIA 557
of the inhabitants of the MandatedTerritories, and the thwarting of
their social progress, by such Terri tories in any manner becoming en
gaged in hostilities.The remedy was to place a ban on the construc
tion of fortifications and the establishment of bases. The evil was suffi
ciently great and the remedy sufficiently sweeping that, taken in
conjunction with the system of collective responsibility and security
expressed by the Mandates System and the League itself, narrow
dictionary definitions of "military base" are wholly incompatible
with thé interpretation laid upon such term by the Permanent
Mandates Commission and inconsistent with the entire thrust of
the Mandates System.
Respondent has given, on its part, three definitions f1om "well
known dictionaries," one of which is dated r88o. Respondent's
argument is that "a common feature of these definitions is that a
base is something utilised by a force or an army for the purposcs
of operations or a campaign" 2 and that, thercfore, if an installa
tion fails to possess such a feature, it fails to be a base.
Respondent has, in effect, limited the meaning of the term "mili
tary base" to coincide with the existence of a state of war, since
neither "operations" nor a "campaign" can truly be said to cxist
other than in wartime.
On the other hand, the lllandates contain no language which
can be interpretee! as prohibiting military instalhltions only in
time of war. 1n fact, the reverse is truc. The purpose and application
of Article 4 is obviously in lime of peace; a time of peace, moreover,
which was viewed, at !east by the more optimistic founders of
the League of Nations, as a permanent state of the world. lt is a
distortion of the clear language and intcnt of Article 4 to argue
that the term "military base," as used in ail "B" and "C"
Mandate agreements, referred only to operations or campaigns, "ac
tuai or prospective." 3
For the reasons advanced, Applicants submit that a broad and
flexible meaning must be given to the term "military base" in
Article + Such interpretation would be lully consistent with the
test advanced by Applicants in their Memorials, namely that "the
type of facility, its location, armament, equipment, organization
and place in the Union's administrative hierarchy and chain of
command determine whether it is a military base or fortification." •
2.Statement of Facts
a. Regiment Windhoek
The Burgher Force established by Proclamation No. 2 of 1923
(S.W.A.) and the Burgher Force established by the Burgher Force
1
2 Id. p. 50. (ltalics omitted.)
3 For furthcr discussion of this point, see Annex g, sec. (4), p. 567, i11jra.
~ 1, p181.For further discus:;;ion of this point, see Annex 9, sec. (5), p. 567,
infra.558 SOUTH WEST AFRICA
1
Proclamation, No. 19 of 1927 (S.W.A.), both appea1 to be dif
ferent in nature and in purpose from the wartime First South West
Africa Infantry Battalion, 2 and from the South West African In
fantry and its successors, the Regiment Suidwes-Afrika and Regi
ment Windhoek. There appear to have been no South African
military personnel in command of the pre-war Burgher Forces.
The Administrator assembled the burghers for inspection and
rifle practice; the Administra tor had the power to cali them up
for service; the Administrator appointed the burghers' officers.Train
ing appears exclusively to have consisted of rifle practice, and for this
3
purpose the burghers were summoned by the Administrator. In
the case of the 1927 Burgher Force, it was commanded and con
trolled by a Chief Commandant appointed by the Administra tor. •
Not on!y has the nature of the activity 5 and the equipment 6
7
changed since Respondent's Reports for the year 1925 and for
the year 1929 8 but the chain of command and administrative po
sition have also apparently been seriously altered since 1939· 9
Respondent admits that, in 1964:
"... the Regiment is a part of the South African Armoured Corps
of the Citizen Force, which fonns an integral part of the South
African DeCenceForces, and adroits that ... at present this Regi
ment consists of 20 officers and 221 other ranks. .. " 10
lt is submitted that the growth of Regiment Windhoek in its sev
era! forms since 1946, its incorporation as "an integral part of
the South African Defence Forces," its establishment as part
of the South West Africa Command of the defence establishment
of the Republic of South Africa, and its corresponding place
in the Republic's administrative hierarchy and chain of com
mand, constitute a violation of Article 4 of the Mandate. This
1 IV, p. 54,footnote2,and p. 55·
2 Id., p.56.
' Id., pp. 54-55·
+ Id., p. 55, and AnnexA, p. 64.
5 Vide Respondent's sta.tement, id., p. 56, para. 4: "The deferree organization
describcd above remained unchanged until 1939. Military training never developed
to a point beyond rifle practice and during the years 1931 to 1935 financial con
siderations led to a curtailment even of that. The Burgher Force was never called
up for military training, and duringe period 1936 to 1939 its organization came
ta an almost complete standstill.(Footnote omitted.)
6 Vide Respondent's statement, id..p. 57, para. 7: "The Regiment [Windhoek]
is ...equipped with what are intemationally known, and used, as light reconnais
sa1ce vehicles, viz., armoured cars."
1d., pp. 54-55, paraz.
8 1d., Annex A, p. 64.
~Applicants here recall the last sentenceof their second paragraph in the
"Statement of Law'' contained in I, p. 181: "The type of facility,itslocation,
armament, equipment, organization and place in the Union's administrative hier
archy and chain of command determine whether it is a military base or fortifica
tion." (Italics added.)
10 IV, p. 56. For further discussion of this point, see Annexg, sec. (6infra.568, REPLY OF ETHIOPIA AND LIBERIA 559
entire development 1as taken place since the dissolutiou of the
League of Nations, with benefit of supervision neither by the
League nor the United Nations.
Is it possible for Respondent to confirm that "... there [is] not
a single soldier or a single sailor ... in the entire territory under
mandate," and to reply "that there [is] not in the ent2re territory
a single soldier or sailor on the active list?" To the contrary,
Respondent's Minister of Deferree, Mr. J. J. Fouché, made the
following statement in the South African Senate on 28 March rg6o:
"Greater mobility, armoured protection and increased striking
power have been given to twelve of the infantry units at strategie
places in the form of Saracens [armoured cars]. These Citizen Force
units, together with the two Mobile Watches which are organized
as Saracen units for internai security, form a shock element in the
Army." 3
The nature of the training of this "shock element" is not known,
but sorne indications cxist that it is closely concerned with riot
control.
"Subsequently, in July rg6o, it was reportecl that frightened
residents of the old location had streamed to the municipal offices
to register for Katutura on hearing the noise ofguns in a mock battle
carried out by the Windhoek Regiment. Part of the exercise being
taught sorne 150 of the Active Citizen Force which is contained
in the Regiment was how to throw cordons around a riot-torn area
and how to use the latest methods for dealing with rioters." 4
In conclusion, with respect to Regiment Windhoek Applicants
would remind the Court that Respondent is applying its own narrow
and inappropriate definition of "military base" to the Regiment
in arder to conclude that there has been no violation of Article 4·
Applicants reaffirm the broad thrust of the language of Article 4
as illustrated in Part I of this Chapter and reiterate their own
articulation of the proper elements for consideration:
"...The type of facility, its location, armament, equipment, organi
zation and place in the Union's administrative hierarchy and chain
of command determine whether it is a military base or fortification."
In view of the broad principles of the Mandates System and the
correspondingly strict standards of interpretation outlined in
Part I of this Chapter, there is little room for doubt that Regi
ment Windhoek, in its present form and strength, in organization
1 Commencing on exactly the date of the dissolution resolution of 18 April1946;
see Respondent's footnote 6, IV, p. 56.
1 P.M.e. Min., 28th Sess., p. 134; cited p. supra.
3 As quoted in S.C.O.R., Report of S.G. at 15 (S/5658) (1964).
• South West News, 23 July 1960, as cited in G.A.O.R. 16th Sess., S.W.A. Comm.,
Supp. No. 12 at 23 (A/4957).
j J, p. 181.s6o SOUTH WEST AFRICA
and in operation, involves the maintenance of a "military base,"
within the meaning of Article 4 of the Mandate and is consequent! y
in violation of the obligations thereunder.
b. Swakopmund and Walvis Bay
With respect to the military landing ground in the Swakop
mund Distri1t, Applicants accept l~esponde neogrsphical ex
planation.
It is relevant, however, to note that the apparently continuai
build-up and reinforcement of military strength in Walvis Bay is
in itself a violation of the ~Iandat The. addition of substantially
greater military and naval elements to Walvis Bay is, in relative
terms, the "establishment" of a base since the Mandate was con
ferree!and/or sinee the dissolution of the League of Nations. Further
more, Walvis Bay must, in a military sense, be consideree! to be "in"
South West Africa, inasmuch as it is completely surrounded by
territory subject to the Mandate and ncccssarily depends thcreon
for essential services, transport, communications and supplies,
including water. The central purposc of the military clause and
the intent of the framers of the Mandate, moreover, was the com
plete neutralization of the Territory and the protection of the in
habitants from attack provoked, inter alia, by the presence of mili
tary or naval bases. 2 This purpose has been increasingly fmstrated
by the apparently continuously intensifiee! military reinforccment
of Walvis Bay.
ln June of rg6r the South African 1\linistcr of Defencc made the
following statement in Parliament:
"... The mcmdatc provides that no naval bases and military strong
holds may be established in the tenitory. This provision refers to
permanent bases and strongho1ùs. The spirit of those provisions
was honoured in peace-time. The South African Government,
however, has a responsibility in regard to the deferree of the terri
tory. That is admitted in the mandate by implication. In view of
what is happening in South \Vest Africa and in the adjoining terri
tory, arrangements are being made at present to protect South
\Vest Africa against any threat from be:yond its borders. The
Governmenl:would be neglectingits duty if it die!not take immediate
action in case of any such threat. Thcse measures will not continue
for longer than is regarded as esscntial for the deferree of the territory.
The Government is taking immediate steps ta provide the necessary
military force in \Valvis Bay, an area which, although it is being
administered as part of South \\'est, is rcpublican territowhere
the Government is entitled to take any steps consistent with its
own sovereignty. Furthermore, the South African Navy pays
1 Applicants point out, however, that Government Notice No. 636 of 1958 (S.A.)
was egregiously wmng. since such Government Notice was published on 3 October
1958 and since the proclamatof the separate magisterial district of Walvis Bay
was published o21July 1958 (see IV, p. 58, foo2and 7).
2 See Part1of this Chapter, pp. 553-557, supra. RE PLY OF ETHIOPIA AXD LIBERIA
periodical visits there to enable us to keep the necessary supervision
over the territorial waters and the coastline of South \Vest Africa.
Arrangements have also been made for flights along the coastline
and for observations to be made along the nort hern border of"the
1
territory, by airerait of the South African Air Force."
At page 13 of the Report of the Committee on South West Africa
concerning the implementation of General Assembly Resolutions
1568 (XV) and 1596 (XV), it was reported that:
"The port of Walvis Bay had been completely transformed into
a full-time military operational base and [the Committee] had been
infonned that an additional garrison of 1,500 troops was expected
in South \Vest Africain a few weeks." 2
\Vithout the safeguard of adequate administrative supervision,
the presence of a large military and naval base such as Walvis Bay
entirely within the Mandated Territory, with an indeterminate
and undetermined effect on the surrounding arca and its inhabit
ants, is in violation of Article 4 of the i\iandate, as is ail the more
3
clear in the light of the general considerations adduced below.
c. Airstrips
Finally, with respect to the temporary military camp and the
natura! surface strips refcrrcd to at I, page rSz, Applicants reitera te
their concern that there has been a violation of bath the spirit
and the letter of Article 4 of the Mandate. Respondent states
that the landing strip at Ohopoho in the Kaokoveld 5 " ••• is one
of a few landing strips at various places in South West Africa
which are used ... intennittently by airerait of the South African
Air Foree." 6
1
Even if Respondcnt's narrow definition of "military base" is
employed, it is clear that airfields which are maintained for use
by military airerait and available for such use at any time, are
places which may be "utilised ... for the purposes of operations
or a campaign." 8 Even if such use may be characterized as being
1R. of S.A., Parl. Deb., House of Assembly, Ist Pari., Ist Sess. (weckly cd., 1961).
Ccls. 7394-7395; this statement rcflects the same erroneous interpretationof "the
duty-and the right-to defend the Territory, [as being] that of Responùent ...
who is responsible not only for the maintenance of arder in the Territorybut also
for its safcty"(IV, p. 47, para. 4) which bas been discussed, supra, in PartI of this
Section. In this connection, it is significathat Respondent has never presented to
the United Xations any information conceming an alleged "threat from beyond
its borders," nor invokcd the protection of the United Nations.
2 G.A.O.R. 16th Sess., S.\V.A. Comm., Supp. No. 12A at 13 (A/4926).
Additional information supplements the conclusion that increased military activity
is taking place in \Val vis Bay, for which see Annex 9, sec. (7), p. 570, infra.
3 See sec. d. of this Part 2, p. 562, infra.
-4Discussed in Respondent's Counter-Memorial, IV, pp. 58-GI.
5 Erroneously spelled "Chohopoho" in IV, p. 59·
b Ibid.
7 Id., p. 50.
8 Ibid. (Italics omitted in part".) SOUTH WEST AFRICA
562
but "intermittent and occasional," as long as there has been intent
to clear such airstrips in part for such military use and as long as
there remains an intent to use such strips and to maintain them
thcrefor, there ha:; been a clear violation of Article 4 of the Mandate
(even under Respondent's narrow formulation), since such strips
are admittedly utilized in the present for operational purposes and
1
may at any time be usee\ for the purposes of a campaign.
The fact that these natural surface strips, or any airstrips, are
capable of serving both administrative civil airerait and the South
African Air Force illustrates the neces2ity for administrative super
vision by the Unitee\ Nations. Givcn adequate administrative
supervision of Respondent's activities, civil and military, in the
Territory, there might be no objection to the maintenance of these
airstrips for their proper civilian administrative purpose. Absent
such supervision, however, there is no way of detcrmining the
character or the amount of use of these facilities by Respondent's
military air force,..As a consequence, Respondent may not be heard
to say that to piace a ban on all such airstrips is unreasonable.
So long as Respondent fails to recognize the administrative super
visory authority of the United Nations, while at the same time
maintaining airstrips, such maintenance must be considercd in
compatible with Respoudent's duties under Article 4 if the purposc
and use of such airstrips in is any degree directed toward military
ends (as Respondent concedes).
d. Military Activity in General
There appears to be little doubt concerning Respondcnt's ever
increasing military activity in the Territory. 3 The Committee on
Implementation was informee\ in rg6r that:
"... The South African clefence line on the border of South West
Africa and Angola now consistee\of over 4,000 soldiers, South Afri
can airerait patrols in the areas of Ohopoho, in the Kackoveld [sic],
and in the Caprivi Strip bases, and a Mobile Force from Potchef-
1 Respondent does not specify how many such strips there are, nor does itgive
a clear idea of what ''mterrnittent and occasional use'' might amou nt to. In addition,
Respondent admits that:
"It is imperative that South African Air Force pilots should from time to
time be made a::quainted with the landing strips within the Territory sa as
ta be able ta perform the responsibilitieswhich rest upon Respondent in
respect of dcfen·:;e, internai security and rescue operations in the Territory."
(IV,p. 59.)
Applicants do not quarrel with "internai security and rescue operations in the
Territory," but maintain that Respondent's misconception of its duties with
respect t.o deferree of the Territory bas led it into a direct violation of Article 4 of
the Mandate. (See Part 1 of this Section, supra; cf. the statement by Respondent's
Minister of Deferree, p. 559 supra.)
2Sec Chapter VI, supra, p. 520.
3\Vith respect ta Respondent's reference (in IV, pp. 6o-6t), totheunauthorized
"Joint Statement" purported to have been released by the Chairrnan and Vice
Cbairman of the Special Committee on South West Africa on 26 May 1962, see
Annex 9, sec. (8), p. 570, infra. REPLY OF ETHIOPIA AND LIBERIA
stroom (Transvaal) patrolling in co-operation with the Portuguese
soldiers.''1
Great expansion in the school cadet corps of the Territory was
announced on ro April rg63, and as from r April the Territory bad
thirteencadet divisions (four havingbeen formed at the end of March); 2
such divisions were to be trained in the art of drilling and shooting,
and a hitherto unnoticed form of paramilitary force or organization,
presumably also integral parts of the South African Defence Forces,
entitle3 "Commando units," are being trained in the use of Bren
guns.
In three resolutions at its Seventeenth Session, the General
Assembly of the United Nations:
r. " ... Urge[dj the Government of South Africa to refrain from:
"Using the Territory of South West Africa as a base for the
accumulation, for internai or external purposes, of arrns or armed
forces. ... " 4
2. "Not[edj with increased disquiet the progressive deterioration
of the situation in South \Vest Africa as a result of the ruthless
intensification of the policy of apartheid, the deep emotional rescnt
ments of ail African peoples, accompanied by the rapid expansion
of South Africa'smilitary forces, and the !act that Europeans, both
soldiers and civilians, arc being armed and militarily reinforced
for the purpose of oppressing the indigenous people, ail of which
create an increasingly explosive situation which, if allowed to con5
tinue, will cndanger international peace and security. ... "
J. "Not[edj with the gravest concern and regret !hat South Afri
can m.ilitary troops stationed in the Territory have been considera
bly reinforced, and !hat the local police,aided by the military forces,
have raided Native homes, locations and reserves in search of
evidence of political activity and to clcar urban areas6 which are
regarded as European, of passless Natives . ... "
Consequently, Applicants contend thal Respondent's admitted
practice of maintaining an indeterminate number of landing strips
which may be, and are, used by military airerait of the South Afri
can Air Force, coupled with the increasing build-up of military
strength in Walvis Bay, taken together with the apparently ever
increasing amount of military activity by cadet corps and "Com
mando units" in the schools, communities and countryside of the
Territory, joined with Regiment Windhoek, have created a situa-
1
2G.A.O.R. r6th Sess., S.\V.A. Comm., Supp. No. 12A at 13 (A/4926).
3 Id., 25 April 1963; it is not clear preciscly what such "Commando units"
consist of. See Annex 9, sec. (6), p. 568, infra.
4 G. A. Res. 1805 (XVII), 14 December 196:!, G.A.O.R. 17th Sess., Supp. No.
17 5t 38 (A/5217).
G.A. Res. 1702 (XVI), 19 December 1961, G.A.O.R. 16th Sess., Supp. No. 17
at63G.A. Res. 1703 (XVI), 19 December 1961, id. at 40. SOUTH WEST AFRICA
tion where there is the equivalent of a series of military bases or
potential military bases in the Territory, or, at worst, where the
Terri tory itself and its "\Vhite" inhabitants have become armed and
co-ordinated to the extent thal the Terri tory has been transformed
into a "military base" within the meaning and intent of the Cov
enant and the Mandate. These conditions have been reflected in
three recent resolutions of the General Assembly and constitute
a clear violation of the letter and spirit of Article 4 of the Mandate. ANNEX 9
SUPPLEMENT ARY MATERIAL WITH RESPECT TO
RESPONDENT'S VIOLATIONS OF ARTICLE 4 OF THE
MANDATE
(1) The implication contained in this assertion relates to non-native
inhabitants of the Mandated Territory. With respect to the discussion
in the Council of Ten cited by Respondent as authority for its propo
sition that there is "no doubt that a Mandatory was to be entitled ...
etc.," Applicants submit that such discussion related only to (a) the
military training of the na#ves for police and defence; and (b) raising
native armies in the event of a general war, and also point out that the
discussion was, at best, singularly opaque.
After the conversation cited by Respondent, there seems to have been
manifest confusion on the part of the Secretariat as to the meaning of
the statements made and the conclusions reached (if any). In Baker,
Woodrow Wilson and World Settlement, there is the following commen
tary on the interchange among Messrs. Clemenceau, Lloyd George, and
Wilson quoted by Respondent: 1 "It was not surprising that, as a result
of this colloquy, the secretariat should have been puzzled as to what
was really meant.'' 2
It was at least clear, however, that the interchange did not bear the
meaning ascribcd thereto by Respondent, and that it was concerned
with the raising and training of native troops; the presence, raising, or
training of troops other than native was neither anticipated, suggested,
nor discussed. (It would seem obvious that there was no need to discuss
it, since the restriction on rnilitary and naval bases and fortifications
would logically place a clear limitation on the presence of troops other
than native; see p. 555, supra).
(2) Quincy Wright wrote in Mandates Under the League of Nations:
"Though [requirements as to restrictions on the recruiting of
natives in mandated tcrritories] assure the natives against military
exploitation in the intcrcst of the mandatory, doubtless the interest
of third states in the disarmament of the mandated arcas was an
even more important reason for their inclusion in the Covenant and
the mandates. This is lef.strue of the military provisions inA man
dates. While the mandatories for Palestine (art. r7) and Syria (art.
z) are permitted to organize local military units only for police
and defense of the territory, they are not forbidden to secure local
financial assistance and transportation for their ow1z.forces in the
territories. The Iraq treaty (art. 7) contemplates British assistance
to Iraq military forces." '
Duncan Hall wrote as follows:
"The 'A' mandates-Palestine and Syria-do not preclude the
use, "~th the consent of the mandatory, of local forces for defense
t IV,pp. 48-49·
2 Baker, Woodrow Wilson and World Settlement 428 (1922).
3Wright, Mandates Under the League of Nation472 (1930). (Italics added.)s66 SOUTH WEST AFRICA
of the territory outside its actual frontier. The mandatory could
maintain his own armed forces in the territory, and use railways
and commun-ications of the territory for the passage of his armed
forces and th"carriage of fuel and supplies."
Even if there were, argmndo, a duty and right to defend the Terri
tory, it must neŒssarily be limited by the terms of the Mandate; this
was true in aU "B" and "C" Mandated Territories, since the military
clauses in ail of the "B" and "C" Mandates were essentially unifonn
(with the exception of the additional provisions relating to the extra
territorial use by France of native troops raised in Mandated Territory,
contained in Article 3 of the Mandates for the French Cameroons and
for French Togoland, which have no bearing on the present discussion).
Such "duty and right" to defend the Mandated Territory had, then, to
be performed, and exercised, withottt establishing military or naval bases
and withottterecting fortifications; the language of the military clauses
is too clear to permit of any other construction. (The texts of ail "B"
and "C" Mandates prohibited the establishment of military or naval
bases and the erection of fortifica wihmodnan..y exception for police
or de!ence.)
(3) Essentially, there must have been three possible trains of reasoning
which could have occurred to the framers of the Mandate language.
Although there is no record of their deliberations on this point, the ques
tion of the incompatibility of the two propositions contained in the
"B" and "C" Mandates must have arisen; and, if in fa ctit did not arise,
the most reasonable interpretation possible must in any event be placed
on the Article. These three trains of reasoning are:
(i) bases and fortifications are forbidden, even if their purpose
is solely to assist the training of natives for police and local de
fencc;
(ii)bases and fortifications are forbidden, except that a facility
for training natives for police and local defence work, even though
similar to a base or fortification, is excluded from such prohibition;
or
(iii) bases and fortifications are forbidden, and no facility whose
purpose is to assist the training of natives for police and local de
fence is considered to be such a base or fortification.
Of these, the first is unacceptable because it creates an internai limi
tation upon the effectiveness or upon the accomplishment of certain of
the express permissible aims of the training of natives. The second is
unacceptable, since express language ought to be adduced to produce
a result which is so clearly an exception to the language of the Mandate.
The third possibility is the most likely, and the only reasonable, ex
planation. It accommodates the affirmative nature of the exclusion
with respect to training natives, and at the same time stands in obe
dience to the absolute negative prohibition on bases and fortifications.
The very concept of "military" or "naval" bases suggests, in context, the
familiar pattern' of European troops and ships, based in the 1\!andated
Territory for training, development, or operations. This interpreta-
1
Hall,Mandate D~,pendencies and Trustees68 (1948). (Italics added.) REPLY OF ETHIOPIA AND LIBERIA
tion is reinforced by the juxtaposition, in the "B" Mandates, of the
language permit ting certain "native military forces" with the language
prohibiting bases. Lastly, the word "establish" suggests, in the context
of the times, (a) an outside agency or a force entering the Mandated
Territ ory from outside and becoming established; and (b) a condition per
manent in nature and related, in scope, to objectives other than the
objectives permissible for the military training of the natives under the
"C" Mandates or the maintenance of native milita1y forces under the
"B" Mandates.
(4) Respondent's contention that "... the sole criterion applicd to
each facility [by Applicants] appears to be the !act ... that 'its purpose
is not police protection or internai security' "1 is wholly incorrect.
Applicants assert that any confusion on the part of Respondent, as to
the standards applied to the facilities examined, be resolved by refer
ence to the concluding sentence of Applicants' "Statement of Law"
at 1, page r81.
Since ali of Respondent's military facilities exclude members of the
"Native" population of the Territory (a !act learned from Respondent's
Counter-Memorial), 2 ail of such facilities must then be scrutinized in
the light of the second sentence of Article 4 and in the broad scope of
the last sentence of Applicants' "Statement of Law." Even if the imme
diate reason for part of Applicants' previous formulation has fallen away,
Respondent cannat deny that a generally reasonable critcrion for
determining whether installations are military bases is, in fact, whether
they are intcnded solely for "police protection or internai security."
Applicants fail to understand how Respondent can complain about
Applicants' partial application of a narrow criterion. 3 ln fact, Appli
cants have been encouraged by Rcspondent's argument to reitcrate
and repeat the far broader criteria of Applicants' last sentence in their
"Statemcnt of Law."
(5) Quite apart from this compelling argument, Applicants are not
in the least prepared to accept a restrictive definition of "military base"
which is limited to the "operations or campaign" of a "force or an anny."
ln fact, other definitions of the term "military base" are:
(a) Gaynor, The N'"' Mititary and Naval Dictionary 32 (rgsr):
"base-A locality from which operations are projected or supported;
the term may be preceded by a descriptive word such as 'air' or
'submarine.' to indicate its primary purpose."
(b) The' Concise Oxford Dictionary of Current Engtish 95 (4th
~.d rgsS):
base:
"1. That on which anything stands or depends, support,
bottom, foundation, principle, groundwork, starting point .... "
"6. (Mil.) town or other arca in rear of an army where
drafts, stores, hospitals, etc., are concentrated (also [base] of
operations)."
2IV, pp. 51-52.
Id.pp. 48, 52, 54, 55 and 56.
' Id.pp. 51-53.paras. 13-16.s6s SOUTH WEST AFRICA
(c) Funk & Wagnalls, New "Standard" Dictionary For the English
Language 232 (rg6r) defmes "base" as:
"6. Mi/. (r) A place or region constituting a basis of opera
tions or a point from which supplies and reenforcements
[sic] may be drawn; as, a base of supply."
Paul H. Clyde, in his book ]apan's Pacifie Mandate, wrote:
"Any discussion of Article 4 of Japan's mandate is complicated
by the fact that the terms employed in the Article Jack explicit
definition. To the general public it may appear that a 'naval base,'
a 'military base,' or a 'fortification' are terms that arc clear in
themselves and require little explanation. To naval and military
experts, however, they are quite otherwise. Explicit definitions in
sorne phases of naval and military science are regarded as dangerous,
since they may limit future action. It is more expedient from the
strategie point of view to employ general terms lacking precise li
mitations. To do otherwise might be to solve the riddle: When is
a fortification not a fortification? ln other words, military men
are by no means always in agreement as to what is and what is
not a fortific1tion. Their definitions have consisted in general
statements."
(6) Emblematic of the change in status which has occurred since
the days of the Burgher Forces is this small news item from The VVind
hoek Advertiser of 6 August rg63:
"New Commanding Officer"
"Commandant F. W. Loods [sic] of the Army Gymnasium in
Pretoria has been transferred to \Vindhoek as the new command
ing officcr of the South West Africa Command.
"He succeeds Colonel P. E. Ferguson who has been transferred
to the \Vcstern Province after two years with the S.\V.A. Command."
In !act, l{egimcnt Windhoek is an integral part of the South African
Deferree Force, and the power to appoint its commanding officer appcars
to have been transferred to Respondent's military staff. It is referred
to as the "South West Africa Command," or, if in !act it is not the "South
\Vest Africa Command," Applicants would wish to raise a question as
to what units other than Regiment Windhoek go to make up such com
mand.
For example, Applicants cite as notcworthy, without othenvise com
menting thereon, the following news item from The Windhoek Adver
tiser of rz Novernber rg63:
"FüRMATIO OF~COMMANDO DISCUSSED"
"Commandant Loots [sic] of the S.W.A. Command in Windhoek
addressed a crowded meeting on Frida y on the possibility of establish
ing a Comma11dunit at Oranjemund.
1Clyde,]apan's Pacifie Mandat204-05 (1935). REPLY OF ETHIOPIA AND LIBERIA
"The meeting unanimously voted for the establishment of a
local unit, subject to the approval of the C.D.M. management.
"A committee was clectcd to proceed with organisational work
pending the management's decision." (Italics added.)
Applicants must confess thal they cannot y1t conceive clearly the
exact nature of Regiment Windhoek. On the one hand, Respondent
(a) admits that the Regiment's "administrative headquartcrs" are at
Windhoek. 2 On the other hand, Respondent (b) denies "that the Regi
ment is stationed at Windhoek." 3 Finally, Respondent (c) states thal
"only a small permanent force administrative staff ... is permanently
4
stationed at Windhoek." These statements seem to imply the follow
ing conclusions (in order), which may or may not have been correctly
inferrcd by Applicants:
(a) Regiment Windhoek's field operations and othcr headquar
ters are at a place other than Windhoek;
(b) the Regiment is, in fact, "stationed" at a place other than
Windhoek; and
(c) a larger group is either (r) from time to time "stationed"
at Windhoek, or (2) "permancntly stationed" elsewhere.
Applicants are also confused by Respondents' statement thal there
is an "administrative headquarters" at \Vindhoek, taken together with
H.espondent's statcment that therc is a "training camp in \Vindhoek." 5
The two concepts do not appear to mesh, yet Respondent has not des
cribecl any possible interrela.tionship which they might have. Both the
phrases "administrative headquarters" and "training camp" imply
that there exist other elements of Regiment Windhoek, such as "tacti
cal" or "field" headquarters, and an "operational'' or "active" camp.
Applicants are equally confused by Responclent's statement thal
"the Citizen Force recruits of the Regiment are ordinary civilians of
South \Vest Africa," 6 since ail military recruits would initially appear
to be, of necessity, civilians. Finally, Rcspondent's statement that "for
the major part of the year, th7refore the camp is not used for military
training purposes [sic}" introduces se-veral ambiguities; it may be
equally interpreted to mean that "the camp is used for training purposes
other than military" or that "the camp is used for purposes other than
military or training."
1 \Vith respect to Respondent's statement {IV, p. 57) that Regiment \Vindhoek
is not an armoured unit (supported by the assertion that "Regiments are grouped
for convenience"), Applicants find it difficult to decide in what category Regiment
'Vindhoek might properly fall. The determinative factor would seem to be its
possession of armoured cars. Applicants find it difficult to imagine what reasonable
classificationthe Regiment might bear, other than that of being "an armoured
unit," as long as it is equipped with armoured vehicles.It could hardi y be argued
that it is actually a unit of infautryartillery. signais, or enginecrs.
2 IV, p.56.
3 Ibid.
4 Ibid.
:s Ibid.
6 Ibid.
7 Ibid.570 SOUTH WEST AFRICA
(7) (a) "The Secretary for DeCence in South Africa Mr. J. P. de
Villiers has bcen published as sa.ying: 'that the territorial sca area
within three nautical miles of the coast, between latitude 23degrees
42 minutes South has becn proposed as a training arca for the
deferree. The area can be roughly described as stretching from a
point hal! a mile south of the mouth of the Swapo-river to a point
eleven miles south of the \Valvis Bay Harbour.' The recent erec
tion of heavy artillery along the Coast of thls particular area has
attracted mu.:::hattention . ... "1
(b) " 'Ten miles out into the semi-desert but within the boun
daries between South Africa owned Walvis Bay and mandated
South West Africa is parked sorne 30 centurion tanks, 25 armed
cars (including Saracens), 20 anti-aircraft guns, 26 field guns and
45 troop caniers. They are painted desert brown, and are hard to
count against the background of the sand. Among them are dunes
lurk armed guards [sic]; try to get nearer and one pops up from
behind a sandhill and waves a rifle. There are 500 trainecs in the
Camp nearer the town. Many more are in other Camps.' " 2
(c) "A Hercules troopcarrier of the South African Air Force lan
ded at \Vindhoek yesterday with a number of trainees and members
of the Mobile Watch on board.
"The trainees were en route from Pretoria to \Valvis Bay where
they will undergo desert training.
"Colonel Pienaar who accompanied them, told reporters that
he could not comment on the activities ofthe members of the Mo
bile Watch. The flight was 'an ordinary one.' He added: 'Nothing
particular in it. At Pretoria it is dry and you have had sufficient
rain for seven years.' " 3
(8) With respect to Respondent's reference to the unauthorized
"Joint Statemenl:" purported to have been released by the Chairman
and Vice-Chairman of the Special Committee on South West Africa on
26 May 1962,' Applicants do not fee! required to reply other than by
quoting the letter of transmittal of 3 August rg6z, from the Chairman
of the Special Committee for South West Africa to the Chairman of the
Special Committee on the Situation with regard to the Implementation
of the Declaration on the Granting of Independence to Colonial Coun
tries and Peoples, of which the third paragraph reads:
"You will note that this report [of the Chairman and Vice-Chair
man, reproduced immediately following, as Part II of A/5212]
makes no mention of the alleged joint communiqué issued by the
South African Government on 26 May rg6z. This, as explained by
the Chairmen of this Special Committee, is due to the !act that the
alleged communiqué was not an official act of this Committee nor
1 Material in single quotes from The Windhoek Advertiser of 1 January 1963,
as cited in a Memorandum submitted to the Secretary-General of the United Nations
by SWANU and SWAPO; reprinted in Sp. Comm. on Implementation, Petitions
at 6 (A/AC. 109/Pet.215) (1964).
1 "Out in the Desert Tanks and Guns," The Star, Johannesburg, 14 May 1962,
as quoted ibid.
3 The Windhoek Advertiser,2 April1963.
4 IV,pp. 6o-61,para. 15. REPL Y OF ETHIOPIA AND LIBERIA 571
of the Chainnan thereof, nor has anyone been authorized either
by this Special Committee or the General Assembly to enter or
join in such a communiqué. This Committee, therefore, does not
consider or recognize said communiqué as anything official or of
any binding effect whatever." 1
This "Joint Statement" has been dealt with elsewhere in this Reply. 2
1
G.A.O.R. 17th Sess., Sp. Comm. on S.\V.A.., Supp. No. nat 3 {A.{5212).
2See pp. 225-226, supra.572 SOUTH WEST AFRICA
B. RESPO,.,DENT's VIOLATIONS OF ARTICLE 2 (r) OF THE .MA,.,DATE
A,._D ARTICLE 22 OF THE COVENANT
I. Introduction
In Submission 5, Applicants request the Court to adjudge and
declare thal:
"... the Union, by word and by action, in the respects set forth
in Chapter VIII of this Memorial, has treated the Territory in a
manner inconsistent with the international status of the Territory,
and has thereby impcclcd opportunities for self-determination by
the inhabitants of the Territory; that such treatment is in violation
of the Union'sobligations as stated in the first paragraph of Article 2
of the Mandate and Article 22 of the Covenant; that the Union
has the dutv forthwith to cease the actions summarized in Section C
of Chaptcr ~V II herein, and to refrain from similar actions in the
future; and that the Union has the duty to accord full faith 1nd
respect to the international status of the Territory .... "
The bases for this Submission, as set out in Chapter VIII of the
Memorials, 2 are: (r) the avowed intentions of Respondent, and
(2) acts of Responclent inconsistent with the international sta
tus of South West Africa. Such acts inclucle (a) general conferral
3
of Respondent's citizenship upon inhabitants of the Terri tory;
(b) inclusion of representatives from South West Africa in the
South African ParJiament; • (c) administrative separation of the
Eastern Caprivi Zipfel from the Territory; 5 and (d) the vesting
of South West Africa Native Reserve Land in the South Africa
Native Trust, and the transfer of administration of "Native"
afbirs to the Respondent's Minister of Bantu Administration and
Development. '
It is submitted by Applicants that Respondent, in treating the
Territory in a rnanner inconsistent with the international status
of a l\!andated area, has at the same time and by reason of such
treatment, impeded opportunities for self-determination by the
inhabitants of South West Africa.
1 1, p. Jg8.
2 Id.,pp. 184-195·
3 Id., pp. rgo-192.
4 Id., pp. 192-193·
j Id., pp.193-194· Thecaption of subsection c. of the Memorials (194)refers
to "the Union," a typographicaerror which should properly read "the Territory."
6 Id., pp. 194-195· REPLY OF ETHIOPIA AND LIBERIA 573
Respondent, in Section C of Book VIII of itsCounter-Memorial, 1
conceding its obligation not to annex or incorporate the Terri
tory, or to commit acts inconsistent with the separate international
status of the Territory, denies an intention to incorporate South
\Vest Africa, denies that any of the cited statements or acts evi
dence such intent, and denies thal such statements or acts are
inconsistent with the international status of the Terri tory. Respond
ent contends further tha.t ils acts of association with the Ter
ritory are not a per se violation of the duty to respect the interna
tional status of the Territory, and thal only an act the purpose or
motivation of which involves unilateral incorporation or annexation
would constitute a violation of Respondent's obligations. This is
so, Responclent asserts, on the grouncl thal so long as Responclent
observes the "specifie" obligations of the Mandate and ils "cluty
towards the inhabitants," "[a] de facto relationship couic! ... le
gitimately develop, which in most respects would be inclistinguish
able from the de facto position obtaining under annexation or
incorporation." 2 Finally, Responclent denies thal any of the acts
of doser association cited above, impecle opportunities uncler which
the Territory's inhabitants may progress toward self-determina
3
tion.
2. Argument
The facts alleged by Applicants in Chapter VIII of the Memo
rials arc not disputed by Responclent; only their legal significancc
has been placed in issue. It will be convenient, therefore, to discuss
the acts and the intent citcd by Applicants, within the context
and framework of the following legal conclusions:
a, In so far as f{espondent's purpose or motive to incorporate
or annex the Territory :is relevant to a determination of Res
pondent's violation of ils obligations as stated in Article 22 of the
Covenant of the League. of Nations and Article 2, paragraph r,
of the Mandate, as Respondent contends, such purpose or motive
clearly emerges from the record herein;
b, Respondent's policies and acts complained of by Appli
cants, including ils rejection of international accountability, and
ils insistence upon the right to govern the Territory on the basis
of an unreviewable discretion, constitute perse, and without regard
to Respondent's purpose or motive, a violation of Responclent's
obligation to respect the separate international legal status of the
Territory; and
c, Respondent's policies and acts complained of by Applicants,
constitute a violation of F:esponclent's duty to promote conditions
1
2 IV, pp. 67-133·
3 1d., pp. J0-74. SOUTH WEST AFRICA
574
under which the inhabitants of the Territory may progress toward
self-determinatior, of the future status of the Territory.
Applicants turn now to a consideration of each of the foregoing
propositions.
a. Respondent's purpose or motive to incorporate or annex the
Territory, in derogation of its separate international legal status,
clearly appears from the record herein; in decisive respects, indeed,
such a purpose is conceded in Respondent's own avowals.
Thus, Respondent explicitly asserts that:
"... the Mandate for South West Africagave effect to a compromise
arrangement which involved, inter alia, that C l\landates were,
in their practical effect, not far removed from annexation." 1
l\Ioreover, according to Respondent:
"... The day to day exercise of the attributes of sovereignty thus
vest in Respondent, and the powers of Respondent in the fields
of administration and legislation are practically as wide as that
of a sovereign power in regard toits own territory." 2
The essence of sovcrcignty has been defined as including "the
power to do everything in a State without accountability .... " 3
Respondent does, it is true, assert that the "only limitations
which fetter or condition" its powers in the Terri tory are the "spe
cifie prohibitions contained in the Mandate" and the "duty to
'promote to the utmost the material and moral well-being and the
social progrcss of the inhabitants of the terri tory.'" •
Taken at face value, this statement appears to concede that the
Mandate is still in existence, and that Respondent recognizes its
duties of international accountability and the rcviewability of its
performance of the Mandate obligations. In !act, Respondent has
devoted a substantial portion of its Counter-Memorial 'to an attemp
ted demonstration that the Mandate "lapsed in toto upon disso
6
lution of the League of Nations." This is, as has been shawn, the
premise upon which Respondent has in !act conducted itself with
regard to the Terri tory and its inhabitants, at !east since November
1948, wh en Respondent referred to "the previous Mandate, sinee
expired.'' 7
Moreover, Responden8 has devoted a substantial portion of its
Counter-Memorial to an alternative contention that its "former
obligations to report and account to, and to submit to the super-
2 II, p. 91.
IV, p. 6g.(Italic3 ioriginal.) (Respondent does not offer an indication of the
respects, if any, in which "day to day" exercise of sovereignty differs from year to
ye3r exercise of the same l?rerogative.)
4 Black's Law DicJionary 1568 {4th ed., 1951).
5 IV, p. 6g.
6 Id., II, pp. 165·256.
Respondent's Submission {a), id., p. 257·
8 Il, pp. 97·164. REPLY OF ETHIOPIA AND LIBERIA 575
vision of, the Council and the League of Nations, lapsed upondisso
lution of the League and have not been replaced by any similar
obligations relative to supervision by any organ of the United
Nations or any other organization or body." 1 This proposition,
moreover, is one which has guided Respondent in its conduct ta
ward the Territory and its inhabitants, at !east since November
1948.
In the light of these contentions and this practice, there is a hol
low, and indeed cynical, aspect to Respondent's characterization
of the "prohibitions" of the Mandate and its "duty" thereunder,
as constituting a "fetter or condition" upon its "day-to-day cx
ercise of the attributes of sovereignty" over the Territory.
Respondent does, it is true, aver that its policies in the Ter
ritory are carried out "in the spirit of the Mandate,''' but th•'
spirit which movcs Respondcnt in this respect is unilaterally
defined, and remains unaccounted for, unreviewed andunreviewable.
Sovereignty circumscribed by such a "fetter" surely is indistin
guishable from the unfettercd kind.
Respondent's daim of the day-to-day attributes of sover
cignty over the Tcrritory reftects a posture which Respondent
bas maintained with regard to its rights and powers under the
Mandate, from its inception.
The records of the Permanent Mandates Commission disclose
its constant effort to assert the separatc international status of
the Territory in the face of Respondent's insistence !hat the Man
3
date was in "practical effeet, not far renwved from annexation."
Two illustrations will suffice to demonstrate the extent of difference
between the Commission and Respondent in this respect.
Thus, the Commission notee! a statement made by General
Smuts before the South African Parliament in which the General
had said:
" ...I do not think it is necessary for us to annex South-\Vest
to the Union. The mandate for me is enough, and it should be
enough for the Union. H gives the Union such complete power of
sovereignty, not onlv administrative but legislative, that we need
not ask for anythini more.''~
A member of the Commission, Mr. Orts, commented upon the
General's statement as follows, inter alia:
"the declaration of General Smuts was of intcrest in so far as it
explained certain decisions of the mandatory Power-for cxample,
regarding State lands and more particularly the railways-of which
the legitimacy bad been contested by the Permanent Mandates
Commission. The Government of South Africa had maintained that
the railways of South-\Vest Africa existing at the time at which
t Respondent'sSubmission (b), Il, p. 257.
2 IV, p. 92.
.II. p. I4.
' Quoted in P.M.e. Min., gth Sess., p. 33· SOUTH WEST AFRICA
the mandate had been conferred upon it had been handed over to
the Union in 'full dominion.' This conception was contrary to
the opinion of the Commission and of the Council of the League of
Nations. If the idca, which was a totally falsc one, prcdominated
in South Afrk:a that thcrc was very little difference between annex
a.tion and the mandate, then this view was explainecl. If the inde
pendence of South-\\'est Africa were recognized, the railways
wouldcertainly belongto South-West Africaand not to the Union." 1
On another occasion, disagreement arase between the Commis
sion and Respondent over the terms of a boundary agreement with
Portugal, in whi·:h it was stated that Respondent "possesses sover
eignty over the Territory of South-\Vest Africa ... lately under
the sovereignty of Germany." 2
ln a report to the League Council concerning the matter, the
Commission stated that "the parallel drawn in the [treaty] be
tween the sovereignty assumee] by the Government of the Union
of South Africa over the tcrritory in question and the sovcreignty
over that territory prcviously held by Germany, seems to imply
a daim to legal relations between the mandatory Power and the
territory it administcrs under its mandate, which arc not in ac
cordance with the fundamental principles of the mandates sys
tem." 3
Respondent's current contention that the Mandate (now asserted
to have lapsed ·in tolo) was, in any event, "not far removed from
annexation" thus reflects its continuing and long-standing posture
of deniai to the Terri tory of a separa te international status. The
conclusion is inescapable that Respondent's purpose and motive
has becn, and remains, that of incorporahng or anncxing the Terri
tory, in violation of its obligation as stated in Article 22 of the
Covenant of the League of Nations and Article 2 of the Mandate.
b. Respondent's policics and acts, enumeratcd in theM emorials, •
and as more lully described below, give practical effect to Respon
dent's explicit and implicit avowals of purposc, cited above.
Such policies and acts, including its rejection of international
accountability and its insistence upon the right to govern the
Territory on the basis of an unreviewable discretion, constitute
ipso facto, and without regard to Respondent's motive or purpose,
a violation of Respondent's obligation ta respect the separate interna
tional staltts of the Territory.
r. Confermenl of South African Citizenship
Conferment of South African citizenship upon the inhabitants
of the Terri tory has the inescapable legal and practical consequence
t Id., p. 34·
3 P.M.e. Min., Ioth Sess.,22.
P.~LC M in.,IIth Sess., pp. 199, 204;cf.P.M.C. Min., 14th Sess., p. II6 .
.. I, pp. IgO-I95· REPLY OF ETHIOPIA AND LIBERIA 577
of identifying the Territory and the Republic as a single political
entity. As the Permanent Mandates Commission, in its proposais to
the League Couneil in 1922, recognized:
" ... It is important, in arder that the principles laid down in
Article 22 of the Covenant may be respected ... that the native
inhabitants of B and C mandated territories should be granted a
national status wholly1distinct from that of the nationals of the
mandatory Power.''
The Commission's policy in this regard was subject only to the
limited exception, that it was:
". . . open to mandatory Powers to which B and C mandated
territories have been entrusted to make arrangements, in con
formity with their own laws, for the individual and purely voluntary
2
acquisition of their nationality by inhabitants of these territories."
The League Council adopted a resolution 3 explicitly providing,
inter ali a:
"The status of the native inhabitants of a mandatcd territory is
distinct from that of the nationals of the mandatory Power and
cannat beidentified therewith by any process having general application."
In accordance with the proposais of the Permanent Mandates
Commission, the resolution left it open for inhabitants of such
territories voluntarily to obtain naturalization from a mandatory
Power.
Respondent concedes that the South African Citizenship Act '
coniers South African citizenship upon the inhabitants of the
Mandated Territory, but contends that what the Council of the
League real!y objected to, in the cited resolution "was a particular
manner of conferment of nationality, and not the !act of conferment
of nationality by itself." 5 Respondent also argues that "if individual
inhabitants could legitimately acquire the nationa!ity of a Man
datory, a de facto position could arise where a large number of, or
even ail, the inhabitants could be endowed with such nationality." 5
It is submitted that neither of these contentions is consistent
with the essential purpose of the resolution which, in the words
of the Permanent Mandates Commission quoted above, was to
assure that in accordance with the principles of Article 22 of the
Covenant of the League of Nations, inhabitants of the Territory
"should be granted a national status wholly distinct from that of
the nationals of the manda tory Power."
1 P.M.e. Min., ·.md Sess., p. 68.
3 Ibid. (ltalics added.)
4 League of Nations Off.J., p. Go4 (1923), quoted in I, p. 190. (Italics added.)
Act No. 44 of 1949, Sec. 2 (2), as amended, South African Citizenship Amendment
6g of 1962, Sec. 29.961, Sec. 2, a:;amended, CommonwealtRelations Act, Act. No.
5 IV, p. gg.578 SOUTH WEST AFRICA
The fact that by voluntary action, any inhabitants of the Terri
tory, or aliof them, might be naturalized by Respondent, does not
justify the prohibited action of compulsory conferment of Respon
dent's citizenship upon them.
As the Permanent Mandates Commission also stated in this regard:
"lt scems contrary to the spirit of the Covenant and to the essence
of the institution of mandates to permit the compulsory natur
alisation, by a single act, of ali the inhabitants of terri tories under
B and C Mandates." 1
The Commission's views were based largely on a memorandum
prepared by its Chairrnan, Marquis Theodoli, which stated, inter
alia:
''The proposais which 1 venture to submit to you herewith on my
own behalf will, doubtless, not astonish any of our colleagues.
They are, indeed, in conformity, not merely with the views exprcsscd
by the representatives of the mandatory Powers as set forth in
our report of ]anuary rzth, 1922, but also, in my opinion, with
the spirit of Article zz.
"A.-First, I consider that it is desirable to give the Council
most clearly to understand that, in our opinion, it would be contrary
to the spirit of the Covenant and to the fundamental principles
on which the institution of mandates is based, that the inhabitants
of the areas in question should unconditionally be assimilated to
the citizens or subjects of the mandatory Power.
"In view of the fact that, in the course of history, annexations
have not always resulted in the imposition on the inhabitants of
the annexed territories of the nationality of the Annexing Power,
is it not evident, a fortiori,that the relations of the l\!andatory to
a mandated a.rea cannat entail that consequence? ...
"C. If wc ,.tate that the assimilation of the inhabitants of the B
and C mandated terri tories ta the nationals of the mandatory Power
would be reg01rdedby us as contrary to the spirit of the mandates
system, and :if we declare, that any national status which respects
this fundamental principle and the rights of these inhabitants
would be regarded by us as admissible, I consider that we shall be
fulfilling both the recommendation of the Council and the duty
entntsted to us ....
"Are we to recognise the right of the mandatory Power to natur
alise the inhabitants of the terri tories under its mandate?
"In so far as naturalisation of this kind is a purely individual
and voluntaty action, it does not appear to me to have sufficient
international importance to justify the intervention of the League
of Nations. If the laws of a mandatory Pmver, in this case, of the
Union of South Africa, should provide for the voluntary natur
alisation of foreigners living outside its actual territory, it is
evident that there is nothing in the Covenant of the League of
Nations forbidding the offer of such naturalisation to the inhabitants
of the mandated te2ritories by the mandatory Power and its ac
ceptance by them."
1P.M.e. Min., 15th Sess., p. 276. (Italics added.)
1P.M.e. Min., 2nd Sess.• p. 86. REPLY OF ETHIOPIA AND LIBERIA 579
Upon consideration of the views of the Commission Chairman,
the Permanent Mandate; Commission itself, and of the League
Council, it would seem apparent that Respondent's conferment of
South African citizenship upon the inhabitants of South West
Africa in 1949, by a process "having general application," is a
violation of the basic premises of the Mandates System, and a
violation of the duty to respect the separate international status
of the Territory.
2. Inclusion of Representatives from South West A/rica
in the South African Parliament
Inclusion of representatives from South \Vest Africain the South
African Parliament is another act whereby Respondent violates the
duty to respect the separate international status of the Mandated
Tenitory. Respondent denies that participation by South West
African representatives (ali "White"), in ali matters before
the South African Parliament, is inconsistent with the interna
tional status of the Territory. Respondent contends that it, "as
a sovereign state, has full authority to allow anyone it wishes
to participate in its Government," 1 that the United Nations has
permitted similar arrangements in the past, and that opportunities
for self-determination are not thereby impeded.
The actual attitude of the United Nations on the matter is
reflected in findings of the Committec on South Wes.t Africa. Thus,
in r954, a report stated, inter alia:
"The Committee, while reserving its opinion on the strictly legal
aspect of this question, believes that any representation of the
Territory of South West Africa in the Union Parliamcnt and its
continued representation therein by Union nationals of European
descent is likely to prejudice the development of the Tcrritory as
a separate political entity."2
Respondent quotes 3 from a rg56 report of the same Committee
the comment that the Committee could
". . . conceive of circnmstances in which representation of a
Mandated Territory in the legislative institutions of the Mandatory
Power might be of certain advantage to the inhabitants, after due
consultation with them and with proper safeguards for their special
status,as a means of extending to them political and parliamentary
experience and an opportunity to take part in making the laws
under which they live, especially if it were not feasible for the
Territory to have a legislative organ of its own." 4
These qualifications are not, however, present in the instant
case, as the Committee itself made clear in the balance of the
paragraph from which Respondent quotes the above excerpt:
1 IV, p. 102.
2 G.A.O.R. gth Sess., S.\V.A. Comm., Supp. No. 14 at 16 (A/2666).
3 IV, p. 102.
4 G.A.O.R. uth Sess., S.W.A. Comm., Supp. No. 12 at 8 {A/3151). (Italics added.)580 SOUTH WEST AFRICA
"It [the Committee] is unaware, however, of any such motive in
this case. Th<!existing arrangements are indeed of such a nature
as to have excluded either the consultation or the representation
of the largest section of the population, and that section most in
need of opporcunities for political education. The Territory, further
more, possesses a legislative body of its own. Finally, the members
who represent the Territory in the Union Pa.rliament have a voice
and a vote there not only in matters relating to the Territory, but
in all rnatters affecting the Union itself in which the Parliament is
competent. This latter fact appears to the Committee to imply an
assumption by the Union of sovcreignty over the Mandated Terri
tory-that sovereignty which spokesmen of the Union Government
have in fact claimed on the Union's behalf." 1
The Committee's views in effect reaffirm the views earlier ex
pressed by the Permanent Mandates Commission on the same
subject.
The issue of participation of representatives of the Territory
in Respondent's Parliament arase frequently in the Commission's
proceedings. Thus, during deliberations on a proposai by the
Territorial Legislative Assembly that the Territory be recognized
or treated as Respondent's "fifth province" (-a key element of
2
which proposai was the issue of parliamentary representation -)
members of the Commission objected in the following terms:
"... [l]f effect were given to the motion of the Legislative Assembly,
South West Africa would share in the sovereignty of the mandatory
Power. Its representatives would sit in the legislative bodies of the
Union of South Africa and \Vould have a share in the expression
of the will of the mandatory Power .... " 3(Commissioner Rappard.)
"... [l]f South West Africa were incorporated politically in the
Union of South Africa and thus shared in the latter's sovereignty,
it would mean that the obligations and part of the charges of the
South African Commonwealth would devolve upon South West
Africa, which would be contrary to the mandate.'' 4 (Commissioner
Merlin.)
"... [T]he v'"Y idea of the incorporation of the terri tory of South
West Africa in the Union was contrary to the mandate. That
territory indeed was treated as a minor and bad been placed forthat
reason under mandate. The situation could not be altered, unless
South \Vest Africa were declared to have attained its majority.
If South \Ve5t Africa were incorporated in the Union, that would
create the paradoxical situation of a minor participating in the
sovereignty of the State under whose guardianship it had been
placed, because the resolution of the Legislative Assembly of South
West Africa said that South West Africa would be represented in
the House of Assembly of the Union of South Africa and the Senate
thereof. That was quite contrary to the present status of the terri
tory. Seeing that the population of South West Africa included
1 Ibid.
2
3 Id.,p.a164.oted in P.M.C. Min., z6th Sess., 50.
• Id., p. r6_s. REPLY OF ETHIOPIA AND LIBERIA ssr
about 300,ooo natives, it was doubtful whether that territory
could be declared to have attained its majority and be given an
indepcndent status ... ."1 (Commissioner Sakenobe.)
In the light of thesc foregoing views of responsible organs of
bath the United Nations and the League of Nations, opposing
inclusion of representatives from South West Africa in the South
African Parliament (particularly when taken together with general
and automatic conferment of Respondent's citizenship upon
inhabitants of the Territory), it is submitted that such a policy
defeats Respondent's duty to respect the separate international
status of the Territory. It is accordingly a violation of Article
22 of the Covenant of the League of Nations and of Article 2, para
graph I, of the Mandate.
3. Administrative Separation of the Eastern Caprivi Ziptel from
the Terri/ory
Administrative separation of the Eastern Caprivi Zipfel from
the Mandated Territory by Respondent is another act which,
Applicants submit, violates Respondent's duty to respect the
separate international status of the Mandated Territory.
Respondent's explanation of the reasons underlying transfer
of administration of the Eastern Caprivi Zipfel from the Adminis
trator of South West Af:rica to the South African Government 2
centres on its assertion that "ever since the inception of the Man
date, it has been found impracticable to administer the area
3
from South \Vest Africa."
In Applicants' submission, and conceding that the Eastern
Caprivi Zipfel is not readily accessible from the rest of the Ter
ritory, Respondent has laken unjustified and improper advan
tage of an exceptional situation. In support of such submission,
Applicants refer to the "General Conditions which must be ful
filled before the Mandate Regime can be brought to an End in
Respect of Country placed under that Regime," approved by the
Council of the League of Nations on 4 September 1931, after
referral by the Permanent Mandates Commission. '
In the Memorials, Applicants cite, and acceptas their own, the
view of the United Nations Committee on South West Africa that
such separation is likely to prejudice General Condition (b), viz.,
that the Mandated Territory "must be capable of maintai5ing its
territorial integrity and political independence."
Respondent contends that the said General Condition was
"intended to arise for consideration only when it is proposed to
1 Ibid. {Italics added.)
2 Froc. No. 147 of 1939 (S.A.'I, cited p. IIO,footnote 5·
3 IV, p.III. ,
• P.M.C. Min., 2oth Sess., p. 228.
5 Cited in 1, p. 194, foot1.te582 SOUTH WEST AFRICA
bring the 1\Iandatory régime in respect of a particular territory
to an end by the grant of independence. It would, for example,
have no application in a case where the Mandatory régime in
respect of a territory is terminated by lawful incorporation of
that terri tory in another independent State .... " 1 ·
It seems clear, however, that the said General Condition
is applicable throughout the course of the development of a Man
dated Territory, and not merely in connection with a proposai to
bring a Mandate régime to an end.
Morcover, the General Condition is applicable even in a
situation in which a Mandated régime ended by lawful incorpor
ation, inasmuch as such incorporation must be the result of a
free exercise of the right of self-determination, implying a choice
among severa! alternatives, one of which might be independence.
Irrespective of the ultimate choice by the inhabitants of a Man
dated Terri tory, the Terri tory must, prior to such choice, "be cap
able of maintaining its territorial integrity and political indepen
dence.''
Administrative separation of the Eastern Caprivi Zipfel neces
sarily prejudices this Condition, at !east in so far as the area
itself is concerned. Even if problems of accessibility make admin
istrative separation expedient, it is incombent upon Respondent
to take other steps to preserve the territorial integrity of the
i\Iandated Territory as a whole, and to dcvelop the "sense of
territorial consciousness among ali the inhabitants" which is
required by the United Nations. Such a responsibility is implicit
in the undertaking of the Mandate itself.
Far from taking measures, the Proclamation of transfer provided
that, thenceforward,
". . . the E,c;tern Caprivi Zipfel shall cease to be administered 2
as a part of the Mandated Territory of South West Africa.... "
The Permanent Mandates Commission ceascd to function in the
yearof the adoption of the foregoing Proclamation, and th us the Com
mission hacl no opportunity to consicler or express views thereon.
Responclent's :failure to take any measures clesignecl to preserve
the territorial integrity of the Mandated Territory as a whole,
Respondent's total legal separation of the Eastern Caprivi Zipfel
from the Terri tory, and Respondent's annexation of the area, must,
in Applicants' mbmission be regarded as elements in Respon
dcnt's plan to incorporate and annex the Territory as a whole.
By such actions Respondent has failed and refused to respect the
separate international status of the Territory, thereby violating
Article 2 of the Mandate and Article 22 of the Covenant of the
League of Nations.
1
2 IV, p. IIS.
XVIII, p. 28.147 of 1939, (S.A.) in The Laws of South West A/riI9J9, Vol. REPLY OF ETHIOPIA AND LIBERIA
4. Vesting of South West Africa Native Reserve Land
in the South Ajrica Native Trust
Vesting of South West Africa Native Reserve Land in the South
Africa Native Trust is a fourth measure which, it is submitted,
violates the duty to respect the separate international status of
the Mandated Territory. 1
As a justification for such a measure, Respondent cites the views
of Commissioner van Rees (as stated in 1923). on the question of
ownership of property within the Mandated Territory, 2 the views
of the Legal Section of the Secretariat on the same problem, '
and the Resolution of the Permanent Mandates Commission of
4
7 July 1924, as later endorsed by the Council of the League.
In Applicants' submission, the foregoing make it abundantly
clear that property within a Mandated Terri tory may not be owned
by a Mandatory Power in the same legal sense that a State may
own property subject to its own sovereignty. Thus, Commissioner
van Rees commented that:
"the mandatory State is merely the governor of a territory which
does not belong to it. ... This consideration excludes the possibility
of the territory being regarded as legally the property of the manda
tory Power and, consequently, as part of the iVIandatory'sterri
tory.
"That which has been handed over to the mandatory State ...
has been handed over to him as governor and not as State; conse
quent!y, there has been no final alienation and no real rights have
been acquired by thal State .... " 5
M. van Rees concluded by stating that:
"Whatever may be the extent of the legislative competence of the
Mandatory, there would appear to be no doubt thal he could not
deduce from that competence the right to lake advantage of it
so as to make the whole orpart of the territory his own property ....
"... [N]o enactment by those [mandatory] Powers can make
any portion of the territories under their administration form part
of the State lands of the mother-country." 6
The Legal Section of the Secretariat came to a similar conclusion:
"... the right over lands and other public property has not become
a right of absolute ownership such as thal which the State possesses
over State domains in its own territory." 7
Finally, the Resolution of the Permanent Mandates Commission
1 The legislative and administrativactions by which this measure was effected
are described inV, pp. I26-128.
2 Id., pp. 122-12J.
3 Id., p. 124.
5 Id., p. 125. (Text of Resolution found in P.M.e. Min., 4th Sess., p. 157.)
6 P.M.e. Min., Jrd Sess., p. 221.
7 Id., pp. 222-23.
P.M.e. Min., 4th Sess., p. 164. SOUTH WEST AFRICA
adopted on 7 J uly 1924 and subsequent! y endorsed by the Council
of the League, stated that Manda tory Powers do not possess:
"... any right over any part of the territory under mandate ether
than that r.,.ulting from their having been intrusted with the
administration of the territory.'' ·
The South West Africa Native Affairs Administration Act of
1954 {which Act vested the South West African Native Reserve
Land in the South African Native Trust). is by its terms in conflict
with the conclusions of the Legal Section of the Secretariat to the
effect that Respondent acquired no "right of absolute ownership"
of lands and other public property in the Territory. Thus, Section
5 of the Act provides:
"(r) Notwithstanding anything to the contrary in any law con
tained the Governor-General may, by proclamation in the Gazette
and in the O,lficiatGazette of the territory, with the approval by
resolution of both Houses of Parliament, rescind any reservation
of or setting apart of any land or area referred to in sub-section(r)
of section four, or of any portion of such land or area, subject to
land of at least an equivalent pastoral or agricultural value being
reserved or set apart, in terms of any law in force in the territory,
for the sole use and occupation of natives.
"(2) Any land or area in respect of which the reservation or settlng
apart is rescinded in terms of sub-section (r) shall become unalienated
State property and may be dealt with as such, and the provisions
of sub-section (1)of section four shall apply to any land rese2ved or
set apart in pursuance of the provisions of sub-section (r)."
The power, reserved to Respondent by the terms of Section 5 (z)
above, to reserve or set apart lands in the Territory and treat them
as "unalienated State property" is, ipso facto, a violation of Respon
dent's duty to respect the territorial integrity of the Mandate.
Such reserved power must, in addition, be appraised in the light of
Respondent's refusai to submit its policies and acts in respect of
the Territory to international review, supervision or accountability.
For the foregoing reasons, Applicants submit that the measures
here complained of must be regarded as elements of Respondent's
plan to incorporate and annex the Territory into the Republic.
5. Transfer of Administration of "Native" Atfairs to the
South African Minister of Bantu Administration
and Development
Final!y, Applicants submit that the transfer of administration
of "Native" affa.irs to the Minister of Bantu Administration and
Development is inconsistent with Respondent's duty to respect the
separate international status of the Mandated Territory.
1 P.M.e. :\tin., 4th Sess., p. 157.
2 Act No. 56 of 1954, Sec. 5, Statutes of the Union of South A/rica I954. 563. REPL Y OF ETHIOPIA AND LIBERIA sss
Respondent seeks to justify this measure on the grounds that:
". . . trans fer of the administration of Native Affairs from one
organ, or agent, of the State to another can in no way affect the
international status of the Territory, and, also, that it can in no
way amount to integration not permissible in terms of the Mandate.
It is submitted, furthermore, that the choice of the organ, or agent,
through which the administration of Native affairs is to be conducted
is a matter which has, from the very inception of the Mandate,
lain entircly in the discretion of Respondent." 1
Applicants submit that. the transfer of the administration from
the Administra tor to the South African Minister of Bantu Adminis
tration and Development signifies more than a mere change of
agent.
The measurc should be viewed as merely one of many measures
identifying the Tcrritory and the Republic as a single political
entity. As found by the United Nations Committee on South West
Africa, such transfcr "forms part of the proccss and policy of
progressive political integration of the Territory with the
Union .... "~
Moreover, such trans fer is clearly designed, again in the words
of the Committee on South West Africa, to
"... bring about as complete an assimilation of 'Native' policies
in the Union [now Republic] and the Territory, taken as a whole,
as the Union Government may wish to achieve. The Committee
recognizes that the Union Government might have been able to
bring about this assimilation [of policy] by leaving powers in respect
of 'Native' administration in the hands of the Administrator, as its
agent. The Committee had hoped, however, !hat with the consti
tutional and political development to which the people of the
Territory arc entitlcd, the Administrator's powers in this field
would progressively be tempered and ultimately wholly controllecl
by fully resprescntative, executive and legislative organs to be
establishecl in the Tenitory .... [H]is presence in the Territory
and the authority vested in him for the management of its affairs
are capable of serving CLndshould serve to the internationalcommu
nity, to which the Union Government is responsible, as a symbol
of that Government's respect for the special status and the integ
rity of the Territory." 3
For the foregoing reasons, Applicants submit that, in itself and
viewed as one of many measures (described in the Memorials and
in this Reply) by which Respondcnt has manifested its intention
to incorpora te and annex the Territory in derogation of its separa te
international status, the transfer of administration of "Native"
affairs from the Administrator of the Territory to Respondent's
Minister of Bantu Administration and Developmcnt is a violation
1 IV, p.120.
2 G.A.O.R. uth Sess., S.\V.A. Comm., Supp. No. 12 at II (A/JI5I).
3 Ibid.sS6 SOUTH WEST AFRICA
of Respondent's c·bligations as stated in Article 22 of the Covenant
1
of the League of Nations and Article 2 of the Mandate.
c. The policies and measures above described are severally,
and in their totality, incompatible with Respondent's duty to promote
conditions u11derwhich the inhabitants of the Territory may progress
2
toward self-determination.
Such policies and measures, particularly in the light of Respon
dent's deniai of international accountability, violate the territorial
integrity of the Mandate and its political independence. The thrust
and effeet of such measures is to foster disintegration of the Terri
tory and its political dependence upon Respondent.
It is self-evident that such a state of affairs is incompatible with,
and frustrating of, progress of the inhabitants toward self-deter
mination. It is to the contrary, consistent only with Respondent's
avowed purpose and manifest plan to treat the Mandate as "being,
in effect, close to annexation," 3 and in line with Respondent's
explicit disclaimer:
"... that its right of administration is based on continued existence
of the Mandate." 4
For ali the foregoing reasons, Applicants submit that the Respon
dent's policies and acts, described in Chapter VIII of the Memorials
constitute a violation of its duty to respect the international status
of South West Africa and to promote the social progress of the inha
bitants of the Territory, including their progress toward self-deter
mination and, accordingly, violate its obligations as stated in Article
22 of the Covena.nt of the League of Nations and Article 2 of the
Mandate agreement.
1 Respondent's cc-ntinuing purpose to carry out to the fullest extent its plan
for incorporation and annexatîon of the Territory is confirmedby itsendorsement
of the principles of the Odendaal Commission, cited supra, p. 3r3. Among its
findings and proposa!s, the Commission has recommended that twenty-two branches
of the South \Vest Africa Administration concerned with "Native" affairs be
transferred to the direct control of Respondent'sGovernment, thus placing under
such control ali matters affecting the overwhelmingmajority of the inhabitants of
the Territory.
21, p.195·
3 II, p. 15.
• Id., p174. IŒPLY OF ETHIOPIA AND LIBERIA
C. RESPONDENT'S VIOLATIONS OF ARTICLE 7 (r)
OF THE MANDATE
1
Applicants reaffirm their contention that Respondent's policies
and actions complained of in the Memorials,' constitute an at(empt
on the part of Respondent unilaterally, and without consent of the
United Nations, to modify the terms of the Mandate.
On the basis of'the demonstration made in the lvfemorials, and
elaborated in this Reply, that Respondent has admittedly dealt
with the Territ ory as if it were vested with "day-to-day sovereignty"
thereover and that Respondent has denied obligations of inter
national accountability while at the same time asserting rights of
administration and possession, Respondent's policies and actions
refiect its prcmise that the Mandate has survived, but only to the
extcnt necessary to give Respondent the colour of a daim to the
Terri tory.
No more drastic or effective "modification" of the terms of the
Mandate is imaginable than one which disclaims duties white
asserting rights.
Respondent misconstrues Applicants' Submission 9 3 as being
limited to a complaint that Respondent is, or has been "motivatcd
by an intent to modify the terms of the Mandate." 4
As Applicants have made clear, Respondent's violations of the
Mandate in this, as in other respects, do not turn upon the question
of "good or bad faith," or subjective motivation. Respondent is
presumed to intcnd the reasonably predictable consequences of
its acts. In this sense, intention is implicit in Respondent's conduct
and Respondent has conducted itself with regard to the Territory
in a manner consistent only with a Mandate the terms of which
would be utterly incompatible with those of the Mandate in issue.
* • *
1
1 Chapters V, VI, VII, and VIII.
3 1, p. tgS.
4 IV, p. 136. CHAPTER VIII
SUBMISSIONS
Upon the basis of the allegations of fact in the Memorials,
supplemented by those set forth herein or which may subsequent! y
be adduced before this Honourable Court, and the statements of
law pertaining thereto, as set forth in the Memorials and in this
Reply, or by such other statements as hereafter may be made,
Applicants respectfully reitera te theirprayerthatthe Court adjudge
and declare in accordance with, and on the basis of, the Submissions
set forth in the Memorials, 1 which Submissions are hereby reaf
firmed and incorporated by reference herein.
Applicants further reserve the right to request the Court to
declare and adjudge in respect of events which may occur subse
quent to the date of liJing of this Reply.
Applicants further reiterate and reaffirm their prayer thal it
may please the Court to adjudge and declare whatever else it may
deem fit and proper in regard to the Memorials or to this Reply,
and to make ali necessary awards and orders, including an award
of costs, to effectuate its determinations.
Agents for the Government Agents for the Government
of Ethiopia: of·Liberia:
(Signed) TESFAYE GEBRE-EGZY (Signed) NATHAN BARNES
(Signed) ERNES'I A. GROSS (Signed) ERNEST A. GROSS
The Hague, zo June rg64
1 1, pp. 197-198. ANNEX IO
OBSERVATIONS CONCERNING THE MEMORANDUM ON
THE RECOMMENDATIONS OF THE COMMISSION OF THE
ENQUIRY INTO SOUTH WEST AFRICA AFF AIRS
REPRODUCED IN THE SUPPLEMENT TO THE
COUNTER-MEMORIAL
1
ln the Mcmorandum submitted as "AnnexA" to the Supplement to
the Counter-JlJemorz'al, H.espondent expressed the intention of the
Government, during the pendency of these Proceedings, to defer, inter
alia,decisions "on any of the recommendations concerning the consti
tution of Homelands as sclf-governing areas." 2
Respondent also stated that:
"... Until the [instant] case has been concluded, the Government
will therefore refrain from action which may be regarded-even
theoretically-as detrimental or prejudicial to the alleged rights of
the Applicant States, or which may unnecessarily aggravate or
extend the dispute before the Court." 3
H.espondent has nevertheless indicated its intention to proceed with
certain measuresof implementation of rccommendations of the Odendaal
Commission Report, and such measures include the following which
clearly depend, inter alia, upon the basic premises of apartheid: _.
(r) IV, p. 204, Sec. 7 (b) (v): Irrigation Scheme for Orange River
Settlement for "Coloured" farmers [paras. 422 and 1476 A. (10)].
(2) Page 205, Sec. 8 (a) (i): 700 miles of roads as internai connect
ing links in "non-White" areas (to be administered by the Depart
ment of Bantu Administration and Development) [paras. 1370 and
1509 (8)].
(3) Page 207, Sec. 9 (b): Assisting and encouraging the inhabitants
of the "non-White" areas in prospectîng for and exploîtîng the
mineral occurrences in such areas [para. 1481 (g)].
(4) Page 207, Sec. IO (a)-(/): lndustrial development, with the
assistance of the Bantu Investment Corporation, of:
(a) livestock, canning factory, and bides [para. 1482 (k) (i)];
(b) furniture factory in Ovamboland [para. 1482 (k) (ii)];
(c) decortication of jute in the Okavango [para. 1482 (k) (iii)];
(d) exploitation of salt pans in Ovamboland [para. 1482 (k) (iv)];
(e) "Native" handiwork and home industries [para. 1482 (k) (v)];
(f) a clothing factory in Ovamboland [para. 1482 (k) (vi)].
(S) Page 207, Sec. n: Provision of experimental farms, demon
stration farms and training facilitiesfor "non-\Vhite" groups
[para. rz83(ro)-(rz),(r4), (rs)J.
-,-..,---'-(6...:)ges-zog, Sec. 12: Provision for (r) more advanced and
1 Approved by a resolution of the House of Assembly of the South African
Parliament on 8 May 1964(Supplement to the Counter-MemoriIV, p. 197, para. 1).
2 MemoYandum, Sec. E, para.21 (id.p. 214).
3 Memorandum, Sec. F, para. :!2 (id., p. 215.)
4 In the following description of mensures of implementthe page references
given in italie::;are Supplement to the CounteY-MemoYithe sectional references
immediately following (also in italics) are ta sectioMemoYandum contained
therein, and the relevant paragrareferences to thOdendaal Commission Report
follow, in brackets, a brief description of the relevant measure of implementation. SOUTH WEST AFRICA
590
greater number of schools, hostel facilities and facilities for training
of teachers (applying "mainly to the areas of non-White groups");
and (z) givin,g effect to the Commission's recommendations con
cerning the extension and improvement of the nature of the educa
tional services ("particularly for the non-White population groups":
this being in accordance with the policy on "Native" Education)
[(r) paras. 10<:3-54; (z) paras. ro55-97J.
(7) Page zog, Sec. IJ: Erection of at !east twenty new hospitals
and clinics ("for the non-White groups") [paras. 8g3, 8g6, Sgg, gor,
902, 904 and 909].
(8) Page 2IO, Sec. r4: Purchase of "White"-owned farms "in
contemplated non-White homelands." (Cf. fourth sentence under
"Homelands," in Sec. 21 at p. 23; fourth full sentence on p. 24;
"... [the Government] shares the view that there should be no
unnecessary delay in taking the next steps in regard to [making
available to certain non-White groups]" "considerable additional
portions of the Territory, including areas now owned by white
persans ... ") 1
(9) Page 2!0, Sec. I4: Purchase of (r) Welwitschia township and
townlands and (2) Gibeon township and townb.nds [(r) para. 337;
(2) para. 393].
(ro) Page no, Sec. r4: Purchase of farms neccssary for the Irri
gation Settlerncnt on the Orange River for "Coloured" farmers
("an ordinary settlemcnt schemc for needy and rural Coloured per
sans") [para. 422].
(rr) Pages :2I0-2II, Sec. rs: Appointment of Committee of Experts
(whose tcnns of reference are "to enquire into and submit a report
on ali the practical problems ta be taken into account when the
rearrangemcnt of administrative and financial relationships are
considered") (italics added) [para. 236].
(r2) Page 2II, Sec. r6: Making funds available for "coloured"
2
housing and •:ommunity centres [para. 1509 (4)].
Under Section D of the Memorandum ("Matters on which the Author
ities concerned will take their own decisions"). Respondent has likewise
1 A survey of the farms referred ta in the Odendaal Commission Report will readily
show the extent of possible implementation. The paragraphs of the Report naming
the ("\Vhite" -owned) farms tabe purchased, and the total hcctareage of such farms,
are: para. 326{b) (Il):Ha. I5,5JI; para. 339: Ha. r,872,794-42I6; para. 353= Ha.
rz6,r8r.4002; para. 388: Ha. 73,789.6520; and para. 395: Ha. I,ZJ4.95I-9I22.
The combined hectareage of the \Veltwitschia and Gibeon ("White") townships
and townlands (paras. 337 and 393) is 82,920.3. The total "White" land to be
purchased is thcn Ha. J,406,r68.686, or (a.t Ha. 1,000=3.86 square miles) 13,147
square miles. This is 302 square miles more than the combined areas of the states
of Connecticut and New Jersey (5,009 and ;,836 miles, respectively), and I69 and
1,368 square miles more than the areas of The Netherlands and Belgium (12,Q78
and 11,779 square miles, respectively).
2 For the decision with respect ta the construction and extension of sixteen
principal and thirty-one secondary airfields, see Memorandum, Sec. 8{b) (iand (ii)
(Supplement to the Cottnter-Memorial, IV, p. 206); see, in this connection, the dis
cussion with respect to the potential military use of airfi.elds in the Territory,
p. 561, supra. REPLY OF ETHIOPIA AND LIBERIA 59I
indicated its intention to perm1t the "authorities concerned" to proceed
with the certain measures.
Under Section G of the Jv!emorandum ("Financial Implications of
Decisions and Interim Arrangements for Their Implementation"),
Respondent has stated that "a special temporary committee will be
appointed to serve as a link between the Central Government and
the Administration of South West Africa, in arder to ensure the smooth
working of the above-mentioned interim arrangements." 2
The "interim arrangements" are those described in Section 25. 3 Sec
tion 25 initially states that responsibility (for the administrative
implementation of decisions) will rest with the Republic Government or
the Territorial Administration, "depending upon which authority is at
present rcsponsiblc for matters of the relevant nature." It continues,
however, to offer the suggestion that the Territorial Administration may
"enlist the co-operation of expert bodies ... or even of aState department
of the Republic ... " if the Territorial Administration is "not equipped ·
to take action itself, or for otltcr rcasons prefers ta appoint an agent to
carry out the work .... "4
Taken together with the reference in Section 27 to the "link between
[the Governments) . . . to ensure the smooth working of the above
mentioned interim arrangements," this cntire section appears to be
designed to lay a foundation for implementation of the recommcn
dations of the Odendaal Commissz"on Report relating to the transfcr
of Stàtc services from the Territorial to the Republic Administration.
As such, this would involve a step toward incorporation or annexation
of the Territory, and would, in any event, be inconsistent with the
5
international status of the Territory. Similarly, it would appear that
the conteffiplated action allows a substantial modification of the terms of
the Mandate, without the consent of the United Nations. 6
Applicants have analyzed the Memorandum in arder to identify
measures contemplated therein as measures whic:h, potentially or in
practice, would be "detrimental or prejudicial to the ... rights of the
7
Applicant States,'' and inconsistent with Applicants' Submissions herein
as weil as with the relief which Applicants pray from this Honourable
Court.
1
Memorandum, Sec. 17 (Supplement to theCounJer-JJfemorial,IV,p. 211): " ..the
necessary steps will be taken" concerning:
(a) hostels (for Basters and "Coloureds") [para. 1033];
(b) syllabuses (mother tangue instruction) [para. 1064];
(c) teacher training (in mother tangue instruction context) [paras. 1072-78];
(d) tcchnical and special education (clcarly based on general plan for the allcged
"homelands") [paras. 1080-84]; and
(e) improvcment of agriculturalservices and activities (clearly based on~encrai
plan for the alleged "homelands") (para. 1283(7)-(15)];and
(f) aicfields [pacas. '375(•)-(h)].
2 Alemorandum, Sec. 27 (IV, p.217).
3 Id., p. 216. Sec.24 is descriptive only; Sec.26 involves a consideration of the
financing of the recommendations; the only operative section is Sec. 25.
4 Ibid. (Italics added.)
3 Vide Applicants' Submission 5, I, p.198.
6 Vide Applicants' Submission 9, ibid.
7 JJ.femora1ldwn, Sec. 22 (Supplement to the Counter-Menwrial, IV, p. 215).59 2 SOUTH WEST AFRICA
Such possible implications and consequences of the Memorandum
are underscored by Respondent's explicit endorsement of
"... the main features of the [the Commission's] argument and
recommendations as an indication of the general course to be adop
ted in the next phase of the development of South West Africa.... " 1
\Vith specifie reference to the Commission's proposais for partition
of the Territory, Respondent announced also that it
"... endarses the vicw that itshould be the aim, as far as practi
cable to develop, for each population group its own Homeland, in
which it can attain self-determination and self-realization." 2
1
.l\1emorandum, Sec. 5 (IV, p. 203).
2 J\.femorandum, Sec. 21 (id.,p. 213). •
ANNEX II
SUPPLEMENTARY MATERIAL CONTAINING ADDITIONAL
VIEWS OF SOUTH AFRICANS WITH "FIRST-HAND
KNOWLEDGE" OF RESPONDENT'S POLICIES
(Suppiemental to excerpts quoted supra, pp. 280-293.)
(r) "White" South Africans
(a) Sc!tolarly Authorities
(i ) Dr. Leo Marquard, a historian of Afrikaner ongm, living in
Cape Town, in a Presidential acldress ta the Council of the South Afri
can Institute of Race Relations:
"Our problem is fundamentally the same as that of any other cola~
niai power; how to termina te colonialism reasonably and peacefully.
Our problem is not unique unless we want to rnake it so. Nor is the
solution unique. It is to renounce political power over colonial sub
jects. For Europe, this takes the form of withdrawing political author
ity; for us it must take the form of sharing political authority with
our colonial subjects. But in bath cases, a renunciation of political
power is involved ....
"The task of those who have discarded the gloomy creed of apart
heid which is, in plain English, perpetuai colonialism, is perfectly
clear. It is no less than t.o persuade South Africa to sec colonialism
for what it real!y is; ta tell her that the cast of ending it will be enar
mous; but it will not be measured in pounds, shillings and pence-it
will be measured in the renunciation of pride and political power; to
tell her that it will involve the painful process of liberating al! South
Africans, white and non-white, from the colonial chains that are
holding her dawn.
"As a liberal South African, a republican burgher by birth, I can
only plead that you throw everything into this task of bringing
white and non-white togethcr before it is too late .... " 1
(ii) Report of Academicians, Jurists and others, opposing the "Ex
tension of University Education Act of 1959" (prohibiting education
of "Whites" and "non-Whites" in the same university):
"The open universities declare that legislativeenforcement of
academie segregation on racial grounds is an unwarranted inter
ference with university autonomy and academie freedom. These
are values which should not be interfered with, save with the utmost
circumspection; and the onus lies upon any government which con
templates such interference to justify its proposed action clearly
and irrefutably.
"The open universities 'believe that the policy of academie non-
1
South Africa's Colonial Pol25-26(rq57). SOUTH WEST AFRICA
594
segregation provides the conditions under which the pursuit of truth
may best be furthered; and that it has promoted interracial harmony
and understanding. They are convinced that to impose academie
apartheid upon them would deprive the South African community
as a whole, botb. white and non-white, of a service which has proved
beneficiai. . . .
"It should be noted, first, that ever since the days of van Riebeeck
the white settlers and their descendants in South Africa have been
dependent on the services of non-white labourers, with the result
that whites and non-whites have become intermingled to such an
extent that complete territorial separation is beyond the bounds
of possibility . . . South Africa cannat now be transformed into a
number of separa te uniracial states. 1 t is a single multiracial state.
"Secondly, tb.ere are two distinct 'established traditions' among
white South Africans as to how a multiracial state should be organi
zed....
"The policy of the two open universities in admitting non-white
students stems from one of the established South African traditions
the one moreover which is more in accord with the values of Western
civilization ....''1
(iii) Dr. Leo Kuper, formerly Professor of Sociology, University of
Natal; presently Professor, University of California (U.S.A.):
"... Apartheid is an exclusive or tribal ethic with the familiar empha
sis on one's own group as the people; the Arikaners are die volk,
the chosen of Grod, with a heavenly mission in Africa. Therc is also
the familiar double standard of morality. Apartheid idealizes the
white man and debases the non-white; it offers the former unbounded
opportunities and the monopoly of the developed industrial wealth
of the country, white it carefully restricts the !ife-chances of non-white
and compensates for this restriction with the illusory promise of
opportunities in areas still to be developed. Within the white group
apartheid emphasizes solidarity, respect for person and property;
outside the white group, it compels separation and denies persona!
and property rights which do not fit within the master plan ....
"ln a broad way, the conflict between the races in South Africa is
a conflict between the exclusive ethic of apartheid and the universal
ethic of democracy. The non-whites are rnoving away from caste and
tribalism, while the whites are moving towards these systems; the
non-whites increasingly give their allegiance to a universal ethic, the
whites proclaim an exclusive ethic." 2
(iv) Dr. P. V. Pistorius, Professor of Greek, University of Pretoria
(Afrikaans-medium) :
"The problem of human relations has overtaken us. We have to
accept the hard. inescapable fact that the Bantu and the Europeans
are together in this country and together they will remain. They
must either solve their problems or perish, and the solution of those
problems cannot be one~sid Tehd.whites alone cannat solve them.
It must be done by sincere co-operation. In the face of the rising
Bantu nationalism of today, of which we are to a large extent the
1 The Open Univevsities in South A/ric5-6,30-31 (1957).
t Passive Resistan,;e in South Afr210 (1956). REPL Y OF ETHIOPIA AND LIBERIA 595
creators, it is foUy to suppose thal a white parliament, a white church
or a white Sabra can unilaterally prescribe the fate of the Ban tu. We,
the whites and the Bantu, must reach agreement on the most funda
mental and basic aspects of our lives, in the sphere of our national
ideals, economie interests, political aspirations and whatever other
sphere there is that is basic to modern man, and we have to realize
that we have no platforms on which to meet. No responsible com
mittee would hire its hall for a meeting of whites and Bantu because
the chances are thal the hall would be wrecked by those who object
to mixed gatherings. Only a small fraction of the white population
can speak or understand a native language. We live in the same
country, work in the same factory, meet in the relation of master
and servant in the same house, face the samc common doom of either
living together or perishing together, and yet wc are strangers, ill
at ease when we attempt to discuss anything beyond the ordinary
task of the day. \Vhen a native clergyman for once preaches in a white
church, it is a political incident of the greatest interest. Pictures
are taken, resolutions pa.ssed, protests made, letters written to the
Press! Even the highest university degree or the most erudite learning
and culture would not give the native the right to enter the lowliest
white home as a guest, not because of the animosity of that white
family, but because it is not done. It is not our tradition. It has been
our tradition ta close the doors and the doors are closed. How closed
they are!" 1
{b) Religious Leaders
(i) Rev. Trevor Huddleston, C.R. (South African Anglican); pre
sently Bishop of 1\lasasi, Tanganyika:
"... There has becn little imagination in the planning and none at
ail in the approach ta a community-conscious town in a place such
as Orlando [Township outside Johannesburg]. It is a 'location'-a
'place for natives'-that is the South African ideal: an abstraction
which will serve its purpose and which will be conveniently forgot
ten. lt is a 'location' in another sense also-a 'place' which ta-day is
and to-morrow can be elsewhere. That the people living in it should
care where they live, or have a love for their homes, or dream dreams
of having somewhere to spend their old age: thal is a secondary con
sideration. In the eyes of Dr. Venvoerd it is not worth considering at
all, for it is undesirable. The African is in the town ta work. That is
his function. If he desires a fuller !ife and a sense of 'belonging,' then
he must go to the Reserves. 'The apartheid policy' he said, 'is one of
getting the natives ta grow from their own roots out of their own in
stitutions and from their own powers. lt is a policy of graduai devel
opment through mother tangue and O\\'l'environment, ta bring the
natives to literacy and usefulness in their own circle.' And sa although
there are to-da y millions of Africans in the urban areas, and of those
millions, hundreds of thousands who have been born and bred there:
the town is not and must not be their home. Although their labour is
the foundation of the whole South African economy and forces them
into daily contact with the industrialized society of \Vestem man,
their future is in their past, 'in their own circle,' in the tribalism that
1 No Further Trek 38-39 (1957). SOUTH WEST AFRICA
596
the white man has done his best to smash to bits and that migratory
labour destroys more swiftly than anything else could." 1
(ii) Members of the Catholic hierarchy in South Africa, Archbishop
McCann of Cape Town and Archbishop Dennis E. Hurley of Durban,
h:tve roundly criticized Respondent's policy. For example, in January
rq64 Archbishop Hurley declared, in the Hoernlé Memorial Lecture,
that none of the four conditions required for the "just implementation"
of Respondent's policy was being fulfilled or showed any likelihood of
being fulfilled:
"We have no evidence that the policy will succeed.
"There will be no consultation with the parties most deeply affect
cd with a view t.o obtaining their consent.
"No independent arbitrator will be called in to see that there is a
proportionate share of sacrifice.
"And finally there is no guarantee of a protection of rights during
the time of tran~;ition.
"Elementary justice demands that the consent of alJ parties be
sought and obtained to a policy which can have such far-reaching
repercussions on the residential and economie rights of people." 2
(c) Political Leaders
(i) 1\lrs. Helen Suzman, Member of Parliament; former lecturer in
Economies, University of the \Vitwatersrand (commenting in Parlia
ment on the project for "self-government" in the Transkei [supra, p. 3r2]):
" ... If one looks at the Assembly (of the Transkei) you see that 64
of the mcmbers are to be nominated and 45 are to be electcd. \Vhat
is the value of one-man one-vote in an assemhly of that kind? As 1
say, under Proclamation 400 what sort of free election is there going
to be? Even for those 45 elected members. So much for satisfying the
political ambitions of the Africans inside the Transkei. How much
less will this satisfy the political ambitions of those outside the Trans
kei. Have hon. membcrs forgotten that the urbanized Africans are
the most Westernized and most advanced of our African people?
Do they seriously think that postal votes in the Transkei are going to
satisfy the aspirations of those people? \Vhat absolute nonsense, es
pecially, Sir, as this is meant to be the substitute for al! daims to all
normal civil rights within the Republic of South Africa! ...
"... [The actual goal of the Bill] is not sovereign independence or
self-government but ... to turn the entire African population into
one vast migra+:ory labour force with no daims on any permanent
rights in the so-called White areas of South Africa....
"... This solve,. nothing, Sir. It will not alter in any way the basic
structure of the Black/White relationship-except to worsen it because
racial grievances build up with every drastic measurê which cornes
into being. Therefore I say that this plan is doomed to failure before
it starts. \Vhat is more, Sir, the Government knows it is doomed to
failure and tha.t is why it is building up this vast Defence Force,
not to protect us from external agression, but to protect us against
internai risings....
1Naught for Y our Comfort 53-54 {1956).
2As quoted in The Star, Johannesburgweekly edition,25 January 1964, p. 5· REPLY OF ETHIOPIA AND LIBERIA 597
"... 1 want to point out thal 14 years is the halfway point between
the Government's getting into power and 1978, the magic year; the
magic year when somebody is going to press a button and all the Afri
cans who have been streaming into the towns will turn back and stream
back to the reserves again. So wc have 14 years to go. \Vhat have we
achieved in the past 14 years? Have we even, Sir, achieved what the
Prime l\Hnister called an 'immediate forcing dawn in the curve of influx
into the towns'? Not even that, Sir ... thcre are 1,1oo,ooo more Africans
in the towns than there were ten ycars ago.... "
(ii) Mrs. Margaret Ballinger, I<epresentative of "Africans" in the
House of Assembly, 1937-1960 (commenting on Address of l'rime
ll!inister Verwoerd, quoted in II, pp. 465 ff.
"... The thing thal bothers me is not only is there nothing new in
what the hon. the Prime ~Iinis hasetold us this Session-except,
of course, his intention to abolish Native representation in this House,
and that is only new in time and not in intention ... but ... he is
endeavouring to support this thesis by equating his own actions to
those of Great Britain in regard to Basutoland. 1 think it is bad enough
to have a policy, the justice of which nobody can see, not even his
own side, but, as a good South African, 1 think thal it is terribly
sickening to have that supported by the sort of arguments whichexpose
us to the ridicule of even modcratcly wcll-e2ucated people. This
situation is really becoming quitc absurd .... "
(d)Journalisis
The Star (Johannesburg):
"Few advocates of apartheid really believe the day will ever come
when the 'White' areas of South Africa will be totally denudcd of
Africans.
"lt has, however, been a comfortable myth which the Government
understandably has been loath toshatter too rudely. But its cultivation
gives rise to dangerous illusions, and at the Nationalist Party con
gress in Pretoria this week, the Minister of Bantu Administration,
Mr. Nel, felt it neccssary to go further than any of his colleagues in
the pas! to disillusion the whole-hoggers and put an end to false hopes.
"Quite categorically he said he did not believe the time would
ever come when there would be no Africans in the \Vhite areas. And
in a further concession to reality he said something else which should
be self.evident but which is too olten obscured by the mists of ideal
ogy: 'We will never be able to gel along completely without them.
Our mines and industries would come to a stands till.'
"The most important implications of this somewhat belated admis
sion is that the urban African population can no longer be regarded as
transitory. And since it is here to stay provision must be made for
it on the understanding that there arc millions of men, women and
children who have broken with a tribal pas! and look ahead to a
future divorced from the reserves.
"The Tomlinson Commission estimated that unless the drift from
1 R. of S. A., Parl. Deb., House of Assembl2nd Pari., 2nd Sess. (weekly ed.,
1923U. ofS.A.,3Part. Deb., House of Assembly, 12th Pari., 2nd Sitting (weekly ed.,
1959), Col. 88.sgs SOUTH WEST AFRICA
reserves was slowed down or stopped, there would be 21 million Afri
cans living in urban areas outside the reserves in the year 2000. Even
if thal figure is halved, the fact cmphasizes that this and not the
situation in the reserves is the heart of South Africa's race problem.
Even within the elastic framework of separate development, provision
must be made to give these people a political outlet at !east compar
able to that planned for the Bantustans.
"1lr. Nel's recognition of their permanence should now be trans
lated into action for treating them as such. Even in the world of
apartheid it is not possible to eat one's cake and still have it." 1
(2) South African "Natives"
(i) Robert Sobukwe, former Lecturer, University of the Witwaters
rand; President, Pan-Africanist Congress (sentenced upon conviction
of leading protcsts against the "Pass Laws"):
"... Freedom of the Africans means freedom of everyone, including
Europeans in this country. People will live and be governed as indi
viduals, and not as sectional groups. We reject apartheid and so
called multi-rac:ialism. Multi-racialism is pandering to European
arrogance, a method of safeguarding white interests. The logical
meaning of multi-racialism is proportional representation, and im
plies basic differences between national groups ... and that the best
course is to keep them apart in a form of democratie apartheid ...
We believe thal everyone ·prepared to accept and give loyalty to
Africa is an African." 2
(ii) Phyllis Ntan tala, writer:
"Widowhood--a !ife of void and loneliness ... this is the dai!y lot of
tens of thousancls of African women whose husbands are torn away from
them ta go and work in the cities, mines and farms-husbands who
because of the migra tory labour system cannat take their wives with
them and, because of the starvation wages they receive, are forced
to remain in the work centres for long periods-strangers in a strange
land-but equally strangers at home to their wives and children .... " 3
(3) South African "Asialies"
(i) Nana Sita, trader in Pretoria since rgr3 (sentenced in rg62
upon conviction for refusai to move from the house and shop, occupied
by him for 39 years, which was "proclaimed" within a "White Group
Area") (statement to the Court during trial):
"1t is known to this Honourable Court that we Indians had no
saYing in the passing of the Act since we do not possess the vote.
At no time were we ever given an opportunity to present our objection.
The Act had been passed and promulgated not only without our
consent but in the face of the unanimous opposition of our people....
"The Government has from time to time declared the Act as the
corner-stone of the Apartheid policy. In order to bring that policy
1 "The End of a Myth," The Star,Johannesburg, weekly edition,14 September
1963.
2 A/rica South,pp. 24-25 (July-September 1959).
3 "The 'Vidows of the Reserves," 2 Africa South,No. 3, p. 9 (April-June1958). REPLY OF ETHIOPIA AND LIBERIA
599
to fruition separate area.s are being proclaimed in practically every
town and city in the country. In doing so, in my opinion, the Govern
ment desires to achieve two objects: success of the Apartheid policy
and the total economie ruination of the Indian community. This would
oblige its members to leave the country 'on their own accord.'
"... Implementation of this policy against us through the Act brands
us as inferior people in perpetuity, degrades our self-respect as human
beings, condemns us as uncivilized barbarians having no culture and
no spiritual background, thereby deriding our serene philosophy
and way of !ife. The 13 million Non-Europeans of South Africa
African, Indian and Coloured-are branded as untouchables. My
conscience and my religions training obliges me to resist such a
doctrine with ali the force my mind and body is capable of. This
1
much for the Apartheid policy of the Government."'
1 M. Friedmann (ed.),I Will Sl'illBe Moved: Reports {rom South Africa, 18,
19, 20 (1963). ANNEX I2
SUPPLEJ\!ENTARY i\IATERIAL CONTAINING ADDITIONAL
VIEWS OF CONTDIPORARY SCIENTIFIC AUTHORITIES
(Supptemental ta excerpts quoted supra, pp. 305-3I2.)
(i) Dr. Clyde Kluckhohn, latc Professor of Psychology, Harvard Uni-
versity:
"... There is no evidence whatever that the genes which determine
skin color or hait form are correlated with genes influencing temper
ament or mental capacity." 1
(ii) Dr. G. M. Morant, University of London:
"... Evidence provided by tests of mental characters also appcars to
givc strong ~.uppo trt the hypothesis that all men have basic
2
mental qualitics of the same kind."
(iii) M. E. Moq;aut noted:
"Quoi qu'il en soit, cette 'Intelligence pratique à vocation technique'
est diversem(mt répartie entre les populations examinées, avec
d'assez sensibles différences, mais sans que l'on puisse dire:
(a) que les Blancs en soient mieux dotés que les Noirs
(b) que certaines populations autochtones soient d'une supériorité
écrasante sur d'autres .... "3
(iv) Dr. Juan Comas, National Autonomous University of Mexico:
"There is no scientific basis whatsoever for a general classification
of races according to a scale of relative superiority, and racial
prejudices and myths are no more than a means of finding a scape
goat when the position of individuals and the cohesion of a group
are threatened. "i
(v) Report of Panel of Social Scientists convened by the United
Nations Educational, Scientific and Cultural Organization, July rgso:
"According to present knowledge there is no proof that the
groups of mankind differ in their innate mental charactcristics,
whether in respect of intelligence or temperament. The scientific
evidence indicates that the range of mental capacities in ali ethnie
groups is much the same." 5
1
1 Mirror for Man 125 (1949).
The Sig1ti{icance of Racial Differences 39 (1952). Otto Klinebergof the Uni
versity of Paris, also argues that racial difference in inncapacity is contradic
ted by the evidence.Cf. Race and Psychology, p. 17 (1951). Professor Dr. Alejandro
Lipschutz of Chile a1lirms tao that there can be no objectimeasurement of biolo
gical worth. See El Indoamericanismo y el Problema Racial en las Américas 97
(1944); see also Fernando Ortiz, El Engano de las Razas 264-67 (1946).
3"Note sommaire sur quelques comparaisons psychologiques entre des populations
Africaines,l\lalgach•:s et Européennes,"9 Revue de Psychologie Appliquée, No. 1
p. 28 (January 1959).
4 Racial Myths 10 (1951). (Italics in originaL)
s UNESCO "Statement on Race," in What is Race? Evidmce from Scientists
79 (r952). REPLY OF ETHIOPIA AND LIBERIA Gor
(vi) L.C. Dunn and T. Dobzhansky, of the Department of Zoology of
Columbia University (U.S.A.) testify:
"... The differences between the so-called 'ract: psychologies' are
determined by the cultural differences to an extent assuredly
greater than they may be influenced by biological heredity. Further
more, psychic differences between individuals are certainly much
greater than the average differences benveen nations or races." 1
(vii) Arthur Ramos, of the University of Brazil:
" 'Superioridades' e 'inferioridades', em relaçao aos tipos for
madores, quando ocorrem, estao ligadâs a fatôres de ordem social e
cultural, e nadâ têma ver com o aspecta biol6gico de mestiçagem." 2
[" 'Superiority' and 'inferiority,' in relation to the resulting
patterns, when they oc:cur, are linked to social and cultural factors
and have nothing to do with the biological aspect of race~mixture."J 3
(viii) Dr. Claude Lévi-Strauss, Collège de France (d1scussing contri
butions to \vorld civilization by various races and cultures):
" ... If their· contributions are distinctive-and there can be
little doubt that they are-the !act is to be accounted for by geo
graphical, historical, and sociological circumstances, not by special
aptitudes inherent in the anatomical or physiological make-up of
the black, yellow, or white man." 4
(ix) Dr. Juan Comas:
"In comparisons of the position of the white and Negro racts
today there is a tendency to assume the inferiority of the latter
from the fact that the.ir economie, political and cultural evolution is
far behind that of the whites. This, however, is not due to an
'innate racial inferiority,' but is pm·ely the result of circumstances
and duc to the régime of exploitation uncler which almost all
Negroes live toda y as a result of white colonization and of the exis
tence, if not of slavery in law, of conditions equivalent to it in
practice.''5
(x) Similarly, M. Leiris, of the Muséede l'Homme, Paris, argues that
"... Race prejudice only began to develop ... with the opening
of the pcriod of colonial expansion by the European peoples, when it
becomes ncccssary to excuse violence and oppression by decreeing
the inferiority of those enslaved or robbed of their own land and
denying the tille of men to the cheated peoples .... "
"... Racial prejudice is not innate." 6
(xi) Dr. A. Cryns:
"... The surn total of the research cited seems to indicate that a
definite effect of certain environmental factors upon test perfor
mance cannat possibly be denied: for instance, education has
1Heredity, Race and Society ·c34 (3d ed. 1957).
2 Introduçàoà Antropologia Drasileira360, Vol. II (1947).
3Ibid. [translation].
4Race and History 6 (r952).
5 Racial fofyths 24-25 {1951). A. Lipschutterms this practice"racial hypocnsy"
(justifyingsocial privilegeby psychological pseudo-arguments). See El Indoameri
canismo y el Problema Racial en las Américas 75 (1944).
6 Race and Culture 41-4-2 (rg:;r).6o2 SOUTH WEST AFRICA
consistently the effect of improving African intelligence test scores." 1
(xii) Dr. Anthony Richmond:
"Racial classifications take no account of cultural differences
between groups of people. There is no necessary connexion between
race and, for example, language, nationality, or religion. These are
cultural traits which are the consequence of environmental in
fluences. So also are most expressions of temperament and person
ality. Intelligence. which most psychologists believe to be deter
mined more by heredity then by environment, appears to show a
nonnal curve of distribution in all races. \Vhere the average perfor
mance of Europeans appears to have been superior to the average
performance of non-Europeans this is almost ccrtainly due to the
difficulty of creating satisfactory tests of intelligence which are
independent of culture. In any case, almost ail such investigations
show that sorne non-Europeans far exceed sorne Europeans in
intelligence and vice versa. " 2
1
"African IntelligenceA Critical Survey of Cross-culturalIntelligenceResearch
in2Afrîca South of the Sahara," 57 fotwnal of Social Psycholof!y, No. 2, p. 299 (1962).
The Co/our Problcm: A Study of Racial Relations 16-17 (1q61 ed.). LIST OF THE RELEVANT DOCUMENTS
I. Documents of the United Nations
A. Resolutions of the G"neral Assembly
r. G.A.O.R. rst Sess., Resolutions (A/64)
2. G.A.O.R. 3rd Sess., Resolutions (A/Sro)
3· G.A.O.R. 4th Sess., Resolutions (A/1251)
4· G.A.O.R. 5th Sess., Supp. No. 20 (A/1775)
5· G.A.O.R. 6th Sess., Supp. No. 20 (A/2II9)
6. G.A.O.R. 7th Sess., Supp. No. 20 (A/2361)
7· G.A.O.R. 8th Sess., Supp. No. 17 (A/2630)
8. G.A.O.R. 9th Sess., Supp. No. 21 (Afz8go)
9· G.A.O.R. roth Sess., Supp. No. 19 (A/3IIb)
ro. G.A.O.R. rrth Sess., Supp. No. 17 (A/3572)
rr. G.A.O.R. r2th Sess., Supp. No. r8 (A/3805)
12. G.A.O.R. 13th Sess., Supp. No. rS (A/4090)
13. G.A.O.R. 14th Sess., Supp. No. r6 (A/4354)
14. G.A.O.R. r5th Sess., Supp. No. r6 (A/4684)
15. G.A.O.R. rsth Sess., Supp. No. r6A (A/4684/Add.r)
r6. G.A.O.R. r6th Sess., Supp. No. 17 (A/5roo)
I]. G.A.O.R. r7th Sess., Supp. No. I] (A/5217)
rS. G.A.O.R. rSth Sess., Supp. No. r5 (A/5SI5)
B. Reports of the Trusteeship Council
r. G.A.O.R. 3rd Sess., Supp. No. 4 (A/603)
2. G.A.O.R. 4th Sess., Supp. No. 4 (A/933)
3· G.A.O.R. 5th Sess., Supp. No. 4 (A/1306)
4· G.A.O.R. 6th Sess., Supp. No. 4 (A/r856)
5· G.A.O.R. 7th Sess., Supp. No. 4 (A/2150)
6. G.A.O.R. 9th Sess., Supp. No. 4 (A/268o)
]. G.A.O.R. roth Sess., Supp. No. 4 (A/2933)
S. G.A.O.R. rrth Sess., Supp. No. 4 (A/3170)
9· G.A.O.R. r2th Sess., Supp. No. 4 (A/3595)
ro. G.A.O.R. r3th Sess., Supp. No. 4 (A/3822. Vol. Il)
II. G.A.O.R. 14th Sess., Supp. No. 4 (A/4100)
12. G.A.O.R. rsth Sess., Supp. No. 4 (A/4404)
13. G.A.O.R. r6th Sess., Supp. No. 4 (A/4818)
14. G.A.O.R. r7th Sess., Supp. No. 4 (A/5204)
C. Reports of the Committee on Information from Non-Self-Governing
Territories
r. G.A.O.R. 6th Sess., Supp. No. 14 (A/r836)
2. G.A.O.R. 9th Sess., Supp. No. rS (A/2729)
3· G.A.O.R. mth Sess., Supp. No. r6 (A/2go8)
4· G.A.O.R. rrth Sess., Supp. No. rs (A/3127)
s. G.A.O.R. r2th Sess., Supp. No. rs (A/3647)
6. G.A.O.R. 14th Sess., Supp. No. IS (A/4rii)
7· G.A.O.R. rsth Sess., Supp. No. rs (A/4371)
D. Reports of the Commiltees on South West A/rica
r. G.A.O.R. 9th Sess., Supp. No. 14 (A/2666)
2. G.A.O.R. rrth Sess., Supp. No. 12 (A/3r5r) SOUTH WEST AFRICA
3· G.A.O.R. 12th Sess., Supp. No. 12 (A/3626)
4· G.A.O.R. 13th Sess., Supp. No. 12 (A/3906)
S· G.A.O.R. 14th Sess., Supp. No. 12 (A/4191)
6. G.A.O.R. 1Sth Sess., Supp. No. 12 (A/4464)
7· G.A.O.R. 16th Sess., Supp. No. 12 (A/49S7)
8. G.A.O.K 16th Sess., Supp. No. 12A (A/4926)
9· G.A.O.R. 17th Sess., Supp. No. 12 (A/S212)
E. Resolution:; of the Security Council
r. S/4300, 1 April 1960
2. S/5386, 7 August 1963
3· S/S47', 4 December 1963
F. Meetings of the Security Council
I. S.C.O.R. 13th year, 1053rd mtg. (SfPV.l053)
2. S.C.O.R., rsth year, Ssznd mtg. (SjPV.Ssz)
3· S.C.O.R., 15th year, 854th mtg. (SjPV.8S4)
4· S.C.O.R., 18th year, 1os2nd mtg. (SjPV.1os2)
S· S.C.O.R., 18th year, 1ossth mtg. (StpV.1ossl
G. Records of the Fourth Committee
r. G.A.O.R. rsth Sess. (A/C.4/SR.1II3) (1g6o)
2. G.A.O.R. 16th Sess. (A/C-4/So7) (1961)
3· G.A.O.R. 17th Sess. (A/C.4/SR.138o) (1962)
4· G.A.O.R. 18th Sess. (AjC.4/SR.1461) (1963)
H. Records of the Special Political Committee
r. G.A.O.R. 13th Sess. (AjSPCjSR.8g) (1958)
2. G.A.O.R. 14th Sess. (A/SPCjSR.336) (19S9)
3· G.A.O.R. 16th Sess. (A/SPCfSR.z7S) (1961)
4· G.A.O.R. 17th Sess. (A/SPC/SR.31, 334, 336) (1962)
5· G.A.O.R. 18th Sess. (A/SPCjSR. 390) (1963)
I. Reiated Documents of the United Nations
r. ECOSOC, O.R., 16th Sess., Supp. No. 13 (r9S3)
2. G.A.O.R. rst Sess., Part. 2, Supp. No. S (Trust Territories
Agreements)
3· G.A.O.R. 3rdSess.,6thComm., 138thmtg.,7Dec. 1948,p.76S
4· G.A.O.R. 4th Sess., Rep. of the Int'l Law Comm., Supp.
No. 10 (A/92S)
s. G.A.O.R. sth Sess., Supp. No. 10 (A/1294)
6. G.A.O.R. sth Sess., Rep. of Sub-Comm. on Education in
N.S.G.T.'s, Supp. No. 17 (Aj1303/Add.1)
7· G.A.O.R. 18th Sess., Sp. Comm. on Colonialism (A/S446/
Add. z)
8. G.A.O.R. 18th Sess., rzo9th mtg. (AjPV.1209) (1963)
9· G.A.O.R. r8th Sess., Sp. Comm. on Implementation, Petitions
(A/AC.109/Pet.z1s)
10. Progress of the N.S.G.T.'s Under the Charter (STfTRI/SER.
A/1S/Vol.z)
II. Progress of the N.S.G.T.'s Under the Charter (STjTRI/SER.
A/rs/Vol.3)
12. Repertory of Practice of United Nations Organs, Vol. 4.
p. ro9 (r9SS); Supplement No. r, p. 191 (r9s8) REPLY OF ETHIOPIA AND LIBERIA 6os
13. Report of Third Comm. (A/sooo, Anncx) (rg6r)
14'. Report of Third Comm. (A/5365, Anncx) (rg62)
15. Report of Thini Comm. (A/5655, Annex) (rg63)
r6. S.C.O.R. Sp. Comm. on Apartheid (S/5375) (rg63)
17. S.C.O.R. Sp. Comm. on Apartheid (S/5426) (rg63)
r8. S.C.O.R. Sp. Comm. on Apartheid (S/562r) (rg64)
rg. S.C.O.R. Rep. of S.G. (S/5658) (rg64)
20. U.N. Doc. A/5634 (rg63)
zr. U.N. Doc. AjAC.n5/L.29 (rg63)
22. U.N. Doc. EJCN-4fSub.2f4ofRev.r, 1\Iain Types and Causes
of Discrimil•ation, p. 43 (1949)
23. U.N. Doc. E/CN.I4/I32/Rev.r, Economie and Social Con
sequences of Racial Discriminatory Practices, pp. 17, 38, 46,
47, 6r (U.N. Pub., Sales No.: 63.II.K.r)
24. U.N. Doc. S/4787 (rg6r)
25. U.N. Doc. S/53?5 (rg63)
z6. U.N. Doc. S/55I5 (rg64)
27. United Nations,Treaty Series, Vol. r5, pp. 36, ro6 (rg48);
Vol. 78, pp. 2 8, 282 (rgsr), Vol. ng, pp. 3, 52-53, 6o-62
(r952); Vol. 213, pp. 222, 232 (r955); Vol. 2r8, pp. 346,
358 (rgss); Vol. 320, p. 292 (rgsg)
28. [r949] Yearbook of the International Law Commission r48,
r6g-7o
II. Documents of the League of Nations
A. 1\1inutes of the Permanent Mandates Commission
r. P.M.e. Min., rst Sess., p. 6
2. P.M.e. Min., 2nd Sess., pp. 68, 86
3· P.i\!.C. lllin., 3rd Sess., pp. 6r, ro4-05, zzr-23, 293
4· P.M.e. Min., 4th Sess., pp. 63, 64, 79, rsr, r57, r64
5- P.M.C. Min., 5th Sess., pp. r8, r45, r78
6. P.M.C. Min., 7th Sess., pp. r56-58
7· P.M.e. Min., 8th Sess., p. 200
8. P.i\!.C. Min., gth Scss., pp. 193-95
g. P.M.C. Min., roth Sess., p. 22
ro. P.M.C. Min., nth Sess., pp. r66-67, rgg, 204
rr. P.M.e. ;\lin., qth Sess., pp. ro4, n6
rz. P.M.e. Min., rsth Sess., pp. rZI-22, r?O, 204, 276
r3. P.M.C. Min., r8th Sess., pp. 34, 135, r36
14. P.M.e. Min., zoth Sess., pp. rg6, 200, 229
rs. P.M.C. Min., 22nd Sess., pp. rq-rs
r6. P.M.e. Min., 26th Sess., pp. so. 52, rrs, r64
r7. P.M.e. Min., 28th Sess., pp. r34, r38
r8. P.M.e. Min., 34th Sess., pp. gr, r3o
rg. P.M.e. Min., 36th Sess., pp. r8, 39, rzs, zo6, 207, 279
B. Related Documents of the League of Nations
I. L. of N. Doc. C.L. no. rg27. I. Annex, in League of Nations
Pub. I.B. minorities (rg20-1933)
2. League of Nations, Of}. ]., 2rst Ass., Sp. Supp. No. rg4
(rg46)6o6 SOUTH WEST AFRICA
3· League of Nations Treaty Series, Vol. 5, pp. 337, 343, 345
(1921): Vol. 9. pp. 175, 179 (1922)
4- Article 22 of the Covenant of the League of Nations
5· The lllandate for German South West Africa
III. Documents of the International Labour Organisation
A. International Labour Conference
r. International Labour Conference, 26th Sess., Record of
Proceedings (1944), pp. 621, 622
2. International Labour Conference, 42nd Sess., Record of
Proceedings (1958), p. 834
B. Report of the Ad Hoc Committee on Forced Labour, Studies and
Reports (New Series) No. 36 (U.N. Doc. E/2431) (1953)
C. Report of the Committee on Questions Conceming South Africa,
G.B. rsS/2/5 (International Labour Conference, rsSth Sess.,
Geneva (r964). Annex ("An I.L.O. Programme for the Elimi
nation of 'Apartheid' in Ltbour lllatters in the Republic of
South Africa.")
IV. Republic of South Africa
A. Legislative Acts and Proclamations
r. Act No. 39 of 1930
Amended by Act No. 39 of 1932
Amended by Act No. 50 of 1949
Amended by Act No. 44 of 1955
Amended by Act No. 42 of 1959
2. Act No. 30 of 1941
Amended by Act No. 27 of 1945
3· Act No. 36 of 1949
4· Act No. 44 of 1949
5· Act No. 5 of 1951
6. Act No. 27 of rg5r
Amended by Act No. 6o of 1955
6a. Act No. 47 of 1953
7· Act l\o. sr of 1956
8. Act l'-'o. 56 of 1954
9· Proclamation No. 173 of 1956
ro. Act No. 8 of 1959
r r. Proclamation No. 271 of 1959
12. Act No. 64 of 1961
13. Proclamation No. 7 of rg6r
14. Act No. 64 of rg62
15. Proclamation No. 202 of rg6z
B. Excerpts /rom debates in the Parliament of the Republic of South
A/rica
r. Senate debates
a. roth Pari., 4th Sitting (weckly ed., 1951). Cols. 2893-2894
b. nth Pari., znd Sitting (weekly ed., 1954), Cols. 2598-zsgg,
2606-2607, 2618-z6rg REPLY OF ETHIOPIA AND LIBERIA 607
2. House of Assembly debates
a. 9th Pari., 5th Sess. (weekly ed., 1948), Col. r67o
b. rrth Pari., rst Sitting (weekly ed., 1953), Cols. 3576, 3577,
3580, 3585, 3586
c. 2nd Pari., rst Sitting (weekly ed., rg58), Col. 3805
d. r2th Pari., 2nd Sitting (weekly ed., 1959), Cols. 6r-65
e. r2th Pari., 2nd Sitting (weekly ed., 1959), Col. 88
f. r2th Pari., 2nd Sitting (weekly ed., 1959), Col. 6174
g. rst Pari., rst Sess. (weekly ed., r96r), Cols. 7394-7395
h. 2nd Pari., rst Sess. (weekly ed., 1962), Col. 92
i. 2nd Pari., 2nd Sess. (weekly ed., rg63), Col. 242
j. 2nd Pari., 2nd Sess. (weekly ed., 1963), Cols. 2384-2389
k. 2nd. Pari., 2nd Sess. (weekly ed., rg63), Col. 8sr8
C. Reports and Memoranda
r. Report of Native Economie Commission I9JO-I9J2 (U.G.
22/1932) (r932L p. ror, para. 694
2. Departmental Commission on Native Education Report, paras.
458-59 (U.G. No. 29/1936) (r936)
3· Social and Economie Planning Council Report No. 9: The
Native Reserv aned~t:eir place in the Economy of the Uni on
of South A/rica (U.G.32/r946) (1946), p. J, para. 13
4· Report of the Native Laws Commission I946-48 (U.G. z8/r948)
(1948), p. 19, para. z8
5· Social and Economie Planning Council Report No. IJ: The
Economie and Social Conditions of the Racial Groups in South
A/rica: (U.G. SJ/rg48) (rg48), p. roS, para. r62.
6. Report of the Commission on Native Education, I949-I95I,
paras. 235, 765, 773, 924 (U.G. 53/I95I) (rgsr)
7· Summary of the Report of the Commission for the Socio
Economic Development of the Bantu Areas within the Union
of South A/rica: (U.G. 6rjrg55) (r955)
8. Report of the Commission of Enquiry on Separate Training
Facilities for Non-Europeans at Universities, p. 27 (1955)
g. Education for South A/rica, The rg6r Education Panel
First Report, pp. r, 56 (rg63)
ro. Report of the Commission of Enquiry into the Teaching of the
Official Language and the Use of Mother Tangue as Medium
of InstructionÙt Transkeian Primary Schools, pp. 14, 17-20,
R.P. 22 (r963)
II. Report of the Commission of Enquiry into South West Africa
A flairs962-1963 (Odendaal Commission Report)
r2. Memorandum, 29 April rg64
V. South West Africa
A. Proclamations, Ord1"nancesand Government Notices
r. Proclamation No. 25 of 1920
Amended by Proclamation No. 32 of 1927
Amended by Ordinance No. 3 of rg6z
2. Proclamation No. 34 of rgzo
Amended by Proclamation No. rg of 1923
J. Proclamation No. II of 19226oS SOUTH WEST AFRICA
4- Proclamation No. r6 of rgz6
Amended by Ordinance No. rg of rg6o
5· Proclamation No. 15 of rgz8
6. Proclamation No. 29 of 1935
Amended by Proclamation No. 38 of 1949
7- Proclamation No. 30 of 1935
8. Ordinance No. 12 of 1938
Amcnded by Ordinance No. 15 of 1948
Amended by Ordinance No. 25 of 1957
Amended by Orctinance No. 20 of 1959
g. Proclamation No. 56 of 1951
ro. Ordinance No. 25 of 1954
rr. Government Notice No. 33 of rgs6
12. Government Notice No. z8 of 1957
13. Government Notice No. 42 of 1957
14. Government Notice No. 122 of 1957
rs. Governmcnt ~otic N o. rz8 of 1957
16. Ordinance No. 2 of 1962
IJ. Ordinance No. 27 of 1962
r8. Proclamation No. 84 of 1963
B. Other Documents of South West A/rica
r. Memorandum of Education Policy Adopted with Reference to
Reports of Commissions of Enquiry Regarding Europeans and
Non-Europeans Appointed in I956 and I958, p. 29 (r96o)
2. S.\V.A. Administration, Estima/es During the 1..ear Ending
Jrsl Marclt, I964 (1963), pp. 6, 47, 49, 50, 52
VI. Related Documents
A. Books
I. Allpon, The Nature of Prejudice, pp. 470-JI, 472 (1954)
2. Asher et al., The United Nations and Promotion of the
General Welfare, pp. 871-933 (1957)
3· Baker, Woodrow Wilson and World Settlement, p. 428 (1922)
4- Beer, Ajrican Questions at the Paris Peace Conference,
pp. 424-25 (1923)
5. Bentwich, The Mandates System vi (1930)
6. Berger, Equality by Statute, p. r86 (1952)
7· Black's Law Dictionary, p. 1568 (4th ed., I95I)
8. Brierly, The Law of Nations, p. 293 (6th cd., 1963)
9· Callan, AlbertJo/m Luthuli and the South African Race
Confiict, pp. 57-58 (rg6z)
ro. Carter, The Politics of Inequality, pp. 416-17 (1958)
II. Clark, Prejudice and Your Child, p. 47 (2nd cd., 1963)
rz. Clyde, ]apan's Pacifie Mandate, pp. 204-05 (1935) .
13. Colin & Capitant, Cours Elémentaire de Droit Civil Françats,
Vol. r.p. 590 (r947)
14. Comas, Racial Myths, pp. ro, 24-25 (1951)
15. Conférence de la Paix, I9I9-I920, Recueil des Acles de la
Conférence, Partie VIA, pp. 330, 336, 342, 349, 350, 354,
356, 379. 402-0J, 406, 408 (1934) REPLY OF ETHIOPIA AND LIBERIA 6og
r6. Cowen, The Foundations of Freedom, p. 35 (rg6r)
17. Dean and Rosen, A M anual of Intergroup Relations, pp. 59-60
(rg63) ·
r8. de Kiewict, A History of South Africa: Social and Economie,
pp. rg-20, 24, 242-43 (1941)
rg. de Kiewiet, TIM Anatomy of South African Misery, pp. 25,
47-49. 54. 55. 7' (rg56)
20. Doxey, The lndu.strial Colour Bar in South A/rica, p. 200
(rg6r)
21. Dunn and Dobzhansky, Heredity, Race and Society, p. 134
(3d ed. 1957)
22. Encyclopédie de Droit Civil-Dalloz (Paris), jurisprudence
GénéraleDalloz (rgjr), Vol. I, pp. 29, 491; Vol. III, p. 668
23. Fagan, Our Responsibility: A Discussio11of South Africa's
Racial Problems, p. 47 (rg6o)
24- Fauchille, Traité de Droit International Public, Tome I,
ze Partie, pp. 820-24 (r925)
25. [r8gg] Foreign Relations of the United States, pp. 614, 632,
638. 640-48. 653-55. 657-59
26. [rgr8] Foreign Relations of the United States, Vol. I, Supp.
I, p. 407
27. [1919] Foreign Relations of the United States (Paris Peace
Conference), Vol. I, pp. 407, 761; Vol. III, pp. 718-28,
738-48, 741, 758-7I, 785-95, 797-808; Vol. V, p. 700; Vol. IX,
pp. os5-s6. 700
z8. Ganji, International Protection of H1tma11Rights, p. 271 (rg62)
29. George, The Truth about the Peace Treaties, Vol. 1, p. nS
(1938)
30. Golding, The Coloured Man Speaks, p. 3 (1952)
JI. Guggenheim, 1Traüéde Drot'tinterna#onal publt'c,pp. 301-02
(1954)
32. Hailey, An African Survey, pp. 163-64, r66, r6g, 428, 434,
764, 1386 (3d ed., 1957)
33· Hall, Mandates, Dependencies and Trusteeship, pp. 31, 65,
68, 6g (1948)
34· Horrell, A Decade of Bantu Education, pp. 142, 147 (rg64)
35· Hucldleston, Naught for Y our Comfort, pp. 53-54 (rg56)
36. Hudson, International Legislation, Vol. I, pp. 312, 318-rg
(1931)
37· International Commission of Jurists, South A/rica and the
Rule of Law, pp. 37, 77, So, 88, gr (rg6o)
38. Jcnks, Human Rights and International Labour Standards,
p. 74 (rg6o)
39· Jessup, A Modern Law of Nations, p. gr (1948)
40. Joshi, Unrest in South A/rica, vii (rg58)
41. Kaplan and Katzenbach, The Political Foundations of
International Law, p. 258 (rg6r)
42. Keet, The Ethics of Apartheid, pp. 14, r8-r9 (1957)
43· Klineberg, Race and Psychology, p. 17 (rg5r)
44· Kluckhohn, Mirror for Man, p. 125 (1949)
45· Kuper, Passive Resistance in South A/rica, p. 210 (rg56)
46. Latham, The Sig-nificance of the Peace Conference from an
Australian Point of View, pp. rr-12 (rgzo)6ro SOUTH WEST AFRICA
47· Lauterpacht, An International Bill of the Rights of Man,
p.IIj (1945)
48. Lauterpacht, International Law and Humm• Rights, pp. 147-
4S (1950)
49· Lawson, A Common Lawyer Looks at the Civil Law, p. 203
(1953)
so. Lee, Elements of Roman Law, p. 327 (1st ed., 1944)
sr. Leiris, Race and Culture, pp. 41-42 (195r)
52. Lepaulle, Traité Théoriqueet Pratique des Trusts, pp. 207,
354 (r932)
53. Lévi-Strauss, Race and History, p. 6 (1952)
5+ Lipschutz, El Indoamericanismo y el Probléma Racial en las
Américas, p. 97 (1944)
55. Lugard, The Dual Mandate it> Britisl• Tropical A/rica,
p. 454 (1922)
56. Luthuli, Let My PeopleGo: An Autobiography, pp. zoz, 245
(1962)
57· MacCrone, Race Attitudes in South A/rica: Historical, Ex
perimental and Psycho/ogical Studies, pp. 107-roS, r29-r30,
261 (r957)
sS. Margalith, The International Mandates, p. 13 (1930)
59· Maelver, The Web of Government, p. 428 (1947)
6o. Maddcn, Handbook of the Law of Persans and Domestic
Relations,pp. 461, soS (rgJr)
61. TheM andatesSystem: Origin-Principles-A pplication,pp. 6,
23 (1945), League of Nations Pub. No. r945.VI.A.I
6z. Marais, The Cape ColouredPeople I652-I9J7, pp. 5-8, IJ-r6,
z8z-ûi4 (1939)
63. Marquard, South Africa's Colonial Policy, pp. 25-26 (1957)
64. Matthews, Social Relations in a Common South African So
ciety,pp. r7, zr (rg6r)
65. Miller. The Dra/ting of the Covenant, Vol. I, pp. 27, 4r, 44,
47, ro6-ro7, roS, rog; Vol. II, pp. 35, 88, ro4, r53, 589, 655
(r9z8}
66. Molteno, The Betrayal of Natives' Representation, p. rs (r959)
67. Morant, The Significance of Racial Differences, p. 39 (r952)
68. Mphahlele, The African Image, pp. 33-34 (rg6z)
69. Ortiz, El Engano de las Razas, pp. 264-67 (1946)
70. Paton, The People Wept, p. 44 (r958)
7L Pelichet, La Personnalité Internationale Distincte desCollecti
vitéssous Mandat, pp. 29-30 (r932)
72. Pistorius,No Further Trek, pp. 3S-39 (r957)
73. Ramos, Introduçao à Antropologia Brasileira, Vol. II, p. 360
(r947)
74· Richmond, The Co/ourProblem: A Study of Racial Relations,
pp. rG-r7 (rg6r ed.)
75. Rody:;,Cours Elémentairede Droit Civil Français etCanadien,
p. 56 (r956)
76. Rosenne, The ltoternational Court of Justice, p. 26 (r957)
77· Rosbm, Apartheid and Discrimination, pp. 55-58, S7 (rg6o)
78. Saenger, The Social Psycho/ogy of Prejudice, pp. 240, 271
(r963:1 REPLY OF ETHIOPIA AND LIBERIA 6rr
7g. Schapera, The Khoisan Peoples of South A/rica, pp. 27-31,
40-43 (1930)
8o. Schreiner, Gloser Union, pp. z8-2g (2nd ed., c. 1g61)
Sr. Schreiner, Realism in Race Relations, pp. 17, 20 (1g62)
82. Scott, Official History of Australia in the War of I9I4-I9I8,
Vol. XI, pp. 763-89 (rg38)
83. Scott, II The Law of Trusts, p. 128g (2nd ed. 1956); Vol. I,
p. 70
84. Seymour (ed.), The Intimate Papers ofColonelHouse, Vol. IV,
pp. 192-200 (1926-rgzS)
85. Smuts, A/rica and Some World Problems, pp. g4, g6, g8,
(rg30)
86. Smuts, The League of Nations-A Practical Suggestion,
pp. 14, 27-28 (Igr8)
87. South African Institute of Race Relations, A Survey of
Race Relations in South A/rica (rg62), p. Zig; (1963), p. 75
88. Stoyanovsky, La Théoriegénérale des mandats internationaux,
p. Sr (1g25)
8g. Suchrnan, et al., Desegregation: Some Propositions and
Research Suggestions, p. 37 (rg58)
go. Tatz, Shadow and Substance in South A/rica, p. qS-49 (rg62)
gr. Thompson, The Unification of South Africa, I902-I9IO,
pp. II4, n6, 1.33(1960)
92. Tillman, Anglo-American Relations at the Paris Peace Con
ferenceof I9I9, pp. 61, 87 (rg6r)
93. Tobias, The Meaning of Race, p. 22 (1961)
94· Tumin, Desegregation: Resistance and Readiness, pp. 22,
168-6g (1g58)
g5. van der Horst, Native Labour in Smith A/rica, pp. 319-322
(1g42)
g6. van Rensburgh, Guilly Land, pp. 138-3g (1g62)
97. Walker, A History of Southern A/rica (3d cd., 1957)
g8. Williams, Redttction of Intergroup Tensions, pp. 73-75 (1g47)
gg. Williams and :Ryan, Schools in Transition, p. 247 (1g54)
100. Wright, Mandates Under the League of Nations, pp. 158,
472. 500, 516-17 (1930)
B. Periodicals,] ournals, etc.
r. 24American]ournalof International Law (1930), pp. 126,127
2. 35 American Journal of International Law (1941), p. 444
3. 40 American .Journal of International Law Supplement
(1946), pp. 83, 99
4. 43 American .Tournai of International Law Supplement
(1949), pp. 133, 134
s. II Annuaire de l'Institut de Droit International (rg2g),
pp. 298-gg
6. Arendse, Contact, rg April 1g63, p. r
7- Blumer, "Research on Race Relations: United States of
America," International Social Science Bulletin No. 3 (1958),
p. 432
8. Besson, L'Afri\rue Française (1921), p. 14612 SOUTH WEST AFRICA
9· Brookes, "South Africa and the \Vider Africa, 19IO-I96o,"
27 Race Relations journal, No. r, (January-March 1960), p. 8
ro. Cachalia, "The Ghetto Act," A/rica South, Vol. II, No. r
(October-December 1957), p. 39
II. Clark, "Desegregation: An Appraisal of the Evidence," 9
journal, of Social Issues (1953). pp. 71-72
12. Cooppa.n, Contact, 6 February 1960, p. 5
13. Cryns, "African Intelligence: A Critical Survey of Cross
cultural Intelligencl~esea rcA frica South of the Sahara,"
57 ]ou;•nal of Social Psycho/ogy, No. 2 (1962), p. 299
14. Curtis, "Windows of Freedom," Round Table (December
19I8), pp. 27-28
15. de Blank, XIII Africa Digest, No. 3 (December 1963), p. Sr
r6. Deutsch, "Sorne Perspectives on Desegregation Research,"
The Ro.!eof the Social Sciences in Desegregation: A Symposium
(r958). p. 5
17. du Plessis, "The New Era and Christian Calling Regarding
the Bantu in South Africa," Delayed Action: An Ecumenical
Witneso from the Afrikaans speaking Church (n.d. [rg6o])
18. Frankt:l, "The Tyranny of Economie Paternalism in Africa:
A Study of Frontier Mentality," supplement to Optima
(December 196o), p. 49
rg. Friedman, "South Africa and the Commonwealth," Looking
Outwards: Three South African Viewpoints (r96r), p. 7
20. Friedmann (ed.), I Will Still Be Moved: Reports from South
A/rica (1963), pp. rS, 19, 20
21. Friedmann, "The Hungry Sheep Look Up," The Spectator
(23 February 1962), p. 234
22. Hahlo, "The Trust in South Africa Law," 2 Inter-American
Law Review (r96o), pp. 229-30, 241
23. Kelly, "The Politics of Racial Equality," 24 New Zealand
] ournal of Public Administration No. 2 (1962), p. 32
24. Kerr, "Political Relations Between Advanced and Back
wards Peoples," in Grant, Introduction to the Study of
International Relations, p. 179 (1916)
25. i\!acQuarrie, "The New Order in Bantu Education," A/rica
South :'<o.1 (October-December 1956), pp. 40-41
26. Maslow, "Prejudice, Discrimination, and the Law," 275
Annal:; of the American Academy of Political and Social
Science 12, r6-r7 (1951)
27. Masan, 5 Race No. 4 (April 1964), p. 96
28. Morgaut, "Note sommaire sur quelques comparaisons psycho
logiques entre des populations Africaines, l\lalgaches et
Européennes," 9 Revue de Psychologie Appliquée, No. r
(JanmLry 1959). p. 28
29. Nixon, "Law, Race Relations, and Social Change in the
United States," 22 Race Relations Journal, No. I (1955). pII
30. Ntantala, "The Widows of the Reserves," A/rica South,
No. 3 (April-June rg58), p. 9
3I. Olivier, "The League of Nations and Primitive Peoples," in
League of Nations Pub. Series, p. 13 (1918)
32. Patter, "Negroes in Canada," 3 Race (November rg6r), p. 54 REPLY OF ETHIOPIA AND LIBERIA 613
33- Raab and Lipset, "The Prejudiced Society," in Raab (ed.)
American Race Relations Today (1962), pp. 48-49
34· Rose, "The Influence of Legislation on Prejudice.'' in Rose
(ed.),Race, Pr<'jttdiceand Discrimination (1951), p. 546
35. Schachter, "The Charter and the Constitution: The Human
Rights Provisions in American Law.'' 4 Vanderbilt Law
Review (April 1951), pp. 643, 646-59
36. Sncesby, ''The Vernacular in Bantu Education in the Union
of South Alric:>," 33 Oversea Education No. 2 (July 1961),
p. 75
37· A/rica Sottth (.July-Septernber 1959), pp. 24-25
38. Thompson, "Fi fty Years of Union," 27 Race Relations
Journal No. 2 (April-June 1960), pp. 66-67
39· van der Mand.;re, 54 Bulletin de la SociétéBelge d'Etudes
et d'Expansion 369 (1926)
40. Wilson, "The Early History of the Transkei and Ciskei,"
African StttdiesVol. r8, No. 4 (1959), pp. 167-79'
41. \Vilson, "The Principle of l\Iaintaining the Reserves for the
African," Race Relations Journal, No. 1 (January-March
1962), pp. 8-9
42. Wright, "National Courts and Human Rights-the Fujii
Case," 45 Amuican Journal of International Law (1951),
pp. 61, 70,72
C. Lectures and Addresses
r. Cowen, Liberty, Equality, Fraternity-Today: The Alfred and
Winifred Hoernlé Memorial Lecture, pp. 4, 35-36 (1961)
2. de Kiewiet, "Academie Freedom," the Second T. B. Davie
MemorialLecture, delivered in the University of Cape Town
on 26 July 1960, p. r8 (1961)
3· Matthews, Ajrican Awakening and the Universities: The
Third T. B. Davie Memorial Lecture Delivered in the Uni
versity of Cape Town on 15 August 1961, p. 2 (r96r)
4· Schreiner, Presidential Adclress to the South African Insti
tute of Race Relations: South A/rica-United or Divided,
pp. 6, 7 (rg64)
5· Centlivres, Thomas Benjamin Davie: The First T. B. Davie
Memorial Lecture Delivered in the University of CapeTown
on 7 May 1959, p. 7 (1961)
6. Souvenir of a Visit,Printecl on the authority of Mr. Speaker,
Cape Town (r96o), pp. 7-8
7· Speech by Mr. W. A. Maree, South African l\iinister of
Education, on 22 August 1959, broadcast on the South
African Broadcasting Corporation, 23 August 1959 (state
ment quoted by Dr. A. B. Xuma in a paper delivered to the
South African Institute of Race Relations Annual Council
l\Ieeting, 17-20 January 1961, p. 6,by courtesy of the News
Department of the South African Broadcasting Corporation,
Johannesburg) SOUTH WEST AFRICA
D. Newspapers
I. van der Ross, "Coloured Viewpoint," Cape Times, Cape
Town, 23 February 1961, p. 10
2. The Financial Mail, Vol. X, No. 15 (13 December 1963).
p. 887.
3· The Observer,London, 18 November 1962
4· Legum, "Tearing a Country Apart," The Observer, London,
z8 April 1963
5· Legum, "The Roots of Violence," The Observer, London,
5 May 1963
6. Uys, "The Golden Limb," The Spectator, London, 3 January
1964
7· The St"'· Johannesburg, 14 May 1962
8. The Star, Johannesburg (weekly ed., 14 Septernber 1963)
9· The Star, Johannesburg (weekly ed., p. 7, 18 January 1964)
ro. TlwStar, Johannesburg (weekly cd., p. 5, 25 January 1964)
rr.' The Windhoek Advertiser, 5 July 1960, p. 1
12. The Windhoek Advertiser, 2 April 1963
13. The Windhoek Advertiser, ro April 1963
14- The W,indhoek Advertiser, 6 August 1963
15. The Windhoek Advertiser, 12 Noveniber 1963
E. Special Re;)orts
I. 39 Int•ornational Law Association, Conference Rep. (1936),
p. 338
2. Commission to Study the Organization of Peace, Fourth
Report (1944), Part. III, p. 19
3· UNESCO "Statement on Race," in What is Race? Evidence
from Scientists (1952). p. 79
4· Report of Academicians, J urists and otbers, The Open
Universities in South Africa (1957), pp. 5-6, 30-31
5. Hewson (cd.), Cottesloe Consultation: The Report of the
Consultation among South African 1vfember Churches of the
World Council of Churches, p. 75 (n.d. [1g6r])
F. Miscellaneous
I. Parliamentary Dcbates (Lords), 212 H.L. Deb. (5th Ser.)
684 (HJ58)
2. British Information Services Release No. T. 11 of 23 March
1961 TABLE OF CASES
A. INTERNATIONAL CouRToF ]usneE
I. Conditions of Admission of a State to Membership in the United
Nations, I.C.J. l{ep. r947-I948 (Advisory Opinion)
2. Corfu Channel Case, I.C.]. Rep. I949
3· Competenceof the General Assembly for the Admission of aState to
the United Nations, I.C.J. l{ep. rgso (Advisory Opinion)
4· International Status of South-West Africa-Pleadings, Oral
Arguments and Documents
5. International Status of South-West A/rica, I.C.J. Rep. rgso
(Advisory Opinion)
6. Fisheries Case, I.C.J. Rep. rgsr
J. South-West Africa-Voting Procedure, l.C.J. Rep. I955 (Advisory
Opinion)
8. Admissibility of hearings of petitioners by the Committee on South
West A/rica, l.C.]. Rep. Ig56 (Advisory Opinion)
g. Case Concerning Norwegian Loans, I.C.J. Rep. 1957
ro. Certain Expenses of the United Nations, l.C.J. Rep. rg62 (Advisory
Opinion)
II. South West A/rica Cases (Preliminary Objections), I.C.J. Rep.
rg62
B. PERMANENT COURT OF INTERNATIONAL JUSTICE
I. 1l1avrommatis Palestine Concessions Cases, P.C.I.]., Ser. A,
Nos. 2 (r924), 5 (rgz:;), and II (rgz7)
2. Customs Régime Belween Germany and Austria, P.C.I.]. Ser.
AfB, No. 4I (rg3r)
3· Diversion of Water from the Meuse, P.C.l.]. Ser. A/B, No. JO
(I937)
C. ÜTHER INTERNATIONAL CASES
I. District Governor, Jerusalem-Jatfa District v. Murra, [rgz6] A.C.
32r (P.C.), [I925-rgz6] Ann. Dig. 46 (No. 32)
2. Attorney-General v. Altshuler, [rgzo-1933] L.R. Palestine 283,
[I927-I928] Ann. Dig. 55 (No. 33)
3· Jolley v. Mainka, (High Court 'of Australia), [I933-I934] Ann.
Dig. (No. 20)
4· Winter v. Minister of Defence [r940] So. Afr. Rep. App. Div.
I94 (r939), [I938-rg4o] Ann. Dig. 44-46 (No. 20)6r6 SOUTH WEST AFRICA.
5· Lawless v. freland, European Court of Human Rights, ser. A,
No. 3 (r .fuly rg6r)
6. De Becker v. Belgium, European Court of Human Rights, ser. A,
No. 4 (27 March rg6z)
D. }iUNICIPAL LAW CASES
r. Strauder v. West Virginia, roo U.S. 303 (r879)
2. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947)
3· Oyama v. California, 332 U.S. 633 (1948)
4· Fujii v. California, 217 P. zd 481 (1950)
5· Brown v. Board of Eduwtion, 347 U.S. 483 (1954)
Reply of the Governments of Ethiopia and Liberia